pirates, Collins, McKealy, and Seeley, were in that province, obtained. a warrant for their arrest. When brought before a magistrate for examination, they claimed that their acts were of a belligerent character, but that, if they constituted piracy, it was piracy jure gentium, and therefore not within the treaty of 1842. The magistrate committed them for surrender, and a writ of habeas corpus was obtained from Judge Ritchie of the Supreme Court of New Brunswick, who discharged the prisoners, on the ground among others that piracy jure gentium was justiciable by the courts of New Brunswick and was not within the treaty, thus avoiding the political aspects of the case. Efforts subsequently were made to secure either the surrender or the trial of the prisoners, but nothing appears to have come of the proceedings. Mr. Seward, Sec. of State, to Lord Lyons, British min., Dec. 20, 1863, For a fuller and more minute history of the case, see Moore on Extradi- In November, 1864, the United States demanded the extradition from Canada of Bennet G. Burley on charges of Burley's case. piracy, robbery, and assault with intent to commit murder on the American merchant steamer Philo Parsons, on Lake Erie, September 19, 1864. It appeared that Burley had taken passage on the steamer, and that afterwards, when she was in American waters not far from the Ohio shore, he took forcible possession of her with the aid of certain persons for whom he had procured passage. Burley and his associates, when they took possession of the steamer, professed to act in behalf of the Confederate government, running up the Confederate flag and declaring their purpose to seize the United States war vessel Michigan, then in the lake, and to release some Confederate prisoners on Johnson's Island. Burley, though a British subject by birth, had been in the Confederate service, and on his examination he produced a commission as acting master in the Confederate navy, signed at Richmond, September 11, 1863, on which there was an endorsement, dated at Richmond, December 22, 1864, in the form of a proclamation of President Davis, declaring that the enterprise of Burley was a belligerent expedition, ordered and undertaken under the authority of the Confederate government and for which that government assumed responsibility. Burley was committed for surrender on the charge of robbery. He then obtained a writ of habeas corpus, and his case was argued before Chief Justice Draper and Mr. Justice Hagarty, of the Canadian Queen's Bench, and Chief Justice Richards and Mr. Justice Wilson, of the common pleas. Chief Justice Draper took the ground that, conceding that the prisoner was an officer in the Confederate service, the manifesto which had been put forward to shield him not only did not permit but even forbade any violation of neutral territory. Burley's associates were taken on board, by arrangement, at Canadian ports, and the expedition in which he was engaged was thus embarked from neutral territory and was deprived of the character of lawful hostility. Under these circumstances, Chief Justice Draper was of opinion that, as the acts taken by themselves established a prima facie case of robbery, the matters of defence which were alleged were proper to be submitted to a jury in the jurisdiction where the offence was committed. Chief Justice Richards took substantially the same ground, and cited the observation of Lord Chief Justice Cockburn in the case of Tivnan, that there must be an honest intention to assist a belligerent and that persons could not protect themselves from the consequences of acts really piratical merely by assuming the character of belligerents. Justices Hagarty and Wilson concurred in these opinions; and Burley was accordingly surrendered on the charge of robbery. He was tried before Judge Fitch, in Ohio. The court held that his acts were belligerent and not committed animo furandi. The jury disagreed, and Burley, who was released on small bail, left and did not reappear. Mr. Seward, Sec. of State, to Lord Lyons, British min., Nov. 29, 1864. Dip. Cor. 1864, II. 813 et seq.; The Extradition of Bennet G. Burley, Parliamentary Papers, North America, No. 3 (1876). For a fuller statement of the foregoing case, see Moore on Extradition, I. 319-321. In an opinion given in this case, Oct. 10, 1864, Attorney-General Bates intimated that Lake Erie was in the legal sense a " sea," so that piracy might be committed on it, although, in view of the opposite opinions held by many, he advised that the question be not raised. (11 Op. 114.) It has since been held that the Great Lakes are, in matters of criminal jurisdiction, to be considered as seas. (United States r. Rodgers (1893), 150 U. S. 249.) Although it has always been asserted in official records that Burley departed while out on bail, the statement has lately been made, on the authority of the sheriff who had him in custody, that he escaped from jail. It appears that Burley, who was a native of Scotland. afterwards became, under the name of "Burleigh," a famous war correspondent, on the staff of the London Daily Telegraph. See an interesting article entitled Burleigh and Johnson's Island," in the American Magazine of History, May and June, 1905, by Frederick J. Shepard, esq., of Buffalo, N. Y. The question whether Captain Semmes, of the Alabama, should be prosecuted for piracy was discussed in the Atlantic Monthly for July and August, 1872, by Mr. Bolles, who was the Solicitor of the Navy Department, and to whom this question was referred. This article states at the outset that " By establishing a blockade of Confederate ports, our Government had recognized the Confederates as belliger ents, if not as a belligerent state, and had thus confessed that Confederate officers and men, military or naval, could not be treated as pirates or guerrillas, so long as they obeyed the laws of war; that the same recognition was made when cartels for exchange of prisoners were established between the Federal and Confederate authorities; and, above all, when the Federal Executive, after the courts had declared Confederate privateersmen to be pirates, had deliberately set aside those judgments, and admitted the captured and condemned officers and men of the Savannah and the Jeff Davis to exchange as prisoners of war." The conclusion is as follows: "It is evident that, after it had been, as it soon was, resolved that neither treason nor piracy should be charged against Semmes before a military or naval tribunal, and that his methods of capturing, 'plundering,' and destroying vessels should not be treated as offenses against public law and duty, but that he should be dealt with as a