nounced in one State, may have certain indirect and collateral effects in other States. If pronounced under the municipal law in the State where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar (exceptio rei judicata) to a prosecution in any other State. If pronounced in any other foreign State than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity, and of no avail to protect him against a prosecution in any other State having jurisdiction of the offence.

under the

$15. Piracy The judicial power of every State extends to the punishment of certain offences against the law of nanations. tions, among which is piracy.

law of

Piracy is defined by the text writers to be the offence of depredating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.1

The officers and crew of an armed vessel, commissioned against one nation, and depredating upon another, are not liable to be treated as pirates in thus exceeding their authority. The State by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority.2

The offence of depredating under commissions from different sovereigns, at war with each other, is clearly piratical, since the authority conferred by one is repugnant to the other; but it has been doubted how far it may be lawful to cruise under commissions from different sovereigns allied against a common enemy. The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted dif

1 See authorities cited in Note to the case of United States v. Smith, Wheaton's Rep. vol. v. 157.

2 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17. Rutherforth's Ins. vol. ii. p. 595.

ferent rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party.'

Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals.2

tion between pi

racy by the

law of na

piracy un

nicipal sta

This proposition, however, must be confined to piracy Distincas defined by the law of nations, and cannot be extended to offences which are made piracy by municipal legislation. Piracy, under the law of nations, may be tions, and tried and punished in the courts of justice of any nation, der the muby whomsoever and wheresoever committed; but piracy tutes. created by municipal statute can only be tried by that State within whose territorial jurisdiction, and on board of whose vessels, the offence thus created was committed. There are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification. It is not by force of the international law that those who commit these acts are tried and punished, but in consequence of special laws which assimilate them to pirates, and which can only be applied by the State which has enacted them, and then with reference to its own subjects, and in places within its own jurisdiction. The crimes of murder and robbery, committed by foreigners on board of a foreign vessel, on the high seas, are not justiciable in the tribunals of another country than that to which the vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished as piracy under

p.

1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17, p. 130, Duponceau's Transl. Valin Commentaire sur l'Ord. de la Marine, tom. ii. "The law," says 236. Sir L. Jenkins, "distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all or else hath two or three, and a lawful man-of-war that exceeds his commission." Works, vol. ii. p. 714.

2 "Every man, by the usage of our European nations, is justiciable in the place where the crime is committed; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken." Sir L. Jenkins's Works, ib.

the law of nations, in the courts of any nation having custody of the offenders.1

Slave trade, whe

law of na

tions.

The African slave trade, though prohibited by the ther prohi- municipal laws of most nations, and declared to be bited by the piracy by the statutes of Great Britain and the United States, and, since the Treaty of 1841, with Great Britain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact.2

The African slave trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal laws of Denmark, the United States, and Great Britain, to their own subjects. Its final abolition was stipulated by the treaties of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of the Congress of Vienna, of the 8th of February, 1815, and reiterated by the additional article annexed to the treaty of peace concluded at Paris, on the 20th November, 1815. The accession of Spain and Portugal to the principle of the abolition was finally obtained, by the treaties between Great Britain and those powers, of the 23d September, 1817, and the 22d January, 1815. And by a convention concluded with Brazil, in 1826, it was made piratical for the subjects of that country to be engaged in the trade after the year 1830.

By the treaties of the 30th November, 1831, and 22d May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geographical limits, as a means of suppressing the slave trade. The pro

1 Wheaton's Rep. vol. v. pp. 144, 184. United States v. Klintock; United States v. Pirates.

2 Dodson's Adm. Rep. vol. ii. p. 210. Le Louis. Wheaton's Rep. vol. x. p. 66. La Jeune Eugenie. [The Treaty of 1817, with Spain, was the first one in which the reciprocal right of search was granted.]

