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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 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
a 5 Wheaton, 153.
b Bynk. Q. J. Pub, ch. 17, c3 Wheaton, 610.
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.
Mr. Jefferson's Letter to M.
a Rutherforth's Inst. b. 2. ch. 9. Genet, 17th June, 1793.
b 5 Whealon, 141.
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 ofiences 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.
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 bim 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
a Cic. Philip. 4. c. 6. Grotius, b. 3. c. 3. sec. 1.
6 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 calus mullitudinis, Juris consensu ct utilitatis communione socialus. Cic. de Repub. lib. 1. sec. ?5.
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.