25 F. 408 | S.D.N.Y. | 1885
The legality of the original seizure of the Ambrose Light depends upon the answer to be given to the inquiry whether the cruise of the vessel under the commission of the insurgent leaders, to assist in the so-called blockade of Cartagena, must be regarded, under the circumstances of this case, as lawful warfare or as piratical. She was owned by one of the insurgents that signed her commission. None of her officers or crew were residents of this country. The question must therefore be adjudged according to the law of nations.
Neither the causes, nor the objects, nor the merits of the revolt are understood by the court; nor is its extent or probability of success known. It is said to be, not for independence, nor for any division of the republic, but rather a personal or party struggle for the possession of the reins of government, such as, unhappily, has too often
The consideration that 1 have been able to give to the subject leads me to the conclusion that the liability of the vessel to seizure, as-piratical, turns wholly upon the question whether the insurgents had or had not obtained any previous recognition of belligerent rights, either from their own government or from the political or executive department of any other nation; and that, in the absence of recognition by any government whatever, the tribunals of other nations must hold such expeditions as this to be technically piratical. This result follows logically and necessarily, both from the definition of piracy in the view of international law, and from a few well-settled principles. Wheaton defines piracy as “the offense of depredating on the high seas without being authorized by any sovereign state, or with, commissions from different sovereigns at war with each other.” Dana’s. Wheat. Int. Law, § 122. Rebels who have never obtained recognition from any other power are clearly not a sovereign state in the eye of international law, and their vessels sent out to commit violence on the high seas are therefore piratical within this definition. The general principles of international right and of self-protection lead to the same conclusion. (1) All nations are entitled to the peaceful pursuit of commerce through the ports of all other civilized nations, unobstructed, save .by the incidents of lawful war, or by the just restrictions of the sovereign. (2) Maritine warfare, with its burdens and inconveniences to nations not engaged in it, is the lawful prerogative of sovereigns only. Private warfare is unlawful. International law has no place for rebellion; and insurgents have strictly no legal rights, as against other nations, until recognition of belligerent rights is accorded them. (3) Recognition of belligerency, or the accordance of', belligerent rights to communities in revolt, belongs solely to the political and executive departments of each government. (4) Courts cannot inquire into the internal condition of foreign communities in order to determine whether a state of civil war, as distinguished from sedition or armed revolt, exists there or not. They must follow the political and executive departments, and recognize only’what those departments recognize; and, in the absence of any recognition by them, must regard the former legal conditions as unchanged.
Prom these principles it necessarily follows that in the absence of recognition by any government of their belligerent rights, insurgents-
These considerations seem to me sufficient for the determination of this branch of the case. But as the right of the government to treat such acts as piratical is vehemently challenged, and as doubt on this point has been expressed by some recent authors, I proceed to consider the subject more in detail.
It should be first observed that the case is not one where recognition of belligerency has been accorded by the parent government, or by any other nation.
In all the revolts and struggles for independence by the SpanisnAmerican colonies from 1810 to 1822, our government at an early stage of the contest, in every instance, acknowledged the existence of a state of war, and of the belligerent rights of the provinces; maintained an impartial neutrality, and admitted to our ports the vessels of war of each party. Message of Pres. Monroe, March 8, 1822; Note to 4 Wheat. Rep. App. 23-59. It was the same in the Greek revolution, (see Dispatch of Mr. Adams to Rush, Aug. 18, 1823; 2 Elliott, Dip. Code, 633;) and the same in the contest by which Texas acquired her independence of Mexico. Id. 643, 684. Greece blockaded the ports of Turkey; but England had already acknowledged her belligerent rights, and declared her strict neutrality. 2 Stapleton’s Life of Canning, 408, 414, 443.
These are among the most prominent revolutionary strugglés of recent times. In all of them the revolutionists were speedily recognized as belligerents by foreign powers, long before any recognition of them as independent states. Even England, in her statute of 16 Geo. III., 1776, and in that of 17 Geo. III., 1777, which was renewed annually during the war, and which declared our privateers “pirates,” recognized and declared the existence of a territorial civil war, whereby we became “enemies” and “belligerents,” as well as “rebels. ” Per Nelson, J., in Prize Cases, 2 Black, 694; Lawr. Wheat, note, 79. In the long revolt of the Netherlands, Queen Elizabeth, from policy and religious sympathy, secretly aided the insurgents, and for 20 years, while professing amity with Philip, carried on a secret piratical warfare' against him, Hosack, Rise, etc., of Int. Law, 153. The foreign powers generally, says Lawrence, (1 Com de Droit, etc., 186,)
Again, this is a suit in rem for the condemnation of the vessel only; not a trial upon a criminal indictment of her officers or crew. The two proceedings are wholly independent, and pursued in different courts. Condemnation of the vessel as piratical does not necessarily imply a criminal liability of her officers or crew. The vessel might he condemned for being engaged upon a piratical expedition only, or for attempts at piratical aggression or restraint. In such a case no indictment for piracy would lie, because criminal punishment is inflicted only according to the municipal law of the captors; and our statutes do not make criminally punishable piratical undertakings or aggressions merely. The Marianna Flora, 11 Wheat. 40; The Pamyra, 12 Wheat. 1, 15. Even as regards acts that constitute undoubted piracy, there may he valid personal defenses of the officers and crew, as suggested, though not decided, by Marshall, C. J., in U. S. v. Klintock, 5 Wheat. 144, 149. If an owner should forge a commission from a lawful belligerent, and send his vessel out as a privateer under officers and crew who acted in good faith, supposing her commission to be genuine, the vessel should be condemned, though the officers and crew might he acquitted. So if mere usurpers, knowing that they have no recognized authority, should commission their own ships as vessels of war to blockade loyal ports and to threaten the lawful commerce of all nations, and foreign merchantmen wore captured or sunk by them during such a blockade, it is possible that the officers and crew might have accepted the commission upon such a reasonable supposition of its coming from an authorized belligerent as to furnish a just defense upon a criminal indictment, though none the less should the vessel and those who commissioned her be held engaged in an illegal aiid piratical expedition. See U. S. v. Gibert, 2 Sum. 19. Here the court has to do only with the character and design of the expedition upon which the Ambrose Light was sent out by the insurgents who owned and commissioned her. And, so far as respects the lawfulness of her seizure, the question is the same as if she had actually captured one of our merchantmen, or sunk her and killed the officers and crew while they were lawfully entering the port at Cartagena.
1. Piracy has two aspects: (a) As a violation of the common right of nations, punishable under the common law of nations by the seiz
In several cases in the supreme court pirates are spoken of as synonymous with “persons not lawfully sailing under the flag, or deriving protection from the commission, of any government or nation,” (U. S. v. Smith, 5 Wheat. 153, 163; U. S. v. Holmes, Id. 412, 417; The Malek Adhel, 2 How. 211, 232;) and the other common-law definition is also frequently used.
Prof. Perels, in his recent work on International Maritime Law, (Berlin, 1882, § 16, p. 125,) defines piracy generally in substantially the same terms as Wheaton, giving afterwards some 12 different forms of the offense. Among these are included making captures under a commission after the commission has expired, or after it is revoked; or after knowledge that the war has ended; or outside the proper territorial limits of the war. Piraterie, § 16; Caper, § 34, pp. 186, 187.
Both the above general definitions, in most cases, lead practically to the same results. The latter is equally well established with the former, and is more appropriate in a case of prize. This definition makes piratical, and is intended to make piratical, all private, unauthorized maritime warfare. The reason is that all such warfare is incompatible with the peace and order of the seas, with due security for maritime commerce, or due responsibility for injuries to others. Ocean belligerency embraces the right to arrest, to visit, and to search the vessels of all nations; to seize contraband goods; to blockade ports; and, if need be,'to capture or destroy the vessels and crews of all nations that resist or violate the blockade. These are high prerogatives of sovereignty. 3 Phil. Int. Law, (2d Ed.) 474; Lawr. Wheat, pt. 4, c. 1, § 5; Hall, Int. Law, § 178, p. 448; Wools. Int.
