The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted different rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party. (a)82

§ 124. Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals. (a)83

acts done by him to vessels of a different nation were such as could not, in any sense, be said to be done under color of belligerent authority.] — D.

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17, p. 130; Duponceau's Transl. Valin, Commentaire sur l'Ord. de la Marine, tom. ii. p. 236. "The law," says Sir L. Jenkins, "distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all or else hath two or three, and a lawful man-of-war that exceeds his commission." Works, ii. 714.

[82 Hautefeuille contends that a privateer taking commissions from two sovereigns, though they be allies in the war, is a pirate. Droits des Nat. Neutr. tom. i. liv. 3, p. 190. Such cruising is condemned by Massé (Droit Comm. liv. ii. tit. 1, No. 166) and by Martens (Essai sur les Armateurs, ch. 2, § 14), although they do not positively say that persons so cruising are pirates. Aliter, Abreu, Presas Marit. Part II. ch. 1, §§ 7, 8. The objection is, that the cruiser should be responsible to one sovereign, whose instructions and rules of war he must obey exclusively, and who shall be responsible for him. Phillimore treats such acts as dangerous and to be discountenanced, but not as necessarily piracy. i. 374.]—D.

(a) "Every man, by the usage of our European nations, is justiciable in the place where the crime is committed; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken." Sir L. Jenkins's Works, ii. 714.

[83 Piracy. It must be admitted, that the attempted definitions of piracy are unsatisfactory; some being too wide, and some too narrow. The author's description, rather than definition, is perhaps the most adequate. Some writers, and even judges, seem to have treated the phrase hostis humani generis as if it were a definition of piracy. Dr. Tindal, Howell's State Trials, xii. 1271-2, note, in the case of the privateers of James II., reports this point as made and overruled; and says, "It is neither a definition nor as much as a description of a pirate, but a rhetorical invective." It is true, that a pirate jure gentium can be seized and tried by any nation, irrespective of his national character, or of that of the vessel on board which, against which, or from which, the act was done. The reason of this must be, that the act is one over which all nations have equal jurisdiction. This can result only from the fact, that it is committed where all have a common, and no nation an exclusive, jurisdiction, ―i.e., upon the high seas; and, if on board ship, and by her own crew, then the ship must be one in which no national authority reigns. The criminal may have committed but one crime, and intended but one, and that against a vessel of a particular nation; yet, if done on the high seas, under certain circumstances hereafter to be referred to, he may be seized and tried by any nation. In such case, it cannot be necessary to

Distinc

piracy by

nations, and

piracy under the municipal

statutes.

This proposition, however, must be confined to piracy tion between as defined by the law of nations, and cannot be extended the law of to offences which are made piracy by municipal legislation. Piracy, under the law of nations, may be tried and punished in the courts of justice of any nation, by whomsoever and wheresoever committed; but piracy created by municipal statute can only be tried by that State within whose territorial jurisdiction, and on board of whose vessels, the offence thus created was committed. There are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification. It is not by force of the international law that those who commit these acts are tried and punished, but in consequence of special

satisfy the court affirmatively, as a fact, that he had a purpose to plunder vessels of all nations, or vessels irrespective of nationality; nor would the court be driven to an artificial presumption of law, contrary to the facts in the case, that such general hostile purpose existed.

On the other hand, that is too wide a definition which would embrace all acts of plunder and violence, in degree sufficient to constitute piracy, simply because done on the high seas. As every crime may be committed at sea, piracy might thus be extended to the whole criminal code. If an act of robbery or murder were committed upon one of the passengers or crew by another in a vessel at sea, the vessel being at the time and continuing under lawful authority, and the offender were secured and confined by the master of the vessel, to be taken home for trial, — this state of things would not authorize seizure and trial by any nation that chose to interfere, or within whose limits the offender might afterwards be found. United States v. Palmer, Wheaton's Rep. iii. 610. United States v. Pirates, Ib. v. 184. United States v. Klintock, Ib. v. 144. United States v. Holmes, Ib. v. 412. The Malek Adhel (Harmony v. United States), Howard, ii. 210. United States Laws, ix. 175; xii. 314-15. Rutherford's Inst. lib. ii. ch. 9. American State Papers, i. 88-94, Mr. Jefferson to M. Genet.

To constitute piracy jure gentium it is necessary, 1st, That the offence, being adequate in degree, for instance, robbery, destruction by fire, or other injury to persons or property, must be committed on the high seas, and not within the territorial jurisdiction of any nation; and, 2d, That the offenders, at the time of the commission of the act, should be in fact free from lawful authority, or should have made themselves so by their deed, or, as Sir L. Jenkins says (ii. 714), "out of the protection of all laws and privileges," or, in the words of the Duc de Broglie (Ecrits, i. 365), “qui n'ait ni feu ni lieu :" in short, they must be in the predicament of outlaws.

It has sometimes been said, that the act must be done lucri causâ, and the English common-law definition of animus furandi has been treated as a requisite ; but the motive may be gratuitous malice, or the purpose may be to destroy, in private revenge for real or supposed injuries done by persons, or classes of persons, or by a particular national authority.

On these points the following authorities may be consulted: As to the definition, hostis humani generis, Howell's State Trials, xii. 1271-2, note; Tindal's Law of

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, τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον.

ката

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. Rose 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

§ 125. The African slave-trade, though prohibited by Slavetrade, whethe municipal laws of most nations, and declared to be ther prohibpiracy 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