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tions upon which the original warrant was granted," showing that their existence is necessary. And in re Kaine (1) and Metzger's case (2) are to the same effect. Here even if the CHESAPEAKE prisoners were taken to the boundary line, for all that appears on the warrant of commitment, there would be no one authorized on the part of the United States to receive them—no warrant issued there on which they could be detained.

This proceeding, though on its face a mere commitment for trial, is a quasi conviction, since the magistrate commits the parties to be handed over to another jurisdiction and deprived of rights they would here enjoy, and the warrant should therefore be construed with the utmost strictness.

But leaving the questions as to the validity of the warrant, and taking up the facts which appeared in evidence, the prisoners are entitled to their discharge on the following grounds:

First. The offence charged is piracy on the high seas. It is therefore cognizable by the proper tribunals of the country, and the parties committed do not come within the Extradition Treaty with the United States:

(1) The jurisdiction which a nation has over its public and private vessels on the high seas, is exclusive only so far as respects offences against its own municipal laws. Piracy and murder on the high seas are punishable by the law of nations wherever the criminal may be found, and no country has exclusive jurisdiction of such offences.

(2) No country can make that piracy which is not piracy by the law of nations in order to give jurisdiction to its own. courts over such offences.

(3) The Extradition Treaty between the United States and Great Britain contemplates only a demand and delivery in cases where the crime committed falls exclusively within the jurisdiction of the country demanding, and is not applicable where a co-ordinate jurisdiction to try and punish for the crime committed exists in the country where the person demanded is found. Therefore, if the taking of the Chesapeake (1) 14 Howard 107. (2) 1 Parker, C. R. 188.

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be piracy under the law of nations, the tribunals of this country can take cognizance of the crime, and the party CHESAPEAKE charged can neither be demanded nor legally given up.

Second. Under the relative positions which the United States and the Confederate States bear to each other-both having been recognized as belligerents by Her Majesty's government—the offence is not piracy at all; the parties committed are in no way punishable, and cannot be surrendered.

(1) It is not piracy, because open war exists between the revolted country of the Confederate States and the United States, and in such case the law of nations does not regard acts of aggression done by the subjects of the revolted country against the persons, property or commerce of the parent country as piracy or murder, and the same immunity is extended to all who aid or are acting with them bona fide in the act committed.

(2) The circumstances of the case show conclusively that the parties seizing and taking the Chesapeake, in so doing were not acting as pirates cum animo depredandi aut furandi, but as belligerents seeking to capture and destroy the property of an enemy, and acting in the name of and on behalf of the revolted country.

(3) It is not even necessary in such cases that the party acting should be commissioned by his government—that is simply a matter between himself and his own government, and affects him so far only as it vests the property captured in the government and not in the captor. It is only necessary to prove two facts-first, the existence of open war; second, that the act done was not for piratical purposes, but in the furtherance of a belligerent object.

(4) Great Britain having recognized the Confederate States as belligerents, the subjects of the Confederate States must be regarded quoad hoc as ceasing to be subjects of the United States, and not bound by its municipal laws; so that even though the seizure and taking of the Chesapeake might, in a subject of the United States, be piracy, yet it cannot be so in a subject of the Confederate States or those acting with them.

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(5) The term piracy used in the treaty must be regarded as used in a sense which would not clash with the law of nations, not as used in the sense created for it by the muni- CHESAPEAKE cipal law of a particular country. Thus the law of nations does not regard acts committed by belligerents as piratical, though the country against which the acts have been committed may have passed a law that those acts are piratical. The word "piracy" as used in the treaty must have reference to acts for which there is no punishment in the country to which the party charged has escaped, but which in that country, if committed there, would nevertheless be considered as piracy; for instance, certain offences in harbors, etc. In the present case, the offence being on the high seas, cannot come within the latter class, and Great Britain having recognized the Confederate States as belligerents, they cannot come within the former.