In the persistent demand made upon the statos-general in 1779 by Sir Joseph Yorke, the British minister at the Hague, for the surrender of Paul Jones’ prizes, as having been piratically captured, the long practice on this subject was referred to as follows: “All the placards [decrees] of your Mightinesses require that all the captains of foreign armed vessels shall, upon arrival, present their letters of marque, or commissions and authorities, according to the customs of admiralties to treat all those as pirates whose letters are found to be illegal for want of being granted by a sovereign power.” Ann. Reg. 1779, p. 430.
The rules above stated are so familiar to seamen that they are seldom violated in recent times except by mutineers, plunderers, or outlaws. In revolutions conducted with discretion, before interrupting the commerce of the seas, such assurances of at least friendly regard from some foreign powers are secured, as shall afford a justification of naval warfare. In our own revolutionary struggle, although Washington, in 1775, employed some armed vessels in the defense of the coast, and for procuring necessary stores and supplies, no public ships of war were sent out by congress, nor were privateers authorized, until the spring of 1776, after assurances of friendly support by Branco and Spain, and when they had in fact resolved upon render
2. The recognition by foreign states of a state of war in civil strife, or, what is the same thing, a recognition of the belligerent rights of the insurgents, authorizes courts of law to treat the insurgents as lawful combatants. In the language of Burke, “it is an intermediate treaty that puts rebels in possession of the law of nations.” It gives them temporarily, and for war purposes, the status of an established nation, and all the rights of public war. On the one hand, it is a concession to rebels in the interest of humanity and expediency. On the other hand, since recognition of belligerency is not usually accorded till rebellion rises to the dignity of real war, and in its general aspects is fairly entitled to belligerent rights, notwithstanding the burdens it inflicts on other nations, it may be viewed as an adjustment by foreign nations of their own relations, so as to accord with the just'requirements of the actual facts. If recognition be granted, it relieves the parent state from all responsibility for damages for any irregularities or violence committed by the other belligerent. Had the Ambrose Light sunk one of our merchantmen off Cartagena, we should have had claims for damages against Colombia, in the absence of any recognition of the usurpers; but if they had been recognized by us, Colombia would have been released, and the blockade would have been lawful.
3. Since recognition of belligerency is pro tanto, and for war purposes, a recognition of quasi sovereignty, and is attended by such important consequences, the power to grant or to withhold it, like recognition of full independence, falls within the exclusive province of the political or executive department. “No doctrine is better established, ” says Story, J., in Gelston v. Hoyt, 3 Wheat. 246, 324, “than that it belongs exclusively to governments to recognize new states in the revolutions that may occur in the world;- and until such recognition, either by our own government or the government to which the new state belonged, courts of justice are bound to consider the ancient state of things as remaining. This was expressly held in Rose v. Himely, 4 Cranch, 241, and to that decision on this point we adhere.” ■To the same effect is the language of Chief Justice Marshall in U. S. v. Palmer, 3 Wheat 610, 635. This is again affirmed in Kennett v. Chambers, 14 How. 38, where Taney, C. J., adds, in reference to any inquiry by the courts, in cases of foreign civil strife, whether new states should be recognized or not: “Such an inquiry would be to take on ourselves the exercise of political authority, for which a judicial tribunal is wholly unfit, and which the constitution has conferred exclusively upon another department.” Page 51. Equally emphatic was the language of Chancellor Kent in Gelston v. Hoyt, 13 Johns. 561, 587; and similar is the rule of the English law. City of Berne v. Bank of England, 9 Ves. Jr. 347; The Manilla, Edw. Adm. 1.
Insurgents do not, from the mere fact of revolt, or by their acqui
“But it does not follow that every band of conspirators who may combine for the purpose of rebellion * * * becomes ipso facto a separate and independent member of the great family of sovereign states. A successful rebellion may be termed a revolution; but until it has become sucli it has no claim to be recognized as a member of the family, or exercise the rights or enjoy the privileges consequent on sovereignty.” Dana’s Wheat. Int. Law, § 21.
In the case of the officers and crew of the Savannah, tried for piracy in 1861,-before Mr. Justice Nelson, Mr. Evarts, in his argument for the prosecution, (page 302,) used the following language in reference to a recognition by foreigii nations of rebel belligerency:
“Now, what is the duty of other nations in respect to that? Why, tlieii duty and right is this: that they may either accord to these struggling, rebellious, revolted populations the rights of war, so far as to recognize them as belligerents, or not; but whether they will do so or not is a question for their governments, and not for their courts, sitting under and by authority of their governments. Dor instance, you can readily see that the great nations of the earth, under the influence upon their commerce and their peace which I have mentioned, may very well refuse to tolerate the quarrel as being entitled to tiie dignity of war. They may say: No, no; we do not see any occasion for this war, or any justice or benefit that is to be promoted by it. We do not see the strength or power that is likely to make it successful, and we will not allow a mere attempt or effort to throw us into the condition of submitting to the disturbance of the peace, or the disturbance, of the commerce of the world. ’ Or they may say: ‘We recognize this right; of incipient war to raise itself and fairly contend against its previous sovereign,—not necessarily from any sympathy or taking sides in it, but it is none of our affair, and the principles of the controversy do not prevent us from giving to them this recognition of their supposed rights.’ Now, when they have done that, they may carry their recognition of right and power as far as tiiey please, and stop where tiiey please. They may say, ‘We will tolerate the aggression by public armed vessels on tho seas, and our vessels shall yield the right of visitation and search to them.’ They may say, ‘ We will extend it so far as to include the right of private armed vessels, and the rights of war may attend them; ’ or tiiey may refuse to take this last step, and say, ‘ We will not tolerate the business of privateering in this quarrel.’ And whatever they do or say on that subject their courts of all kinds will follow.”
Judge Nelson, in his charge to the jury in the same case, (U. S. v. Baker, 5 Blatchf. 6, 14,) reiterated the same principle. He says, speaking of the recognition of belligerency:
“It involves the determination of great public and political questions, which belong to the departments of our government that have charge of our foreign relations,—the legislative and executive departments. When those ques*420 tions are decided by those departments the courts follow the decision,-and until those departments have recognized the existence of the new government, the courts of the nation cannot; * * * the courts are obliged to regard the ancient state of things as remaining unchanged.”
He then refers to our acknowledgment of the independence of the South American republics, and adds:
“Prior to this recognition, and during the existence of the civil war between Spain and her colonies, it was'the declared policy of our government to treat both parties as belligerents, entitled equally to the rights of asylum and hospitality, and to consider them, in-respect to the neutral relations and duties of our government, as equally entitled to the sovereign rights of war as against each other. This was also the doctrine of the courts which they derived from the policy of the government, following the political department of the government as it respects our relations with new governments erected on the overthrow of old ones.”
The practice of our- government, in such cases, is stated by President Monroe in his message of March 8, 1822, above referred to. After referring to the natural sympathies of our people with the provinces, he says
“As soon as the movement assumed such a steady and consistent form as to make the success of the provinces probable, the rights to which they were entitled by the law of nations as equal parties to a civil war were extended to them. Each party was permitted to enter our ports with its public and private ships, etc. Through the whole of this contest the United States, have remained neutral.”
4. In the absence of any recognition by foreign powers, or by our own government, it is clear from the above authorities that the court has no power to institute any inquiries into the status of insurgents in foreign countries, or to attempt to determine, or to lead the political department in determining, whether or not there be a state of actual “open war;” whether the parties are “enemies” or “belligerents;” or whether the condition is that of armed rebellion merely. It is not necessary to consider whether, in a case where thei*e has been notorious civil war for a considerable period, and where the parent government has itself recognized a state of war, or where other foreign nations have done so, and where the government in whose courts the cause arises has taken no negative action, but has tacitly adapted itself to the situation as one of war, the court might not hold such circumstances to amount to a tacit recognition of belligerency by its own government. Nothing of that kind exists here. Until some recognition by the political department, express, implied, or tacit, of new conditions in foreign states, there is no “open war,” no “belligerent;” there are no “enemies” that the court can recognize, but only insurgents. Under such circumstances no legal validity can be allowed in courts of law to the commissions given by such insurgents. In the case of U. S. v. Klintock, 5 Wheat. 144, on an indictment for piracy committed in 1818, it appeared that the privateer sailed under a commission from one Aury. Chief Justice Marshall said, (page 149:)
*421 “¡3o far as this court can take any cognizance of that fact, Aury can have no power, either as a brigadier of the Mexican republic,—a republic of whose existence we know nothing,—or as generalissimo of the Floridas, a provinco in she possession of Spain, to issue commissions to authorize private or public vessels to make captures at sea.”
