laws which assimilate them to pirates, and which can only be applied by the State which has enacted them, and then with reference to its own subjects, and in places within its own jurisdiction. The crimes of murder and robbery, committed by foreigners on board of a foreign vessel, on the high seas, are not justiciable in the tribunals of another country than that to which the vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may

Nations, cited there. Phillimore's Intern. Law, i. 406. Le duc de Broglie, “Sur la Piraterie," Ecrits, iii. 335–375. The Serhassan, Wm. Rob. ii. 357. Notes of Cases, iii. 592. The Malek Adhel, Howard, ii. 232. As to other elements necessary to give general jurisdiction, and constitute piracy jure gentium, Woolsey's Introd. § 137. Phillimore's Intern. Law, i. 394. Bynkersh. Quæst. Jur. Pub. lib. i. cap. 17. Kent, i. 184-6. Le duc de Broglie, "Sur la Piraterie," Ecrits, iii. 335–375. Wildman's Intern. Law, ii. 150. United States v. Palmer, Wheaton's Rep. iii. 610. United States v. Klintock, Wheaton's Rep. v. 152. United States v. Pirates, Ib. 185. United States v. Holmes, Ib. 412. Blackst. Comm. iv. 286.

The following suggestions are offered as to the elements of piracy jure gentium : I. It is not necessary that a purpose to depredate on property, beyond such as belongs to one nation or one class of persons or one individual, should be proved or artificially presumed.

II. The motive need not be lucri causâ; nor need the acts and intent square themselves to the English common-law definitions of animus furandi, or malice. It is enough if the corpus delicti exists; and the animus be one which the law of nations regards as criminal, and hostile to the rights of persons and property on the high seas, — KATÙ τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον.

III. Although the act and intent may be sufficient to constitute piracy, all nations have not jurisdiction to try it, unless it was committed beyond the exclusive jurisdiction of any nation. To put it in such predicament, the act must have been committed not only on the high seas, but beyond that kind of jurisdiction which all nations concede to each nation over vessels sailing the seas under at once its de facto and de jure authority and responsibility, and in the peace of all nations. Crimes, therefore, of whatever character, committed on board by inmates of such vessels, are not justiciable of all nations. But, if such a vessel passes into the control of the robbers or murderers on board, and the lawful authority is in fact displaced, and she becomes an outlaw, any nation may seize the vessel and try the criminals. So, if persons on board any kind of sea-craft, not in fact under any national authority and responsibility, and acting in defiance thereof, board a duly authorized vessel sailing in the peace of all nations, and commit robbery or murder on board, and depart, leaving the vessel to its regular authorities, they may still be tried as pirates by any nation in whose jurisdiction they may be found; although the cruisers of a foreign nation, by reason of the rule against international interference, could not have taken them out of such a vessel, if, after their acts were completed, they had been secured by the authorities of the vessel and confined in her, to be taken to port for trial.]—D.

be punished as piracy under the law of nations, in the courts of any nation having custody of the offenders. (b)84

(b) United States v. Klintock, Wheaton's Rep. v. 144; United States v. Pirates, Ib. 184.

[84 Rebels as Pirates. The question may as well be considered here as elsewhere, to which prominence has lately been given by the civil war in the United States, in what sense rebels in arms, cruising on the high seas against the property of the parent State, are pirates.

The question must first be considered as between the rebels and the parent State. The parent State must hold the legal status of rebellion to be crime, and that of rebels to be criminals. The dimensions of the rebellion, its power and organization, do not alter the strictly legal status of the rebel. Policy or humanity may lead the State to forego or remit the enforcement of the law, and to treat rebels as belligerents, for certain purposes; but this is in the constant control of the political department of the government, from day to day, and in each case and locality. (See ante, note 32, on p. 84.) As a question of law, in the courts, a rebel is a criminal, whether his acts are done at sea or on land. His acts of violence are treason, and may be robbery or murder. If rebels in control of a vessel at sea plunder and destroy property, and have no defence except the authority of the rebellious organization, a court of the parent State cannot recognize that authority. The question of acting bonâ fide under color of an asserted belligerent power in the rebels, cannot arise between the State and one of its own subjects. The only result would seem to be, that, in a court of law, the rebel is a criminal. Rosę v. Himely, Cr. iv. 272. Cheriot v. Foussat, Bing. iii. 253. Nelson J., in the trial of the Savannah pirates, 371-3. Grier J., in the trial of Smith, 96-99. Judge Sprague's charge to the Grand Jury, Sprague's Decisions, ii. and Law Rep. xxiv. 17, 18. Judge Sprague's opinion in the Amy Warwick, Sprague's Decisions, ii. and Ib. 344.

Is his crime piracy? Whether piracy by the municipal law, is a mere question of special statutes, not of international law. The State can so denominate the crime if it chooses. Can the courts of the parent State pronounce the act piracy jure gentium? In the case of King James II.'s pirates (Howell's State Trials, xii.), men cruising against British commerce under a commission from James II., who claimed to be de jure king, were adjudged pirates jure gentium. Dr. Phillimore (Intern. Law, i. 406) says, "The reason of the theory must be allowed to preponderate greatly towards the position that these privateers were jure gentium pirates.”

