1

take the ship out of the hands of the lawful authorities, they become pirates, though if their attempt fails and lawful authority is never superseded on board, they are guilty of mutiny and not piracy. Another mark of a piratical act is that it must be An act done outside the territorial jurisdiction of any civilized state. Piracy must always be connected with the sea, but it may be committed by descent from the sea as well as actually upon it. Landing on an unappropriated island and robbing civilized people who had been cast ashore there, or were engaged in trade or missionary work among the natives, would be piracy if done by the crew of an unauthorized sea-rover. Hall seems to hold that a descent from the sea on the coast of a civilized state to rob and destroy without any national authorization would be accounted a piratical act; but surely the fact that the crime was committed within territorial jurisdiction would make the perpetrators amenable to the law of the state, not to the provisions of the international code. The last mark of a piratical act is that it must be An act the perpetrators of which are destitute of authorization from any recognized political community. Acts which when done under national authorization are lawful hostilities, are piracy when done without such authorization; and the presence of two or more incompatible authorizations is deemed to have the same effect as the absence of any. Thus if in time of war a vessel obtains a commission from each belligerent and depredates impartially upon the commerce of both, she is a pirate. But a cruiser which, having a lawful commission, goes beyond its terms and makes captures not authorized by the laws of war, is no pirate; for she has not thrown off national authority, and the state which owns her is responsible for her misdeeds. A commission from a community which has received Recognition of Belligerency but not Recognition of Independence is sufficient authorization for such acts of violence as are allowed to belligerent cruisers.

1 International Law, § 81.

But if the community fails in its struggle and ceases to exist as a separate political unit, its commissions are no longer valid and acts done under cover of them become piratical because they are unauthorized. These points were well illustrated by the career of the Confederate cruiser Shenandoah at the close of the great American civil war. She was in the Antarctic seas when Richmond fell and the Confederacy came to an end in the spring of 1865. Through the summer she continued to make depredations on American vessels around Cape Horn. But when her captain gave up his ship to the port authorities at Liverpool in November, he asserted that he was ignorant of the extinction of his government till Aug. 2, and that as soon as he obtained the news he desisted from further hostilities. The British Government believed his story and allowed him and his crew to go free, while the vessel was given up to the United States.1 There was some doubt at the time with regard to the facts, but none as to the law. Had it been clear that captures were made with full knowledge of the downfall of the Confederacy, the Shenandoah would certainly have been a pirate.

It has been argued that even though a revolted political community has not obtained Recognition of Belligerency, its commissions must be held to protect those who act under them at sea from the charge of being pirates.2 But the case of the Huascar seems to point to the opposite conclusion. In 1877 this vessel, whose after career was to be so checkered and glorious, revolted from the government of Peru, and while on a short voyage stopped two British vessels on the high seas and took coals from one and Peruvian officials from the other. There was no political organization at her back, no provisional government to give her a commission; no province was in insurrection; no other ship even took up her cause. She was solitary in her movement; and the Peruvian Government disclaimed responsibility for her acts. Under such circumstances Recognition of Belligerency was 1 British State Papers, British Case presented to the Geneva Arbitrators, 156-160. 2 Hall, International Law, § 81.

out of the question; and the Huascar could only be regarded as an unauthorized rover of the seas. The English admiral on the Pacific station declared that she was a pirate, at least as far as British subjects and property were concerned. He endeavored to capture her, but failed; and the vessel surrendered to a Peruvian squadron. The British Government approved the conduct of Admiral de Horsey in the face of a remonstrance from Peru and a debate raised by the opposition in the House of Commons. They were asked whether they would have hanged the officers and crew of the Huascar if they had caught them. The answer is that they would have done nothing of the kind. But a refusal to inflict the full penalty for an offence does not prove that it has not been committed. Technically the Huascar was a pirate." Practically she differed toto coelo from the ordinary robber of the seas. Had she been captured, her crew would have been tried and in all probability found guilty, and then have been dismissed with a merely nominal punishment. Technical guilt and grave moral delinquency are not always conjoined, even in the administration of ordinary Criminal Law; and there is no cause for wonderment or hostile criticism if in International Law there is sometimes witnessed a similar divorce of two things which are ordinarily most closely connected. Piracy is committed when the three marks we have described co-exist. An act to be piratical must be an act of adequate violence, it must be committed outside the jurisdiction of a civilized state, and it must possess no national authorization.

