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sel and the cargo of negroes, or that the United States would support him in such a demand, and would enforce its support by the threatened alternative of war. This, and this only, would be the test of the position. This conclusion is sustained by official proceedings of the highest authority. In compliance with the stipulations of the Ashburton Treaty of 1842, the United States stationed a squadron in the African waters. Instructions most carefully prepared were issued to the naval commanders, defining their duties and directing their operations. It is evident that these private communications from the superior to its subordinates exhibit the exact position of the government more clearly than any public correspondence, which is often intended to conceal rather than to disclose the motives which actually guide the parties. The slave-trade, although made a crime under the name of piracy by the statutes of Congress and of the British Parliament, is not piracy according to the international law. From this circular addressed to the naval commanders I make the following extracts: "The United States does not recognize in any nation the right of visiting and detaining the merchant ships of American citizens." The accepted rule as to the treatment of pirates jure gentium are then stated and explained; they may be boarded and searched; but this permission does not extend to pirates declared to be such by the municipal law only, in which class are slavers. The document proceeds: "The right, therefore, which exists by the unanimous consent of nations in respect to ships suspected of acts of piracy, does not extend to those employed in the slave-trade. As to the latter there exists no right of visit or search which can affect American vessels, except that which can be exercised by our own men-of-war. But the privilege which the United States asserts of not permitting their merchant vessels to be visited under any pretext (except for suspicion of piracy) by the cruisers of other nations, presupposes that the vessel visited is really American. The manner of ascertaining this fact is the only question which presents any difficulty. The flag which a vessel carries is prima facie proof of her nationality, but not conclusive proof. The flag is an emblem; it loses its true character when it is carried by a vessel which has no right to be covered by it. . . . The United States certainly do not pretend that the act of raising the American flag ought to confer a privilege upon those who have no right to be covered by it. Such a pretence would expose their flag to be degraded and dishonored, since it could thus be made to protect acts of piracy or other such atrocious crimes; but they wish that their citizens who lawfully sail under it should enjoy all the protection which it carries with it."1 The principles so clearly and accurately set forth in these instructions, and which are so equitable and just, dispose of the Virginius case, and show that her capture, being fully justified by the facts then known or subsequently ascertained, was not an insult to the United States flag, and furnished no ground for complaint against Spain.
There is another aspect of the case. The Virginius was either a pirate jure gentium, or was in her character and operations so strictly analogous to such a pirate that the same doctrines of the international law which declare the liability of the latter should be fully applied to her. An article in the Law Magazine — a prominent English periodical — for January, 1874, denies that the steamer was piratical, on two grounds: (1) the absence of any intent to commit acts of violence on the seas; and (2) the absence of any felonious expectation of gain, animus furandi. The writer asserts, in the most positive and even dogmatical manner, that piracy is impossible where the wrongful force is only done and intended to be done on the land, and also where it is not committed lucri causa. He is, however, entirely mistaken in both these positions; like so many other English jurists, he has found it impossible to break away from the narrow conceptions and technical phraseology of the ancient common law. What are the essential elements of piracy as the crime is viewed by the international law? The popular notion of the ordinary cases is accurate enough, but is very different from the legal conception held by modern publicists of the highest authority. English and American text-writers, and even judges, have often been influenced too much by the definitions found in the early books, — definitions originally given by the common-law courts, and afterwards adopted by the prize courts and by the commentators. Pirates have frequently been called enemies of the human race, — hostes humani generis. Cicero uses the phrase, communis hostis omnium; and this mere metaphorical description has sometimes been treated as part of the definition, as an essential element in the legal con
