easy to distinguish satisfactorily between piracy as an international crime and piracy by municipal law, it is sometimes difficult to know whether the jurisdiction is international or exclusively national. Piracy as an international crime, moreover, has been associated in times past with the activities of those bold adventurers who have taken the character of outlaws and plundered all commerce without discrimination. There has been a tendency to assume, in consequence, that only those are true international pirates and the subjects of universal jurisdiction who maraud as the enemies of all mankind. It is evident that there can be no certainty about the application of the law of piracy to modern marauders upon the sea until these questions have been satisfactorily resolved.

By way of approach to these questions it will be well enough to begin with piracy jure gentium as it has been traditionally understood in English and American law. Characteristically it has been regarded as an offence of the open seas. Its mode is that of the highwayman, namely, violence or intimidation. Its object is usually plunder. While the definition is not allinclusive, English and American courts have usually referred to

3 See 1 HYDE, INTERNATIONAL LAW, § 232.

4 See 1 HYDE, op. cit., § 231; I OPPENHEIM, INTERNATIONAL LAW, 3 ed., § 277. 5 "The act of violence need not be consummated: a mere attempt, such as attacking or even chasing a vessel for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence." I OPPENHEIM, op. cit., § 276.

It has been held that the captain's fraudulent conversion of vessel or cargo entrusted to him is not piracy. The King v. Mason, 8 Mod. 74 (1723). See also the opinion of Attorney General Wirt, 2 OP. ATTY. GEN. 19 (1825).

6 "The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the open sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate, whether he does so or whether he kills the crew and appropriates the ship, or sinks her. On the other hand, the cargo need not be the object of his act of violence. If he stops a vessel and takes a rich passenger off with the intention of keeping him for the purpose of a high ransom, his act is piracy: it is likewise piracy if he stops a vessel merely to kill a certain person only on board, although he may afterwards free vessel, crew, and cargo." I OPPENHEIM, op. cit., § 275.

It has been held that kidnapped negroes who rose in revolt, killed the captain,

piracy by the law of nations as robbery committed upon the high seas..

Charging the jury of an Admiralty Sessions in 1668, Sir Leoline Jenkins said:

"That which is called robbing upon the highway, the same being done upon the water, is called piracy: Now robbery, as 'tis 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 away 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."

9

Sir Charles Hedges charged the grand jury in Dawson's Trial at the Old Bailey in 1696 that "piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty." In Bonnet's Trial at Charlestown, in 1718, Judge Nicholas Trott declared that "piracy is a robbery committed upon the sea, and a pirate is a sea thief." In United States v. Smith,10 decided by the United States Supreme Court in 1820, Mr. Justice Story remarked that

"whether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offense against the law of nations, and that its true definition by that law is robbery upon the sea."

and took possession of the ship on which they were being transported between Cuban ports were not pirates. United States v. The Schooner Amistad, 15 Pet. (U. S.) 518, 593 (1841). But cf. Attorney-General of Hong Kong v. Kwok-aSing, L. R. 5 P. C. 179 (1873), discussed infra, p. 354.

10 5 Wheat. (U. S.) 153, 162 (1820). See the note in which are assembled numerous definitions from writers on the civil law, the maritime law, the common law, and the law of nations, all in substantial accord with the definition adopted by Mr. Justice Story. 5 Wheat. (U. S.) at 163-180. See Davison v. Seal-skins, 2 Paine, 324, 333 (2d Circ., 1833); United States v. Baker, 5 Blatchf. 6, 11-12 (2d Circ., 1861); Dole v. New England Mutual Marine Insurance Co., 2 Cliff. 394, 415-419 (1st Circ., 1864); The Ambrose Light, 25 Fed. 408, 416 (S. D. N. Y., 1885). See also EAST P. C., c. 17, § 3; MOLLOY, DE JURE MARITIMO, 6 ed., Book I, c. 4, § 1; 2 Wooddeson, Lectures, 422; 1 Kent Comm. 171; 1 RUSSELL, CRIMES, 9th Am. from 4th Eng. ed., 142.

Since piracy jure gentium is a kind of robbery, pirates acquire no rights in the plunder taken and in general transfer no rights to those who purchase from them. A piratis et latronibus capta dominium non mutant is the familiar maxim.11 As regards punishment, the traditional penalty was death. There is no rule obliging nations to exact the supreme penalty, however, and at the present day the municipal laws of some states prescribe a less rigorous punishment.'

12

Pirates are usually robbers, and of all robbers they are peculiarly obnoxious because they maraud upon the open seas, the great highway of all maritime nations. So heinous is the offence considered, so difficult are such offenders to apprehend, and so universal is the interest in their prompt arrest and punishment, that they have long been regarded as outlaws and the enemies of all mankind. They are international criminals. It follows that they may be arrested by the authorized agents of any state and taken in for trial anywhere. The jurisdiction is universal.

Thus the famous Captain Kidd, who was sent out originally to exterminate pirates in the eastern seas, was commissioned to arrest pirates "being either our own subjects, or of any other nations associated with them." 13 Sir Charles Hedges charged the grand jury in Dawson's Trial that

"The king of England hath not only an empire and sovereignty over the British seas, but also an undoubted jurisdiction and power, in concurrency with other princes and states, for the punishment of all piracies and robberies at sea, in the most remote parts of the world; so that if any person whatsoever, native or foreigner, Christian or Infidel, Turk or Pagan, with whose country we have no war, with whom we hold trade and correspondence, and are in amity, shall be robbed or spoiled in the Narrow Seas, the Mediterranean, Atlantic, Southern, or any other seas, or the branches thereof, either on this

11 See Bonnet's Trial, 15 How. St. Tr. 1231, 1236 (1718). See BYNKERSHOEK, QUAESTIONUM JURIS PUBLICI, Lib. I, c. 17; 2 WOODDESON, LECTURES, 429; 1 Kent COMM. 172.

