AS A MEANS OF SUPPRESSING THE SLAVE TRADE [§ 230

to that position.1 Great Britain renounced, in 1858, claims which it had previously asserted in support of a contrary doctrine.2 The United States, after having long declined to conclude an agreement yielding to foreign vessels a right to visit and search American ships suspected of being engaged in such traffic, became, in 1862, a party to a convention with Great Britain providing that the vessels of war of the contracting parties, clothed with special instructions, might visit such merchant vessels as should, upon reasonable grounds, be suspected of participation in the African slave trade, or of having been fitted out for that purpose, and, upon well-founded suspicions, send them in for trial before mixed courts. By an additional convention of June 3, 1870, the mixed courts were abolished, and arrangement made that the jurisdiction formerly lodged in them should be exercised by courts of one or the other of the contracting parties. It was agreed also that upon the detention by a cruiser belonging to one party of a merchant vessel of the other, the ship should be sent in to a port of its own country for adjudication, or handed over to a cruiser of its nationality, if one should be available in the neighborhood.5 The United States became a party of the General Act of Brussels of July 2, 1890, "permitting, for the

1 Mr. Adams, Secy. of State, to Messrs. Gallatin and Rush, Nov. 2, 1818, Am. State Pap. For. Rel. V, 72, 73, Moore, Dig., II, 918; Mr. Adams, Secy. of State, to Mr. Canning, British Minister, Aug. 15, 1821, MS. Notes to For. Leg., III, 22, Moore, Dig., II, 919; Mr. Adams, Secy. of State, to Mr. Hyde de Neuville, French Minister, Feb. 22, 1822, MS. Notes to For. Leg., III, 50, Moore, Dig., II, 920; Mr. Adams, Secy. of State, to Mr. Canning, British Minister, June 24, 1823, MS. Notes to For. Leg., III, 141, Moore, Dig., II, 921; Mr. Webster, Secy. of State, to Mr. Cass, Minister to France, April 5, 1842, MS. Inst. France, XIV, 272, Moore, Dig. II, 929; Mr. Webster, Secy. of State, to Mr. Everett, Minister to England, March 28, 1843, Webster's Works, VI, 331-342, Moore, Dig., II, 935; U. S. Senate Resolution, June 16, 1858; For. Rel. 1874, 963, Moore, Dig., II, 946.

2 Mr. Cass, Secy. of State, to Mr. Dallas, Minister to England, Feb. 23, 1859, MS. Inst. Great Britain, XVII, 150, Moore, Dig., II, 941; Same to Same, June 30, 1859, MS. Inst. Great Britain, XVII, 115, Moore, Dig., II, 944; Lord Malmesbury, British For. Secy. to Lord Napier, British Minister, June 11, 1858, Brit. and For. State Pap., L, 737, 738-739, Moore, Dig., II, 943.

3 See documents contained in Moore, Dig., II, 918 to 941, relating to the Treaty of Ghent of Dec. 24, 1814, and to subsequent discussion and negotiations between the United States and Great Britain.

According to Article VIII of the Webster-Ashburton treaty of Aug. 9, 1842, it was provided that the United States and Great Britain should each maintain on the African coast a sufficient squadron to enforce "separately and respectively" their own laws for the suppression of the slave trade. Malloy's Treaties, I, 655.

Malloy's Treaties, I, 674, 676. See, also, additional Articles concluded Feb. 17, 1863, id., I, 687. Concerning the treaty of 1862, see Moore, Dig., II, 946-948, and documents there cited.

5 Arts. II and III, Malloy's Treaties, I, 694.

purpose of repressing the slave-trade, a mutual search within a defined zone on the eastern coast of Africa of vessels of less than five hundred tons burden." 1

It may be noted that the convention concluded by the United States, Great Britain, Russia and Japan, July 7, 1911, for the preservation and protection of the fur seals frequenting the North Pacific Ocean contemplates the visit and search of ships under the flags of the contracting parties when suspected of being engaged in pelagic sealing within specified waters thereof, embracing Bering Sea.2

Piracy is an offense of the high seas. It derives its internationally illegal character from the will of the society of nations which, by common understanding, confers upon each of its members a right of jurisdiction over any persons who, regardless of their nationality, commit the offense. The nature of what is forbidden is to be ascertained by reference to the practice of maritime States generally.4

3

Local legislation, like that of the United States, may provide for the punishment of persons committing acts described therein as piratical. The object may be twofold: first, to punish nationals For the text of the convention, see Malloy's Treaties, II, 1964.