Iu the case of Dimond v. Petit, 2 La. Ann. 537, (1847,) Etjstis, 0. J., says:
“This capture was made under color of an insurgent military authority at Campeaehy, in the Mexican province of Yucatan. We directed the attention of counsel to the necessity of furnishing the court with information as to the course taken by the government of the United States in relation to the belligerent rights of the province of Yucatan, which is said to have been in a state of rebellion against the republic of Mexico at the time of the capture. FTo justification has been exhibited to us for this outrage upon our flag, and the capture can bo viewed in no other light by the court than as an act of lawless depredation. It is well settled that the proceedings of courts in cases of this kind depend entirely on the action of the general government. There being no evidence that a state of war was recognized by our government as existing between this insurgent power and Mexico, the rights of the former as a belligerent cannot be admitted by this court.”
In U. S. v. Greathouse, 2 Abb. (U. S.) 364, 380, Mr. Justice Field said:
“The courts * * * cannot treat any new government as having authority to issue commissions or letters of marque, which will afford protection to its citizens, until the legislative and executive departments have recognized its existence. The judiciary follows the political department of the government in these particulars.”
It follows that in the absence of any recognition by our government of an existing civil war in Colombia, the commission executed by the insurgents to their own vessel to carry on maritime war, and to blockade Cartagena, has no validity that this court can recognize. Her depredations, or intended depredations, in preventing other nations from pursuing lawful commerce with Cartagena, must be viewed by the court as the acts of mere private, unauthorized persons. The commission is void, and as no commission. The vessel derives no protection from it, and must be held piratical, as she would be held if cruising for similar purposes without any commission at all. In addition to this, there was also the fraudulent exhibition of the Colombian flag when approached by the Alliance; a flag to which the Ambrose Light clearly bad no color of right, since the rebels had no color of claim to constitute the established government of the republic of Colombia, but were mere usurpers.
5. But it is urged that her cruise, to be held piratical, must have been such in intent, and that an intent that, like this, is simply belligerent, is not piratical; and that on two grounds: First, because a belligerent vessel is directed against the ships or property of one nation only; and, second, because her acts are not done animo furandi, for the sake of plunder, but as acts of war only, animo belligerandi.
It is curious to notice that, in the case of the privateers commis
This case, in principle, covers the whole ground of the objections here urged; for those privateers intended warfare only, and warfare under the king’s commission, and against England only. The king, being deposed, was indeed but a titular king, without possessions ; but this only served to make his commissions unlawful and invalid, and that is the case with the commissions of the insurgents here. The question of the legal consequences of the invalidity of the commissions is the same in both cases. Bo, in Dole v. New England Ins. Co., 2 Cliff. 394, 420, Clifford, J., says that the Confederate commission “would be utterly null and void as an answer to an indictment for an offense against our municipal criminal law, ” [i.e., against piracy.] But a felonious intent is as necessary to conviction under our municipal law as under the law of nations. The only remaining question is evidently the validity of the commission for war purposes, and that depends wholly on recognition of belligerency.
The objections here urged, it must be observed, challenge, not merely the right to regard unrecognized belligerents on the high seas ■as pirates, but the right to regard them as guilty of any offense at all. The excuse,.if good for anything, applies equally to any form of crime that might be charged. In other words, if these objections be sound, the public vessels of all nations must stand silently by and see their merchant ships seized while engaged in lawful commerce, or sunk, if 'they resist, and .their officers and crews slaughtered with impunity, by rebels who are refused recognition as lawful combatants. It would ■seem plain enough that the “law of nations,” which is chiefly but an expansion of the common right of self-protection among co-equal sovereignties, could admit of no such impotent conclusion as that. If nations are unwilling to recognize insurgents as lawful combatants oh the high seas, they must, of necessity, and for self-preservation,
The objections named are really drawn from the usual definition of piracy, viewed as a crime, viz., as “robbery upon the high seas,” coupled with a further description of the offense as committed in “a spirit and intention of universal hostility,” which has been occasionally employed in describing the practice of general pirates, rather than the essential elements of piracy itself. 1 Kent, *183, *184; Davison v. Sealskins, 2 Paine, 333; per Nelson, J., in Case of Crew of the Savannah, sub nom. U. S. v. Baker, 5 Blatchf. 6-10. But though indiscriminate depredations are mentioned, it is added: “It is the same offense with robbery on land;” which shows that “the spirit and intention of universal hostility” is mere embellishment, and no part of the legal definition.
No doubt indiscriminate violence and robbery on the high seas are piracy, (U. S. v. Smith, 5 Wheat. 153, 161;) but it is doubtful whether any pirates ever really practiced, or intended to practice, wholly .indiscriminate robbery upon all vessels alike; and it is far from true that no acts are piratical by the law of nations except such as are of that description, or even except such as have a specific animus furandi, lucri causa. Of this last point Judge Story says, in the case of U. S. v. The Malek Adhel, 2 How. 211, 232:
“If he willfully sinks or destroys an innocent merchant ship without any other object than to gratify his lawless appetite for mischief, it is- just :ts much piratical aggression, in the sense of the law of nations and of the act of congress, as if he did it solely and exclusively for the sake of plunder, lucri causa. The law looks at it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and of one who is emphatically hostis humani generis
To tho same effect see Dana’s Wheat, notes 15, 83, 84; Hall, Int. Law, § 81, pp. 215, 216. As regards the “intent of universal hostility,” Dr. Lusbington, in the case of The Magellan Pirates, 1 Phil. Int. Law, 498-502, said:
“All persons are held to be pirates who are found guilty of piratical acts; and piratical acts are robbery and murder upon the high seas. * * * . It*424 was never deemed necessary to inquire whether the parties so convicted had intended to rob or to murder on the high seas indiscriminately.”
In the case of U. S. v. Ross, 1 Gall. 624, some Portuguese convicts at the island of St. Jago, in order to regain their liberty, had seized an American schooner and run away with her, and in carrying out their design had killed one of the persons on board. Judge Story said, (page 629:) “It was a clear case of piracy at common law.” See, also, In re Tivnan, 5 Best. & S. 645; infra, p. 430. So, if mariners feloniously rise against the master and run away with the ship, this is piratical at common law as well as by statute. Molloy, De Jur. Marit. c. 4; U. S. v. Tully, 1 Gall. 247, 252, 255; 13 State Trials, 395, 454; The Magellan Pirates, supra. Yet in neither of these classes of cases is there any intent of universal hostility, nor are the offenders hostes humani generis, except in a general sense signifying a willful disregard of the essential order and welfare of human society, such as characterizes all other high crimes. In this sense Lord Hale speaks of murderers as hostes humani generis. “When .one voluntarily kills another without any provocation it is murder, for the law presumes it to be malicious, and that he is hostis humani generis.” 1 Hale, P. C. 455. In the present case, however, the specific mission of the Ambrose Light to “blockade” Cartagena was in itself a menace and an unlawful aggression against the ships of all nations.
The “intention of universal hostility,” in any special sense, is applicable to pirates by profession Only; to those who make piracy a business, and live by some approach to indiscriminate plunder, and who in that sense are “general pirates.” In other words, it is a description of the supposed practice of one class of pirates only; just as the animus furancli is descriptive of the particular motive of most piracies. But neither the general intent in the one case, nor the particular and common motive of plunder in the other, is necessary or essential to the offense of piracy itself. And it is manifest that the offense may be as complete, though but a single act be committed or intended, as if such acts were practiced as a business, and indiscriminately on all vessels, to procure a livelihood.
