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it could only be capture for the purpose of regular trial. But there was no right of capture, either on the ground of piracy or war, for there was neither piracy nor war.
It was a state of peace, and there was not in the captured crew any intention of depredation on the high seas at all; still less general depredation. There was only a surmise or suspicion of intended complicity in rebellion, which is only an offence against municipal law. There was no such intention as constitutes the crime of piracy by international law, and certainly there was no state of war. So far from its being true, that Wheaton maintains the right of a belligerent to search or capture the vessels bearing a neutral flag, he expressly denies it even if a belligerent, and declares that on the high sea, every merchant vessel is rightly considered as part of the territory to which it belongs, and that therefore, even in time of war, a belligerent cannot even search it for deserters from its own military or naval service, and, of course, not for rebels or intended assistants of rebels. Hence it is, that the American Government attach so much importance to the register of the Virginius as conclusive, if bona fide.
“Thejudicial power of every State," says Wheaton, "extends to the punishment of all offences against the municipal laws of the state by whomsoever committed, within the territory ; to the punishment of all such offences by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports; to the punishment of all such offences by its subjects, wheresoever committed ; and lastly, to the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed." But this is only the right of punishment, on legal trial by regular tribunals, and the right of capture on board neutral vessels only exists in time of war; and in case of other vessels only exists in cases of piracy. No extension of the crime of piracy by the municipal law of a country can extend its right of capture on the high
A government can declare this or that Act on the high seas, as, for instance, complicity in. rebellion, to be
piracy, and may punish its own subjects for it in its own Courts; but this, if it goes beyond the definition of piracy by the law of nations, will not even give the tribunals of the state jurisdiction over foreigners, much less a right to capture them on the high seas. And it has always been held, by the courts of the United States and of England, that piracy consists in a general intention of committing depredations on the high seas on the ships and subjects of all nations.
Even, however, if in such a case there was a right of capture, it would only be a right of capture for the purpose of regular trial, and as this clearly was not so, the capture was illegal ; even assuming that a right of capture existed, for that right which existed was not really exercised by the captors; and they captured, it is clear, for the purpose of murder. But that they had no right to capture on the high seas merely on the ground of an intention to join in the rebellion is clear. For assuming that intention, what would it come to ? Merely to an intention to violate municipal law, what then? That does not warrant capture on the high seas; and even if it does, still less does it warrant summary execution, without trial and legal proof of the intention, and legal disproof of the neutrality of the vessel, and the honesty of the register. The men were executed, not as pirates, but as rebels, by court martial; they were captured for one crime and executed for another-they were captured as pirates and executed as rebels.
These principles will be found fully borne out by Lord Brougham's essay on the “Right of Search," published in 1860, in which he upholds the right only in time of war, unless where it is allowed by treaty. And the reason for confining it to time of war is obvious enough; for war is, from its nature, a state of pressure and of danger to the countries engaged in war, which is allowed by neutral nations to justify or excuse an exercise of stronger powers than are allowed in time of peace. But the state of rebellion not recognized as a state of war, does not allow of the exercise of those powers against other nations.
In 1861, during the civil war in America, a debate arose in the House of Lords as to the effect of the recognition by the United States of belligerency, and especially with reference to piracy. The debate, however, had reference to the depredations of the Alabama on the commerce of the United States at sea. And any expression of the Peers as to piracy must be understood as referring to piracy at sea. undoubtedly said by one peer that supposing there had been no recognition of belligerency, the depredations of such vessels as the Alabama would amount to piracy; but this must have surely meant piracy by municipal law, and piracy by the laws of the United States-not piracy by international law—the essence of which is the intention to commit general depredations on the commerce of all nations; whereas, it is known that the Alabama preyed only on American commerce. To suppose that the peers were not aware of this distinction would be to impute the grossest ignorance ; and any expression which might appear to ignore the distinction must be ascribed to the looseness of expression incident to a debate or discussion which has reference to a specific subject, and in which much is always supposed to be understood with refererence to that subject. To the same cause must likewise be ascribed Lord Brougham's allusion to the execution, as pirates, of foreigners taken in arms on land, actually participating in the domestic disturbances of another country; for that is not piracy (unless the real object is private plunder), and though, by municipal law, it may be treated as such, municipal law can only be enforced on the territory subject to it; and not as against the subjects of other countries on the high seas. This debate, moreover, had reference to the Alabama and similar vessels bearing the flag of the Confederate States and of the alleged insurgents, not the flag of the United States. And the general doctrine that a recognition of belligerency is necessary to create a state of war, as against insurgents, with reference to the right of capture on the high seas, was abundantly recognized, and it was also recognized that, unless in a state of war, nothing
except piracy authorizes capture of vessels bearing the flag of another nation, not belligerent. And piracy, in a national sense, clearly means general depredation on the high seas.