2 Art. I, Charles' Treaties, 61.

3 It is "the rejection of all public rule" by the pirate which Westlake regards as the reason for "the universality of the authority and jurisdiction" over him. Int. Law, 2 ed., I, 181-183. Hall emphasizes the fact that as piratical acts are "done under conditions which render it impossible or unfair to hold any State responsible for their commission", and that as no recourse can, therefore, be had to any government for redress, the right of seizure and punishment is the possession of every State. Higgins' 7 ed., § 81. See, also, Dana's Wheaton, 193-196; Dana's notes, id., Nos. 83 and 84; Bonfils-Fauchille, 7 ed., § 594; Calvo, 5 ed., 576-605; Rivier, I, 248-251; Woolsey, 6 ed., 233-239; Oppenheim, 2 ed., I, §§ 272-279. Paul Stiel, Der Tatbestand der Piraterie nach geltendem Völkerrecht, Leipzig, 1905; G. Tambaro, Pirateria, Turin, 1910; D. A. Azuni, Recherches pour Servir à l'Histoire de la Piraterie, Genoa, 1816.

See Charles M. Endicott, Narrative of the Piracy and Plunder of the Ship Friendship, of Salem, on the West Coast of Sumatra, 1831, Salem, 1859.

4 In the course of the opinion of the Court in the case of United States v. Smith, Mr. Justice Story said: "And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offense against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offense is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment." 5 Wheat. 153, 162.

Moore, Dig., II, 951.

PIRACY IN GENERAL

[§ 231

who commit acts that are forbidden, as well as aliens who commit them on vessels under the flag of the State; and secondly, to punish any persons of whatsoever nationality who, on whatsoever ships, commit what is deemed to be internationally illegal conduct. In interpreting the legislation of the United States, the Supreme Court has been careful not to impute to Congress an intention to assert a right of jurisdiction with respect to the acts of foreigners on board of foreign vessels on the high seas, save when those acts might be fairly regarded as amounting to piracy within the requirements of international law. Acts of such a character committed by foreigners on vessels not under the flag of any civilized State have been regarded as within the scope of the statutory law.2

When pirates

The zone of piratical operations is the high seas. commit depredations within the domain of a particular State, the actors, so long as they remain there, are subject to the sole jurisdiction of the territorial sovereign.4

Pirates, by reason of their occupation, possess no authority which any civilized State is bound to respect. National authorization of the commission of piratical acts could not free them from their internationally illegal aspect.5 Before Germany became a

1 Concerning Section 8 of the Act of April 30, 1790, 1 Stat. 113, 114, see United States v. Palmer, 3 Wheat. 610; United States v. Klintock, 5 Wheat. 144; United States v. Holmes, 5 Wheat. 412; United States v. The Pirates, 5 Wheat. 184. Cf. commentary on these decisions in Moore, Dig., II, 954959.

See Chap. 12 of the Federal Criminal Code, with respect to piracy and other offenses upon the seas, U. S. Comp. Stat. 1918, §§ 10463-10483 a. According to § 10463, 35 Stat. 1145, "Whoever on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."

It may be observed that piracy is frequently made an extraditable offense in extradition treaties of the United States. Concerning the interpretation of the term "piracy" in Art. X of the treaty with Great Britain of Aug. 9, 1842, see In re Tivnan, 5 Best & S. 645, Dip. Cor. 1864, II, 30; Case of The Chesapeake, Moore, Extradition, I, 316.

2 United States v. Klintock, 5 Wheat. 144, 152; United States v. The Pirates, 5 Wheat. 184; United States v. Holmes, 5 Wheat. 412.

3 Oppenheim, 2 ed., I, § 272.

4

§ 302 of the Federal Criminal Code; 35 Stat. 1147, U. S. Comp. Stat. 1918, § 10475.

5 Sir William Scott, in the case of The Helena, 4 Ch. Rob. 3, 5-6. At the close of the eighteenth century, the Barbary powers had by no means abandoned their regular depredations under official authority on merchant vessels generally. Moore, Am. Diplomacy, 64-70. As late as 1853, Dr. Lushington, in the case of The Magellan Pirates, 1 Spinks' Eccl. & Adm. Rep. 81, 83, declared: "Even an independent State may, in my opinion, be guilty of piratical acts. What were the Barbary pirates of olden times? What many of the African tribes at this moment? It is, I believe, notorious that tribes now inhabiting the African coast of the Mediterranean will send out their boats and capture any ships becalmed upon their coasts. Are they not

belligerent in 1914, it was not supposed that any member of the family of nations would authorize the commission in its behalf of acts on the high seas which by reason of their unmoral character sank to the level of those of the pirate, even though they differed technically in kind from those committed by the latter.1

§ 232. Piratical Acts.

(b)

Piratical acts may assume a variety of forms.2 They may include, for example, homicide or robbery or burning. They may be directed against the ship on which the actors are lodged, or against its officers, or against another vessel and its occupants.4 They may represent the united effort of persons controlling a vessel so that the ship itself is transformed into a piratical craft. Coincident in time with the birth of the United States, certain seas were infested with brigands whose regular occupation was the robbery and seizure of merchant vessels as a means of enriching the captors. The purpose of their undertakings and their inpirates because, perhaps, their sole livelihood may not depend on piratical acts? I am aware that it has been said that a state cannot be piratical; but I am not disposed to assent to such dictum as a universal proposition."

1 See § 304 of the Federal Criminal Code, with respect to acts committed by an American citizen under color of a foreign commission, and deemed to constitute the actor "a pirate", 35 Stat. 1147, U. S. Comp. Stat. 1918, § 10477. Dana's Wheaton, 192 to 196; Dana's Note No. 83, id.

