1820.

the members of the Federal Convention, that in trea-
tises on the law of nations, or in some of them at U. States

maitres d'une vaisseau vont sur mer attaquer les vaisseaux mar-
chands pour les piller et les voler."

Valin (Traité des Prises, c. 3. s. 2. p. 29.) says, "Or la peine des pirates ou forbans est celle du dernier supplice, suivant l'opinion commune; parceque ce sont des ennemis declarés de la societé, des violateurs de la foi publique and du droit des gens, des voleurs publiques à main armé et à force ouverte."

Straccha says, (De Naut. Part. 3. n. 30.) "Inter Piratam et Latronem nulla alia est differentia nisi quia Pirata depraedator est in mari."

Casaregis (Disc. 64. n. 4.) says, "Proprie pirata ille discitur qui sine patentibus alicujus principis ex propria tantum et privata auctoritate per mare discurrit depredendi causa."

Dr. Brown (2 Civ. and Adm. Law, 461, 462.) says, " Piracy is depredation without authority from any Prince or State, or transgression of authority by despoiling beyond its warrant." "Unlawful depredation is of the essence of piracy."

Beawes (Lex Mercatoria art. Piracy, p. 250.) says, " A pirate is a sea thief, or an enemy of human kind, also aims at enriching himself by marine robberies committed either by force, fraud, or surprise, on merchants or other traders at sea."

Molloy (b. 1. c. 4. s. 1.) says, "A pirate is a sea thief, or hostis humani generis, who, for to enrich himself either by surprise, or open force, sets upon merchants or others trading at sea, ever spoiling their lading, if by possibility they can get the mastery."

Marshall (Insur. c. 12. s. 11. p. 556.) says, "The crime of piracy or robbery on the high seas, is an offence against the uni. versal law of society."

It is also said in 16 Viner's Abridgment, (art. Pirate and Piracy, A. p. 556.) and in Cowell's Interpreter, (Pirate,) " A pirate is now taken for one who maintains himself by pillage and robbery at sea."

Comyn's (Dig. Admiralty, E. 3.) defines piracy thus: "Piracy is when a man commits robbery upon the sea;" and he cites as authority, 3 Inst. 113. and 1 Sir Leol. Jenk. 94.

v. Smith:

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1 i 1820.

U. States v.

Smith.

least, definitions of piracy might be found; but it must have been as well known to them that there

Lord Coke says, (3 Inst. 113. Co. Litt. 391.) "This word pirate, in Latin, pirata, from the Greek word πιρατης, which again comes from πειραν a transcendo mare, of roving upon the sea; and, therefore, in English, is called a rover and robber upon the sea."

Sir Leoline Jenkins, in his charge at the admiralty sessions in 1668, says: "You are, therefore, to inquire of all pirates and sea rovers, they are in the law hostes humani generis, enemies, not of one nation, or of one sort of people only, but of all mankind. They are outlawed as I may say, by the laws of all nations; that is, out of the protection of all princes, and of all laws whatsoever. Every body is commissioned, and is to be armed against them as rebels and traitors to subdue and root them out. That which is called robbing upon the highway, the same being done upon the water, is called piracy. Now, robbery as it is distinguished from thieving or larceny, implies not only the actual taking away of my goods, while I am, as we say, in peace, but, also, the putting me in fear by taking them by force and arms, out of my hands, or in my sight and presence. When this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy." Vol. 1. p. 86.

Again; in another charge, he says, (vol. 1. p. 94.) "The next sort of offences pointed at in the statute [28 Hen. VIII. ch. 15.] are robberies; and a robbery, when it is committed upon the sea, is what we call piracy. A robbery, when it is committed upon the land, does imply three things, 1. That there be a violent assault; 2. That a man's goods be actually taken from his person or possession; 3. That he who is despoiled be put in fear thereby. When this is done upon the sea, when one or more persons enter on board a ship with force and arms, and those in the ship have their ship carried away by violence, or their goods taken away out of their possession, and are put in fright by the assault, this is piracy; and he that does so is a pirate or a robber within the statute."

was not such a coincidence on this subject, as to ren- 1820. der a reference to that code a desirable or safe mode

The statute of Henry VIII. here referred to, does not contain any description of piracy. Before that statute, piracy was only cognizable by the civil law in the Admiralty Court. But the statute gave the High Commission Court (created by that statute) jurisdiction of "all treasons, felonies, robberies, murders, and confederacies committed in, or on the sea," &c. The term piracy is not found in the statute, and it is only as a robbery upon the sea that the High Commission Court has jurisdiction of piracy. Sir Leoline Jenkins, therefore, refers to the civil law definition of the offence of piracy; for it is agreed on all sides, that the statute of Henry VIII. has not altered the nature of the offence. (See 1 Hawk. P. C. b. 1. c. 37.)