Upon an indictment under the United States Statutes of the officers •and crew of the rebel cruiser Savannah, in 1861, Mr. Justice Nelson, incidentally referring to piracy by the law of the nations, says:
“This is defined to be a forcible depredation upon property on the high ■seas without lawful authority, done animo farandi; that is, as defined in this connection, in a spirit and intention of universal hostility. A pirate is said to be one who roves the sea in an armed vessel, without any commission from any sovereign state, on his own authority, and for the purpose of seizing by force and appropriating to himself, without discrimination, every vessel he may meet. For this reason pirates, according to the law of nations, have always been compared to robbers, the only difference being that the sea is the theater of the operations of one, and the land of the other. * * * Now, if it were necessary on the part of the government to bring the crime .’charged in the present ease against the prisoners within the definition of robbery and piracy, as known to the common law of nations, there would be*425 great difficulty in so doing upon tho evidence, and, perhaps, upon the counts in the indictment; certainly upon the evidence, for that shows, if anything, an intent to depredate upon the vessels and property of one nation only—tho United States-—which falls far short of the spirit and intent, as we have seen, that are said to constitute essential elements of the crime. But the robbery charged in this case is that which the act of congress proscribes as a crime, and may be denominated a statute offense, as contradistinguished from that known to the law of nations.” U. S. v. Baker, 5 Blatchf. 6, 11, 12.
This passage embodies tbe objections urged in the present case. From the last sentence quoted, however, it is clear that in the view of Mr. Justice Nelson the case on trial before him was a statute offense only, and that no careful consideration of the nature of piracy by the law of nations was called for. His observations on that offense are therefore obiter, and cannot be deemed to have been carefully considered, nor intended to be made strictly accurate, there being no occasion to make them so. Carefully observed, it will be noticed that his remarks do not purport to express so much his own views as what is said to constitute general piracy by the law of nations; and we are not hero considering general piracy, or the practices of general pirates. From what has been said before, it is evident that the above description of piracy, though applicable to pirates by profession, is not accurate as a definition, or as a test in isolated cases. The different and inconsistent forms of expression- used in the passage quoted, as in similar passages in 1 Kent, *184, and in Davison v. Sealskins, supra, refute the objections and the inferences which might otherwise be drawn from them. Comparing piracy with robbery on land, it is said “the only difference is that the sea is the theater of the operations of the one, and the land of the other, ” which obviously neutralizes the restrictions in the definition previously stated, since no such restrictions apply to robbery on land. If A. should waylay 13. and violently despoil him of his purse, no one would doubt that the act was robbery, though A. immediately threw the purse into the sea, and had no motive of pecuniary gain, lucri causa, but acted from revenge only, and meditated no other offense against B. or any other person.
The charge to the jury in that case, moreover, in its general drift and purport is opposed to tho views of Mr. Justice Clifford, as expressed in Dole v. New England Ins. Co., supra, and to tho charge of Mr. Justice Giuer, on the trial of William Smith and, others, under the same statutes, for similar acts, very shortly before, who ruled that the court was bound to hold the accused to be pirates. The latter’s general views of the relation of the government to its own citi zens was sustained by a majority of the supreme court in the Prize Cases, 2 Black, 635. This decision included the case of The Amy Warwick, and affirmed, as respects that vessel, the decree of Judge Sprague, (2 Spr. 123,) who had declared her liable to bo adjudged a pirate. Id. 132.
As respects intent, the question is the same in piracy as in all other-crimes, where the intent is material. All that is requisite to be shown
In the case of Reynolds v. U. S., 98 U. S. 145, the supreme court held that the accused’s belief that polygamy was a religious duty was no defense on an indictment for bigamy. The court say, (page 167:)
“A criminal intent is generally an element of crime, but every man is presumed to intend tlie necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defense of the accused in this ease is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion; it was still belief, and’belief only.”
So, in U. S. v. Anthony, 11 Blatchf. 200, it appeared that Miss Anthony had voted under a claim of a constitutional and legal right to vote; and was indicted for so doing under the act of congress that imposed fine or imprisonment on any person who shall “knowingly * * * yOf¡0) without having a lawful right to vote.” Mr. Justice Hunt says:
“If she believed she had a right to vote, and voted in reliance upon that belief, does that relieve her from the penalty? * * * Two principles apply here: First, ignorance of the law excuses no one; second, every person is presumed to understand and to intend the necessary effects of his own acts. * * * There was no ignorance of any fact, but, all the facts being known, she undertook to settle-a principle in her own person. She takes the risk, and she cannot escape the consequences. It is said, and authorities are cited 'to sustain the position, that there can be no crime unless there is a culpable*427 intent, and that, to render one criminally responsible, a vicious will must be present. A. commits a trespass on the land of B., and B., thinking and believing that he has a right to shoot an intruder upon his premises, kills A. on the spot. Does B.’s misapprehension of his rights justify his act? Would a judge be justified in charging the jury that, if satisfied that B. supposed he had a right to shoot A., he was justified, and they should find a verdict of not guilty? No judge would make such a charge. To constitute a crime, it is true there must be a criminal intent; but it is equally true that knowledge of the facts of the case is always held to supply this intent. An intentional killing bears with it evidence of malice in law. Whoever, without justifiable cause, intentionally kills his neighbor, is guilty of a crime. The principle is the same in the case before us, and in all criminal cases.” See U. S. v. Taintor, 11 Blatchf. 374; Regina v. Downes, 1 Q. B. Div. 25, 30.
So in the indictment of Dorr for treason, his plea of no criminal intent, hut of an honest belief that he was the lawful governor of Rhode Island, was hold untenable. See Pittman’s Dorr’s Trial; Whart. Am. Crim. Law, 786-790.
To constitute a criminal offense, it is only necessary to show, therefore, that the accused committed intentionally, with design to injure another, and without legal excuse, an act which the law makes criminal. 3 Greenl. Ev. §§ 1, 13, 20. The law of nations necessarily makes unlawful the capture or destruction of ships by a vessel sailing without any commission, or without a lawful commission from some recognized power, as well as a capture under a usurped flag. Such captures, considered by themselves, are acts of spoliation and robbery; and when committed knowingly, with intent to injure, and without lawful authority, they are felonious, and therefore piratical, even in its criminal aspect. That such spoliation and capture are done under the name of war, cannot furnish a legal defense, if the court cannot recognize the warfare as lawful. The animus beUigerandi, if unlawful, becomes animus fur andi, and more; as the greater includes the less. War means and intends the destruction of life and property. Such destruction is lawful, if the war be lawful; if it is not lawful, the intent to despoil of life and property remains the same; hut as the legal excuse for it fails, the intent then becomes in law felonious, and hence the act is punishable as criminal. See 10 Amor. Jur. 265-267. The law never admits the ultimate object or motive to be a justification, where the means are unlawful. Per Cookbiien, 0. J., and Blackburn, J., in Reg. v. Recorder of Wolverhampton, 18 Law T. 395, 397, 398.
Again, a felonious intent is as necessary to constitute treason as to constitute piracy. Rebellion, whether conducted on land or sea, is felonious and treasonable, and punishable with death by the parent state. Our history furnishes numerous instances, (Whart. Am. Law, “Treason,” 771-790,) and Riel’s case is a current instance. The same acts upon the high seas, if not recognized as lawful war, must be equally felonious in law, as respects other nations injured thereby, and as such liable to be treated as piratical.
That a belligerent intent is no defense, provided the acts, or the ves
The insurgent leaders, in sending out the Ambrose Light to blockade Cartagena, were, so far as this court can recognize, in the position of seeking some political revolution or usurpation by means that were unlawful as respects foreign nations. They could not, by merely commissioning their own vessels, without any recognition by the executive or political departments of any other government, make them Selves lawful belligerents, or become entitled to exercise acts of constraint or of violence towards the vessels of other nations. They knew that, with this íack of legal authority, they took the risk of having the vessel treated as piratical. They knew that, until recognition, their position in the courts, both at home and abroad, was that of mere usurpers who, in addition to treason against their own country, were threatening, by their attempted blockade, the lives and property of the subjects of all other commercial nations. They took all the risks of being treated as criminals,-or as piratical cruisers, until they secured recognition of belligerent rights from abroad.
• 6. That recognition by at least some established government of a “state of war,” or of the belligerent rights of insurgents, is necessary to prevent their cruisers from being held legally piratical by the courts bf other nations injuriously affected, is either directly affirmed, or necessarily implied from many adjudged cases; and I have found no adjudication in which a contrary view is even intimated.
I have already referred to the case of U. S. v. Klintock, 5 Wheat. 144, in which it was held that the court could not recognize any validity in a commission from the unknown “Mexican Republic.”