1 British State Papers, Peru, No. 1 (1887); Hansard, 3d Series, Vol. CCXXXVI., 787-802.

2 It would have been possible to justify the proceedings against the Huascar without raising the question of piracy. Such a vessel might be prevented by force from interference with the trade of third parties, and yet be free from attack as long as she did not molest them, whereas an ordinary pirate would be attacked by any cruiser who felt herself strong enough to make the capture. (See the author's paper in the Journal of the Royal United Service Institution for January, 1897.)

§ 123.

Distinction be

tween Piracy by

the law of nations

and Piracy by

Municipal Law.

We must now distinguish between Piracy jure gentium which has just been described, and offences which are designated as Piracy by Municipal Law and by Municipal Law only. Each state by virtue of its independence can regulate its criminal code in the way which seems best to it; and if it chooses in the exercise of its discretion to regard certain offences as Piracy which are not so regarded by International Law, it is acting within its rights. Such laws bind the tribunals of the state which makes them and have coercive force within its jurisdiction, but no further. Even if the laws of other countries contain similar provisions, each law can take effect only within the sphere of the authority which sets it. Without special agreement among states, none can arrest or punish subjects of the others for offences committed outside its own jurisdiction, even though they are regarded as offences by the law of the state to which the offender belongs. This is so clear that no attempt has been made to assume a kind of international jurisdiction over acts declared to be piracy by Municipal Law, except in the one case of the slave trade. In her zeal for its suppression Great Britain instructed her cruisers to stop vessels of all nations suspected of being engaged in it. In 1841, the United States complained of the molestation of American merchantmen; and Lord Palmerston and Lord Aberdeen, who were Foreign Secretaries successively in the latter half of 1841, disclaimed any Right of Search in time of peace, but insisted upon a Right of Visit in order to discover "whether the vessel pretending to be American and hoisting the American flag be bonâ fide American." They admitted that in such cases the vessel must be allowed to proceed, even if she was a slaver, but argued that, should she turn out to be a ship of some country with which Great Britain had a treaty providing for mutual search and capture, she could be proceeded against accord

ing to its stipulations. Mr. Webster in reply pointed out that there was no distinction recognized by the writers on International Law between a Right of Visit and a Right of Search. He argued that a right to inquire into the real nationality of the vessel visited must, if it were to be effective, include a right to examine her, detain her and overhaul her papers. This was what was usually understood by the Right of Search, which was a purely belligerent right and could not be exercised in time of peace. If the claim put forward did not include search, it amounted to no more than a right of approach and inquiry, which was admitted as an incident of the free use of the ocean, with the proviso that the ship thus dealt with was not bound to lie by and await the approach. The Treaty of Washington of 1842 put an end for a time to the controversy. It provided that each country should maintain a naval force on the coast of Africa "to enforce separately and respectively, the laws, rights, and obligations of each of the two countries for the suppression of the slave trade." But in 1858 the question cropped up again owing to the examination of some American ships by British vessels off the island of Cuba. The United States Government at once made complaints; and Lord Malmesbury, who was then Foreign Secretary of Great Britain, abandoned the claim on the advice of the law officers of the crown.2 This incident may be held to have put beyond possibility of doubt the doctrine that, agreement apart, there is no Right of Search in time of peace, even for such an excellent purpose as the putting down of the slave

trade.

1

§ 124.

The suggestion of the United States made in 1823 that the slave trade should be declared Piracy jure gentium by

1 Treaties of the United States, p. 436.

2 Halleck, International Law (Baker's ed.), II., 268-282; Wharton, International Law of the United States, § 327.