them. No one now will question this, especially as in the course of time these states, those of them which still exist, have in a measure laid aside their piratical habits.1 Are the crews of pirates? $ 145. Could the crews of war-vessels, public or private, of a government like the Confederated States, be regarded as rebel vessels pirates? This question came before our courts early in the war, in the case of the crew of the Savannah and of one of the crew of the Jeff Davis. In the first case Judge Nelson instructed the jury that the offense committed by the said crew was not piracy according to the law of nations, for the captain's design was to prey on the commerce of the United States only, while piracy implies war against nations in general. If piracy, it was such only by a law of the United States of the year 1820. But the commission given by the Confederate States could not be admitted as a defense, for the courts could not recognize such an authority before the government had so done. Yet felonious intent being essential to robbery on land or sea, if this were wanting the offense could not be piracy under the statute which defines it as committing robbery in or upon any ship, ship's lading, or company. In the case of the Golden Rocket, captured and burnt by the privateer Sumter, it was held (by the State and circuit courts) that the owner could not recover for the loss under policies which insured against capture by pirates. For although the destruction of this vessel might be held to be a piratical act under the law of the United States, it would not be held to be such by the general commercial law of the world, which must be presumed to govern in the interpretation of the policy. 1 For piracy in general, comp. especially Bynkershoek, Quæst. J. P., i., 17, entitled, "De Piratica, et an Barbari in Africa sint Piratæ." Comp. also Kent, Lect. ix., and Wildman, ii., 150. The principal passages of the Roman lawyers respecting restoration of things taken by pirates without postliminy, are one from Ulpian (Dig., 49, Tit. 15, 24), "qui a latronibus captus est, servus latronum non est; nec postliminium illi necessarium est," and one from Paulus (u. s., 19, § 2), "a piratis aut latronibus capti liberi permanent." These decisions are in conformity with the law of nations, and with our own declared views and claims under it. A privateer of an organized rebellious community, acting under letters of marque given by the supreme authority according to law, is not doing piratical work when, in a state of open war, it preys on the commerce of its enemy, although its government be as yet unrecognized. For (1) There is in this case no animus furandi; (2) the commission is a special one against a particular enemy, and not against mankind; (3) and thus the captures made by such a vessel will not be noticed by the courts of neutral countries, as crimes against the law of nations. Accordingly, when Denmark delivered up to Great Britain three prizes, carried into a port of Norway by Paul Jones in the Revolutionary War, we complained of it, and continued our reclamations through more than sixty years. (Comp. De Martens, "Nouvelles Causes Célèbres," i., pp. 492-495, Lawrence in his new French commentary on Wheaton, i., 176– 179, and Professor Bernard, of Oxford, "British Neutrality," pp. 119-121.) § 146. Is the slave cy? In the progress of humane and Christian principles, and of correct views of human rights, slavery has come to be regarded as an unjust and cruel degradation of trade piraman made in the image of God. It is, accordingly, a status unprotected by the law of nations, and supported where it exists, only by local law. (§ 74.) Hence persons seized to be sold as slaves in a territory where the importation of slaves is forbidden, commit no crime when they get possession of the vessel, and either slay the crew, or compel them to sail for another country. They are only defending their lawful rights. Thus, when certain blacks who had lately been imported into Cuba from Africa, and were therefore illegally held in bondage, and were by right free according to Spanish law, rose on the crew between Havana and Puerto Principe, killed the captain, and finally came into the waters of the United States, it was held by the Supreme Court that if they had been slaves, our treaties with Spain would have required their restora tion, but that they were not slaves, and if not slaves, not pirates.1 With new views of men's rights, and with fuller knowledge of the woes inflicted on Africa by the slave-trade, this traffic, which misguided benevolence at first suggested, became abhorrent to the feelings of Christendom, and has everywhere become unlawful. Denmark, we believe, led the way, in 1792, by prohibiting the slave-trade, and importation into her colonies of slaves from abroad after the year 1802. Under the Constitution of the United States, the importation of slaves could not become illegal before 1808, but acts passed in 1794 and 1800 forbade all citizens and residents to carry slaves from this country to a foreign one, or from one foreign country to another. In 1807 the importation of slaves was made