The case of U. S. v. Palmer, 3 Wheat. 610, arose upon alleged acts of piracy committed in 1817 under a commission from revolutionists carrying on a struggle for independence against Spain, who had -already been acknowledged by our government as belligerents.. In response to a certificate of division from the circuit court upon the question whether the cruise was piratical, Marshall, 0. J., said: “If the government of the Union remains neutral, but recognises the
The case of The Invincible and the Pocket very closely resembles the present, except in the single circumstance of the previous recognition of the belligerency of Texas by our government. 3 Op. Attys. Gen. 120. In that case, during the straggle between Mexico and Texas, the Invincible, an armed cruiser of Texas, had seized the Pocket for carrying contraband goods to Mexico. On the complaint of insurers, a United States vessel had seized the Invincible as a pirate, and brought her, with her crew, into New Orleans for trial and adjudication. On reference of the matter to Attorney General Butler, for decision whether they were liable for piracy or not, he says:
“Whore a civil war breaks out in a foreign nation, and part of such nation erect a distinct and separate government, and the United States, though they do not acknowledge the independence of the new government, do yet recognize the existence of a eioil war, our courts have uniformly regarded each party as a belligerent nation in regard to acts done jure belli. * * The existence of a civil war between the people of Texas and the authorities and people of the other Mexican states was recognized by the president of the United States at an early day in the month of November last. Official notice of this fact, and of the president's intention to preserve the neutrality of: the United States, was soon after given to the Mexican government. This recognition has been since repeated by numerous acts of the executive, several of which had Laken place before the capture of the Pocket. ”
The vessel and crew wrere accordingly released. See, also, Dimond v. Petit, supra, p. 421. The case of The Georgiana, 9 Op. Attys. Gen. 140. The tribunal at Marseilles, in 1823, refused to adjudge a rebel South American cruiser as a pirate; but that wras long after belligerent rights had been expressly accorded the colonies by this country, and impliedly by Spain herself, through her treaty with England stipulating for the batter’s neutrality. See infra, p. 438. The
“In strictness they were pirates, and might have been treated as such; but it was one thing to assert that they had been guilty of acts of piracy, and another to advise that they should be tried for their lives and hanged at New-gate.” Boyd, Int. Law, 172.
In the Case of Tivnan, 5 Best & S. 645, where some persons had come on board the American schooner Joseph E. Gterrity, in November, 1863, at Matamoras, and afterwards, upon the high seas, had violently seized her in the name of the Confederacy and set the master and officers adrift, the act was held by all the judges to be prima facie an act of piracy, and not an act of war. Pages 684, 689, 696. Blackburn, J., at the close of his opinion, clearly intimates that any defense of the act as a possible act of war, was dependent upon previous recognition of belligerency. He says:
“But, looking at the evidence, what was done by the prisoners is either taking the ship for plunder, which would be piracy, jure gentium, in which ease there is no power vested m us by statute to give them up, or an act of war, and consequently not triable anywhere. For, although the Confederate States are not recognized as an existing power, yet they are [recognized] as belligerents. ”
Prom all these eases the implication is very strong that, in the absence of any recognition of belligerent rights by the political or executive branches of any government, the cases would have been deemed cases of piracy by the law of nations, as that of the Huascar was declared to be.
The burning of the Golden Rocket by the rebel cruiser Sumpter, in July, 1861, gave rise to several suits upon policies of insurance which had insured against “pirates;” but, by a marginal indorsement, excepted losses by capture. The causes were heard in the supreme courts of the states of Maine, Massachusetts, and Pennsylvania, in the circuit court of Massachusetts, and in the United States supreme court. In all it was held that the loss was by capture, and that upon that ground the insurance companies were not liable. In the case in Maine, (Dole v. Insurance Co., 51 Me. 465,) Davis, J., delivering the opinion, held the case piracy also. In the circuit court, (Dole v. Insurance Co., 2 Cliff. 394,) Clifford, J., held it not piracy within the meaning of a commercial document issued before the war broke out. And the same view is intimated in Dole v. Insurance Co., 6 Allen, 373, 392. In Fifield v. Insurance Co., 47 Pa. St. 166, the views of the different judges were quite diverse; the majority regarded the act of the Sumpter as a belligerent capture, under the president’s mode of treatment of the case. In the supreme court, (Mauran v. Insurance Co., 6 Wall. 1,) the case, as in the other courts, was exhaust
“Ho authority can be produced to show that a capture under a commission issued by a regularly organized tie facto government, engaged in open and actual war, to cruise against its enemy, and against its enemy only, is piracy, under tlio laws of nations.”
This is true, when that state of things can be recognized by the court; but no foreign court has authority to treat revolters as a “regularly organized de facto government,” or to recognize “open and actual war,” or the parent government as an “enemy,” in advance of the action of the political or executive department. In that case recognition of the Confederates had already become general at homo and abroad. The plaintiff’s point in the same case is equally true:
“Looking to all the conditions of the rebellion, cruising by rebels who ¡ire as yet unacknowledged by anybody, oven as arde facto government, would be cruising without being authorized by any sovereign, and so would be piracy by the law of nations.” Page 4.
Both sides, it will ho observed, either expressly or by implication, made the legal situation depend upon previous recognition of belligerency. So, in the treatment of the case by Clifford, J., the previous recognition of belligerency, not by foreign powers only, but by the United States itself, is manifestly made the turning point, (2 Cliff. 420-425;) and in 6 Allen, 392, the supreme court of Massachusetts adverted to the fact that the rebel cruisers had been recognized abroad as “entitled to the privileges of a belligerent power. ” In the opinion of the supreme court, the question of “capture” only was considered, and the south was held to constitute such a defacto ruling power as to make the case one of technical “capture,” and therefore within the exception of the policy. So, too, in various cases that have arisen in our courts out of violent acts on land during the late rebellion; though there is some difference of opinion whether the rebels had any good legal defense for such acts done in course of war, yet the authorities that hold the affirmative rest the defense upon the recognition of belligerency. Thus, in Smith v. Brazelton, 1 Heisk. 44, it is said: “But homicide, by any person forming part of a belligerent army, recognized as such, is not murder, when committed in due course of war.” See Whart. Crim. Law, §§ 283, 1866; Whart. Hom. § 13, note; Gunter v. Patton, 2 Heisk. 261; U. S. v. Greathouse, 2 Abb. (U. S.) 364; U. S. v. Hutchings, 2 Wheeler, Crim. Cas. 543, 546; Whiting, War Powers, note to 43d Ed. p. 391, (1870.) See Hickman v. Jones, 9 Wall. 197; The Amy Warwick, 2 Spr. 132. But killing even an alien enemy, unless such killing is in the actual exercise of war, would be murder. 1 Hale, 433; State, etc., v. Gut, 13 Minn. 341, (Gil. 315.)
“Whether rebels can or cannot be treated as pirates, must depend (1) upon the amount of recognition for belligerent purposes they receive abroad; and (2) upon their treatment by the parent state. ”
Dana; in his notes to Wheaton, (notes 13, 83, 84, .153, 215,) treats of this topic fully. Speaking of the great practical importance, whether belligerency or a state of war be recognized or not by the political or executive department of the government, he says:
“If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents; if it is not a war, these cruisers are pirates, and may be treated as such.” Note 13.
Lawrence, in the notes to the last (7th) edition of Wheaton, referring to many of the authorities here cited, expresses no opinion of his own. But Wheaton himself, in his elaborate letter to Secretary Upshur, of August 23, 1843, (Exec. Doc. 28th Cong. 1st Sess., vol. 6, p. 4, Doc. 264,) concerning Paul Jones’ prizes, restored by Denmark to England in 1779, says:
“Denmark must either have considered the United States as a lawful belligerent or as pirates, incapable of acquiring any of the rights of j ust war. ”
And, as we shall see further on, the language of diplomacy may be said to be almost unanimous that such are the only alternatives. The publicist Hautéfuille, in a letter published in the New York Times of January!, 1862, says, in reference to the seizure of Mason and Slidell on the Trent, and the claim at that time, often put forth in defense, that the Confederates were only rebels, and not belligerents :
“If there then be no war, if the Americans be not belligerents, the act perpetrated by the commander of the Ban Jacinto [Commander Wilkes] against England is an outrage committed against the independence of the British flag; it is an act of downright piracy, for which the perpetrator, if he acted without the special order of his government, should be made responsible to the tribunals.”
