participation by the steamer and her officers in the struggle; and the minister of the United States in Honduras was instructed to inform the Government that such an allegation would "very materially modify" the opinion previously expressed. (Mr. Gresham, Sec. of State, to Mr. Young, min. to Honduras, May 6, 1893, For. Rel. 1893, 151.) The Pizatti was afterwards libelled at New Orleans under § 5283, R. S., for violation of the neutrality laws. (For. Rel. 1893, 152.)

V. VESSELS CONTROLLED BY INSURGENTS.

1. CASES AND OPINIONS, 1776-1860.

§ 329.

By the British statute of 17 George III., ch. 9, in 1777, after reciting that whereas a rebellion and war have been openly and traitorously levied and carried on in certain of His Majesty's colonies and plantations in America, and "acts of treason and piracy have been committed on the high seas, and upon the ships and goods of his Majesty's subjects, and many persons have been seized and taken, who are expressly charged or strongly suspected of such treasons and felonies, and many more such persons may be hereafter so seized and taken; and whereas such persons have been, or may be brought into this kingdom, and into other parts of his Majesty's dominions, and it may be inconvenient in many such cases to proceed forthwith to the trial of such criminals, and at the same time of evil example to suffer them to go at large;" it was enacted that all such persons (describing them) may "be detained in safe custody, without bail or main-prize, until the first day of January, one thousand seven hundred and seventyeight; and that no judge or justice of peace shall bail or try any such person or persons without order from his Majesty's most honourable privy council," before that time. (31 Pickering's Statutes, 312, continued annually by successive reenactments till the end of the war. Id. vol. 32, 1, 175; vol. 33, 3, 183; vol. 34, 1.)

Lawrence's Wheaton (1863), 249.

The operation of this act was confined mainly to American privateersmen captured by British cruisers. None, however, were executed as pirates under this statute, and all were ultimately exchanged or released.

Three British vessels were captured in 1779 by the Alliance, Captain Landais, of the squadron under John Paul The Bergen Prizes. Jones, and carried into Bergen, in Norway, where, on the demand of the British minister, they were seized by the Danish Government and restored to their owners on the ground that, as Denmark had not acknowledged the independence of the United States, the prizes could not be considered as lawful. In a note to

M. Bernstorf, the Danish minister for foreign affairs, of December 22, 1779, Franklin asked that the order of restoration be repealed, or that if it had been executed the value of the prizes, which was estimated at £50,000, should be paid by Denmark to the United States. M. Bernstorf answered evasively, though in substance he pleaded duress as an excuse for the order, which had been carried into effect. In 1787 Congress instructed Jefferson, who was then minister of the United States at Paris, to make a representation on the subject to the King of Denmark; and Jefferson authorized Jones to pursue the claim at Copenhagen. Nothing, however, was accomplished, and in 1806 Congress passed an act appropriating $4,000 to Landais as prize money on account of the captures. In 1812 Mr. Monroe as Secretary of State addressed an inquiry in regard to the claim to Mr. Pedersen, then Danish chargé d'affaires at Washington, who replied that his government never had considered the claim as legal, and that it now regarded it as superannuated and abandoned. Subsequently the matter was several times brought to the attention of Congress. In 1848, however, the Secretary of the Treasury was authorized to pay to the legal representatives of Jones, and of the officers, seamen, and marines, their just proportions of the value of the prizes, adjusting their claims on principles of justice and equity, after deducting from Landais' share the sum he had received under the act of 1806.

