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 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 piratical 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.

*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) 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.

(b) Doug. Rep. 613, note.

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 the facts constituting the offence, and that Congress might as well define it by using a term of a known and determined meaning, as by expressly mentioning all the particulars included in that term. The crime of piracy was defined by the law of nations with reasonable certainty, and it does not depend upon the particular provisions of any municipal code for its definition and punishment. Robbery on the high seas is, therefore, piracy by the Act of Congress, as well as by the law of nations. (b)

There can be no doubt of the right of Congress to pass laws punishing pirates, though they may be foreigners, and may have committed no particular offence against the United States. It is of no importance, for the purpose of giving jurisdiction, on whom or where a piratical offence has been committed. A pirate, who is one by the law of nations, may be tried and punished in any country where he may be found, for he is reputed to be out of the protection of all laws and privileges. (c) The statute of any government may declare an offence committed on board its own vessels to be piracy, and such an offence will be punishable exclusively by the nation which passes the statBut piracy, under the law of nations, is an offence against

ute.

(a) 5 Wheaton, 153.

(b) In the case of United States v. Brig Malek Adhel, 2 Howard's U. S. Rep. 210, it was held, after an elaborate discussion, that an act was piratical in the view of the law of Congress of March 3d, 1819, c. 200, if the act or acts done be hostile in their character, and wanton and criminal in their commission, without any lawful sanction, whether committed for purposes of plunder, or for purposes of hatred, revenge, or a wanton abuse of power, or a lawless appetite for mischief. They are piratical aggres. sions in the sense of the law of nations and of the Act of Congress, and work a forfeiture of the ship, whether the owner be or be not innocent. He is, in that case, bound by the acts of the master. But the cargo presents a different consideration, and it is not to be forfeited under the Act of Congress or the law of nations, except in cases of extraordinary turpitude and violence. In ordinary torts and injuries the law admits of a compensation in damages. If, however, the owner of the cargo coöperates in the piratical acts, the penalty of confiscation is also inflicted on the cargo as well as on the ship. The more strict rule is also enforced in the case of belligerent rights, and the cargo follows the fate of the ship.

(c) Bynk. Q. J. Pub. b. 1, c. 17. Sir Leoline Jenkins's Works, vol. i. 714.

all nations, and punishable by all. In the case of The United States v. Palmer, (a) it was held, that the Act of Congress of 1790 was intended to punish offences against the United States, and not offences against the human race; and that the crime of robbery, committed by a person who was not a citizen of the

United States, on the high seas, on board of a ship be*187 longing* exclusively to subjects of a foreign state, was

not piracy under the Act, and was not punishable in the courts of the United States. The offence, in such a case, must, therefore, be left to be punished by the nation under whose flag the vessel sailed, and within whose particular jurisdiction all on board the vessel were. This decision was according to the law and practice of nations; for it is a clear and settled principle, that the jurisdiction of every nation extends to its own citizens, on board of its own public and private vessels at sea. (b) The case applied only to the fact of robbery committed at sea, on board of a foreign vessel, at the time belonging exclusively to subjects of a foreign state; and it was not intended to decide, that the same offence, committed on board of a vessel not belonging to the subject of any foreign power, was not piracy. The same court afterwards, in the case of The United States v. Klintock, (c) admitted that murder or robbery, committed on the high seas, 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 or flag whatsoever, fell within the purview of the Act of Congress, and was punishable in the courts of the United States. Persons of that description were pirates, and proper objects for the penal code of all nations. The Act of Congress did not apply to offences committed against the particular sovereignty of a foreign power; or to murder or robbery committed in a vessel, belonging at the time, in fact, as well as in right, to the subject of a foreign state, and, in virtue of such property, subject at the time to its control. But it applied to offences committed against all nations, by persons

(a) 3 Wheaton, 610. United States v. Kessler, 1 Baldwin, 15, S. P.

(b) Rutherforth's Inst. b. 2, c. 9. Mr. Jefferson's Letter to M. Genet, June 17th, 1793. supra, p. 26.