Boyd, in his notes on Wheat. Int. Law, (London, 1878,) says:
“When the struggle is carried on by sea as well as by land, the interests of neutral commerce render a recognition of belligerency absolutely necessary. .Without it the struggle is not, in the eye of international lawr, a war; and, if not a war, there is no obligation on the part of neutrals to respect any blockade, or allow their merchant vessels to be stopped and searched on the high seas by the cruisers of either party. * * * If the conflict continues entirely unrecognized as a war, every insurgent is liable to be executed as a rebel or traitor on land, and as a pirate at sea. ” Page 36. “ When an insurrection or rebellion has broken out in any state, the rebel cruisers may be treated as pirates by the established government, if the rebel government has not been'recognized as a belligerent by the parent state, or by foreign nations; but this right ceases to exist on recognition of the rebels as belligerents. * * * The president’s proclamation of nineteenth April, 1861, declaring the Confederate ports blockaded, settled the point by virtually recognizing the*433 South. From that time the duly-commissioned Southern cruisers became entitled to the rights.of war, and ceased to bo pirates.” Page 169.
Further authorities to the same effect will be found in “Neutral Relations,” and “England’s Liability,” by C. G. Loring, 1863-64; “Hasty Recognition,” “Precedents of American Neutrality,” and “American Neutrality,” etc., by George Bemis, 1864-66; Mr. Sumner’s Speech at Cooper Institute, Sept. 10, 1863; Article by Charles P. Kirkland in Merchants’ Magazine, Nov. 1863, p. 330; English Neutrality, by G. P. Lowrey, March, 1863; Civil War in Am. by Comte de Paris, vol. 1, p. 426.
8. Several authors, such as “Historicus,” Prof. Barnard, in his work on Neutrality, President Woolsey, and Hall, who express doubt, or the opposite opinion, either fall into clear inconsistencies, or treat the matter in its political, rather than its judicial, relations. All state that the judiciary are hound by the action of the political and executive departments; yet, in discussing the position of unrecognized rebel combatants, they sometimes fail to indicate whether they are treating of what ought to be the political action or the judicial; or, if treating of the latter, the limitations of the judiciary are more or less overlooked; so that the conclusions of these writers are either ambiguous, or are inapplicable to judicial action. As the action of the courts is wholly subordinate to that of the political and executive departments, as regards recognition of belligerency, the considerations presented on this subject by publicists are usually those that belong to the political and executive departments. Thus, the celebrated letter of Burke to the sheriff of Bristol is the letter of a statesman, addressed to statesmen; eloquent and powerful as a guide for political action, but having no relevancy to courts. It is rightly applied in the political letter of Daly, C. J., to Senator Ira Harris, (New York, 1863.) So the oft-quoted sections of Vattel concerning the rights of the two parties in a civil strife (bk. III. cap. 18, §§ 287-293) are “obviously addressed to sovereigns, not to courts.” Per Chancellor Kent, in Hoyt v. Gelston, 13 Johns. 141, 155; per Makshall, C. J., in Rose v. Himely, 4 Cranch, 241, 272. This distinction must bo continually borne in mind.
(a) The letter of “Historicus,” (Sir Yernon Hareourt,) dated March 18,1865, and published in the London Times of March 22,1865, (see, also, appendix to Bemis’ Hasty Recognition, Boston, 1865,) is a vigorous defense of the political and oxeeutivo action of England in issuing her proclamation of neutrality. It has no direct discussion of the duty of tho judiciary, and alludes to it incidentally only. Ho contends that had the queen’s proclamation of neutrality not been issued, the rebel cruisers could not have been treated as pirates “by the governments and the courts,” as though the two departments were in the same situation. But ho sustains this proposition by a reference only to the obiter remarks of Judge Nelson in the case of The Savannah, by the rhetoric of Burke’s letter, and the sections of Vattel
President Woolsey in a friendly review of Prof. Barnard’s work in the N. A. Bev. for October, 1§79, p. 259, dissents from that author’s view of the right of rebels to recognition. On this point he says:
“jSTo rule of international law forces a neutral state into an impartial attitude. It lias its choice between aiding the parent state, and entire neutrality. * * * If it offer assistance, it is assistance, not against a state known to nations, but against a nondescript thing which has force and not law on its side, against a monster out of the pale as yet of the law of nations, and which threatens the order of the world. * * * International law is made for nations, and sides with the established order of things. It does not frown on help offered by one friendly state to another, and yet it allows states to sit still and see their friends fight tlioir own battles.”
(c) Hall, in a recent and valuable work on International Law, (London, 1880,) while rejecting the animus furandi as any criterion of piracy, and regarding unrecognized rebel cruisers as “at first sight technically piratical,” concludes as follows: “The true view would seem to be that acts allowed in war, when authorized by a politi
“Sueli questions are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise; to whom are intrusted all its foreign relations,—than to that tribunal whose power, as well as duty, is confined to the application of the rule which the legislature may prescribe for it. In' such contests a nation may engage itself with the one party or the other; may observe absolute neutrality; may recognize the new state absolutely; or may make a limited recognition of it. * * * If the government remains neutral, and recognizes the existence of a civil war. its courts cannot consider ■as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy. * * * It follows * * * that persons or vessels employed in the service of a self-declared government, thus acknowledged to be maintaining its separate existence by war, must be permitted to prove the fact of their being actually employed in such service by the same testimony which would be sufficient to prove that such vessel or person was employed in the service of an acknowledged state.”
Manifestly no light is thrown on the subject by mere changes of-phrase. An “organization as a political society” can be of no avail unless the organization be one that is competent to authorize warfare: i, e., a quasi sovereign for war purposes. Every city, county, state, in this country, is a “society politically organized.” But if the mayor of New York should send out vessels commissioned in his own name to blockade Baltimore or Boston, and to capture or sink any British ships seeking to enter those ports, it would not be contended” that the British navy must remain quiet, and see such vessels sunk, unable to arrest the cruiser as piratical, because New York city was a politically organized community.
(d). President Woolsey says the Confederate cruisers were not pirates. Int. Law, App. 3, note 12 to 4th Ed., § 145 of 5th Ed. He does not mention the fact in that connection, but does elsewhere, (App. •3, note 19; § 180, 5th Ed.,) that the Confederates were recognized as belligerents at home and abroad; but he says they lacked the animus furandi, and the' intent of an indiscriminate hostility; both of which, as we have seen, are not essential. He then lays down this rule:
“A privateer of an organized rebellious community, acting under letters of marque, given by the supreme authority, according to law, is not doing piratj ical work when, in a state of open war, it preys on the commerce of its enemy, •although its government [its independence?] be as yet unrecognized.”
Prom other passages in his work on International Law it is doubtful whether the author intended to express any precise view's on the point here involved. At section 179, after saying that revolters have not strictly any rights at tho hands of other nations, he observes:
“ In a certain sense foreign powers m'twi regard tho revolters as belligerents, entitled to all t lie rights of humanity, * * * such as asylum given to political exiles, etc. * * * Tho vessels of such revolters cannot be regarded as piratical, for their motive is to establish a new stale; while that of pirates is plunder. A pirate never ends liis war with mankind. They fight for peace.” See, also, section 1806, (5th lid.)