With reference to this case, Mr. Wheaton, in 1843, after remarking that Denmark, during the war of the American Revolution," remained passive," neither acknowledging the independence of the United States nor allying herself with either party, so that she was "bound to all the duties of impartial neutrality," except so far as they might have been modified by her treaty obligations to Great Britain, said: "This was not the case of an ordinary revolt in the bosom of a state, which has not yet assumed the character of a civil war, such as entitles both the contending parties to the rights of war in respect to each other, and to foreign nations. In the year 1779, the United States constituted a confederation of States, sovereign de facto, and engaged in war with Great Britain, in which the rights of war were acknowledged by the parent country. . . . The United States were associated, in the war against Great Britain, with two of the great powers of Europe-France and Spain; both of which had acknowledged their independence, whilst the former had concluded with them a treaty of intimate alliance. . . . The only reason said to have been alleged by the Danish Government for rescuing these prizes from the possession of the American captors in order to deliver them up to the original British owners, was, that Denmark had not yet acknowledged the independence of the United States. But the question is not whether she had acknowledged the independence of the United States, but whether such a state of war actually existed between the United

States and Great Britain as made it the duty of all nations professing to be neutral to respect the just exercise of the rights of war of both. Denmark must either have considered the United States as lawful belligerents, or as pirates incapable of acquiring any of the rights of just war."

Mr. Wheaton, min. to Prussia, to Mr. Upshur, Sec. of State, Aug. 23, 1843,
H. Ex. Doc. 264, 28 Cong. 1 sess. 4, 6.

It may be remarked that Mr. Wheaton's assumption that the United
States in 1779 were in enjoyment of belligerent rights is not invali-
dated by his inaccurate account of the situation as it then existed.
Spain, whose entrance into war with Great Britain took place only
in June, 1779, can not be classed with France as a power with which
the United States were "associated" in the conflict, especially as
Spain declined to recognize the independence of the United States.
Her recognition was not given till after the close of the conflict, nor
was her well-known repugnance to the idea of colonial independence
inexplicable. See, in this relation, Count de Florida Blanca's official
invitation to dinner, left at Mr. Jay's house, March 30, 1782, and the
subsequent explanation that it was a mistake," but that Mr. Jay
might come as a private gentleman." (Wharton, Dip. Cor. Am.

Rev. V. 373–377.) See Moore's American Diplomacy, 17-19.

For the act of March 21, 1848, appropriating money for the payment of the Bergen claims, see 9 Stat. 214.

See, also, Lawrence's Wheaton, 3d ed., note 16, p. 41.

See, further, as to the Bergen claims, Moore, Int. Arbitrations, V. 4572.

"I have been informed by Mr. Acosta, chargé d'affaires of New Granada, that General Belluche, who is a partisan of the party in arms against the constitutional Government of Venezuela, has two armed vessels, Baltimore clippers, cruising on the Venezuelan coast between Maracaibo and Cumana. As his party is on the eve of extinction, he may be disposed to prey upon the commerce of all nations, and as no government exists that will be responsible for his conduct it is proper that our naval force in that quarter should have an eye upon his movements.”

Mr. Forsyth, Sec. of State, to Sec. of Navy, Jan. 4, 1836, 28 MS. Dom.
Let. 187.

Although it has been doubted whether a mere body of rebellious men can claim all the rights of a separate power on the high seas, without absolute or qualified recognition from foreign governments, there is no authority for a doubt that the parties to a civil war have the right to conduct it with all the incidents of lawful war within the territory to which they both belong.

Black, At.-Gen. (1858), 9 Op. 140.

2. CIVIL WAR CASES.

$ 330.

Baker's Case.

"If it were necessary, on the part of the Government, to bring the crime charged in the present case, against the prisoners within this definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in so doing upon the evidence, and, perhaps, upon the counts in the indictment certainly, upon the evidence. For that shows, if anything, an intent to depredate upon the vessels and property of one nation only-the United States-which falls far short of the spirit and intent, as we have seen, that are said to constitute essential elements of the crime."

Nelson, J., in United States r. Baker (1861), 5 Blatchf. 6, 12; Trial of the
Officers of the Savannah, 371.

See Woolsey, Int. Law (ed. 1874), App. 3, p. 447.

A contrary view was taken by Judges Grier and Cadwalader in Smith's case, in Philadelphia in 1862, when a convicSmith's Case. tion took place, but there was no sentence, and the prisoners were transferred to military control as prisoners of war, and not as pirates.

