LECTURE IX. OF OFFENCES AGAINST THE LAW OF NATIONS. THE violation of a treaty of peace, or other national compact, is a violation of the law of nations, for it is a breach of public faith. (a) Nor is it to be understood that the law of nations is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable, and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. The law of nations is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influences of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequence of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted in open and solemn war by the injured party. The law of *182 *nations is likewise enforced by the sanctions of municipal law. It is, says Blackstone, (a) adopted in its full extent by the common law of England; and whenever any question arises which is properly the subject of its jurisdiction, it is held to be a part of the law of the land. The offences which fall more immediately under its cognizance, and which are the most obvious, (a) Vattel, b. 2, c. 15, sec. 221; Resolution of Congress of November 23d, 1781. (2) Comm. iv. 67. [Ante, 1, n. 1.] 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 of nations, but as a trade condemned by the general principles of justice and humanity, openly professed and declared by the powers of Europe. 1. Violation of Passports. - -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 not exceeding three years, and fined at the discretion of the court. (b) 2. Violation of Ambassadors.. 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 or their domestic servants. (c) 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 safe- *183 guards 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 cor * (b) Act of Congress, April 30th, 1790, sec. 27. A foreign minister (and an attaché to a foreign legation is such) cannot waive his privilege, for it belongs to his sovereign who sends him. U. S. v. Benner, 1 Baldw. 234. [Ante, 39, n. 1.] (c) Act, sup. sec. 25, 26. poral 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. (a) 3. Piracy. Piracy is robbery, or a forcible depredation on 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. (b) Pirates have been regarded by all civil ized nations as the enemies of the human race and the most *184 atrocious violators of the universal * law of society. (a) 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, (b) yet they are not considered as a national body, or enti (a) Journals of Congress, vii. 181. (b) The United States v. Smith, 5 Wheaton, 153, and note, ib. 163. (b) Cic. de Off. 2, 11. tled 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 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 the law of nations. (c) By the Constitution of the United States, Congress are [is] 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, c. 9, sec. 8, that murder or * robbery, *185 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 endeavor 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. (a) 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, c. 76, sec. 5, Congress declared, that if any person on the high seas should commit the crime of piracy, (c) Bynk. Q. J. Pub. b. 1, c. 17; Rutherforth, b. 2, c. 9; Azuni, ii. 351, 361, 362, ed. N. Y.; Cro. Eliz. 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. 142 (a) By the act of Congress of March 3d, 1835, c. 313, the offence of making a revolt in a ship is no longer punishable as a capital offence, but only by fine and imprisonment at hard labor. as defined by the law of nations, he should, on conviction, suffer death. This act was but temporary in its limitation, and has expired; but it was again declared, and essentially to the same effect, by the act of Congress of 15th May, 1820, c. 113, 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 engaged in any piratical enterprise, or belonging to the crew of any pirat ical vessel, 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; and upon the doctrine of the case of Lindo v. Rodney, (b) such plunder and robbery ashore, by the crew, and with the aid of vessels, is a marine case, and of admiralty jurisdiction. The statute further declared, that the above provision was not to be construed to deprive any particular state of its jurisdiction over such offences when committed within the body of a county, or to authorize the courts of the United States to try any such offenders, after conviction or acquittance, for the same offence, in a state court.1 *186 * 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; (a) and it was there held not to be necessary to give by statute a more logical enumeration in detail of all (b) Doug. 613, note. See the trial of the Savannah Privateers, New York, 1862. It has been made felony for officers or mariners of vessels on waters within the admiralty jurisdiction of the United States, to piratically or feloniously run away with the same, or any goods on board such vessel to the value of fifty dollars. Act of Aug. 8, 1846, 9 U. S. St. at L. ch. 98, § 5, p. 73. So, any subject or citizen of any foreign state, who shall be found and taken on the sea, making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, (a) 5 Wheaton, 153. contrary to any treaty between the United States and the state of which such person is a citizen or subject, where by such treaty such acts of such person are declared to be piracy, may be punished in the circuit court like other pirates. Act of March 3, 1847, 9 U. S. St. at L. ch. 51, p. 175. Moreover, vessels built, purchased, fitted out, or held, for piratical acts, may be seized and condemned, whether any act of piracy shall have been committed or attempted from such vessel or not. Act of Aug. 5, 1861, 12 U. S. St. at L. ch. 48, p. 314. |