Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PIRACY

III.61.1

PIRACY is robbery committed by force of arms at sea. It was formerly much more frequent than it is now. It still exists, however, and it is likely that so long as there shall be highwaymen, there will be pirates; although it is much more difficult to equip a vessel to scour the ocean than to lie in ambush at the edge of a road or at the corner of the deserted streets of a large town, to rob a passer-by. Even in comparatively late years the Chinese seas were infested with pirates. This sort of robbery can be practiced only by an association of criminals; it has, too, this peculiarity, that entire hordes have been known to take to it, notably in the Barbary states before the conquest of Algeria, and even now from time to time on the Morocco coasts. Thus, it is always liable to happen, at the very time when Christian nations believe that safety reigns over all the seas, that buccaneers will dash from some unsuspected lair, and before repression can be organized, will have had time to plunder a large number of peaceable merchants. Within a few centuries, doubtless, when European civilization, enlightening even the remotest lands, shall have civilized the entire world, no barbarous tribe will be longer able to escape the action of a regular government, and piracy will lose many of its chances of success; but it may also, by an excess of audacity, organize in the midst of a civilized nation; and consequently, notwithstanding the gradual disappearance of this scourge, it can not be asserted that we shall ever attain to an absolute riddance of it.

III.61.2

—The early Greeks were nearly all pirates. M. Cauchy remarks (Droit Maritime International, 1862, vol. i., p. 180) that in ancient times the slave trade was one of the most powerful incentives to piracy, both public and private. Neither the Grecian states, when they had become civilized, nor Rome, appears to have had a naval force intended to protect their commerce against sea robbers. Piracy flourished also in the Mediterranean; it attained an extraordinary development during the civil wars of the Roman republic. These robbers formed at this period an immense confederation, the headquarters of which were on the hilly shores of Cilicia. They came very near starving Rome by intercepting the convoys of corn, and Pompey had to be charged with the destruction of their power. In order to prevent the recurrence of so disastrous a state of affairs, the Roman emperors maintained public fleets (M. Cauchy, loc. cit., p. 115), as all modern nations have done since. If we should cease to plow the seas with ships of war, it is probable that piracy would be revived in many parts of the world. Privateering gave rise, at the end of the seventeenth century, to an association of buccaneers, in parts of the Antilles, whose ravages rivaled the robberies of the ancient pirates of Cilicia. The difference between the corsair and the buccaneer is not sufficiently obvious in respect to these bold adventurers; for if the former carries his sovereign's flag, while the latter is outside of international law, both fight for booty. The abolition of privateering, proclaimed by the declaration of April 16, 1856, will thus aid in causing piracy to disappear more and more.

III.61.3

—The repression of piracy concerns international law as well as the public law of each nation. It generally happens, indeed, that the pirate and the captor are not subjects of the same sovereign, and that the crime has been committed on the vast expanse of sea which has no master and where no jurisdiction exists. The principal laws of the ancien régime in France, against piracy, are the decree of March, 1584, the declaration of Feb. 1, 1650, and the naval ordonnance of 1681; since the French revolution the matter has been regulated by the order of the second of prairial, year XI., and the law of April 10, 1825, entitled, "Law for the safety of navigation and maritime commerce." The ordonnance of 1681 and the law of 1825 have solved the difficulty which we have just indicated, by putting pirates outside of international law; they are considered as public enemies, and are amenable to the tribunals of their captor. Any vessel taking to piracy without letters of marque from any prince, or with letters of marque from two princes, is liable to seizure as a pirate. And further, the vessel which commits hostilities under any other flag than that under which it is commissioned, is to be regarded as a pirate. The laws respecting piracy are made by each nation in the interest of all the others. It matters little that the captor has not been attacked. The pirate may be justly seized for having attacked any vessel whatsoever, even foreign to the nationality of the captor. This is the remarkable feature in the legislation on piracy. The law appears to us unjust which punishes as a pirate a vessel to which nothing could be imputed but the lack of papers. It must be observed, however, that there is in such a case only a presumption, which must yield to proof of the contrary, but this is already too much, and here, as in all penal law, guilt is not to be assumed, and it is for the accuser, not the accused, to furnish the proof.

III.61.4

—Grotius thinks (book ii., chap. xx., § 40) that a government has the right not only to avenge its wrongs, but even the offenses which violate international law, whomsoever they may concern. "And it is even," says he, "as much more praise-worthy to avenge the wrongs of others rather than one's own, as it is to be feared, in those which affect us, that the resentment which we feel might make us pass beyond the limits of a just vengeance." We adopt fully this principle of the illustrious publicist, proclaimed before him by St. Augustine in the "City of God," which appears to us one of the foundations of international law. A nation has the right to declare war against a government which violates international justice, even when such violation does not directly harm it. Thus, any nation may lawfully make war on a piratical people, even if its commerce has not suffered from their depredations.*30

III.61.5

—BIBLIOGRAPHY. Broglie, Sur la piraterie (Eorits, vol. iii., p. 335); Phillimore, International Law, vol. i., pp. 394-406; Wildman, International Law, vol. ii., p. 150; Wheaton, International Law, § 124; Heffter, Völkerrecht, § 104; Esperson, Diritto diplomatico, vol. ii. pp. 2, 12; Gareis, Das heutige Volkerrecht under Menschenhandel, 1879.