The following statement as to the latter case is made by Mr. Ashton, one of the counsel for the prosecution:

WASHINGTON, January 26, 1886.

I think that there was no motion made for a new trial in the piracy casescertainly none was ever argued. After the conviction of the prisoners a State question arose as to what should be done with them. The Confederate Government, it was understood, threatened retaliation if they were harmed. The Attorney-General, Mr. Bates, was in favor of their being duly sentenced, but Mr. Seward thought that they should be exchanged as prisoners of war, and his advice prevailed with the President; and my recollection is that the district attorney and marshal were instructed, in letters written by Mr. Seward, to turn the men over to the military custody of the Government. Mr. Seward was somewhat in the habit at that time of directing the marshals and district attorneys, a practice that Mr. Bates always resented when his attention was called to it, and afterwards succeeded in correcting. At any rate we were instructed to release the prisoners from civil custody, but how to do that was the question. Judge Cadwalader, in consultation with me on the subject, suggested—you know how fertile he was in suggestion—that the men be brought into court on a writ of habeas corpus, and that each should be asked to say whether he preferred to remain in his present civil custody or to be remanded to the military custody from whence he came. I adopted this suggestion, a writ was issued, the men were brought into court, and each was asked the above question by the court. It was, of course, answered as we supposed it would be; and an order was made by the court for the delivery of the men, by the marshal of the district, to the military custody of the Government. In that way we got rid of our white elephants. My recollection is that Judge Grier was rather in favor of letting the law take its course in the cases, and

that he would have sentenced the men if I had asked for judgment. Judge Cadwalader, though believing the men had been rightly convicted, was satisfied to let them go in the way I have mentioned.

I believe that there is a report of Smith's case in the Law Library of Congress, but I suppose what I have mentioned is not contained in it.

November 16, 1863, the American merchant vessel Joseph L. Gerrity sailed from Matamoras, Mexico, for New York, with Case of the "Jo-, a cargo of cotton. On the following night, six perseph L. Gerrity." sons, who had taken passage for New York, seized the ship in the name of the Confederate Government, and a few days afterwards they set the captain and a part of the crew adrift in a small boat. Four of the culprits having been found in Liverpool, Mr. Adams, United States minister at London, February 15, 1864, demanded their extradition on a charge of piracy. The case was finally disposed of May 24, 1864, by the court of Queen's Bench, on a writ of habeas corpus. The court agreed that, if their belligerent character could be established, the charge must fail, but no evidence was produced to show that the prisoners were acting under the authority of the Confederate Government. In the end, however, this question became unimportant, since the case went off on the point that the acts charged, if piracy at all, were piracy jure gentium, and not piracy under the treaty of August 9, 1842, which the court held to mean piracy by municipal statute.

In re Tivnan, 5 Best &. S. 645; Dip. Cor. 1864, II. 30 et seq.

Case of the "Chesapeake."

December 5, 1863, the United States merchant steamer Chesapeake sailed from New York for Portland, Me., with a general cargo and sixteen male passengers. December 7, at half-past one in the morning, when the steamer was off Cape Cod, the passengers surprised the watch, murdered the second mate, seized the captain and crew, and took possession of the steamer in the name of the Confederate Government, hoisting as a sign thereof the Confederate flag. The Government of the United States, on hearing of the seizure, sent gunboats in pursuit of the vessel, and on December 17 one of them found her in Sambro Harbor, Nova Scotia, about to be deserted by her captors and flying a signal of distress. The gunboat took possession of the vessel and of certain of the crew, and carried her into Halifax and delivered her over to the Canadian authorities. Mr. Seward demanded of the British Government the surrender of the Chesapeake's captors on charges of murder and piracy. The names of the persons included in the demand were Braine, Parr, Locke, Collins, Robinson, and Wade. Meanwhile, the United States consul at St. John, New Brunswick, hearing that three of the alleged