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25 F. 408 District Court, S.D.
New York. THE AMBROSE LIGHT. UNITED STATES v.
THE AMBROSE LIGHT, etc. September 30, 1885. [*410] The libel in this case was filed to procure the condemnation
of the brigantine Ambrose Light, which was brought into this port as prize on
June 3, 1885, by Lieut. Wright and a prize crew, detached from the United
States gun-boat Alliance, under Commander Clarke, by whose orders the
brigantine had been seized on the twenty-fourth of April. The seizure was made
in the Caribbean sea, about 20 miles to the westward of Cartagena. The
commander was looking for the insurgent Preston, by whose orders Colon had
shortly before been fired, to the great loss and injury of our citizens.
Observing the brigantine displaying a strange flag, viz., a red cross on a
white ground, he bore down upon her, and brought her to by a couple of shot
across her bows. Before coming to she exhibited the Colombian flag. On
examination some 60 armed soldiers were found concealed below her decks, and
one cannon was aboard, with a considerable quantity of short, shell, and
ammunition. Preston was not found. Her papers purported to commission her as a
Colombian man-of-war, and read as follows: (Translation.) “I, Pedroa Lara, governor of the
province of Barranquilla, in the state of Bolivar, in the United States of
Columbia, with full powers conferred by the citizen president of the state, I
give to whom it may concern this patents of the sailing vessel Ambrose Light,
that she may navigate as a Colombian vessel-of-war in the waters touching the
coast of this republic, in the Atlantic ocean. “Therefore, the general commandantes
and captains of the vessels-of-war of the friendly nations of Colombia are
requested to give this vessel all the consideration that by right belongs to
the vessels of the class of the Ambrose Light of all civilized nations. In the
faith of which we have given these presents, and signed with rubric with the
secretary of my office, in the city of Barranquilla, on the eighteenth day of
the month of April, 1885. (Signed) “PEDROA LARA. The Secretary, (Sig.) “R. A. DEL
VALLE. (Indorsed:) “OFFICE OF THE MILITARY,
BARRANQUILLA, April 18, 1885. “Registered and noted in folio and
book, respectively. “The General in Chief, N. JUNENO
COLLANTE. “Adjutant and Secretary, A.
SOLANOM.” Believing this commission to be irregular, and to show no lawful
authority to cruise as a man-of-war on the high seas, Commander Clarke reported
her under seizure, in accordance with the naval regulations, to Admiral Jouett,
commanding the North Atlantic squadron then cruising in the Central American
waters, and the admiral directed the vessel to be taken to New York for
adjudication as prize. The vessel was at first supposed to belong to citizens
of the United States. The proofs showed that she had been sold to, and legally
belonged to, Colente, one of the chief military leaders of the insurgents at
Barranquilla. None of her officers or crew were citizens of the [*411] United States.
She was engaged upon a hostile expedition against Cartagena, and designed to
assist in the blockade and siege of that port by the rebels against the
established government of the United States of Colombia. She had left Sabanilla
on April 20th, bound for Baru, near Cartagena, where she expected the soldiers
aboard to disembark. She was under the orders of the colonel of the troops,
whose instructions were to shoot the captain if disobedient to his orders.
Further instructions were to fight any Colombian vessel not showing the white
flag with a red cross. Sabanilla, and a few other adjacent sea-ports, and the
province of Barranquilla, including the city of Barranquilla, had been for some
months previous, and still were, under the control of the insurgents. The
proofs did not show that any other depredations or hostilities were intended by
the vessel than such as might be incident to the struggle between the
insurgents and the government of Colombia, and to the so-called blockade and
siege of Cartagena. As respects any recognition of the insurgents by foreign powers,
it did not appear in evidence that up to the time of the seizure of the vessel
on April 24, 1885, a state of war had been recognized as existing, or that the
insurgents had ever been recognized as a de facto government, or as having
belligerent rights, either by the Colombian government, or by our own
government, or by any other nation. The claimants introduced in evidence a
diplomatic note from our secretary of state to the Colombian minister, dated
April 24, 1885, which, it was contended, amounted to a recognition by
implication of a state of war. The government claimed the forfeiture of the
ship as piratical, under the law of nations, because she was not sailing under
the authority of any acknowledged power. The claimants contended that, being
actually belligerent, she was in no event piratical by the law of nations; but
if so, that the subsequent recognition of belligerency by our government by
implication entitles her to a release. COUNSEL: Elihu Root, U.S. Atty., and J. P. Clark, Asst.
Atty., for the United states. Frank F. Vanderveer, for claimants. OPINION BY: BROWN, J. The legality of the original seizure of the Ambrose Light depends
upon the answer to be given to the inquiry whether the cruise of the vessel
under the commission of the insurgent leaders, to assist in the so-called
blockade of Cartagena, must be regarded, under the circumstances of this case,
as lawful warfare or as piratical. She was owned by one of the insurgents that signed
her commission. None of her officers or crew were residents of this country.
