« PreviousContinue »
fined to the punishment of crimes committed within their own territories, except as to those who, by the character and frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Thus priates or incendiaries by profession may be exterminated whereever they are seized, for they attack and injure all nations, and thus they are brought to justice by the first nation into whose hands they fall, it being, however, he is careful to add, proper to convict the guilty, and to try them according to form of law. (Book i. c. 19, s. 232). Hence it appears plainly that it is only pirates by profession, those who practice depredation on all nations generally, who can be seized on the seas by the subjects of any nation, and that when they are seized they must still be brought to a regular trial, in order that their guilt may be legally established. Not a word can be found in Vattell or any other authority of international law in favour of the notion that even insurgents are pirates, and that pirates when taken in actual conflict can be summarily executed. That there should have been any notion in this country that the voluntary assistants of insurgents were pirates, shows how great, in spite of Blackstone's Commentaries, is the ignorance which exists, even among educated men, in this country, on legal subjects. The great commentator, writing a century ago, observed:“Offences against the law of nations can rarely be the object of the criminal law of any particular State, for they are principally incident to whole states or nations in which case recourse can only be had to war. But where the individuals of any State violate the general law, it is the duty of the Government under which they live, to punish them with becoming severity, that peace may be maintained. It is therefore incumbent upon the nation injured, first to demand satisfaction and justice to be done on the offender by the State to which he belongs, and if that be refused or neglected, then the Sovereign avows himself an accomplice or abettor of his subjects, crimes, and draws upon his community the calamities of war.”—Blackstone's Commentaries, vol. IV.,
p. 18. The only offence against the law of nations which Blackstone mentions as punishable, criminally, by the Courts of all nations, is that of piracy, which he thus defines:– “The crime of piracy or depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke, hostis humani generis. Therefore, every community has a right, by the right of self-defence, to inflict punishment upon him, what everyone would in a state of nature have been otherwise entitled to do.” That is, in self-defence; if attacked upon the high seas, of course the subjects of nations may slay the pirates, or they may arrest and try them by regular course of law, and by our common law aliens could be tried for piracy, but then the could only be regularly tried for piracy as for robbing; unless slain in self-defence they must have been so tried. “The offence of piracy by common law, consists in those acts of robbing and depredation upon the high seas, which if committed on land would have amounted to piracy there. And of course would equally require a regular trial.” The municipal law of any State might create a different species of piracy, but only for the subjects of that State. Thus Blackstone mentions several of such statutes, all of which apply to subjects. And thus by a statute of George II, c. 18, and George II, c. 32., any natural born subject, or denizen who in time of war shall commit hostilities at sea against any of his fellow-subjects, or shall assist an enemy on that element, is liable to be tried and convicted as a pirate. But then this would only apply in time of war, and only in time of war would any cruisers be entitled by the law of nations to search foreign vessels for our subjects, in order to seize them, either as offenders under this statute, or as deserters; that is, they could only be taken on board the vessels of other countries when the vessels themselves might be captured —that is, in time of war. In the reign of George II, also, statutes were passed making it penal for subjects to enter into any foreign service, which no doubt was aimed at the service of the Pretender; but this again was open to the same observation; it applied only to subjects, it created no offence against the law of nations, and it could
not authorize seizure of our subjects on board foreign vessels, except in time of war.
The principles of international law on the subject of the right of search in time of war was thus laid down, at the beginning of the century by Lord Stowell:—
“That the right of visiting and searching merchant ships upon the high seas, whatever be the cargoes or destination, is the right of the lawfully commissioned cruisers of a belligerent nation; that the penalty for the violent contravention of this right is confiscation of the property, and that articles tending, probably, to aid one of the belligerents, as arms, ammunition, &c., are contraband of war, and are liable to seizure by the vessels of the other party.”–4 Robinson's Rep., 1350, i. ch. Io.
