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safeguards to life, liberty, and property, which the wisdom of the English common law had established. It declared, that any person convicted of suing out or executing civil process, upon an ambassador, or his domestic servants, by the oath of the party, or of one witness, before the Lord Chancellor, and the two Chief Justices, or any two of them, might have such penalties and corporal punishment inflicted upon him, as the judges should think fit. The preamble to the statute contains a special and inflamed recital of the breach of the law of nations which produced it, by the arrest of the Russian minister in the streets of London.
The Congress of the United States, during the time of the American war, discovered great solicitude to maintain inviolate the obligations of the law of nations, and to have infractions of it punished in the only way that was then lawful, by the exercise of the authority of the legislatures of the several states. They recommended to the states to provide expeditious, exemplary, and adequate punishment, for the violation of safe conducts or passports, granted under the authority of Congress, to the subjects of a foreign power in time of war; and for the commission of acts of hostility against persons in amity or league with the United States; and for the infractions of treaties and conventions to which the United States were a party; and for infractions of the immunities of ambassadors, and other public ministers."
(3.) Piracy is robbery, or a forcible depredation on the Piracy high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition of piracy. Pirates have been regarded by all civilized nations as the enemies of the human race, and the most atrocious violators of the univer
a Journals of Congress, vol. 7. 181.
b The United States v. Smith, 5 Wheaton, 153, and note, ibid. 163.
sal law of society." They are every where pursued and punished with death; and the severity with which the law has animadverted upon this crime, arises from its enormity and danger, the cruelty that accompanies it, the necessity of checking it, the difficulty of detection, and the facility with which robberies may be committed upon pacific traders in the solitude of the ocean. Every nation has a right to attack and exterminate them without any declaration of war; for though pirates may form a loose and temporary association among themselves, and re-establish in some degree those laws of justice which they have violated with the rest of the world, yet they are not considered as a national body, or entitled to the laws of war as one of the community of nations. They acquire no rights by conquest, and the law of nations, and the municipal law of every country, authorize the true owner to reclaim his property taken by pirates, wherever it can be found; and they do not recognise any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians, and modern writers on general jurisprudence: and the same doctrine was maintained in the English courts of common law prior to the great modern improvements made in the science of the law of nations."
By the Constitution of the United States, Congress were authorized to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. In pursuance of this authority, it was declared by the act of Congress of April 30th, 1790, sec. 8, that mur
a Cic. in Verrem, lib. 5. 3 Inst. 113.
b Bynk. Q. J. Pub. b. 1. c. 17. Rutherforth, b. 2. c. 9. Azuni, vol. 2. p. 351. 361, 362, edit. N. Y. Cro. E. 685. Anon. 2 Woodd. Lec. 429. Property found on board a pirate ship goes to the crown of strict right as droits of the Admiralty, but the claim of the original owner is admitted upon equitable principles, on due application. The Helen, 1 Hagg. Adm. Rep. 142.
der or robbery committed on the high seas, or in any river, haven, or bay, out of the jurisdiction of any particular state, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, should be adjudged to be piracy and felony, and punishable with death. It was further declared, that if any captain or mariner should piratically and feloniously run away with any vessel, or any goods or merchandise to the value of fifty dollars; or should yield up any such vessel voluntarily to pirates; or if any seaman should forcibly endeavour to hinder his commander from defending the ship or goods committed to his trust, or should make a revolt in the ship; every such offender should be adjudged a pirate and felon, and be punishable with death. Accessaries to such piracies before the fact, are punishable in like manner; but accessaries after the fact are only punishable by fine and imprisonment. And, by the act of March 3d, 1819, sec. 5. (and which act was made perpetual by the act of 15th of May, 1820, sec. 2.) Congress declared, that if any person on the high seas should commit the crime of piracy, as defined by the law of nations, he should, on conviction, suffer death. It was again declared, by the act of Congress of 15th of May, 1820, sec. 3. that if any person upon the high seas, or in any open roadstead, or bay, or river, where the sea ebbs and flows, commits the crime of robbery in and upon any vessel, or the lading thereof, or the crew, he shall be adjudged a pirate.
So, if any person
concerned in any particular enterprise, or belonging to any particular crew, should land, and commit robbery on shore, such an offender shall also be adjudged a pirate. The statute, in this respect, seems to be only declaratory of the law of nations; for, upon the doctrine of the case of Lindo v. Rodney, such plunder and robbery ashore, by the crew, and with the aid of vessels, is a marine case, and of admiralty jurisdiction.
Under these legislative provisions, it has been made a question, whether it was sufficient to refer to the law of nations for a definition of piracy, without giving the crime a precise definition in terms. The point was settled in the case of the United States v. Smith; and it was there held not to be necessary to give by statute a more logical enumeration in detail of all the facts constituting the offence, and that Congress might as well define it by using a term of a known and determinate meaning, as by expressly mentioning all the particulars included in that term. The crime of piracy was defined by the law of nations with reasonable certainty, and it does not depend upon the particular provisions of any municipal code for its definition and punishment. Robbery on the high seas is, therefore, piracy by the act of Congress, as well as by the law of nations.
There can be no doubt of the right of Congress to pass laws punishing pirates, though they may be foreigners, and may have committed no particular offence against the United States. It is of no importance, for the purpose of giving jurisdiction, on whom or where a piratical offence has been committed. A pirate, who is one by the law of nations, may be tried and punished in any country where he may be found, for he is reputed to be out of the protection of all laws and privileges. The statute of any government may declare an offence committed on board its own vessels to be piracy, and such an offence will be punishable exclusively by the nation which passes the statute. But piracy, under the law of nations, is an offence against all nations, and punishable by all. In the case of the United States v. Palmer, it was held, that the act of Congress of 1790 was intended to punish offences against the United States, and not offences against the human race; and that the crime of robbery, committed by a person who was not a citizen of the United States, on the high seas, on board of a ship belonging
a 5 Wheaton, 153.
b Bynk. Q. J. Pub, ch. 17,
c 3 Wheaton, 610.
exclusively to subjects of a foreign state, was not piracy under the act, and was not punishable in the courts of the United States. The offence, in such a case, must, therefore, be left to be punished by the nation under whose flag the vessel sailed, and within whose particular jurisdiction all on board the vessel were. This decision was according to the law and practice of nations, for it is a clear and settled principle, that the jurisdiction of every nation extends to its own citizens, on board of its own public and private vessels at sea. The case applied only to the fact of robbery committed at sea, on board of a foreign vessel, at the time belonging exclusively to subjects of a foreign state; and it was not intended to decide, that the same offence, committed on board of a vessel not belonging to the subject of any foreign power, was not piracy. The same court afterwards, in the case of the United States v. Klintock, admitted, that murder or robbery, committed on the high seas, by persons on board of a vessel not at the time belonging to the subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government or flag whatsoever, fell within the purview of the act of Congress, and was punishable in the courts of the United States. Persons of that description were pirates, and proper objects for the penal code of all nations. The act of Congress did not apply to offences committed against the particular sovereignty of a foreign power; or to murder or robbery committed in a vessel belonging at the time, in fact as well as in right, to the subject of a foreign state, and, in virtue of such property, subject at the time to its control. But it applied to offences committed against all nations, by persons who, by common consent, were equally amenable to the laws of all nations.
a Rutherforth's Inst. b. 2. ch. 9. Mr. Jefferson's Letter to M. Genet, 17th June, 1793.
b 5 Wheaton, 144.