The distinction between piracy by municipal law, and by international law, was fully recognized a few years ago, in a case in the Court of Queen's Bench, upon one of the Extradition Treaties with foreign states, which expressly included piracy. This the court held could not mean piracy by international law, because as to such piracy the courts of any nation had jurisdiction over culprits, whatever their nationality, so that extradition would not be necessary for the purpose of justice. (In re Ternan 33, L.J., Q.B. 201) In that case, it was distinctly recognized that piracy in the sense of international law means general depredation on the high seas; and it is only in this kind of piracy that the courts of all nations have jurisdiction irrespective of nationality. It is on the same principle that the vessels of all nations have power to search and seize vessels on the high seas, whatever their assumed nationality. It follows, therefore, that by our courts, as well as by those of the United States, it is clearly recognized that it is only in a case of piracy of that kind, that the cruisers of one State can search and capture the vessels bearing the flag of another.
In some able articles on the subject in the Times, it was very truly said, "we cannot keep the two questions of the capture of the Virginius, and the subsequent treatment of her crew apart.” No doubt, this is sound, and our contemporary, we are happy to see, quite concurs with us in our view of the execution. "No language,” says the Times, “can be too severe in condemnation of the execution, and we must claim the surrender of the survivors.” We regret, indeed, that our contemporary does not agree with us as to the illegality of the capture, though, of course, that is a matter of comparatively minor importance.
The Times is a political rather than a legal journal, and naturally attaches paramount importance to political considerations, of which, perhaps, the influence may be detected
in the articles But considerations of political expediency are unsafe and fluctuating grounds for judgment, and it is better to rest on the authorities of international law. We have shown that by Wheaton these authorities leave no doubt that the capture was illegal, and that even if it could have been legal with a view to regular condemnation in a Prize Court, it was rendered illegal ab initio by the obvious intention to make the capture with a view to the slaughter. The right of capture, therefore, even if it existed, was not really exercised and was destroyed by the illegal intention. But in truth the authorities are clear that there was no right of capture, as it was not a time of war. If the reason of this is asked, it is enough to appeal to authorities, but the reason is obvious on reflection. The state of war excuses the exercise of rights of capture on the vessels of neutrals on account of the formidable character of the state of war, and the excuse cannot be raised by a state which denies the existence of a state of war, and assert that there is only a mere internal rebellion.
Our contemporary, the Law Journal, differs from us so far that, like the Times, it allows the legality of the capture; but then it does so avowedly, on the ground of an assumed state of belligerency, and totally omits to notice that the Spanish Government denied its existence.
The analogy, therefore, drawn from the American Civil war, entirely fails, for there we insisted that the United States Government had recognized the state of belligerency.
Even, however, supposing the right of capture lawfully exercised, there would still remain the necessity for a lawful condemnation of the vessel in a prize court; and what is far more important, a lawful trial of the prisoners captured in her, and charged with piracy. Nor would the affirmation of the legality of the capture, in the least dispense with the necessity for a lawful trial of the prisoners, for they in a state of belligerency, would be prisoners of war : and in a state of peace, would be prisoners entitled like all other foreigners to a fair trial in a regular court of justice. It is in this way,