Targa (as I find him quoted by his Spanish translator, Gison, Reflex. c. 61. De los Corsarios o Pyratas, for the original is not before me) says, "Esta (depredacion) se comete de dos modos, o por causa de guerra declarada entre dos naciones, &c. o por modo de hurto violento como Ladrones del Mar y como hacen los robos en terra los salteadores de caminos; y esto se compuela con la authentica del Derecho Civil, (a) que distingue la pyrateria del robo," &c. Again; "A los pyratas como tambien a los salteadores de camino, enemigos comunes, opresores de la libertad y comercio, y como a violadores del derecho de las gentes, puede qualquiera oponerse y los ministros y subditos del principe pueden perseguir los y prender los aunque sea fuera del dominio y se hayan refugiado a los estados confinantes, sin que per esso quede violada la jurisdiccion; y presas que sean, se pendran en poder de la justicia de aquel Principe en cuyo estado han sido cogidos," Again; "Yassi concluyo, diciendo, que deben todos guardarse en el mar de Pyratas, y en la tierra de Ladrones; y todo aquel, que en el mar, playa, puerto, è otro seno de mar, è rio navigable, roba o apresa, ya sea amigo, esto es, enemigo no declarado, y tambien los paysanos, enemigos propriamente tales, è con patente, estandarte, sin el, & con engano, fuerza, siempre es pyrata."

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1820.

U. States v.

Smith.

of proceeding in a criminal, and especially in a capital case. If it had been intended to adopt the defi

Citations from civilians and maritime writers to the same effect might be multiplied; but they would unnecessarily swell this note. It remains only to notice the doctrines which have been held by the tribunals of Great Britain, and asserted by her common law writers on the subject of piracy.

Hawkins (P. C. b. 1. c. 37.) says, "A pirate at the common law is a person who commits any of those acts of piracy, robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there."

From the terms of this definition, (if it may be so called,) it might be supposed, that by piracy at the common law, something was meant peculiar to that law, and not piracy by the civil law, or the law of nations. But that was certainly not the meaning of the writer. For it is perfectly well settled, that piracy is no felony at common law, being out of its jurisdiction; and before the statute of 28 Henry VIII. c. 15. it was only punishable by the civil law. That statute, however, does not (as has been already stated) alter the nature of the offence in this respect; and, therefore, a pardon of all felonies generally, does not extend to it. (2 East's P. C. 796. 1 Hawk. c. 37. s. 6. 8. 10. 1 Hale, 354. 2 Hale, 18. 3 Inst. 112.) And it was also determined in Rex v. Morphes, (Salk. 85.) that " no attainder for piracy wrought corruption of blood, for it was no offence at common law. (2) East's P. C. 796. Co. Litt. 391. a.) The intention of Hawkins must have been to use the phrase " at the common law" in its most comprehensive sense; in which sense the law of nations itself is a part of the common law; since all offences against the law of nations are punishable by the criminal jurisprudence of England.

1

Blackstone, in the Commentaries, (4 Comm. 71. 73.) evidently proceeds upon this notion. He says, "The crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society, a pirate being, according to Sir Edward Coke, hostis humani generis." He goes on to renition or definitions of this crime, so far as they were 1820. to be collected from the different commentators on

mark, that every community hath a right to punish it, for it is a war against all mankind. He then gives the definition of piracy by Hawkins, as the definition of the common law; and then states the several statutes made in England on the subject of piracy, concluding thus : "These are the principal cases in which the statute law of England interposes to aid and en. force the law of nations as a part of the common law, by inflicting an adequate punishment for offences against that universal law committed by private persons."

The state trials for piracy in the reign of William III. are entitled to great consideration, both from the eminent talents of the Judges who constituted the tribunal, and the universal approbation of the legal principles asserted by them. It is, also, worthy of remark, that in none of these indictments was there any averment that the prisoners were British subjects; and most of them were for piracies committed on foreign subjects and vessels. They were all framed as indictments at common law, or for general piracy, without reference to any British

statute.

In Rex v. Dawson and others, (8 William III. 1696. 5 State Trials, 1 edit. 1742.) the Court was composed of Sir Charles Hedges, Judge of the High Court of Admiralty, (as President,) Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward, Mr. Justice Rookby, Mr. Justice Turton, Mr. Justice Eyre, Mr. Baron Powis, and Doctors Lane, King, and Cook, (Civilians.) Sir Charles Hedges delivered the charge to the grand jury, and among other things, directed them as follows: "Now piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy. If the mariners of a ship shall violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, or tackle, apparel or furniture, with a feVor. V.

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