Chap. V.

Another observation may be added to the foregoing. A person making war in any customary way, under the flag of a de facto Government, against a Government which has a claim on his allegiance, is unquestionably a rebel; but it is a mistake to suppose that he can be brought under the condemnation of International Law by calling him a pirate. Piracy is said to be an offence against the law of nations. It is really punished, like every other crime, as an offence against the criminal law of the country in which the offender is tried; the peculiarity of it is, that it is everywhere recognized as a crime, has a common definition, which is everywhere accepted (though by the laws of some countries the stigma and the punishment of piracy have been affixed to other crimes also), and is justiciable everywhere. A pirate is not entitled to the protection of any nationality, nor is the ship in which he sails and which is under his control reputed to be a ship of any nation. And, as he is liable to be tried in one country as much as in another, an acquittal in one country may be pleaded to an arraignment in another. The reason why this crime is taken out of the general classification of crimes and

should maintain a strict and impartial neutrality, opening their ports to both parties, and on the same conditions, and not interfering in favour of either to the prejudice of the other.-(President Monroe's Third Annual Message, 1819.)

The second proposition, with reference especially to the question, in what cases a revolted mass of population should be recognized as belligerent, is stated with great clearness in a report presented to the French Chamber of Deputies in February 1864, on a proposal to “ recognize" the Polish insurgents.-(Lawrence, Commentaire, vol. i, p. 185.)

I may here refer to the "Proclamation of the President of the United States for the Prevention of Unlawful Interference in the Civil War in Canada" (5th January, 1838). This Proclamation spoke of "the Civil War begun in Canada," and proceeded to warn all persons against "compromitting the neutrality" of the Government of the United States. No disturbance could well be more distinctly local than that which had then broken out in Canada; it was a rising of discontented persons who had taken arms against the Government without any pretence to civil or military organization.

thus placed by itself is, that the danger and alarm Chap. V. which it creates are common to all men. It is because a pirate is dangerous to everybody that he bears a caput lupinum, may be seized by anybody, and punished anywhere. And it is evident that, if the accepted definition of piracy includes offences which have not this character, it is too loose for its purpose. The extent of the danger and alarm created by any class of violent acts depends primarily on the nature of the motive by which they appear to be inspired. Thus, robbery is more generally dangerous than revenge, because he who robs one man would probably rob another, whilst a person desires to be revenged on those only whom he believes to have injured him; and robbery is dangerous generally, although the robber may not have formed the intention of committing more robberies than one. But a rebel is not dangerous to anybody except the Government against which he is fighting and its adherents, unless he makes, of the belligerent character which he assumes, a cloak for indiscriminate plunder; and in the chance that he may do this, if there be no one to keep him in order, lies the only conceivable plea-and that an insufficient one-for his being hunted down as a pirate. The definition of a pirate ought not, therefore, to include a rebel. I leave to persons versed in criminal law the questions whether an animus furandi or lucri faciendi, in the strict sense of the phrase, be necessary to constitute the legal offence of piracy; whether, in the absence of it, proof of any other criminal intent would be sufficient; and whether the animus belligerandi would be held to be such a criminal intent by the tribunals of another country, the Executive Government of which had not recognized the existence of a war. The inquiry whether a rebel in a civil war, who has committed no general depredations, could under any circumstances be tried and punished as a pirate by the courts of a foreign country, depends on the answer which may be

Chap. V. given to these questions. But it is clear, I think, that at any rate he ought not to be so tried and punished. The acts of Semmes and Maffitt differed from those of Forrest and Morgan only in being done at sea instead of on land; and they were not, more than those, proper objects for a criminal prosecution in England, France, or Spain. If, therefore, a declaration of neutrality by the Government be really necessary to prevent such an abuse of criminal justice—which I doubt—or to relieve the question from uncertainty, these must be reckoned among the legitimate and useful effects of such a declaration. So far as it operates as an instruction to the officers of the Government, it is an instruction to abstain from treating these persons as that which they are not, and to treat them as that which they are.1

1 "Piracy is robbery or a forcible depredation on the high seas, without lawful authority, and done animo furandi and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land, and all the writers on the law of nations and on the maritime law of Europe agree in this definition."-Kent, Commentaries, part i, section ix.