to cease after January 1, 1808, and in 1818 a law was passed increasing the penalties of the trade, and applying to all participation of citizens of the United States in it. In 1819 the vessels and effects of citizens found to have been engaged in the trade were made liable to seizure and confiscation. And by the act of March 3, 1820, all persons over whom our jurisdiction extends, that is, all persons in vessels owned within the United States, and all citizens on foreign vessels, concerned in the slave-trade, or in kidnapping negroes or mulattoes, were to be esteemed pirates and to suffer death. In Great Britain, the first act declaring the slave-trade unlawful was passed in 1807, but not until 1824 was it pronounced to be piracy. Nearly all the nations of Europe have subsequently passed laws more or less stringent against the traffic. Its abolition was conceded by Spain in her treaty with Great Britain, in September, 1817. Portugal agreed to prohibit it north of the equator, by treaty with England, of January 22, 1815, and it ought by the same treaty to have come altogether to an end when the independence of Brazil was acknowledged in 1825. It ceased to be legal in Brazil by 1830, and in 1831, a law of that country not only freed all slaves who should be imported afterwards, but also provided for their reconveyance to Africa. 1 United States v. The Amistad, 15 Peters, 518–598. In 1824, the House of Representatives in our Congress, by a very large majority, requested the President to make arrangements, by which the slave-trade should become piracy under international law; but nothing was hereby effected. (§ 217.) Great Britain, both before and after this, in a number of treaties, secured the suppression of the trade, with the mutual right of search, of which we shall speak hereafter. (§ 216.) In her treaty with Brazil, of March 13, 1827, it was stipulated, that after three years a subject of the Emperor of Brazil, carrying on the trade, should be deemed and treated as a pirate. This must mean that whatever may be done under the laws of nations, for the detection and seizure of pirates, might be done under the treaty towards Brazilian slavetraders, as search, capture, and trial before the captor's courts; but England forbore to take the steps to which the treaty gave her a right.1 However much the slave-trade may deserve to be ranked with piracy, or ranked as a worse crime still, it is not yet such by the law of nations, and would not be, if all the nations in Christendom constituted it piracy by their municipal codes. For the agreement of different states in the definitions and penalties of crimes, by no means gives to any one of them the right to execute the laws of another. That power must be acquired by treaty between separate states, or by consent of all states, in which latter case it would belong to international law. Meanwhile, the fact that the slave-trade has not been placed in this category, adds greatly to the difficulty of suppressing it, as will appear in the sequel. (§ 218, but comp. § 219, end.) 1 Wildman, ii., 150 seq. For the section in general, comp. Kent, Lect. ix. SECTION IV.-Capture and Recapture, Occupation and Recovery of Territory. pecially from ene § 147. Capture of private property has nearly disappeared from land warfare, but is allowed by international war, as Capture in general, es- well in the case of neutrals as of enemies, at sea. The same humane principles, however, which have mies. put a stop to it on the one element, are at work to abridge its sphere on the other. The rule already adopted by the principal European powers, that free ships engaged in lawful trade makes free goods, has already become nearly universal; and if so, the hostile property exposed to the cruisers of the other belligerent may become so inconsiderable, that the trade of plundering on the sea will be hardly worth carrying on. Meanwhile, the only specious pretexts for marine capture are these two, that the enemy's commerce furnishes him with the means of war, so that it may justly be obstructed, and that the captured vessels are pledges for the reparation of injuries. The former pretext will amount to nothing, if hostile trade can be conducted in such a way as to exempt it from capture. The other pretext would require that ships and goods captured be regarded, until peace settles all questions between nations, as simply detained to be restored, or have an equivalent paid for them if necessary. We must profess, however, that we indulge that "pious chimæra," as it has been called, that all private property on the sea, engaged in a lawful trade to permitted ports, ought to cross the seas in safety; we have the sanction of the authority of Franklin, and of sober propositions made by our own government, for regarding such a rule as both desirable and practicable; we must esteem it nearer to justice, and certainly to humanity, that the present inequality of risk on the two elements; and it will probably be found, owing to the new rule in favor of neutrals, that marine capture will not be worth retaining.1 1 In a meeting of the Chambers of Commerce of Hamburg and Bremen, resolu |