1 See Ortolan, Diplomatic dela Mer. Yoi. i, pp. 242,243, 4th edit., where the general subject is exhaustively discussed.
ception of the crime. Palpable as the error is, and refuted long ago as it was, it is still handed down by careless and superficial writers as though it were an acknowledged truth. It was pointed out in the case of the privateers commissioned by James II., after his abdication and flight, and Dr. Tindal then said of the phrase, "It is neither a definition, nor as much as a description, of a pirate, but a rhetorical invective." Pirates, in the view of the public law, are hostes humani generis, not because they must necessarily attack or intend to attack all, but because they are liable to be seized, tried, and punished by all; the common hostility is that of mankind towards them, and not necessarily of them towards all mankind. It is established beyond a doubt by the highest authority, that a ship and its crew may be piratical although it has directed, and intends to direct, all its violence against the vessels of one particular state alone.1 Nor is the expectation of private gain, animus furandi, an essential element, although as a matter of fact it has existed in the vast majority of actual cases. The English judges, while defining the offence under the common law of the land, did require the animus furandi to accompany the overt acts; and the distinction between this crime of piracy in the municipal law of a single country, and the crime of piracy by the international law, jure gentium, has frequently been overlooked, and the two have been confounded. The European publicists, however, and especially those of the modern school, who have kept pace with the requirements of the present age, and have not been educated in the narrow notions and precise phraseology of the English common law, do not admit this motive as a necessary requisite to the crime. Rejecting all collateral circumstances, however commonly they may occur as facts, the essential features of piracy jure gentium are violence done on or immediately off from the seas by persons who do not represent any acknowledged sovereign power. The absence of an acknowledged sovereign behind the immediate actors is the central element which brings the offence within the sphere of the public law, and renders the offenders justiciable by all independent states; and the violence must be accomplished on the seas, or immediately from off the seas, so that the sea is in both instances the field of operations on which the wrong is done. A very
1 For a full discussion of this topic, and a reference to authorities and precedents, see Mr. Dana's ed. of Wheaton, pp. 193, 194, note (83)
striking illustration of the latter case will be given in the sequel. A few passages taken from the writings of modern publicists will sustain and develop this definition, and we have purposely chosen these authorities from among those jurists who regard "the freedom of the seas" as the very foundation principle of the international law relating to maritime rights and duties, both in time of peace and of war. We first quote from the Phases et Causes Calibres of Baron de Cussy, a work devoted entirely to the advocacy of that grand principle: "A pirate is one who cruises with an armed ship without commission or letters-patent or of marque from any sovereign. Piracy is, therefore, brigandage exercised upon the seas by persons whom no nation acknowledges as its citizens." 1 Citing the following definition of Azuni, "A pirate is one who roves the seas with an armed vessel without commission or letters-patent of a prince or of a sovereign state, but only on his own private authority, with the intent of seizing and capturing vessels which he meets," he adds this extract from a French law passed April 10, 1825, which he regards as merely declarative of the crime jure gentium: " The following are pirates, . . . the crew of an armed vessel cruising without being or having been furnished for the voyage with a passport, commission, or other papers establishing the legality of the expedition."2 Pinheiro-Ferreira, in a note to Vattel, gives a definition which has not been excelled in comprehensiveness, brevity, and accuracy. "He is called a pirate whose government is not actually at war with the government of the one against whom he commits hostilities."3 M. Bluntschli treats the subject with a considerable fulness; and as this author reflects and sums up the opinion of the advanced school of continental jurists which has been in complete accord with the United States in the controversy growing out of the rebellion, we quote his sections and portions of his commentary thereon: "Those vessels are considered pirates which, without the authority of any belligerent power, endeavor to take prisoners, to obtain booty (vessels or cargoes), or to destroy the property of another with a criminal purpose." 4 In a note upon this section the author adds :6 "The animus furandi has sometimes been regarded as the first element of the definition of
1 Phases et Causes CoUbres du droit maritime des nations, vol. i. p. 289.
2 lb., vol. ii. p. 441. » Vattel, ed. of Pradier-Fodere, vol. ii. p. 55, note.
4 Le Droit International Codifle, § 343. • lb. § 348, note.
piracy. We ought, however, to consider as piratical those vessels which cruise for the purpose of destroying the ships of a foreign nation, of sinking their cargoes, or of devastating the coast* of the country, not from the motive of making profit, but of gratifying their hate or vengeance." Again, "When there are grave reasons to suspect that a ship is piratical, every man-of-war, to whatever state belonging, has a right to arrest the suspected vessel, and to visit it." In the note he adds: "Some publicists deny this right to men-of-war, but they overlook thereby one of the most pressing needs of maritime nations, — the getting rid of pirates. Liberty of the seas exists solely to promote the security and the extension of maritime relations. It is logical to make an exception in authorizing all ships to pursue the enemies of this liberty."1 M. Masse" says: "Privateers differ from pirates in this, that the former are commissioned and authorized by their sovereigns to cruise the seas in time of war, while pirates cruise at all times without the commission of any sovereign."2 The Lopez expedition furnishes an illustration which throws much light upon the modern conception of piracy jure gentium as held by the most distinguished statesmen and publicists of Europe. In 1850 Lopez sailed from New Orleans in the steamer Creole, accompanied by about 500 armed men of different nationalities, with the avowed purpose of landing upon the shores of Cuba, raising an insurrection, and freeing the island from the Spanish dominion. The preparations were made with little attempt at concealment; the vessel was American, and carried the United States flag. A landing was made at Cardenas, about ninety miles from Havana. After some fighting, Lopez with a remnant of his force reembarked, and, although pursued by a Spanish frigate, reached Key West and escaped to the United States. Baron de Cussy, who gives a full account of this expedition, pronounces it piratical in the strongest terms. A debate occurred in the House of Lords on the 7th of June, 1850, in which Lord Brougham said: "I have heard that an expedition has departed from the United States to seize upon Cuba. I regret to learn that these execrable pirates have escaped the Spanish squadron on the seas, and I hope they will be captured on the land, and that they will suffer the punishment they deserve. . . . These persons are pirates. I hope,
1 Le Droit International Codifle', § 844, and note.