The proclamation of the President of the United States of 19 April, 1861, declares that " any person acting under pretended authority of the States in rebellion and molesting vessels of the United States, would be held amenable to the laws of the Union for the prevention and punishment of piracy." United States Laws, xii., App. for 1861, p. 2. This does not necessarily imply piracy jure gentium, as there were statutes in existence declaring acts to be piracy which would not or might not be so jure gentium. The crew of The Savannah, commissioned under rebel authority, were indicted for piracy, and tried at New York before Judge Nelson. He ruled that their offence, if proved, was piracy under the counts founded upon the statutes, but expressed a doubt whether it would be piracy jure gentium. The reason, however, which he assigned for the doubt, is inadequate; viz., that the prisoners' intention to depredate was confined to vessels and cargoes of one nation only: while, to constitute such piracy, a general intent to depredate on vessels of any or all nations was essential. This distinction is not maintainable in principle or on authority. (See note 83, supra, on Piracy.) The real difficulty is in the actual intent of the individuals, which is not to depredate

Slave

trade, whether prohib

§ 125. The African slave-trade, though prohibited by the municipal laws of most nations, and declared to be piracy by the statutes of Great Britain and the United ited by the States, and, since the treaty of 1841, with Great Britain, tions.

law of na

in a criminal sense, but to capture and destroy jure belli. An answer to this objection is, that a subject of the State cannot be allowed, in a court of his own State, to plead any such intent under such circumstances. It is inconsistent with the political right which the State has of treating rebellion as a crime. In the trial of Smith in Philadelphia, who was acting under a rebel commission, Judge Grier held that the court could treat him only as a pirate and robber. (Smith's Trial, 1861.) Smith and his associates were convicted; but the President, from motives of policy, and because the rebels threatened retaliation, transferred them to military custody as prisoners of war: and no cases afterwards occurred of an attempt by the government to treat rebels in arms as criminals. But this course of policy does not affect the legal question, in the abstract, before a court; as the sovereign, in suppressing a rebellion, may exercise as well sovereign as belligerent powers against rebels. (Prize Causes, Black, ii. 635. Amy Warwick, Sprague's Decisions, ii., and Law Rep. xxiv. 344. Rose v. Himely, Cr. iv. 272.) In the debate in the House of Lords, on the 16th May, 1861, on the President's proclamation, it was conceded by Lords Brougham, Kingsdown, Chelmsford, Derby, and the Lord Chancellor, that it was competent for the United States to treat their own citizens, cruising under Confederate authority, as pirates; but whether jure gentium or under statute law was not distinctly noticed.

If it is conceded that a rebel, indicted in the courts of the parent State for piracy under the law of nations, cannot be allowed to set up that his intent was to depredate only jure belli, the logical result would seem to be that such courts may declare him a pirate jure gentium, unless, to constitute such piracy, an actual intent to depredate irrespective of the national character of vessels is an essential element in that crime. That such an intent is not necessary, vide supra, note 83, on Piracy.

The next question is, how such persons will be regarded in the courts of a neutral country. Lord Chelmsford said, in the debate above referred to: "If the Southern Confederacy had not been recognized as a belligerent power [i.e. by the British Government], if any Englishman were to fit out a privateer for the purpose of assisting the Southern States against the Northern States [i.e. the United States], he would be guilty of piracy." The reasoning would seem to be, that the same rules govern the courts of the neutral nations as govern those of the parent State. If the acts are sufficient to constitute piracy, unless the authority is a defence, the court of the neutral country must follow the lead of the political department of its government, as recognition of belligerency is a political, and not a judicial, question. Accordingly, if the neutral government has declined to recognize the parties to a rebellion as belligerents, its courts cannot allow their commission to be a defence, or treat acts done under it as belligerent acts. The courts of the parent State and of the neutral power both follow the lead of the political department. But the further question arises, whether, rejecting the authority of the commission and the lawful belligerency of the acts, the court may not still open the question of the actual intent of the prisoner. In United States v. Klintock, Wheaton's Rep. v. 149, Marshall C. J. threw out a suggestion whether a person, acting in good faith under a commission purporting to be issued by competent foreign authority, might not be clear of the crime of piracy. No State can admit that defence by its own citizens engaged in a contest against itself. Perhaps a court of law cannot do so in a case of one of its own citizens acting under a commission from any foreign power not recognized as belligerent by his sovereign. A

by Austria, Prussia, and Russia, is not such by the general international law; and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact. (a)

writer in the Am. Jurist, vol. x. 267-8, contends that "whoever takes a commission to wage private war from any other than his own sovereign, does it at his own peril, and must know that the commission he receives is lawful. Any other position appears inconsistent with the safety of mankind."