12 Imprisonment for life has been substituted for the death penalty in the United States. See Act of 1897; 29 STAT. AT L. 487. Transportation or imprisonment has been substituted in Great Britain, except in case of piracy aggravated by assault. See 7 WM. IV. & I VICT., c. 88; 5 & 6 VICT., c. 28, § 16. 13 Kidd's Trial, 14 How. St. Tr. 123, 172 (1701).

or the other side of the line, it is piracy within the limits of your enquiry, and the cognizance of this court." 14

Other maritime nations have asserted a jurisdiction equally comprehensive.

III

It may be said, therefore, that English and American courts have conceived of piracy by the law of nations as comprehending typically the case of robbery, and occasionally, if the definition is to be inclusive, the case of other unauthorized acts of violence against persons or property, committed upon the open seas. The jurisdiction to arrest and punish has been regarded as universal.

Piracy by municipal law, on the other hand, comprehends as much or as little as the law-making authority of the particular state may choose to make it, and pirates by municipal law are offenders only against the law of the state concerned. Jurisdiction to arrest and punish must be confined to the particular state, and depends either upon the allegiance of the offender or the locality of the offence as well as upon the nature of the offence committed. It is evident that the same acts may constitute piracy by the law of nations and by municipal law and that there is possibility of confusion between the two.15

14 13 How. St. Tr. at 455. See Bonnet's Trial, 15 How. St. Tr. 1231, 1234 (1718); The Marianna Flora, 3 Mason, 116, 120-121 (1st Circ., 1822), aff'd in 11 Wheat. (U. S.) 1, 40 (1826); Dole v. New England Mutual Marine Insurance Co., 2 Cliff. 394, 417, 418-419 (1st Circ., 1864). See also MOLLOY, op. cit., Book I, c. 4, § 1; I KENT COMM. 172; I OPPENHELM, op. cit., § 278.

15 See 1 HYDE, op. cit., § 231; I OPPENHEIM, op. cit., § 280. "The legislative authority of a state may doubtless enlarge the definition of the crime of piracy, but the state must confine the operation of the new definition to its own citizens and to foreigners on its own vessels." Clifford, J., in Dole v. New England Mutual Marine Insurance Co., 2 Cliff. 394, 417 (1st Circ., 1864).

Similarly, acts not piratical by the law of nations may be declared piracy by treaty. In the opinion just quoted, Mr. Justice Clifford said: "Two states also may agree by treaty to regard as piracy a particular crime which is not so defined in the international code, and the stipulation will be obligatory upon the contracting parties. The effect of such a treaty is in general to give to both the contracting parties jurisdiction over that offence for the trial and punishment of such of the citizens of the two countries as commit the offence, but the operation of such a treaty has no bearing on other nations." 2 Cliff. at 417. See The Bello Corrunes, 6 Wheat. (U. S.) 152, 171 (1821). See FED. CRIM. CODE, § 305,

17

There seems to be little that is indicative of such confusion in the English law prior to American independence. Until the middle of the fourteenth century, it is said, piracy by the law of nations was punished in England at common law as petit treason if committed by a subject and as felony if committed by a foreigner.16 Certainly it was not punished with satisfactory effect. At the middle of the century it was omitted from a statutory enumeration of the offences constituting treason; and only a few years later, with the first investiture of the Admiral with maritime jurisdiction, it became an offence cognizable in admiralty.18 In his excellent introduction to Select Pleas in the Court of Admiralty,19 Mr. Reginald G. Marsden has pointed out that it was chiefly because of the difficulties experienced in dealing with pirates that the court of the Lord High Admiral was first created.20 From 1361 until 1536, it was the usual course to try cases of piracy, both civil and criminal, in the Admiral's court.21

The admiralty jurisdiction of piracy cases on the criminal side was handicapped by the civil law rule that a death sentence could not be pronounced without either a confession or direct proof by eye-witnesses, 22 and possibly by common-law jealousy as well.

35 STAT. AT L. 1088, 1147. See also Art. 3 of the Treaty of Feb. 6, 1922, between the United States, Great Britain, France, Italy, and Japan, relative to the use in war of submarines and noxious gases. 3 TREATIES BETWEEN THE UNITED STATES AND OTHER POWERS, 1910-1923, p. 3118.

16 COKE, INST. III., c. 49; HAWK. P. C., Book I, c. 37, §§ 1, 2. The present writer has not verified the accuracy of this statement. See Marsden's introduction to "Select Pleas in the Court of Admiralty," 6 SELDEN Soc., xli.

17 See 25 EDW. III., Declaration what offences shall be adjudged treason," in I HALE P. C., c. 12.

18 See MARSDEN, op. cit., 6 SELDEN SOC., xlii, xlv.

19 6 SELDEN Soc., i.

20 At pp. xiv et seq. See E. S. Roscoe, "Mediaeval Piracy and the Lords High Admiral of England," 24 LAW MAG. AND REV. (4th Series), 144.

21 See MARSDEN, op. cit., 6 SELDEN Soc., xlv.

22" Where traytors, pirates, thieves, robbers, murderers and confederates upon the sea, many times escaped unpunished, because the trial of their offences hath heretofore been ordered, judged and determined before the admiral, or his lieutenant or commissary, after the course of the civil laws, the nature whereof is, that before any judgement of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pains) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, which cannot be gotten but by