The question must therefore be adjudged according to the law of nations. Neither the causes, nor the objects, nor the merits of the revolt
are understood by the court; nor is its extent or probability of success known.
It is said to be, not for independence, nor for any division of the republic,
but rather a personal or party struggle for the possession of the reins of
government, such as, unhappily, has too often [*412] arisen in the
southern republics. The few ports and provinces that have passed under the
control of the insurgents have been acquired, it is said, partly by force of
arms and partly by the former loyal officials recognizing the insurgent leaders
as their superior officers. But these circumstances, as well as the general
merits or demerits of the struggle, are, in the view of the court, wholly
immaterial here; because, as will be seen, it is not within the province of
this court to inquire into them, or to take any cognizance of them, except in
so far as they have been previously recognized by the political or executive
department of the government. The consideration that I have been able to give to the subject
leads me to the conclusion that the liability of the vessel to seizure, as
piratical, turns wholly upon the question whether the insurgents had or had not
obtained any previous recognition of belligerent rights, either from their own
government or from the political or executive department of any other nation;
and that, in the absence of recognition by any government whatever, the
tribunals of other nations must hold such expeditions as this to be technically
piratical. This result follows logically and necessarily, both from the
definition of piracy in the view of international law, and from a few
well-settled principles. Wheaton defines piracy as “the offense of
depredating on the high seas without being authorized by any sovereign state,
or with commissions from different sovereigns at war with each other.”
Dana’s Wheat. Int. Law, Sec. 122. Rebels who have never obtained
recognition from any other power are clearly not a sovereign state in the eye
of international law, and their vessels sent out to commit violence on the high
seas are therefore piratical within this definition. The general principles of
international right and of self-protection lead to the same conclusion. (1) All
nations are entitled to the peaceful pursuit of commerce through the ports of
all other civilized nations, unobstructed, save by the incidents of lawful war,
or by the just restrictions of the sovereign. (2) Maritine warfare, with its
burdens and inconveniences to nations not engaged in it, is the lawful
prerogative of sovereigns only. Private warfare is unlawful. International law
has no place for rebellion; and insurgents have strictly no legal rights, as
against other nations, until recognition of belligerent rights is accorded
them. (3) Recognition of belligerency, or the accordance of belligerent rights
to communities in revolt, belongs solely to the political and executive
departments of each government. (4) Courts cannot inquire into the internal
condition of foreign communities in order to determine whether a state of civil
war, as distinguished from sedition or armed revolt, exists there or not. They
must follow the political and executive departments, and recognize only what
those departments recognize; and, in the absence of any recognition by them,
must regard the former legal conditions as unchanged. From these principles it necessarily follows that in the absence
of recognition by any government of their belligerent rights, insurgents [*413] that send out
vessels of war are, in legal contemplation, merely combinations of private
persons engaged in unlawful depredations on the high seas; that they are
civilly and criminally responsible in the tribunals for all their acts of
violence; that in blockading ports which all nations are entitled to enter,
they attack the rights of all mankind, and menace with destruction the lives
and property of all who resist their unlawful acts; that such acts are
therefore piratical, and entitle the ships and tribunals of every nation whose
interests are attacked or menaced, to suppress, at their discretion, such
unauthorized warfare by the seizure and confiscation of the vessels engaged in
it. The right of seizure by other nations arises in such cases, ex necessitate,
from the very nature of the case. There is no other remedy except open war; and
nations are not required to declare war against individual rebels whom they are
unwilling and are not required to recognize as a belligerent power. Nor are
other nations required, for their own security, in such a case, to make any
alliance with the parent state. By the right of self-defense, they may simply
seize such law-breakers as come in their way and menace them with injury.
Without this right, insurgents, though recognition were rightly refused them,
and however insignificant their cause, or unworthy their conduct, might violate
the rights of all other nations, harass their commerce, and capture or sink
their ships with impunity. The whole significance and importance of the
doctrine of recognition of belligerency would be gone, since the absence of
recognition could be safely disregarded; the distinction between lawful and
unlawful war would be practically abolished; and the most unworthy revolt would
have the same immunities for acts of violence on the high seas, without any
recognition of belligerent rights, as the most justifiable revolt would have
with it. The right to treat unlawful and unauthorized warfare as piratical,
seems to me, therefore, clearly imbedded in the very roots of international
law. These considerations seem to me sufficient for the determination
of this branch of the case. But as the right of the government to treat such
acts as piratical is vehemently challenged, and as doubt on this point has been
expressed by some recent authors, I proceed to consider the subject more in
detail. It should be first observed that the case is not one where
recognition of belligerency has been accorded by the parent government, or by
any other nation. [FN1] The question here arises upon the entire absence of
recognition anywhere. In this respect the case is unique in modern times. No
rebels, so far as I am aware, have ever attempted to blockade ports, and make
an attack on the commerce of other nations, without any previous recognition of
their belligerent rights. In the case of the late Confederate rebellion,
President Lincoln, it will be remembered, treated the revolt almost from the
beginning as a [*414] war waged against the government, and proclaimed a blockade
of the southern ports; a measure purely belligerent, and which the supreme
court, in the Prize Cases, 2 Black, 635, 670, declare “was in
itself official and conclusive evidence to the court that a state of war
existed. “ See, also, Coleman v. Tennessee, 97 U.S. 509, 517. The
principal maritime nations of Europe, also, made haste to recognize a civil war
as existing; to acknowledge the South as a de facto government, and to proclaim
their neutrality in the contest. Again, in our revolutionary struggle, nearly
all the European powers, except Portugal, which was dominated by English
influence, acted in a friendly spirit, and, as neutrals, admitting our cruisers
freely to their ports, and thus by implication recognizing our belligerency.
