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It was further held, in the case of the United States v. Pirates, and in the case of the United States v. Holmes," in pursuance of the same principle, that the moment a vessel assumed a piratical character, and was taken from her officers, and proceeded on a piratical cruise, she lost all claim to national character, and the crew, whether citizens or foreigners, were equally punishable, under the act of Congress, for acts of piracy; and it would be immaterial what was the national character of the vessel before she assumed a piratical character. Piracy is an offence within the criminal jurisdiction of all nations. It is against all, and punished by all; and the plea of autrefois acquit, resting on a prosecution instituted in the courts of any civilized state, would be a good plea in any other civilized state. As the act of Congress of 1790 declares every offence committed at sea to be piracy, which would be punishable with death if committed on land, it may be considered as enlarging the definition of piracy, so as not only to include every offence which is piracy by the law of nations, and the act of Congress of 1819, but other offences which were. not piracy until made so by statute.
An alien, under the sanction of a national commission, cannot commit piracy while he pursues his authority. His acts may be hostile, and his nation responsible for them. They may amount to a lawful cause of war, but they are never to be regarded as piracy. The Barbary powers, notwithstanding some doubts which formerly existed, are now, and for a century past have been, regarded as lawful powers, and not pirates. They have all the insignia of regular independent governments, and are competent to maintain the European relations of peace and war. Cicero, and, after him, Grotius, define a regular enemy to be a power which hath the elements or constituents of a nation, such
a 5 Wheaton, 184.
b Ibid. 412.
as a government, a code of laws, a national treasury, the consent and agreement of the citizens, and which pays a regard to treaties of peace and alliance; and all these things, says Bynkershoeck," are to be found among the states of Barbary. In some respects their laws of war have retained the barbarity of the middle ages, for they levy tribute or coutributions on all such Christian powers as are not able to protect their commerce by force; and they also make slaves of their prisoners, and require a heavy ransom for their redemption. But this, Bynkershoeck insists, is conformable to the strict laws of war; and the nations of Europe who carried on war with the Barbary states, such as Spain, Naples, Holland, &c. have heretofore exercised the same rule of ancient warfare, upon the principle of retaliation. When Lord Exmouth, in 1816, attacked Algiers, and compelled the Dey to terms of peace, he compelled him also to stipulate, that in the event of future wars with any European power, no Christian prisoners of war should be consigned to slavery, but they should be treated with all humanity as prisoners of war, until regularly exchanged according to the European practice; and at the termination of hostilities, the prisoners should be restored without ransom. By that treaty of peace, upwards of 1000 prisoners belonging to Italy, Spain, Portugal, Holland, and Greece, were released from galling slavery, and in which part of them had subsisted for thirty-five years. This sti
Grotius, b. 3. c. 3. sec. 1.
a Cic. Philip. 4. c. 6. b Q. J. Pub. b. 1. c. 17. A STATE, in the meaning of public law, is a complete or self-sufficient body of persons, united together in one community for the defence of their rights, and to do right to foreigners. A state has its affairs and interests; it deliberates, and becomes a moral person, having an understanding and will, and is susceptible of obligations and laws. Grotius, b. 1. c. 1. sec. 14. Ibid. b. 3. c. 3. sec. 2. Burlamaqui, vol. 2. part 1. ch. 4. sec. 9. Vattel, b. 1. ch. 1. - Respublica est cœtus multitudinis, Juris consensu et utilitatis communione socialus. Cic. de Repub. lib. 1. sec. 25.
pulation in favour of general humanity, deserves some portion of that exalted eulogy bestowed by Montesquieu on the treaty made by Gelon, king of Syracuse, with the Carthagenians. It would have been still more worthy of a comparison, if it had not left colour for the construction, that the renunciation of the practice of condemning Christian prisoners of war to slavery, was to be confined to the " event of future wars with any European power;" and if a great Christian power on this side of the Atlantic, whose presence and whose trade is constantly seen and felt in the Mediterranean, had not seemed to have been entirely forgotten.