The reader will find the whole subject well discussed and all the principal authorities referred to in Abdy's edition of Kent's Commentaries on International Law, ch. xi; Lawrence's Wheaton (second annotated edition), p. 246, note; Dana's Wheaton (1866), p. 192, note, and p. 196, note: and Phillimore's Commentaries on International Law, ch. xx.

The question whether Confederate privateersmen taken very soon after the commencement of the war could be convicted of piracy, was raised in the case of the crew of the Savannah, tried at New York, and of William Smith, one of the crew of the Jeff. Davis, tried at Philadelphia, both on the 22nd October, 1861. Judge Nelson, the Judge of the Supreme Court who tried the crew of the Savannah, instructed the jury, that, by the general law of nations, a pirate was one who roved the sea in an armed vessel, without a commission from any Sovereign State, on his own authority, and for the purpose of appropriating to himself whatever vessels he might meet. But the evidence in this case showed that the design of the prisoner Baker, the captain of the Savannah, was to depredate only on the vessels of one nation, the United States, an offence which fell short of piracy under the law of nations. But there were special laws of the United States establishing and defining piracy. The particular law applying to this case was that of 1820, which says: "If any person shall upon the high seas commit the

crime of robbery in or upon any ship or vessel, or upon the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate, and upon conviction shall suffer death." The commission issued by Mr. Davis could not be admitted as a defence; for the Courts of the United States could not recognize such an authority till the Government had done so. The felonious intent, which is an essential element in the crime of robbery, consists in the taking of the property of another for the sake of gain. If this was wanting in this case, the offence, whatever it might be, was not that of piracy under the Statute. The jury could not agree, and a new trial was ordered. The offence charged against Baker was the capture of an American ship on the 1st of June, 1861. Smith was convicted.

In the case of the Golden Rocket, captured by the Sumter on the 3rd July and burnt at sea, it was held by the Supreme Courts of Massachusetts and Maine, and by the Circuit Court of the United States, that the owner could not recover for the loss under policies which insured against capture by pirates but not against belligerent capture. The ground of the decision was that, although the destruction of the Golden Rocket might be regarded by the law of the United States as an act of piracy, it would not be so regarded according to the general public commercial law of the world, and therefore must be presumed not to be within the meaning of the parties to the policy. A similar decision was pronounced by the Tribunal of Commerce at Marseilles (cited by Lawrence, Commentaire sur les Eléments du Droit International, &c., vo'. i, p. 183), in the case of a brig captured in 1823 by an armed ship of the Columbian Government, which had not been recognized in any way by France. The ship and cargo being insured by one policy against dangers of the sea, and by another against perils of war, the Tribunal held that the insurers under the latter policy were liable, on the ground that the capture was an act of war and not an act of piracy.

If the Shenandoah had persisted in making captures (as at one time it appeared that she was doing) after it had become clear that the war was at an end and that the de facto Government which had commissioned her had wholly ceased to exist, and after these facts were known to her commander, the question whether his acts were or were not piracy might have been raised in an English Court.

Chap. V.

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CHAPTER VI.

Relations of Great Britain to the United States.-Course pursued by the British Government, and by other European Governments, at the beginning of the War. The Queen's Proclamation of Neutrality.Declaration of the Emperor of the French.-Declarations and Notifications of other Maritime Powers.

THE progress of disunion in America had been watched with anxiety by the principal European Governments, and especially by the Government of Great Britain. The relations between the two countries were friendly, and their intercourse incessant. Of the whole foreign trade of the United States more than three-fifths, of the foreign tonnage entering American ports more than four-fifths, were contributed by this kingdom and its colonies. From the Western States of the Union we drew every year large supplies of food, and from the Southern the raw material for our most important manufacture. Great Britain was herself an American Power, and her possessions bordered on those of the Republic across the whole breadth of the continent. Any grave change or disturbance, therefore, occurring in the United States had to the English Government an importance which it could have to no other. Nor is it immaterial to observe that, although unhappy dissensions have sometimes divided the two nations, the influences of a common origin, language, and literature, seem to be indestructible, and that an Englishman hardly feels himself a foreigner in America, or an American in England.

While the revolt was yet to come, Earl Russell had