Those loose, equivocal, and inconsistent expressions of recent authors show how vain is the endeavor to divest insurgent cruisers of their technically piratical character in courts of justice, if they have been nowhere politically recognized as lawful belligerents; and that this cannot be done, except by clothing the courts with an original authority to inquire into tlio facts, circumstances, and merits of a foreign strife, and thereupon to determine, independently of the political and executive departments, the status to be accorded it; or else by declaring that neither political nor executive recognition is of any account; and that insurgent cruisers, though not recognized as belligerents or as lawful combatants, shall yet enjoy the same immunities as if they were both recognized and lawful. The error lies in
9. The precedents in the history of the recognition of belligerency, the conduct of diplomacy, treaties, and the declarations of the most eminent statesmen on this subject, agree with the view here taken; and on any other view they would be unintelligible. Recognitions of belligerency by foreign nations in cases of civil strife have in great part this end in view: to make the warfare lawful, so as to avoid the complications of' what would otherwise be irregular, unlawful, and piratical depredations. I have already referred to King James’ privateers, to the Magellan pirates, and to the Texan ease of the Invincible ; to the neutrality, or implied recognition of our belligerency, by nearly all the European governments during our revolutionary struggle; to our own early recognition of the belligerency of the revolutionists of Texas, of Greece, and of the various Spanish-American colonies. In the latter case the course of England was tacitly the same. During the early part of the struggles of the South American colonies, England was at war with Napoleón, and opposed his pretensions to the sovereignty of the Spanish-American colonies. Upon their revolt they became in effect the allies of England. An extensive and profitable trade sprang up between England and those colonies; so that, upon the downfall of Napoleon and his dependencies, so identified had English interests become with the prpvinces, that Spain, in order to prevent a more pronounced hostility against her, secured by treaty from England a stipulation for impartial neutrality in the struggle of Spain with her colonies; although it was understood that this should not affect England’s commercial privileges. 2 Stapleton’s Life of Canning, 10-14, 86. And the merit of securing general recognition of the final independence of the South American colonies is claimed by his biographer for Canning. Id. 23, 72.
Numerous treaties, in agreeing to prohibit letters of marque, declare that their subjects, if accepting them, maybe treated as pirates. See Hall, Int. Law, 220-222. Such, also, were the declarations of the governments of Belgium and of the Netherlands after the treaty of Paris, (1856,) before alluded to; and I have already cited the rule declared by Prof. Perels on that subject, that the commission, being unlawful as to such subjects, may be disregarded, and the persons treated as pirates by all other nations. The reclamations made by this country upon Denmark for the prizes of Paul Jones restored by her to England in 1779, furnish no exception to the rule here laid down. Some account of this claim is given in note 16 of Lawrence’s Wheaton. A more complete history of it will be found in Reports
The grounds upon which these reclamations were urged in the house report, and in the letter of Mr. Wheaton, were the violation of her neutral obligations. Mr. Wheaton, in his letter above referred to, says:
Denmark remained passive, bound to the duties of impartial neutrality. * * * It was not the case of an ordinary revolt which has not assumed the character of a «toil war. The United Slates, in 1779, wore a government de facto, engaged in a war with Great Britain, in which the rip ids of war wo-c. acknowledged by the parent country itself. We were associated with two powers, France and Spain, in war against Great Britain, and both had acknowledged our independence. * * * The only reason said to have been alleged by Denmark for rescuing the prizes was that Denmark had not yet acknowledged the independence of the United Slates. But the question is, not whether she had acknowledged the independence of tlio United ¡States, but whether such a state of war actually existed between the United States and Great Britain as made it the duty of all nations professing to be neutral to respect the just exercise of the rights of war by both. Denmark must either have considered the United Stales as lawful belligerents, or as pirates, incapable of acquiring any of the rights of just war.”
These extracts cover the whole ground, not only of that case, but of the present question. They state the question with Denmark as a political one, which concerned her political duty under the actual facts; that she had acted accordingly by professing neutrality; and that slxe had no alternative but to regard us as lawful belligerents,
Canning uses similar language in his oft-quoted dispatch to the British minister at Constantinople, in reply to the protest of the Porte against the recognition of the Greek insurrection as belligerent. “Belligerency,” he says, “is not so much a principle as a fact. A certain degree of force and consistency acquired by any mass of population engaged in war entitles that population to be treated as a belligerent, [through the action of the political department.] * * * A power or community * * * which is at war with another, and which covers the sea with its cruisers, must either be acknowledged as a belligerent, or treated as a pirate.” 2 Stapleton’s Life of Canning, 408-414.
This dispatch was cited and approved by Lord John Bussell in his speech in parliament on the sixth of May, 1861, (Hansard, Par. Deb. v. 163, p. 1566;) and in his speech in September, 1863, (London Times, September 26th,) he says, in justification of the early recognition of Confederate belligerency: “Our admirals asked whether the shijjs they met bearing the Confederate flag should be treated as pirates or no.” It is possible, however, that at the time of this speech there was some error of dates in Lord Bussell’s mind. See Geo. Bemis, Hasty Becognition, 12, note.
By the treaty of Paris (1856) “privateering is and remains abolished” as between the parties to it. Accordingly, the Netherlands government, in June, 1861, issued a proclamation warning all its subjects “in nowise to take part in privateering, because the Netherlands government had acceded to the declaration of maritime rights set forth by the treaty of Paris conference of 1856, whereby * * * privateering is abolished, and no recognition of commissions got or letters of marque permitted. Also that such commissions cannot have a lawful effect in behalf of the king’s subjects. Those who, under such circumstances, shall engage in or lend their aid in privateering to other people, will be considered as pirates, and prosecuted according to law.” See U. S. Mess. & Doc. 1861, p. 354.
The Belgian government and other governments issued a similar general notice that all “its subjects who shall take any part in any privateering expedition will expose themselves to the danger of being treated as pirates abroad, and to their prosecution before Belgian tribunals with all the rigor of the law.” Barnard, Neutrality, 146; Perels, Mar. Law, p. 189.
It is well known that early in 1861 the United States opened negotiations with England and France towards joining in the treaty of Paris, for the purpose of excluding rebel privateering. England and France both refused to accede to the proposal “until after the present war;” “because the provisions of the treaty [of Paris] standing alone might bind them to pursue and punish the privateers of the South as pirates, ” and consequently the negotiations failed.. U. S. Mess. & Doc. 1861,
The same liability to the punishment of piracy, in the absence of political recognition, was frequently stated in express terms, or implied, in the important debate in the house of lords on May 16,1861. Lord Derby said that the “United States cannot be suffered to treat Englishmen who may improperly engage in privateering as pirates, because we have declared that tlie southern states are entitled to the rights of belligerents. ” Lord Brougham said: “Privateering was undoubtedly, in the ease of recognized belligerents, not piracy, according to the law of nations; * * * but if any persons, subjects of tills country, fitted out a vessel against another country with which we were at peace, that in itself constituted a piratical act.” Ex-Lord Chancellor Chelmsford (Sir Francis Thesiger) said: “If the Southern Confederacy had not been recognized by us as a belligerent power, any Englishman aiding them by fitting out a privateer against the Federal government would no don,ht be guilty of piracy.” Lord Chancellor Campbell said that “the president of the council had laid down the law with perfect correctness. After the present proclamation, [recognizing belligerency,] * * * there could be no doubt that lie [a person entering the service of a privateer] ought not to be regarded as a pirate for acting under a commission from a state admitted to be entitled to the exercise of belligerent rights, and carrying on what might he called a juslum bellvm.” Lord .Kingsdown said: “This country had recognized, not as an independent power, but as a body possessing the rights of a belligerent, the confederation of the southern states; therefore, they were treated as having power to issue a regular authority for privateering.”
This great weight of authority, drawn from every source that authoritatively makes up the Jaw of nations, seems to me fully fo warrant the conclusion that the public vessels of war of all nations, for the preservation of the peace and order of the seas, and the security of their own commerce, have the right to seize as piratical all vessels carrying on, or threatening to carry on, unlawful private warfare to their injury; and that privateers, or vessels of war, sent out to blockade ports, under tho commissions of insurgents, unrecognized by the government of any sovereign power, are of that character, and derive no protection from such void commissions.
It thus appears that the rules laid down and implied in the decisions of our supreme court in the cases of Rose v. Himely and U. S. v. Palmer, supra, nearly 70 years ago, have been since almost universally followed. The practical responsibility of determining whether insurgent vessels of war shall be treated as lawful belligerents, or as
Where insurgents conduct an armed strife for political ends, and avoid any infringement or menace of the rights of foreign nations on the high seas, the modern practice is, in the absence of treaty stipulations or other special ties, to take no notice of the contest. One of the earliest applications of this rule that I have met is in the answer of the states-general to Sir Joseph York’s demand in 1779 for the surrender of Paul Jones’ prizes as piratieally captured, (supra, p. 417,) in which their Mightinesses say that “they had for a century past strictly observed the maxim that they will in no respect presume to judge of the legality or illegality of the actions of those who, upon the open sea, have taken any vessels that do not belong to this country.” On this point Prof. Lawrence, in his recent Iiand-book Int. Law, (London, 1884,) says:
“When a community, not being a state in the eye of international law, resorts to hostilities, it may, in respect of war, be endowed with the rights and subjected to the obligations of a state if other powers accord it what is called recognition of belligerency. Neutral powers should not do this *" * * (4) unless it affect by the struggle the interests of the recognizing state. If the struggle is maritime, recognition is almost, a necessity. The controversy of 1861 illustrates the whole question.”
