Re tivnan and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1864 |
| Date | 25 May 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 971
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
[645] in rk tivnan and others. Wednesday, May 25th, 1864.-International law. Extradition. Jurisdiction. Piracy. Belligerent Act. G & 7 Viet. c. 76. Warrant of justice.-1. Stat. 6 & 7 Viet. c. 76, s. I, enacts, that in case requisition ahall be made by the authority of the United States of America, in pursuance of a treaty between them and this country of the 9th August, L842, for the delivery up o{ any person charged with certain crimes therein specified, among which is " piracy," committed within the jurisdiction of the United States, who shall bs found within the territories of her Majesty, such person maybe apprehended and delivered up to justice : Held, by Crompton, Blackburn and Shee JJ., dissentiente Cockburtl C.J., that " piracy " here must not be understood in the sense of piracy by the law of nations, but of acts made piracy by the municipal law of the United States.-2. In order to enable a justice of the peace to inane his warrant under this statute for the apprehension and committal for trial of an accused person, it need not appear that there was an original warrant for his apprehension in the United States, or depositions taken against him there.-3. The warrant of such justice of the peace need not allege that the evidence before him waa taken upon oath.-4. Concessum. In time of peace any act of depredation on a ship is prima facie an act of piracy : but in time of war between two countries the presumption is that depredation by one of them on a ship of the other ia an act of legitimate 972 IN fcE TlVNAN SB. &S. M6. warfare. It is immaterial whether the act wag clone by soldiers or volunteers, and whether it was commanded by the belligerent state, or when done ratified by it. [S. C. 9 Cox, C. C. 522; 33 L. J. M. C. 201; 10 L. T. 499; 11 Jur. N. S. 34; 12 W. R. 858.] Edward James, in Easter Terra, April 25th, moved for a writ of habeas corpus ad subjiciendam to bring up the bodies of Patrick Tivrian and two others, detained in the Main Bridewell in the borough of Liverpool. On the: 9th May, Lush and Mil ward shewed cause, and Edward James, Littler and T H. James appeared to support the rule. The Court (consisting of Cnckburn C.J., Blackburn, Mellor and Shee JJ.), however, said it was unnecessary to hear the latter, as the matter in question was of such great importance that it would be better to have the facts before them in an official form. Rule absolute. [646] In the present Term, on the 24th May, the prisoners were brought up accordingly, and the return read. The case was argued on that day and the next, on the latter of which judgment was given. The return of the keeper of the Bridewell stated that he kept the prisoners by virtue of certain warrants from T, S. Raffles, Esq., stipendiary magistrate of the borough of Liverpool. The first of these, dated 23rd February, 1864, reciting that Sir George Grey, Bart., one of Her Majesty's principal Secretaries of State, by warrant dated the 20th February, 1864, signified to the magistrate that a demand had been made by the government of the United States of America to deliver the now prisoners up to justice, charged with piracy on the high seas within the jurisdiction of the United States, directed the constables to arrest and bring them before him to answer the charge. On this the prisoners were arrested, and remanded several times, but no judgment had been pronounced on their case by the magistrate. It was agreed that the evidence adduced before the magistrate and the warrant of the Secretary of State should be considered as in Court. Copy of the depositions taken in the matter of Patrick Tivnan, otherwise Jamos Ferran, otherwise John Clements ; Patrick Murray, otherwise George Kelly, otherwise George McMurdoch ; John Quincey Sears, otherwise Warren Quincay. James Nicholas on oath says:-I am Captain of the American schooner 'Joseph E. Gerity,' belonging to New York. I was at Matamoras in November last with the Bchooner. I remember on the 16th November last some passengers coming on board at 12 o'clock at noon. They had engaged their passage on shore. [647] We were bound for New York with a cargo of cotton. We sailed at half-past three o'clock on the same day. On the night of the 17th November last, I went to bed at eight o'clock. I went below to try to sleep, but could not. I came on deck about eleven o'clock, and did not go to bed after that. At half-past eleven o'clock we hauled her flying-jib down. The six passengers were on deck then, including the three prisoners. At twelve o'clock at night the watch was relieved, and went below. I sent one George Sweeney up aloft. He waa up a long time. About half-past twelve o'clock I went into the lee-gangway to keep a look out. When I got there, a person named Brown took hold of me. The three prisoners were on the other side then. I struggled with Brown to free myself, and