(c) 5 Wheaton, 144.

who, by common consent, were equally amenable to the laws of all nations. It was further held, in the case of *188 The United States v. Pirates, (a) and in the case of The United States v. Holmes, (b) in pursuance of the same principle, that the moment a vessel assumed a piratical character, and was taken from her officers, and proceeded on a piratical cruise, she lost all claim to national character, and the crew, whether citizens or foreigners, were equally punishable, under the Act of Congress, for acts of piracy; and it would be immaterial what was the national character of the vessel before she assumed a piratical character. Piracy is an offence within the criminal jurisdiction of all nations. It is against all and punished by all; and the plea of autrefois acquit, resting on a prosecution instituted in the courts of any civilized state, would be a good plea in any other civilized state. As the Act of Congress of 1790 declares every offence committed at sea to be piracy, which would be punishable with death if committed on land, it may be considered as enlarging the definition of piracy, so as not only to include every offence which is piracy by the law of nations and the Act of Congress of 1819, but other offences which were not piracy, until made so by statute.

An alien, under the sanction of a national commission, cannot commit piracy while he pursues his authority. His acts may be hostile, and his nation responsible for them. They may amount to a lawful cause of war, but they are never to be regarded as piracy. (c) The Barbary powers, notwithstanding some doubts which formerly existed, are now, and for a century past have been, regarded as lawful powers, and not pirates. They have all the insignia of regular, independent governments, and are competent to maintain the European relations of peace and war. Cicero, and, after him, Grotius, define a

(a) 5 Wheaton, 184.

(b) Ibid. 412.

(c) Martens's Essay on Privateers, translated by Horne, p. 42. Manning's Comm. pp. 112, 113. States generally prohibit their subjects from taking letters of marque from a foreign power, without the permission of their sovereign; and treaties are numerous in which the contracting parties stipulate, that if the subjects of either party take letters of marque from the enemies of the other, they shall be treated as pirates.

regular enemy to be a power which hath the elements or * 189 constituents of a nation, such as a government, a code of laws, a national treasury, the consent and agreement of the citizens, and which pays a regard to treaties of peace and alliance; (a) and all these things, says Bynkershoek, (b) are to be found among the states of Barbary. In some respects their laws of war have retained the barbarity of the middle ages, for they levy tribute or contributions on all such Christian powers as are not able to protect their commerce by force; and they also make slaves of their prisoners, and require a heavy ransom for their redemption. But this, Bynkershoek insists, is conformable to the strict laws of war; and the nations of Europe who carried on war with the Barbary states, such as Spain, Naples, Holland, &c., have heretofore exercised the same rule of ancient warfare, upon the principle of retaliation. When Lord Exmouth, in 1816, attacked Algiers, and compelled the Dey to terms of peace, he compelled him also to stipulate, that in the event of future wars with any European power, no Christian prisoners of war should be consigned to slavery, but they should be treated with all humanity as prisoners of war, until regularly exchanged, according to the European practice: and at the termination of hostilities, the prisoners should be restored without ransom. By that treaty of peace upwards of 1,000 prisoners belonging to Italy, Spain, Portugal, Holland, and Greece, were

released from galling slavery, and in which part of them *190 had subsisted for thirty-five years. This stipulation in favor of general humanity deserves some portion of that exalted eulogy bestowed by Montesquieu (c) on the treaty made

(a) Cic. Philip. 4, c 6. Grotius, b. 3, c. 3, sec. 1.

(b) Q. J. Pub. b. 1, c. 17. A STATE, in the meaning of public law, is a complete or self-sufficient body of persons, united together in one community, for the defence of their rights, and to do right to foreigners. A state has its affairs and interests; it deliberates, and becomes a moral person, having an understanding and will, and is susceptible of obligations and laws. Grotius, b. 1, c. 1, sec. 14. Ibid. b. 3, c. 3, sec. 2. Burlamaqui, vol. ii. part 1, c. 4, sec. 9. Vattel, b. 1, c. 1. Respublica est cœtus multitudinis, Juris consensu et utilitatis communione sociatus. Cic. de Repub. lib. 1, sec. 25. The State is founded on the relations of right. Protection is its aim and object, and that protection is but another word for justice, or the obtaining and granting to every one his due. La Justice constituée, c'est l'état. Cousin. Lieber's Political Ethics, vol. i.

(c) Esprit des Lois, b. 10, c. 5,