Declared Chief Justice Marshall in United States v. Klintock, 5 Wheat. 144, 152: "The Court is satisfied, that general piracy, or murder or robbery, committed in the places described in the 8th section, 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 whatever, is within the true meaning of this act, and is punishable in the Courts of the United States. Persons of this description are proper objects for the penal code of all nations." See, also, Mr. Justice Story, in United States v. Smith, 5 Wheat. 153, 160-162.

United States v. Holmes, 5 Wheat. 412; Mr. Marcy, Secy. of State, to Mr. Starkweather, Sept. 18, 1854, MS. Inst. Chile, XV, 107, Moore, Dig., II, 965. The capture of a vessel by native Africans unlawfully kidnapped, and to whom a status of slavery had not been validly attached, for the sole purpose of enabling the captors to regain their native country, and not for that of robbery or plunder, was held not to be piratical in the case of the Amistad, 15 Pet. 518, 593-594. See, also, Mr. Seward, Secy of State, to Mr. Van Valkenburg, Minister to Japan, Feb. 19, 1869, MS. Inst., Japan, I, 316, Moore, Dig., II, 966.

The attempt of a mutinous crew to gain control of a vessel, or acts of violence of other persons on board, having the same end in view, do not constitute piracy. If, however, the actual control of the ship be displaced, and the mutineers or other persons thereon employ the ship for their own purposes, in total disregard of the authority of the country to which the vessel belongs, their action becomes clearly piratical. The piracy in such case is the consequerce of the successful mutiny or overthrow of authority. See Dana's Whe ton, Dana's Note No. 83. Compare Opinion of Mr. Hill, Asst. Atty.-Gen., 14 Ops. Attys.-Gen., 589.

"At the close of the eighteenth century, a merchantman built for long

scope

difference as to the nationality of the victims may have been responsible for the belief that he was not a pirate whose acts were directed against the vessels of a single State.1 It is now understood, however, that the sea-brigand cannot, by so limiting the of his operations, free himself from a piratical character.2 As piracy does not necessarily involve the taking of property, the absence of an intent to steal is not necessarily decisive of the character of what takes place. According to Dana, "the motive may be gratuitous malice, or the purpose may be to destroy, in private revenge for real or supposed injuries done by persons or classes of persons, or by a particular national authority.” 3

It seems to be distinctive of acts of piracy that they are committed in furtherance of private ends rather than for a public purpose in behalf of a political community. When an insurrection has been suppressed, persons who were associated with it cannot save the character of their acts, otherwise to be regarded as piratical, on the ground that the commission thereof was in aid of a public cause.5

voyages still differed little in armament from a man-of-war. Whether it rounded the Horn or the Cape of Good Hope, it was exposed to the depredations of ferocious and well-armed marauders, and if it passed through the Straits of Gibraltar it was forced to encounter maritime blackmail in its most systematic and most authoritative form." J. B. Moore, Principles of American Diplomacy, 1918, p. 104.

1 See, for example, the language of Mr. Justice Nelson in United States v. Baker, 5 Blatchford, 6, 12, cited with approval by Mr. Bayard, Secy of State, in a communication to the Secy. of the Navy, July 14, 1885, 156 Dom. Let., 691, Moore, Dig., II, 1097; also suggestion of Chief Justice Marshall in United States v. Klintock, 5 Wheat. 144, 152.

2 Dana's Wheaton, Dana's Note No. 83.

3 Id. Mr. Dana criticized the statement oftentimes made that an act of piracy must be committed by one possessed of an animus furandi. Inasmuch as the Latin verb furari refers to the taking of property, and the absence of an intention to steal is not necessarily proof that the actor is not possessed of a state of mind which may serve to give to his acts a piratical character, this objection seems well taken. If it be necessary to resort to a Latin phrase in order to describe the requisite or common mental state of a pirate, it might be well to consider the potentialities of the verb fureri, signifying to rage, to be furious, to act like a madman, or, as Cicero employed it, to act against the welfare of one's own country. In view of the nature of his occupation and the contempt with which he is regarded by civilization, a pirate might be said to possess invariably an animus furendi.

Declares Hall: " 'Though the absence of competent authority is the test of piracy, its essence consists in the pursuit of private, as contrasted with public, ends." Higgins' 7 ed., p. 269, § 81. See, also, In re Tivnan, 5 Best & S. 645, Dip. Cor. 1864, II, 30; Mr. Fish, Secy. of State, to Mr. Bassett, Minister to Haiti, Sept. 14, 1869, MS. Inst. Haiti, I, 150, Moore, Dig., II, 1085. Compare Smith's Case and statement of counsel for the prosecution published in Moore, Dig., II, 1079; also case of the Chesapeake, Moore, Extradition, I, 316; Burley's Case, id., I, 319, Dip. Cor. 1864, II, 813.

"The Confederate cruiser Shenandoah continued her depredations on United States vessels in the seas around Cape Horn for several months after