then the prisoners Wilson and Kelly and one O'Brien (not here) took hold of me, each pointing a revolver to my head, saying, " If you shout, you will be a dead man." They put me into the forecastle, and put a sentry there, and told me if I made an attempt to go out they would shoot me. It was Brown who said this. It was Kelly that kept sentry first. The next thing was that the man that was up aloft was brought down, wounded on the hand by O'Brien, Kelly and Wilson. He waa left with me. After that I heard a shot fired, and then they brought the mate to me. They all brought him, except Brown arid Hogg. Kelly and Wilson were amongst them. The mate was placed with me and the other man. It would be about a quarter to one. It all happened in about half an hour. In two or three days afterwards I had a conversation with Clements. He said that I might be glad that I did not fall into other hands. If I had fallen into the hands of others at Matamoraa, who were [648] waiting for the same chance, they would have killed me. Wilson was managing the ship during the time. Hogg and Brown, and then Wilson navigated the ship. I was allowed to walk the deck occasionally by them. I was kept in confinement until the 25th November. I should have said that on the morning of 5 B. & S. 6. IN RK T1VNAN 973 the 18th November they called me aft to get breakfast. I asked the steward for a cup of coffee. Hogg told me that he had proper documents to justify the act he had done. The prisoners heard him say that. I asked him for them, but he did not shew them to me. They never shewed me any authority at all. On the 25th November they called me aft about twelve o'clock, and told me there was a boat ready, and I was to go away in her. Before putting me into the boat, I was brought before Hogg and Brown. Neither of the prisoners were present then but Wilson. Hogg demanded a paper signed by the American Consul, that out-cargo was American cotton, to shew any cruisers they might fall in with. I told them I had no such paper. He told me, if I deceived him he would put ten or eleven shackles of chain round my neck and throw me overboard. Wilson heard Hogg say this. I had not the paper they wanted. They had possession of all the ship's papers. We were put into the boat, close to Gape Catuchee. I asked them for a chart and a compass, but it was refused. It was Hogg that refused. The prisoners were three or four feet off then. I spoke loud enough for them to hear me. I was sent adrift and put about for seven days. They gave us provisions for three days. We landed on the coast of Yucatan, t have not seen the vessel since. [649] The large box produced is mine. It was on board the schooner when I left her. The small chart produced and the sextant and the case and the book produced are mine. Also the log slate produced. They were on board the vessel when I left her. By Mr. Cobb.-I am quite sure they are all my property. When I was taken to the forecastle it was by Brown, Wilson, Kelly and O'Brien. I know Kelly kept sentry, because I could hear his voice. I am sure the prisoner Tevana is the same person as Clements, and that it was ho that said I should be thankful I had not fallen into other hands. I was on deck at one time for about threo or three and a half hours at longest after this occurrence. I was only let out every other day. Wilson was navigating the ship then. I heard Wilson give the orders to the crew. We had six of a erew and six passengers. I have heard that Mr. Hogg was a Major in the Confederate army. I believe from bis appearance that he was. I do not know who paid the passage for the prisoners. I received no money. Major Hogg was the leader of the party. He never shewed me any papers. The prisoners appeared to be acting under bis orders. Hogg first mentioned about the papers. When I asked him for the papers I forget what he said I never saw any papers at all. Hogg came on board at the same time as the prisoners, and they appeared to be acting entirely under his orders. I may have had a conversation with Hogg respecting Jefferson Davis, but he never shewed me any letters of marque. We were about fifty or sixty miles from the Confederate waters on the 18th November when this happened. I know I was in 26 12' when I was taken hold of. Greenhough, my [650] supercargo, did not shew me any documents that were given to him by Hogg. Charles Carlisle on oath says :- I am detective constable of Liverpool. When I apprehended Wilson I found in his lodgings the books produced, and also the sextant. At his aunt's I found the box produced. He said that is ray chest; I bought it in China. I foutid the charts produced in his bedroom. He said, "These are my charts." He claimed all except the small chart produced. He said he had bought the sextant in New York. When I apprehended him I told him I was taking him by warrant, under the order of the Secretary oi State, for piracy. He said, " I doti't know what you are talking about." I said, "I believe you name is Wilson?"...
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