to the right of making such captures would confine its exercise to public armed vessels and employ a temporary naval force against the armed vessels of the enemy. Mr. Hall says on this subject: "The sole real difference between privateers and a volunteer navy is then that the latter is under naval discipline, and it is not evident why privateers should not also be subjected to it. It cannot be supposed that the Declaration of Paris was merely intended to put down the use of privateers governed by the precise regulations customary up to that time. Privateering was abandoned because it was thought that no armaments maintained at private cost, with the object of private gain, and often necessarily for a long time together beyond the reach of the regular naval forces of the State, could be kept under proper control. Whether this belief was well founded or not is another matter. It may be that the organization intended to be given to the Prussian volunteer navy, or some analogous organization, would possess sufficient safeguards. If so, there could be no objection on moral grounds to its use; but unless a volunteer navy were brought into closer connection with the State than seems to have been the case in the Prussian project, it would be difficult to show that its establishment did not constitute an evasion of the Declaration of Paris. "The incorporation of a part of the merchant marine of a country into its regular navy is of course to be distinguished from such a measure as that above discussed."* The course taken by the United States in 1861-65 would be open to no objection. The crews of the vessels were regularly enlisted for the naval service, and the volunteer officers, although holding temporary appointments only, were in all that related to rank and duty officers of the United States Navy. * Hall, p. 455. PART X. PIRACY. tion. "With piracy the law of nations has to do, as it is a crime, Sec. 1. Defininot against any particular State, but against all States and the established order of the world."* "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."† "The various acts which are recognized or alleged to be piratical may be classed as follows: "1. Robbery or attempt at robbery of a vessel by force or intimidation, either by way of attack from without, or by way of revolt of the crew and conversion of the vessel and cargo to their own use. "2. Depredation upon two belligerents at war with one another under commissions granted by each of them. '3. Depredations committed at sea upon the public or private vessels of a State, or descents upon its territory from the sea by persons not acting under the authority of any politically organized community, notwithstanding that the objects of the persons so acting may be professedly political. Strictly all acts which can be thus described must be regarded as in a sense piratical. In the most respectable instances they are acts of war which, being done in places where international law alone rules, or from such places as a base, and being therefore capable of justification only through international law, are nevertheless done by persons who do not even satisfy the conditions precedent of an attempt to become subjects of law, and who cannot consequently claim, like unrecognized political societies, to be endeavoring to establish their position as such. Often, however, the true character of the acts in question is far from cor *Woolsey, Sec. 137. † Dana's Wheaton, p. 192. Sec. 2. American definition of piracy. responding with their legal aspect. Sometimes they are wholly political in their objects and are directed solely against a particular State, with careful avoidance of depredation or attack upon the persons or property of the subjects of other States. In such cases, though the acts done are piratical with reference to the State attacked, they are for practical purposes not piratical with reference to other States, because they neither interfere with nor menace the safety of those States nor the general good order of the seas."* The Constitution of the United States gives to Congress the power" to define and punish piracy and felonies committed on the high seas, and offences against the law of nations."† Under this authority several acts of Congress have been passed defining the crime of piracy and fixing penalties for its commission. By the Act of Congress of April 30, 1790, the following offences, when committed upon the high seas, in any waters not within the jurisdiction of any particular State, are made piracy punishable by death; namely, murder or robbery, or any other offence which, if committed on shore, would, by the laws of the United States, be punishable by death. It is also piracy if the captain or crew of any vessel shall feloniously run away with such vessel, or any goods or merchandise to the value of fifty dollars, or shall deliver their ship to pirates. Mutiny on board a merchant ship is made piracy, as is also preventing by force the captain of a vessel from defending his ship and the goods committed to his trust. It is made piracy to wilfully cast away, burn, or otherwise destroy any ship or vessel belonging to citizens of the United States, or to procure the doing of the same. Conspiracy to destroy any vessel with intent to defraud the underwriters is made piracy punishable by death. Any person who shall in any way, either on land or at sea, assist or advise persons to commit any of the offences named in the act shall suffer death; and all persons who shall, after the commission of any piracy, receive, entertain, or conceal the offenders, or shall receive any ship or goods which have been piratically taken, shall be punished by fine and imprisonment as accessory to such piracy. *Hall, p. 219. For a valuable and interesting discussion of what constitutes piracy, see Dana's Wheaton, p. 193, n. † Article I, Section VIII. Several minor offences are made piracy, but are punishable by fine and imprisonment only.* Any citizen who commits any act of hostility against the United States, under color of any commission from any foreign prince or State, shall, notwithstanding the pretence of such authority, be deemed a pirate, and on conviction shall suffer death.† The Acts of Congress of May 15, 1820; March 3, 1825; March 3, 1835; August 8, 1846; March 3, 1847, and July 29, 1850, all relate to the same subject, and by their provisions the penalty in some cases is reduced; the same definition of piracy, however, being retained. "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. "This proposition, however, must be confined to piracy as 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 tried and punished in the courts of justice of any nation by whomsoever and wheresoever committed; but piracy created by municipal statute can be tried only 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. "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 the law of nations, in the courts of any nation having custody of the offenders." * Brightley's Digest, pp. 207-8. Dana's Wheaton, pp. 193-4. † Ibid. p. 208. Sec. 3. Limita tions to the definition of piracy. Sec. 4. Taking letters of marque by neutrals. tions to U. S. The Act of Congress of March 3, 1847, provides that any citizen or subject of a foreign State who shall be found and taken on the high seas, making war upon the United States, and cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the State of which such person is a citizen or subject, when by such treaty the acts of such person are declared to be piracy, may be tried, convicted and punished by a Circuit Court of the United States in the same manner as other persons charged with piracy. The treaties of the United States now in force, by which the citizens of either party, being neutral, taking out letters of marque against the other, are declared to be pirates, are those with the United States of Colombia, 1846; Ecuador, 1839; Guatemala, 1849; Prussia, 1828; San Salvador, 1850; Spain, 1795; Sweden and Norway, 1827.* Similar stipulations were contained in treaties with Great Britain, France, Brazil, Chile, The Netherlands, and Peru, but the treaties are now obsolete. No treaty containing such a stipulation has been entered into by the United States since 1850, and in 1854 the government expressed itself as disinclined to enter into any new agreements of this nature. The later treaties provide that such persons shall be tried and punished by the laws of the respective countries.† Sec 5. Instruc- An Act of Congress of March 3, 1819, authorized the naval officers. President of the United States to instruct the commanders of the public armed vessels of the government to seize and send into port any vessel the crew of which shall have committed or attempted any act of piracy upon any vessel of the United States, or the citizens thereof, or upon any other vessel; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas. The same act authorized the crews of merchant ships to capture and send into port any piratical vessel, and to retake any vessel of the United States, or its citizens, which may have been unlawfully captured.‡ Sec. 6. Right of search. "The right of search on suspicion of piracy is a war right, and may be exercised by public vessels anywhere, except in the *U. S. Treaties, 1873, Colombia, Ecuador, etc. Brightley's Digest, p. 654. |