(6) Officers and men having no permanent connection with the country, or interest in its cause, are and may be privateers, and cannot be treated as pirates, and fraud may be employed as well as force.

(7) The courts of a neutral government which recognizes the existence of a civil war in another country, cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemies.

Third. The court of a Justice of the Peace has no juris diction in cases like the present, and a Justice of the Peace as such, has no power either to investigate or commit:

(1) A Justice of the Peace has no jurisdiction or authority to issue a warrant or hold an investigation, and the Governor can give no such authority.

(2) The warrant issued in this province, must be based upon preliminary proceedings, had before a competent tribunal in the United States, having jurisdiction of the offence, and showing that the criminal acts charged were committed within the territorial jurisdiction of the United States, which proceedings must be forwarded to the Governor of this province, before the Governor can issue his warrant, in order

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to give any tribunal or authority in this province, jurisdiction to enquire into the offence.

(3) On the face of the warrant to apprehend the prisoners, it discloses no requisition made by the proper authorities of the United States, by its authority, as required by the treaty, and is therefore invalid.

(4) It does not show that in the United States any complaint has been lodged, or proceeding taken against the parties charged, on which the proceedings in this province can be based, and is therefore on that account invalid.

(5) The warrant to apprehend the prisoners, is defective in combining two crimes which are triable before separate and distinct tribunals.

(6) The authority to a magistrate to act, is limited to such crimes as could be committed in that part of the kingdom in which the magistrate resided; and as the high seas are not a part of Her Majesty's dominions, a Justice of the Peace, in the absence of any specific legislation thereupon, has no jurisdiction or power to act in any matter relating to piracy; the examination and warrant in such cases must be before one of the officers composing the mixed court for the trial of piracy and offences on the high seas, constituted by the Imperial Act.

Fourth. This expedition, starting in a neutral territory, however gross a violation of that neutrality, does not effect the status of parties engaged in that expedition, quoad the other belligerents, but only is illegal as regards the neutral country whose laws have been violated.

Fifth. The evidence showing that these prisoners were enlisted in the cause of the Confederate service, under a genuine commission of that State, this neutral court cannot enquire into the validity of that enlistment, except for offences against its own laws.

It has been urged that the Chesapeake, being an United States ship, her deck should for all purposes be considered a portion of the United States territory. The Police Magistrate in part based his decision upon this. But the authorities cited,

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Wheaton's Int. Law (1); Vattel, Laws of Nations (2), do not bear out the conclusion. The jurisdiction of a nation in such case is exclusive only so far as respects offences CHESAPEAKE against its own municipal laws. Wheaton's Int. Law (3); Dictum of Cockburn, C. J., Regina v. Heane (4). The offence charged in the present case is piracy on the high seas; there is no allegation in the warrants of any violation of the municipal laws of the United States. But piracy by the law of nations was never contemplated by the Extradition Treaty or statute. It only contemplates piracy by municipal law. Wheaton's Int. Law (5). It could never have been intended to deprive either of the contracting parties of a jurisdiction it already possessed; the reason of the treaty and statute is plainly that escaping prisoners, not punishable by the laws of one country, should be delivered up to the other; and if this crime can be punished here, that reason is at an end. If the word piracy in the statute is to have a general meaning, France might claim the jurisdiction as well as the United States. There is no necessity for the treaty as regards piracy on the high seas. A party committing such an offence is to be tried within the jurisdiction where he is found. In re Kaine (6). And the United States Statutes, as put in evidence, require that pirates should be tried in the first district in which they are taken or found, and give jurisdiction to that district court alone (7). And no legislation on their part could make an offence on the high seas piracy, so as to give their courts exclusive jurisdiction. U. S. v. Palmer (8); The Antelope (9). Their jurisdiction not being exclusive, in giving up parties triable here we should stultify ourselves. The right to try the offence attaches in the United States. only on the parties being found there; the statute only contemplates the rendition of fugitives escaping from justice in another country, which these are not.