F. A. HELIE.


Notes for this chapter


30.
Kent. in his Commentaries (vol. i., p. 183), gives the following definition of piracy: "Piracy is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. It is the same offense at sea with robbery on land; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition of piracy." Further on he continues: "They (pirates) acquire no rights by conquest; and the law of nations, and the municipal law of every country, authorize the true owner to reclaim his property taken by pirates, wherever it can be found; and they do not recognize any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians and modern writers on general jurisprudence; and the same doctrine was maintained in the English courts of common law, prior to the great modern improvements made in the science of the law of nations."

—By the constitution of the United States, congress is authorized to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. In pursuance of this authority it was declared, by the act of congress of April 30, 1790, c. 9. sec. 8, that murder or robbery, committed on the high seas, or in any river, haven or bay, out of the jurisdiction of any particular state, or any other offense which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, should be adjudged to be piracy and felony, and punishable with death. It was further declared, that if any captain or mariner should piratically and feloniously run away with any vessel, or any goods or merchandise to the value of 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. [By the act of congress of March 3, 1835, c. 313, the offense of making a revolt in a ship is no longer punishable as a capital offense, but only by fine, and imprisonment at hard labor.] Accessories to such piracies before the fact are punishable in like manner; but accessories after the fact are only punishable by fine and imprisonment. And by the act of March 3, 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 May 15, 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.' According to a decision of the United States supreme court, robbery on the high seas is piracy by the act of congress, as well as by the law of nations.

—Kent holds, that it is of no importance, for the purpose of giving jurisdiction, on whom or where a piratical offense 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. The statute of any government may declare an offense committed on board its own vessels to be piracy, and such an offense will be punishable exclusively by the nation which passes the statute. But piracy, under the law of nations, is an offense against all nations, and punishable by all." "An alien, under the sanction of a national commission, can not 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." "If a natural-born subject was to take prizes belonging to his native country in pursuance of a foreign commission, he would, on general principles, be protected by his commission from the charge of piracy. But to prevent the mischief of such conduct, the United States have followed the provisions of the English statute of 11 and 12 William III., c. 7, and the general practice of other nations, and have, by the act of congress of April 30, 1790, sec. 9, declared, that, if any citizen should commit any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretense of authority from any person, such offender shall be adjudged to be a pirate, felon and robber, and, on being thereof convicted, shall suffer death. The act of congress not only authorizes a capture, but a condemnation in the courts of the United States, for all piratical aggressions by foreign vessels; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that courts of justice are bound to obey and administer them. All such hostile and criminal aggressions on the high seas, under the flag of any power, render property taken in delicto subject to confiscation by the law of nations."

—By the ancient common law of England, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but since the statute of treasons (25 Edw. III., c. 2), it is held to be only felony in a subject. Formerly this offense was only cognizable by the admiralty courts, which proceed by the rules of the civil law; but it being inconsistent with the liberties of the nation that a man's life should be taken away unless by the judgment of his peers, the statute 28 Henry VIII., c. 15, established a new jurisdiction for this purpose, which proceeds according to the course of the common law. It was formerly a question whether the Algerines and other African states should be considered pirates; but however exceptionable their conduct might have been on many occasions, and however hostile their policy might be to the interests of humanity, still, as they had been subjected to what may be called regular governments, and admitted to enter into treaties with other powers, they could not be treated as pirates. (M'Culloch.)

—What constitutes piracy, in violation of the law of nations, is not uniformly fixed everywhere. It is questioned whether (as according to English common law) self-interested design must be the motive of the attack. A majority of modern writers have answered this question in the negative. Another undecided question is, whether piracy may be committed by a mutinous crew against the vessel on which they serve. Acts of violence committed by duly authorized privateers against hostile, or, bona fide, against neutral, merchantmen, are not considered as piracy. Different from the crime of piracy, in violation of the law of nations, is the crime of piracy which is mentioned in and punished by the criminal laws of some countries. The description of the facts which constitute these two different kinds of crime may become doubtful, as when a party, being in a state of insurrection, and recognized as "belligerent" by the neutral powers, injures the maritime commerce of the other party in the course of a civil war. The slave trade, too, is to be considered piracy, according to the laws of seafaring nations, and according to the treaties which have been concluded for the purpose of suppressing that nefarious trade; but where the right to search suspected vessels on the high seas is denied to vessels under foreign flags, the punishing of the guilty in accordance with the provisions in relation to piracy can not be carried out practically. It is a strange fact, as compared with other codes, that sec. 4 of the German criminal code does not enumerate piracy among the crimes committed in foreign countries, which may be punished. (Holtzendorff.)

Footnotes for POLICE

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