Of of fences against Public Law. Passports or safeconducts. Ambassadors. its cognizance, and which are the most obvious, the most extensive, and most injurious in their effects, are the violations of safe-conduct, infringements of the rights of ambassadors, and piracy. To these we may add the slave-trade, which may now be considered, not, indeed, as a piratical trade, absolutely unlawful by the law we are discussing, but as a trade condemned by the general principles of justice and humanity, openly professed and declared by the powers of Europe. (1) A safe-conduct or passport contains a pledge of the public faith, that it shall be duly respected, and the observance of this duty is essential to the character of the government which grants it. The statute law of the United States has provided, in furtherance of the general sanction of public law, that if any person shall violate any safe conduct or passport, granted under the authority of the United States, he shall, on conviction, be imprisoned for a term not exceeding three years, and fined at the discretion of the Court'. (2) The same punishment is inflicted upon those persons who infringe the law of nations, by offering violence to the persons of ambassadors, and other public ministers, or by being concerned in prosecuting or arresting them. This is an offence highly injurious to a free and liberal communication between different governments, and mischievous in its consequences to the dignity and well being of the nation. It tends to provoke the resentment of the sovereign whom the ambassador represents, and to bring upon the state the calamities of war. The English parliament, under an impression of the danger to the community from violation of the rights of embassy, and urged by the spur of a particular occasion, carried the provisions of the statute of 7 Anne, c. 12, to a dangerous extent. That statute prostrated all the 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 1 Act of Congress, April 30th, 1790, § 27. See further as to this topic, Wheaton's Elements, Part iv. ch. ii. § 25; and for the English law Blackstone's Comm. Vol. IV. ch. v. pp. 68-70, and Stephen's Comm. Vol. Iv. ch. viii. 2 Act of Congress, supra, §§ 25, 26. Public party, or of one witness, before the Lord Chancellor, and Offences the two Chief Justices, or any two of them, might have against such penalties and corporal punishment inflicted upon Law. him, as the judges should think fit. The preamble to the statute contains a special 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; for the commission of acts of hostility against persons in amity or league with the United States; 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". Ambassadors. (3) Piracy is robbery, or a forcible depredation on Piracy. the 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 [For a full account of the transaction here noticed see Blackstone's Commentaries, Vol. 1. pp. 255, 256. With the criticism of the learned author upon the conduct of the British Parliament in passing this Act, which was certainly in accordance with recognized principles of Public International Law, we do not agree. According to Lord Talbot, "This act is only declaratory of the Law of Nations which is part of the Law of England, and was occasioned by a particular incident (viz. an affront to Peter the Great, Czar of Muscovy). See Lord Mansfield's remarks upon it in Triquet v. Bath, 3 Burrows, 1430. Cf. also Mr Chitty's note (12) at p. 255 of his edition of Blackstone, Vol. II., and Halliday's Life of Lord Mansfield, p. 33.] 2 Journals of Congress, Vol. VII. 181. 3 The United States v. Smith, 5 Wheaton, 153, and note, ibid. 163. See Russell on Crimes, Vol. 1. ch. viii. § 1. [Blackstone's Commentaries, Vol. iv. ch. v. p. 71. Bishop's Comm. on the Cri Offences nations as the enemies of the human race, and the most atrocious violators of the universal law of society'. They are everywhere 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 both international law and the municipal law of every country authorize the true owner to reclaim his property taken by pirates, wherever it can be found; nor do they recognize 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 international law. minal Law of America, Vol. II. ch. xlvii., and Wharton's Criminal Law (of America), § 2825. N.B. The note here referred to in which the doctrines of the civil, the maritime, and the common law, are collected, was written by Mr Justice Story, by whom the opinion of the court was delivered in the case here cited (Story's Life of Story, Vol. 1. p. 285).] 1 Cic. in Verrem, Lib. v. 3 Inst. 113. 2 Bynk. Q. J. Pub. Bk. 1. ch. xvii. Rutherforth, Bk. I. ch. ix. Azuni, T. II. ch. v. Art. III. Croke Eliz. 685. 2 Wooddeson's Lect. 429. Wheaton's Elements, Part II. ch. ii. § 15. Heffter, Droit des Gens, Liv. 1. ch. iii. § 104. Ortolan, Règles Internationales, T. 1. ch. xi. And see, for the doctrines of the English law upon this subject of Piracy in the middle of the 17th century, an interesting chapter in Molloy, De Jure Maritimo, Vol. 1. ch. iv. 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. The Panda, W. Rob. 423, against Piracy. By the Constitution of the United States Congress Offences were authorized to define and punish piracies and felonies Public committed on the high seas, and offences against the law Law. of nations. In pursuance of this authority, it was declared, American by the act of Congress of April 30th, 1790, sec. 8, that Statutes. murder 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 country, 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. By the act of March 3, 1819, sec. 5, (which act was made perpetual by that 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, 1 By the Act of Congress, of March 3rd, 1835, c. 313, the offence of making a revolt in a ship is no longer punishable as a capital offence, but only by fine or imprisonment, or hard labour. 2 Doug. 613 (note). Piracy. and with the aid of vessels, is a marine case, and of admiStatutes. ralty jurisdiction'. [On the 3rd of March, 1847, Congress passed another act on the subject of piracy, declaring that when any subject or citizen of any foreign state should be found and taken on the seas making war upon the United States, or cruising against the vessels or property thereof, contrary to the provisions of any treaty existing between the United States and the state to which the offenders belonged, such persons should be arraigned, tried, and, if convicted, punished as pirates. It further declared, that upon the capture and condemnation, in any port of the United States, of vessels guilty of piratical aggressions, the court might order a sale and distribution of them; and that the commander and crew of a merchant-vessel belonging to the United States might defend itself against the attack of any vessel, not being the public armed ship of a nation in amity with the United States, and might retake the vessel in the event of capture. And by an act passed August 5th, 1861, it was enacted that vessels intended for piratical aggressions may be seized at sea or in port and condemned; and that not only are commanders [The President of the United States having by proclamation, dated April 19, 1861, declared inter alia that any person acting under letters of marque issued by the authority of the so-called Confederate States would be held amenable to the laws of the Union for the prevention and punishment of piracy, an important debate ensued upon this proclamation in the British House of Lords, in the course of which strong opinions were expressed by several noble lords, both as to the impolicy and impropriety of this measure. Some trials of privateersmen acting under Confederate commission took place in New York and Philadelphia, under the 3rd section of the Act of 1820, but as not only no sentences were passed but retaliatory action took place on the part of the southern States, by an order dated 21st January, 1862, all the prisoners charged with piracy were transferred to a military prison as prisoners of war. Lord Russell in a despatch to Lord Lyons, dated January 24th, 1862, in noticing with satisfaction this change of feeling on the part of the Federal Government, takes the opportunity to express a strong opinion against the propriety and policy of the proclamation of April, 1861. See Parliamentary Papers, 1862, North America, No. 1. p. 137. Hansard's Debates, Vol. CLXII. p. 1829, and Wheaton's Elements, Part 11. ch. ii. pp. 250-254, notes by W. B. Lawrence. It should be noticed that the Spanish Government have, it is asserted, by decree declared that all persons acting under letters of marque issued by the authorities of Chili will be treated as pirates.] |