must be enforced to the full extent of their meaning, and Mr. Finkelstein in his search for "an instrument adjustable with the flux of time, and malleable to the affairs of men," has yet turned away from their texts, which are full of words of remarkable generality" life," "liberty," "property," and "due process of law" to ransack the armory of "political questions." It would have been hard to go much farther afield.

To summarize: Some questions are logically removed from the jurisdiction of courts, because the existence of the courts' power assumes the hypothesis that these questions have been settled one way or the other. As to matters which are not of this sort, the line between judicial and political questions in a given constitutional situation is the line drawn by the constitutional delegation, and none other. The actual delegation as it has occurred has depended upon men's current beliefs as to what ought to be delegated, upon their political and social theories and their notions of expediency. In some branches of the Constitution the delegation is so clear and precise that those theories and beliefs are now of significance only historically and in the discussion of proposed changes. In some branches the language is sufficiently plain, so that, viewed against the background of these contemporaneous ideas, there is no question of what was meant. In some instances there is enough uncertainty or generality so that not only past but present and to some extent prophetic theories and notions must enter into the interpretative process. We are dealing with cases of this third class, where the court's jurisdiction or lack of jurisdiction of the whole case or of some subordinate issue therein is governed by provisions of not absolutely patent certainty. In many of these cases the courts in denying their own jurisdiction use the language of "political questions." When they do so they unquestionably mean to a considerable extent merely to describe the power as in fact delegated to the other branches of government. But they also use the term "political" argumentatively in deciding this issue of delegation. While to some extent they thus import their own notions of what ought to be delegated, a comparison of the cases shows that they have chiefly in mind that the power relates to a subject usually dealt with by political as contrasted with judicial methods, and is at one with, or

included in, matters unquestionably and unequivocally delegated to the executive and legislative departments. In none of the cases have the arguments needed to stray very far from the Constitution itself. The process is interpretative, and the decisions do not represent a formula for judicial dexterity in avoiding "prickly issues." They cannot be made to subserve the purposes of those who wish to bring the Constitution more into conformity with their own wishes by leaving its terms intact while by some convenient practice of judicial" statesmanship gradually and completely displacing its substantive content.

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These conclusions do not set up any doctrine of "judicial inevitability flowing from the Constitution." They are consistent with the according of full recognition to the fact that many questions of constitutional law evoke not irrational differences of opinion even within the courts themselves. One can not defeat them by recalling that these differences of opinion reflect in part different outlooks upon life, held by the justices themselves. There are numerous fields of constitutional law where decisions have to be reached with the aid of no more guidance from the immediate text of the document than was afforded the court in any of the cases discussed above. Compare the language of Mr. Justice Brown in Downes v. Bidwell: 141

"The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, in the practical construction put upon it by Congress and in the decisions of this court."

Here was a situation which certainly involved "political wisdom," where a "false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire," 142 which divided the Court five to four upon the conclusion, and divided the majority of the Court into three groups as to the reasons for that conclusion. Yet it is submitted that it was a question which the Court, and rightfully, 142 At p. 286.

141 182 U. S. 244, 249 (1901).

had no idea of evading as a "political question." The truth of the matter is that all government and all law involve the exercise of political wisdom. The growth of the common law certainly participates as fully in that characteristic as does any executive act or statute or constitution. The division of powers is along lines by reason of acts to be done, not along lines of political wisdom and non-political wisdom. It would have been simple to set up a government in which the acts of the legislature could be questioned nowhere but at the polls or upon the field of arms. That was not done. A government was erected in which the courts still enunciate and develop the common-law subject to its alteration by legislative enactment; and in which in turn the legislature is restrained by certain fundamentals of the Constitution, which are finally enforced by the courts. All these steps, lawmaking by the courts, lawmaking by the legislature, interpretation and enforcement of the constitutional limitations by the courts, and finally the making of the Constitution itself, are the various works of political wisdom. The courts must take their constitutionally delineated part.


Melville Fuller Weston.




FEW years ago it might have been surmised that in

America at least a good deal of the old code in respect to piracy had passed from the law in reserve into the law in history. The important cases were nearly all one hundred years old or more. It was commonly supposed that the seas were policed effectively. While Kidd, Bonnet, and Blackbeard were still familiar personages in chromatic fiction, there seemed no great likelihood that their trials would be revived as precedents in the more sober business of administering justice.1

There have been recent events, however, which challenge the assumption that the law of piracy is chiefly of historical significance. The country had hardly entered upon the new period of national prohibition when the rum ships descended upon its coasts. Some retailed liquor over the rail outside the three-mile limit. Others rushed it ashore as often as vigilance relaxed. The business was not, to put the matter mildly, an object of the law's most solicitous protection; and it was rumored that enormous profits were being made. There sprang up, in consequence, to prey upon the rum ships, a new breed of buccaneers whose exploits have revived in memory the hardy pirates of old.

Now the "hi-jackers," as these new buccaneers have been called, are robbers of an unusually daring sort. Their highway is the sea, their object plunder. They seize by violence or by putting in fear. As the event has proved, they take human life whenever it seems essential to the accomplishment of their purpose. While their operations are more restricted in scope than were those of the pirates of old, they are animated, it may be assumed, by much the same combination of cupidity and thirst for adventure.

1 In an article on the law of piracy, published in 1874, Mr. A. T. Whatley remarked that at that time there seemed " very little occasion for such a law." "Historical Sketch of the Law of Piracy," 3 LAW MAG. AND REV. (3d Series), 536, 618, 639.

Are those who engage in so-called "hi-jacking" upon the seas to be regarded as pirates? Would it be appropriate, for example, to indict for piracy those American citizens who recently boarded a Canadian rum ship lying twelve miles or more off the Massachusetts shore, shot the captain and cook, and made off with as much money as they found on board? 2 Deeds of violence are reported currently along either coast.2 Is the law of piracy applicable? District attorneys are said to have found the question more difficult than was anticipated. The Department of Justice has given the problem some attention, though to date there has been no satisfactory occasion for proceeding to a precedent. So it seems worth while, at a time when new circumstances have aroused new interest in this neglected subject, to explore briefly the crime of piracy with particular reference to its place and significance in the law of the United States.


There is encountered, at the outset, one characteristic feature of the crime of piracy which makes it uniquely difficult as well as uniquely interesting. It has long been regarded as an international crime as well as a crime by municipal law. As an international crime it is within the jurisdiction of all maritime states wheresoever or by whomsoever committed. Since it is not always

2 The J. M. Hankensen case. The incident occurred before the ratification of the recent treaty with Great Britain. It was first called to the author's attention through the courtesy of M. R. Norcop, Esq., of the Department of Justice. For adequate reasons it has never reached the stage of a reported decision.

2a Two such incidents have been reported recently, one an attack on a French ship off New York by a party of Americans under a Canadian leader, said to have matched in thrills "the tales of the old Spanish Main," and the other an attack on a liquor-laden vessel later found "adrift and abandoned off the San Juan Islands, sixty miles north of Seattle, with blood-spattered decks and sides." In connection with the latter incident four arrests were said to have been made at Seattle and one at Vancouver, B. C., and it was said that the Attorney General at Vancouver had retained special counsel to prosecute those under arrest. See The New York Times, Nov. 28, 1924, p. 1.

It has also been reported that coast guard officials have asked the advice of the Department of Justice on the question of the possibility of dealing with the "hijackers" as pirates. See The New York Sunday World, Dec. 21, 1924, p. 5.

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