visions of these treaties were extended to a wider range by the Quintuple Treaty, concluded on the 26th December, 1841, between the five great European powers, and subsequently ratified between them, except by France, which power still remained only bound by her treaties of 1831 and 1833 with Great Britain. By the treaty concluded at Washington, the 9th August, 1842, between the United States and Great Britain, referring to the 10th article of the Treaty of Ghent, by which it had been agreed that both the contracting parties should use their best endeavors to promote the entire abolition of the traffic in slaves, it was provided, article 8, that "the parties mutually stipulate that each shall prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for the suppression of the slave trade, the said squadrons to be independent of each other, but the two governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces, as shall enable them most effectually to act in concert and coöperation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article ; copies of all such orders to be communicated by each government to the other, respectively." By the Treaty of the 29th May, 1845, between France and Great Britain, new stipulations were entered into between the two powers, by which a joint coöperation of their naval forces on the coast of Africa, for the suppression of the slave trade, was substituted for the mutual right of search, provided by the previous treaties of 1831 and 1833. (a)

(a) [Ortolan distinguishes the right of ships of war to ascertain the nationality of a merchantman, droit d'enquête du pavillon, from the right of visitation or search, droit de visite ou de recherche. Signals, exchange of words, suffice with respect to the nationality of the flag, except on suspicion of piracy, when all further proceedings must be taken at the risk of the man-of-war. He unites with the American publicist, Mr. Wheaton, in declaring that the right of visitation or search does not exist except in time of war, and he then confines the right to ascertaining the nationality of the ship and whether there be any contraband articles on board. The right of visit or search being accorded by special conventions, between different States, does not make it a part of the Law of Nations. The

Decisions

of British

This general concert of nations to extinguish the and Ameri- traffic has given rise to the opinion, that though once of justice. tolerated, and even protected and encouraged, by the laws of every maritime country, it ought henceforth to be considered as interdicted by the international code of Europe and

can courts

Conventions of 1831 and 1833, made by France with England, for the suppression of the slave trade, as well as the Quintuple Treaty of 1841, are all in derogation of natural right. Every nation has a right to exercise an exclusive police, at sea, over its own vessels. Diplomatie de la Mer, p. 242.

Hautefeuille says that la visite is not a right, but the exercise of the belligerent claim of injuring the enemy, which cannot exist in time of peace except as a violation of the independence of nations. In war, it only exists to ascertain whether the vessel belongs to an enemy; or, if not an enemy's vessel, whether it has contraband on board destined for an enemy's port. Those nations which regard enemy's property on board of neutral vessels as liable to confiscation, a pretension which he denies, extend it to the verification of the cargo. Several treaties among European nations, for the suppression of the slave trade, have admitted the reciprocal right of visitation in time of peace; and some of them have extended it to the right of search, which no formal treaty had acknowledged, even in time of war. The right of visit, he defines to be the power granted to a foreign ship of war, to stop a vessel and to go on board of her, and verify, by her papers, if she belongs really to the nation whose flag she bears. This right, Hautefeuille conceives still to be conceded by the Treaty of 29th May, 1845, between France and England, concluded to replace those of 1831 and 1833 and especially the Quintuple Treaty of 1841, which France refused to ratify. The construction objected to has, it is believed, been obviated by the instructions given to the British commanders, not to capture, visit, or detain French vessels. Droits des Nations Neutres, t. iii. p. 431. Public Documents.

See, further, on the subject of a right of visitation and search, in time of peace, "An Inquiry into the validity of the British Claim to a Right of Visitation and Search, of American Vessels suspected to be engaged in the African Slave Trade," by Mr. Wheaton: London, 1842; and "Examen de la Question aujourd'hui pendante entre le Gouvernement des États Unis et celui de la Grande Bretagne, concernant le Droit de Visite," (ascribed to Hon. Lewis Cass, then Minister to France,) Paris, 1842. These Essays, with the Letter of General Cass to M. Guizot, dated 13th February, 1842, and which was in the nature of a protest against the Quintuple Treaty of 20th December, 1841, are understood to have had no little influence in preventing the ratification of that treaty by the government of France. The provisions respecting the slave trade in the Treaty of Washington, of 1842, were intended to waive the questions, as to which a serious controversy had existed between the United States and Great Britain, in consequence of the latter claiming a right of detaining vessels, suspected to be engaged in the slave trade, for the purpose of ascertaining their nationality. See, with reference to that treaty and the discussions to which it gave rise, Webster's Works, vol. v. p. 142; vol. vi. p. 329.]