The course pursued by the British Government during the war of the American Revolution seems to have been this: An Act of Parliament was passed (17 Geo. III. ch. 9, 1777), reciting that acts of treason, piracy, and felony had been committed by sundry persons, many of whom were, and would thereafter be, confined for trial on charges of such crimes, and that it might be inconvenient to try them forthwith, and of evil example to let them go at large, and authorizing the detention of such persons by the crown, with bail or judicial intervention, for one year. This act was renewed annually until the end of the war. Its object was to obtain a parliamentary declaration that the legal status of American rebels was that of felons or pirates, and to secure a mode of detaining them in custody without recognizing them as prisoners of war, or being obliged to bring them to trial as criminals. In the mean time, between the armies in America, prisoners were treated as prisoners of war, exchanged, paroled, &c. ; and it is believed that no persons were judicially tried and punished as criminals during the war: and the recognition of independence disposed of the question.

on

The next question is, how foreigners who aid the rebellion by cruising against commerce will be regarded by the courts of the parent country. It would seem that the court can make no distinction in their favor. The rebellion is a crime; and all who voluntarily aid it in arms are criminals, whether subjects or intervening foreigners. The fact that the sovereign, whose subjects those foreigners are, may have recognized the rebellion as belligerent, can have no legal effect on their status in the court of the State engaged in subduing the rebellion. It is a fact addressing itself solely to the political department of the government. In the debate in the House of Lords, the 16th May, 1861, upon the President's proclamation, strong expressions were used by Lords Kingsdown and Cranworth and the Lord Chancellor (Westbury), to the effect that the United States ought not to claim the rights of a belligerent as against foreign commerce, — viz., search and blockade, and yet treat the rebels as traitors, and British subjects, cruising under rebel commissions, as criminals; and that, as Britain had acknowledged the rebels as capable of commissioning cruisers, she had a right to demand that their commissions should be respected by the United States in case of British subjects. These were, however, considerations addressed to statesmen and not to courts. And, at the same time, it seemed to be conceded by all the law lords, that, under the terms of the Queen's proclamation of May 13, 1861, recognizing belligerency, no British subject, making himself a party to the war against the United States, with which Great Britain was at peace, could expect the intervention of the crown in his favor.

The terms of the Queen's proclamation bearing on this point are these: It declares Great Britain to be at peace with the United States, - recognizing the persons in rebellion as belligerents, and both "the contending parties" as having the rights of belligerents against neutrals; declares strict neutrality and non-intervention; and com(a) Dodson's Adm. Rep. ii. 210, Le Louis. Wheaton's Rep. x. 66, La Jeune Eugenie.

The African slave-trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal mands all British subjects to observe strict neutrality, and "to abstain from violating or contravening either the law and statutes of the realm in that behalf, or the law of nations in relation thereto, as they will answer to the country at their peril." It calls attention to the neutrality or foreign-enlistment act of 59 George III.; and declares that British subjects, offending against that statute or the law of nations respecting war, will be liable to the penalties of the statute and the law of nations; and ends with the declaration, that British subjects "who may misconduct themselves in the premises . . . will do so at their peril and of their own wrong," and that “they will in no wise obtain any protection from us against any liabilities or penal consequences, but will, on the contrary, incur our high displeasure by such misconduct.”

No case occurred, in this war, of a British subject, engaged in acts which Great Britain declares and considers belligerent when done by the parties to the war, being treated by the United States as a pirate, or otherwise as a criminal; the government giving all foreigners found in arms under rebel authority the same treatment they gave to citizens in arms, that of prisoners of war.

The proclamation of the Emperor of the French, of June, 1861, and of the Queen of Spain, of 17 June, 1861, are substantially to the same effect; and both warn their subjects, that, if they make themselves parties to the war, they shall have no claim to any protection from their government against any acts or measures, whatever they may be, which the belligerents may exercise or decree.

A question cognate to the present was presented in the cases arising out of the burning of the American merchant-ship Golden Rocket. This vessel was seized at sea and burned in July, 1861, by the steamer Florida, commanded by one Semmes, who held a commission as an officer in the navy of the rebel government. Actions were brought on the policies of insurance in the Supreme Courts of Maine and Massachusetts, and in the Circuit Court of the United States for Massachusetts. Among the questions of law argued was this: Whether the owners could recover for a loss under policies which did not insure against belligerent capture, but did insure against pirates and assailing thieves. The Supreme Court of Massachusetts, by a unanimous opinion, that of Maine by an opinion of a majority of the court, and Mr. Justice Clifford in the Circuit Court of the United States, decided, that, this being a mere civil private contract, the question was, what the parties meant by the words they used: and, although the legal status of the citizens of the United States who committed this act, in the view of the law of the Union, in any criminal proceeding against them, would be that of traitors, criminals, and, at least under the statute law, of pirates, the contract between underwriters and merchants looked, not to the code or policy of any one nation in its use of the term "pirate" as distinguished from a belligerent, but referred to general commercial usages of speech, and to such a state of things as constituted piracy by the general, public, commercial law of the world; and that, as the rebellion had risen to the dimensions of an actual war waged by a de facto government, which the chief commercial nations of the world recognized as belligerent, and in which war the United States had exercised powers and privileges accorded by neutrals only to a state of war, the act of destroying The Golden Rocket was not piracy in the sense of the