The practice is stated by Hall as follows:
“When, however, piratical acts have a political object, and are directed solely against a particular state, it is not the practice for states other than that attacked to seize, and still less to punish, the persons committing them. It would be-otherwise, so far as seizure is concerned, with respect to vessels manned by persons acting with a political object, if the crew, in the course of carrying out their object, committed acts of violence against ships of other states than that against which their political operation was aimed; and the mode in which the crew were dealt with would probably depend on the circumstances of the case.” Int. Law, § 81, p. 223.
Whether a foreign nation shall exercise its rights only when its own interests are immediately threatened, or under special provocations only, after injuries inflicted by the insurgents, as in this 'ease, at Colon, is a question purely for the executive department. But when
In the absence of any recognition of these insurgents as belligerents, I therefore hold tho Ambrose Light to have been lawfully seized, as bound upon an expedition technically piratical.
Second. The additional facts proved show, however, such a subsequent implied recognition by our government of the insurgent forces as a government de facto, in a state of war with Colombia, and entitled to belligerent rights, as should prevent the condemnation of the vessel as prize. The communication from the department of state to tho Colombian minister, bearing date the day of the seizure, seems to me to constitute such a recognition by necessary implication. It could not have been based upon any facts, or have reference to any state of facts, not in existence at the time of the seizure; and it should be held, therefore, to arrest and supersede any subsequent condemnation for those acts of war which such a recognition authorizes tho insurgents to carry on.
Beeoguition of belligerent rights may be tacit, implied, or express. It is express when made by a proclamation of neutrality, as by tho queen of England’s proclamation of May 13, 1861. It is implied in a declaration of blockade, as in that of President Lincoln of April .19, 1861. And when there is long acquiescence in belligerent acts affecting another nation’s interests, without protest or objection, such as the blockade of ports, or the ase of a nation’s ports as a harbor for prizes, a tacit recognition of belligerent rights is to bo reasonably inferred. See Canning’s dispatch above referred to. Where no formal and express action has been taken by the political or executive department as to recognition of belligerency, courts, in determining the question of prize or no prize, must necessarily pass upon the legal effect of such proved action of those departments of the government as bears upon the question of recognition.
On the part of the captors in this case a letter was put in evidence from the secretary of state, dated July 1, 1885, in answer to an inquiry as to the action of our government concerning any recognition of a state of war between the insurgents and Colombia. In this letter the secretary of state replies that “a state of war has not, in a formal sense, either before or after April 20,1885, been recognized by the government of the United States as existing in tho United States of Colombia;
Our government, in the reply of the secretary of state, under date of April 24th, declined to acquiesce in either of those decrees. The secretary states his conclusion, as the result of an examination of the authorities and precedents, “that a decree by a sovereign power closing to neutral commerce ports held by its enemies, whether foreign or domestic, can have no international validity, and no extraterritorial effect in the direction of imposing any obligation upon the governments of neutral poivers to recognize it.” After referring to the great efforts by which our blockades were made effectual in the Confederate rebellion, he says that Great Britain and France ceased to contest their effectiveness, and “united in the most solemn repudiation of the position formerly taken by them, that a belligerent can, by mere decree, give binding international effect to the asserted closure of a port he does not hold.” Accordingly, the secretary, while declaring that this'government “will recognize any effective blockade,” refused to admit the right of the Colombian government to close its ports held by the insurgents, except by an effective blockade; and declares that its decree, “by itself, is entitled to no international respect,” and that “vessels manned by parties in arms against the government, when passing to and from ports held by such insurgents, or even when attacking ports in possession of the Colombian government, are not pirates by the law of nations, and cannot be regarded as pirates by the United States.”
The attitude assumed by our government in these conclusions is of itself, by necessary implication, a recognition of the existing insur*
Moreover, almost the entire argument of the secretary’s letter imports this. In stating tho rulo of international law by which he is governed, he speaks of ports held by “enemies, foreign or domestic,” and of the rights of “belligerents,” and refers to our own government as a “neutral power,” not bound by a closure under such circumstances. These are words of perfectly deiined meaning in the writings of diplomatists and publicists. Of themselves they import a state of war, and of the belligerent rights that in a state of war belong equally to both parties. Thus understood, the language and the doctrines of the letter on this point give precise expression to the undoubted law of nations. Though it contains no express recognition, no recognition “in a formal sense,” the language and the substance of the letter import a virtual and implied recognition of the insurgents’ belligerency.
The same inferences must be drawn from the precedents and authorities cited in the communication. These are too long to be here quoted in full. First is quoted the rule deduced by Lawrence, (note on Wheat, pt. 4, c. 3, § 28; note 241, p. 846): “Nor does the law of blockade differ in civil war from what it is in foreign war. Trade between foreigners and a port in possession of one of the parties to the contest cannot be prevented by a municipal interdict. * * * Whenever the dominion over the land is lost by its passing under the control of another power, whether in foreign war or civil ivar, the sovereignty over the waters capable of being controlled from the land ceases.” The situation of New drenada in 1861 is cited, when her notification to this government of the closing of certain ports, and that her war-vessels
In the above extracts the italics are my own. They indicate and imply, in each instance, except possibly that of Grenada, the facts of which I have not been able.to ascertain, the previous existence of a recognized state of war, or belligerent rights on the part of the insurgents.' In the extract from Lawrence it is a ease of “civil war” that he is speaking of; i. e., a case of recognized belligerency. The correspondence with Mr. Adams, and the speech of Mr. Cobden, were long after the recognition of the Confederate States as belligerents, both by this country and by England. The doctrine of pacific blockades, maintained by some authors, Lawrence says, cannot be sustained as to neutrals. Note 241, p. 845. “Blockade,” he says, “is an act of war;” and repeated decisions of the supreme court affirm this explicitly. Prize Cases, 2 Black, 670; The Venice, 2 Wall. 274; Mrs. Alexander’s Cotton, Id. 417; The William Bagaley, 5 Wall. 402; Mauran v. Insurance Co., 6 Wall. 14; Thorington v. Smith, 8 Wall. 1. See Bemis’Hasty Becognition, 25, 26. Our own example, which is most strongly dwelt upen as an instance of an effective blockade under difficult circumstances, was during a recognized state of war, of which the blockade itself “was conclusive proof.”
Upon these considerations and on these authorities I cannot doubt that in thus notifying the Colombian government, in effect, that the United States would recognize no right in Colombia to close the insurgent ports by virtue of her own sovereignty, but only through the exercise of the belligerent right of blockade, i. e., by war, our-government recognized, by necessary implication, the existing insurrection as a state of war, and the insurgent forces as a de facto power,
To avoid irritations among friendly powers it may often be expedient, in oases of domestic strife, to withhold all express announcements of neutrality, or recognition of belligerency, until some occasion makes it necossarj-; and where the insurgents studiously avoid interference with foreign vessels on the high seas, or with their freedom of commerce, recognition may be long delayed, and no occasion arise for foreign nations to take notice of the strife, whether on land or sea.
Third. As to costs. Where the seizure has been upon probable cause, but the vessel found not really liable to seizure, it .is usually released without costs. Thus, in The Marianna Flora, 11 Wheat. 1, 58, a remarkable case of mutual mistake, neither costs nor damages were given to either side. Here the seizure was rightful, as I find; and the discharge is granted upon causes subsequent. The necessary disbursements should therefore fall upon the vessel and not upon the United States. The Imina, S C. Rob. 167; The Principe, Edw. 70; 2 Wheat. App. 57. These disbursements should be small, as tho trial was begun on the return-day of the process. But as there is no condemnation, there can be no commissions nor counsel fees allowed. Only the clerk’s, marshal’s, and prize commissioner’s fees can bo taxed; and upon payment of these, the vessel should be discharged from custody.
The contrary statement in the case of The City of Mexico, 24 Fed. Rep. 34, was based upon tiie unadvised admission of counsel.
