By the universal law of
nations, robbery or forcible depredation
upon the "high seas," animo furandi,
is piracy. The meaning of the phrase "high
seas," embraces not only the waters of the
ocean, which are out of sight of land, but
the waters on the sea coast below low water
mark, whether within the territorial
boundaries of a foreign nation, or of a
domestic state. Blackstone says that the
main sea or high sea begins at low water
mark. But between the high water mark and
low water mark, where the tide ebbs and
flows, the common law and the Admiralty have
divisum imperium, an alternate
jurisdiction, one upon the water when it is
full sea; the other upon the land when it is
ebb. He doubtless here refers to the waters
of the ocean on the sea coast, and not in
creeks and inlets. Lord Hale says that the
sea is either that which lies within the
body of a country or without. That which
lies without the body of a country is called
the main sea or ocean. So far then as
regards the states of the American union,
"high seas," may be taken to mean that part
of the ocean which washes the sea coast, and
is without the body of any country,
according to the common law; and so far as
regards foreign nations, any waters on their
sea coasts, below low water mark.Piracy is an offence against the
universal law of society, a pirate being
according to Sir Edward Coke, hostis
humani generis. As, therefore, he has
renounced all the benefits of society and
government, and has reduced himself to the
savage state of nature, by declaring war
against all mankind, all mankind must
declare war against him; so that every
community has a right by the rule of
self-defense, to inflict that punishment
upon him which every individual would in a
state of nature otherwise have been entitled
to do, for any invasion of his person or
personal property. By various statutes in
England and the United States, other
offences are made piracy. Thus, if a subject
of either of these nations commit any act of
hostility against a fellow subject on the
high seas, under color of a commission from
any foreign power, this act is piracy. So if
any captain of any vessel, or mariner, run
away with the vessel, or the goods, or yield
them up to a pirate voluntarily, or if any
seaman lay violent hands on his commander,
to hinder him from fighting in defence of
the ship or goods committed to his charge,
or make a revolt in the ship, these offences
are acts of piracy, by the laws of the
United States and England. In England by the
statute of 8 George I, c. 24, the trading or
corresponding with known pirates, or the
forcibly boarding any merchant vessel,
(though without seizing her or carrying her
off,) and destroying any of the goods on
board, are declared to be acts of piracy;
and by the statute 18 George II. c. 30, any
natural born subject or denizen who in time
of war, shall commit any hostilities at sea,
against any of his fellow subjects, or shall
assist an enemy, on that element, is liable
to be punished as a pirate. By statute of
George II. c. 25, the ransoming of any
neutral vessel, which has been taken by the
captain of a private ship of war, is
declared piracy. By the act of congress,
April 30, 1790, if any person upon the high
seas, or in any river, haven, or bay, out of
the jurisdiction of any particular state,
commit murder or robbery, or any other
offence which if committed within the body
of a county, would by the laws of the United
States, be punishable by death, such
offender is to be deemed a pirate. By the
act of congress, 1820, c. 113, if any
citizen of the United States, being of the
crew of any foreign vessel, or any person
being of the crew of any vessel owned in
whole or part by any citizen of the United
States, shall be engaged in the foreign
slave trade, he shall be adjudged a pirate.
Notwithstanding the expression used in this
statute, the question, says Chancellor Kent,
remains to be settled, whether the act of
being concerned in the slave trade would be
adjudged piracy, within the code of
international law. In England by the act of
parliament passed March 31, 1824, the slave
trade is also declared to be piracy. An
attempt has been made to effect a convention
between the United States and Great Britain,
by which it should be agreed that both
nations should consider the slave trade as
piratical; but this attempt has hitherto
been unsuccessful. In the time of Richard
III, by the laws of Oberon, all infidels
were regarded as pirates, and their property
liable to seizure wherever found. By the law
of nations, the taking of goods by piracy
does not divest the actual owner of them. By
the civil institutions of Spain and Venice,
ships taken from pirates became the property
of those who retake them. Piracy is every
where pursued and punished with death, and
pirates can gain no rights by conquest. It
is of no importance, for the purpose of
giving jurisdiction in cases of piracy, on
whom or where a piratical offence is
committed. A pirate who is one by the law of
nations, may be tried and punished in any
country where he may be found; for he is
reputed to be out of the protection of all
laws. But if the statute of any government
declares an offence, committed on board one
of their own vessels, to be piracy; such an
offence will be punished exclusively by the
nation which passes the statute. In England
the offence was formerly cognizable only by
the Admiralty courts, which proceeded
without a jury in a method founded on the
civil law. But by the statute of Henry VIII.
c. 15, it was enacted that piracy should be
tried by commissioners nominated by the lord
chancellor, the indictment being first found
by a grand jury, of twelve men, and
afterwards tried by another jury, as at
common law. Among the commissioners, there
are always some of the common law judges. In
the United States, pirates are tried before
the circuit court of the United States.
Piracy has been known from the remotest
antiquity; for in the early ages every small
maritime state was addicted to piracy, and
navigation was perilous. This habit was so
general, that it was regarded with
indifference, and, whether merchant,
traveller, or pirate, the stranger was
received with the rights of hospitality.
Thus Nestor, having given Mentor and
Telemachus a plenteous repast, remarks, that
the banquet being finished, it was time to
ask his guests to their business. "Are you,"
demands the aged prince, "merchants destined
to any port, or are you merely adventurers
and pirates, who roam the seas without any
place of destination, and live by rapine and
ruin."
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