But notwithstanding Bynkershoeck had insisted, near a century ago, that captures by the Barbary powers worked a change of property by the laws of war, in like manner as captures made by regular powers, yet, in a case in the English admiralty so late as 1801, it was contended, that the capture and sale of an English ship by Algerines, was an invalid and unlawful conversion of the property, on the ground of being a piratical seizure. It was, however, decided, that the African states had long acquired the character of established governments, and that though their notions of justice differ from those entertained by the Christian powers, their public acts could not be called in question; and a derivative title, founded on an Algerine capture, and matured by a confiscation in their way, was good against the original owner. In the time of Richard I. when the laws of Oberon were compiled, all infidels were, by that code, regarded as pirates, and their property liable to seizure wherever found. It was a notion, at that time, that such persons could not have any fellowship or communion with Christians.
a Esprit des Loix, b. 10. c. 5.
b The Helena, 4 Rob. 3.
c Sec. 45.
In a case which occurred in 1675, Sir Leoline Jenkins held, that the commander of a privateer regularly commissioned, was liable to be treated as a pirate, if he exceeded the bounds of his commission. Bynkershoeck justly opposes this dangerous opinion; and the true rule undoubtedly is, that the vessel must have lost its national and assumed a piratical character, before jurisdiction over it, to that extent, could be exercised.
If a natural born subject was to take prizes belonging to his native country, in pursuance of a foreign commission, he would, on general principles, be protected by his commission from the charge of piracy. But to prevent the mischief of such conduct, the United States have followed the provisions of the English statute of 11 and 12 Wm. III. c. 7. and have, by the act of Congress of April 30th, 1790, sec. 9, declared, that if any citizen should commit any act of hostility against the United States, or any citizen thereof, upon the high seas, under colour of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall be adjudged to be a pirate, felon, and robber, and, on being thereof convicted, shall suffer death. The act of Congress not only authorizes a capture, but a condemnation in the courts of the United States, for all piratical aggressions by foreign vessels; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that courts of justice are bound to obey and administer them. All such hostile and criminal aggressions on the high seas, under the flag of any power, render property taken in delicto subject to confiscation by the law of nations."
(4.) The African slave trade is an offence against the Slave Trade. municipal laws of most nations in Europe, and it is declared to be piracy by the statute laws of England and the
a Quæst. J. P. b. 1. c. 17.
b Story, J. 11 Wheaton, 39–41.
United States. Whether it is to be considered as an offence against the law of nations, independent of compact, has been a grave question, much litigated in the courts charged with the administration of public law; and it will be useful to take a short view of the progress and present state of the sense and practice of nations on this subject.
Personal slavery, arising out of forcible captivity, has existed in every age of the world, and among the most refined and civilized people. The possession of persons so acquired, has been invested with the character of property. The slave trade was a regular branch of commerce among the ancients; and a great object of Athenian traffic with the Greek settlements on the Euxine, was procuring slaves from the barbarians for the Greek market. In modern times, treaties have been framed, and national monopolies sought, to facilitate and extend commerce in this species of property. It has been interwoven into the municipal institutions of all the Europeon colonies in America, and with the approbation and sanction of the parent states. It forms to this day the foundation of large masses of property in the southern parts of these United States. But, for half a century past, the African slave trade began to awaken a spirit of remorse and sympathy in the breasts of men, and a conviction that the traffic was repugnant to the principles of Christian duty, and the maxims of justice and humanity.
Montesquieu, who has disclosed so many admirable truths, and so much profound reflection, in his Spirit of Laws, not only condemned all slavery as useless and unjust, but he animadverted upon the African slave trade by the most pungent reproaches. It was impossible, he observed, that we could admit the negroes to be human beings, because, if we were once to admit them to be men, we should
a Milford's Hist. vol. 4. 236. The Byzantines, says Polybius, (General History, b. 4. ch. 5.) supplied from the Pontus, the Greeks with honey, wax, salted meats, leather, and great numbers of very serviceable slaves.