That is, that the only right, even in time of war, is a right of search and seizure of contraband of war, which, of course, includes the right of making prisoners of enemies, but if they are enemies and not subjects, only as prisoners of war; for it is a belligerent right, subject to the laws of war. The notion that persons who aid the insurgents of other countries, not with the object of depredation, but from a desire to assist them, are pirates, is one of the most monstrous that was ever conceived; and as, on the one hand, it outrages common sense and humanity, so it is utterly opposed to the history of the subject. By municipal law it had been made felony by several statutes (4 Geo. 2, and 29 Geo. 2) to seduce subjects of this country to enlist in the service of foreign powers, enactments which probably were originally aimed at the service of the Pretender, and which were so opposed to the ideas and feelings of modern times, that when, in the early part of the century, the enlistment of forces to assist the insurgents in the Spanish colonies was carried to a great extent in this country, it was doubted whether the old statutes were sufficient to enable the Government to suppress the practice, and in 1819 a new Foreign Enlistment Act was proposed, chiefly in consequence of our express engagements with Spain by treaty not to allow succour to be supplied to the insurgents.
Now if the practice were piracy, there would be no necessity either for statutes, on one hand or treaties on the other, for piracy may be punished as such by the courts of any country, and on the subjects of any country, as it is an offence against all nations. But as there is not, in such cases, any danger of depredation at all, still less of general depredation, it was felt to be impossible to treat the offence as piracy, and therefore it was provided for, in municipal law, by statutes, making it a misdemeanour and in international law, by the right of capture and forfeiture, as well as by the right of self-defence, in every State accompanied, by the exercise of martial law, in its own territory. Hence, in 1818, the American Enlistment Act, and next year, the English Enlistment Act. In the debates on the latter Act in our Parliament, it was not pretended that it was based on any general principles which rendered such acts criminal, and it was, on the contrary, declared without contradiction, that for four centuries there had been no period in which British subjects were not engaged in giving succour as individuals to other States, and no instance could be shown in which Government interfered.
So strong, too, was the national feeling in favour of assistance to insurgents engaged in struggles for political independence, that the act became a dead letter. The embarkation of troops and stores continued for their assistance, went on without intermission until the struggle was ended, by the separation of the Spanish Colonies in America, and their acquisition of independence. Mr. Alison may be morally right, and no doubt is so, in arguing that this conduct was criminal, and a violation of the law of nations; but this may be conceded without any approach to an admission of the monstrous notion that it necessarily, and per se amounted to piracy. No doubt, in particular cases it might be so, when political struggles and civil war were merely taken advantage of and made the pretext for private depredations; but that would be in any particular case, a matter of proof, and would entirely alter the nature and character of the acts in question. And it is remarkable that when in the course of the debates on the subject in 1819 of piracy, arguments were pressed most strongly against such intervention; it was obviously only applicable to it when patriotism was made the pretext for private depredation. “Such a species of hostility is war in its worst form, for it is war without its direction or its object. It is not national hostility directed to public purposes, but private piracy aiming at nothing but individual plunder.” Of course, when the only object is individual plunder, it is private piracy, but this very language implies that it is otherwise when the object is not individual plunder, but political sympathy. And when it was added:
“Can we permit armaments to be fitted out in this country to attack the peaceable colonies of another, or to aid its insurgents from severing themselves from its dominions ?”
The negative answer, and the most emphatic condemnation of the practice, stops far short of an implication that it is to be confounded with the crime of piracy.
That it is only international piracy or belligerency, which (apart from treaty) can justify the search and capture of a vessel bearing the flag of another nationality, was illustrated in the strongest way by the cases as to the slave trade. This atrocious traffic had been abolished and branded, with infamy, by the most civilized nations of the world; and yet, as there was a doubt whether it could be deemed piracy by international law, there was a doubt whether the vessels of one nation could stop, search, and capture the vessels of another engaged in the traffic. In 1822, Chief Justice Story, in the case of a vessel carrying the French flag and papers, and captured by an American cruiser, as a slaver, delivered a charge in which he vindicated the capture on the grounds that the slave trade was piracy (Case of La Jeune Eugène, 2 Mason's Reports, 90) but his view, though enforced by unanswerable arguments, and confirmed by a decision of Sir W. Grant, (the Amadie, 1, Dodson's Reports, 84) was not adopted by the Supreme Court,-(The Antelope, Io Wheaton's Reports, 211) now by the Courts of this country, -(The Louis, 2 Dodson's