belligerent naval officer, bound to obey the laws of war and entitled to their protection, it was needless to inquire where or by whom the Alabama was built, manned, armed, or commissioned; or whether a government without an open port can legitimately own or employ a naval force. These inquiries, however interesting or important they might be in other connections, were of no sort of interest or importance as elements of a trial for violating the laws of war in the conduct of a cruiser subject to those laws, and protected by them. "In this way the field and the duty of inquiry were reduced to the two subjects of cruelty to prisoners and perfidy towards Captain Winslow and the power he represented.” These articles by Mr. Bolles are commented on by Sir A. Cockburn, in his opinion in the Geneva tribunal, and in 2 Bullock's Secret Service Conf. States, 116 et seq. The "Confederate Government," owing to the disabilities to which its privateers were exposed in foreign ports, discontinued privateering, and its cruisers "claimed the rights of public ships of war, and were commanded by officers commissioned by the Confederate States." Mr. W. B. Lawrence, in N. Am. Rev., July, 1878, 21, 31, citing 22 Solicitor's As to the status of Confederate cruisers in foreign ports, see report of Case of the 3. CASES AND OPINIONS, 1865-1884. § 331. May 31, 1865, the steamer Washington was seized in Ecuador by insurgents, who with her aid captured the Ecuadorian war vessel Guayas. The Government of Ecuador "Washington." by a decree declared the parties to be pirates, subject to capture by any foreign man-of-war, even in Ecuadorian waters. The American minister, on the request of the Ecuadorian Government, gave notice of the decree to the commander of the United States naval forces on the Pacific station. See Mr. Seward, Sec. of State, to Mr. Hassaurek, min. to Ecuador, Sept. 15, 1865, MS. Inst. Ecuador, I. 175. Case of the "Telegrafo." July 10, 1869, Mr. Robeson, Secretary of the Navy, instructed Commander E. K. Owen, U. S. S. Seminole, to proceed without delay to Samana Bay in Santo Domingo and ascertain whether a steamer was there named the Telegraph (Telegrafo), under the command of one Luperon, or officers of his. Mr. Robeson said that the vessel had been "interfering with American commerce, and sailing on the high seas without legal authority." Commander Owen was directed to seize her and bring her into the port of Baltimore. If he should not find the vessel in Samana Bay, he was to search for her along the coast till he found her." General Babcock stated before a committee of the Senate that the Telegrafo was alleged to be a pirate and had overhauled a vessel carrying the American flag; that she first sailed under the American flag, and then hoisted the flag of Venezuela, under which she appeared before the town of Puerto Plata and demanded its surrender; that the people refused to surrender and fired at her, whereupon she fired some shots into the town; that she then went around to Samana Bay under the Dominican flag, and after remaining there some days went to Barahona, where she landed her guns and munitions of war. July 31, 1869, Commander Owen reported from St. Thomas his arrival from Samana Bay. The Telegrafo, then called the Restoracione, was in the hands of the British Government and had been sold to an English subject. No evidence had been gathered that the vessel had interferred with American citizens or commerce. On the 4th of August Commander Owen reported that he had decided to let the matter rest between the British and Dominican Governments. a S. Rep. 234, 41 Cong. 2 sess. 38. See, also, S. Ex. Doc. 34, 41 Cong. 3 sess. 5. bS. Rep. 234, 41 Cong. 2 sess. 39. eS. Ex. Doc. 34, 41 Cong. 3 sess. 6, 7. "I acknowledge the receipt of your despatch (No. 13) of the 13th Vessels employed ultimo, in which you enclose a copy of a note adby Haytian in- dressed by the secretary for foreign affairs of Hayti surgents. to the several members of the diplomatic corps accredited to his Government, and relating to the armed steamers formerly called the Quaker City and the Florida now in the service of insurgents against the Government of Hayti. The secretary for foreign affairs, after reciting the fact that those insurgents have not been recognized by this or any other government as entitled to belligerent rights, declares that the vessels which form the subject of his communication can not be considered according to the spirit of international maritime law otherwise than real pirates, which it is the duty of every regular navigator to pursue for the purpose of sinking or capturing them. He further states it to be an object of his communication to obtain from each one of the vessels of the respective nations, to whose representatives it was addressed, an adequate and efficacious cooperation in maintaining for the marine of the civilized world the security of the seas and to guarantee the protection of private property. "The good understanding which this Government earnestly desires to maintain with that of Hayti requires that this communication should receive a frank and explicit reply. "You will, therefore, say to the secretary for foreign affairs: "1. That we do not dispute the right of the Government of Hayti to treat the officers and crew of the Quaker City and Florida [vessels in the service of insurgents against Hayti] as pirates for all intents and purposes. How they are to be regarded by their own legitimate Government is a question of municipal law into which we have no occasion, if we had the right, to enter. "2. That this Government is not aware of any reason which would require or justify it in looking upon the vessels named in a different. light from any other vessels employed in the service of the insurgents. "3. That regarding them simply as armed cruisers of insurgents not yet acknowledged by this Government to have attained belligerent rights, it is competent to the United States to deny and resist the exercise by those vessels or any other agents of the rebellion of the privileges which attend maritime war, in respect to our citizens or their property entitled to our protection. We may or may not, at our option, as justice or policy may require, treat them as pirates in the absolute and unqualified sense, or we may, as the circumstances of any actual case shall suggest, waive the extreme right and recognize, where facts warrant it, an actual intent on the part of the individual offenders, not to depredate in a criminal sense and for private gain, but to capture and destroy jure belli. It is sufficient for the present purpose that the United States will not admit any commission or authority |