Lawr. Wheat. note 16, p. 41; Ann. Reg. 1776, pp. 182, 183; Id. 1779, pp. 391, 409,
429. See references in U.S. Messages & Doc. 1861, p. 371. France, as early
as 1776, expressly recognized our belligerent rights, and set at liberty a
corsair arrested by procurement of the British vice-admiral, (Ann. Reg. 1776;
p. 261;) while Portugal alone, by decree of June 4, 1776, refused us
recognition, shut her ports to our merchantmen, and denounced confiscation of
all our vessels found with contraband goods on board. Id. 260 FN1. The contrary statement in the case of The
City of Mexico, 24 Fed.Rep. 34, was based upon the unadvised admission of
counsel. In all the revolts and struggles for independence by the
Spanish-American colonies from 1810 to 1822, our government at an early stage
of the contest, in every instance, acknowledged the existence of a state of
war, and of the belligerent rights of the provinces; maintained an impartial
neutrality, and admitted to our ports the vessels of war of each party. Message
of Pres. Monroe, March 8, 1822; Note to 4 Wheat.Rep.App. 23-59. It was the same
in the Greek revolution, (see Dispatch of Mr. Adams to Rush, Aug. 18, 1823; 2
Elliott, Dip.Code, 633;) and the same in the contest by which Texas acquired
her independence of Mexico. Id. 643, 684. Greece blockaded the ports of
Turkey; but England had already acknowledged her belligerent rights, and
declared her strict neutrality. 2 Stapleton’s Life of Canning, 408,
414, 443. These are among the most prominent revolutionary struggles of
recent times. In all of them the revolutionists were speedily recognized as
belligerents by foreign powers, long before any recognition of them as
independent states. Even England, in her statute of 16 Geo.III., 1776, and in
that of 17 Geo.III., 1777, which was renewed annually during the war, and which
declared our privateers “pirates,” recognized and declared
the existence of a territorial civil war, whereby we became
“enemies” and “belligerents,” as well as
“rebels.” Per NELSON, J., in Prize Cases, 2 Black, 694;
Lawr.Wheat. note, 79. In the long revolt of the Netherlands, Queen Elizabeth,
from policy and religious sympathy, secretly aided the insurgents, and for 20
years, while professing amity with Philip, carried on a secret piratical
warfare against him. Hosack, Rise, etc., of Int. Law, 153. The foreign powers
generally, says Lawrence, (1 Com de droit, etc., 186,) [*415] treated the
Dutch corsairs as belligerents, though Spain regarded them as pirates. Until
recognition as belligerents, insurgents have usually carefully abstained from
interference with the rights of third powers. No instance has been called to my
attention, and I have found none, though such cases may have arisen, in which
insurgent leaders have undertaken to blockade ports to the exclusion of the legitimate
commerce of all nations, prior to their obtaining any recognition of
belligerent rights from abroad. All citations of supposed precedents that omit
inquiry into this vital circumstance are likely to prove misleading. Again, this is a suit in rem for the condemnation of the vessel
only; not a trial upon a criminal indictment of her officers or crew. The two
proceedings are wholly independent, and pursued in different courts.
Condemnation of the vessel as piratical does not necessarily imply a criminal
liability of her officers or crew. The vessel might be condemned for being
engaged upon a piratical expedition only, or for attempts at piratical
aggression or restraint. In such a case no indictment for piracy would lie,
because criminal punishment is inflicted only according to the municipal law of
the captors; and our statutes do not make criminally punishable piratical
undertakings or aggressions merely. The Marianna Flora, 11 Wheat. 40; The Palmyra, 12 Wheat. 1, 15. Even as
regards acts that constitute undoubted piracy, there may be valid personal
defenses of the officers and crew, as suggested, though not decided, by
MARSHALL, C.J., in U.S. v. Klintock, 5 Wheat. 144, 149. If an
owner should forge a commission from a lawful belligerent, and send his vessel
out as a privateer under officers and crew who acted in good faith, supposing her
commission to be genuine, the vessel should be condemned, though the officers
and crew might be acquitted. So if mere usurpers, knowing that they have no
recognized authority, should commission their own ships as vessels of war to
blockade loyal ports and to threaten the lawful commerce of all nations, and
foreign merchantmen were captured or sunk by them during such a blockade, it is
possible that the officers and crew might have accepted the commission upon
such a reasonable supposition of its coming from an authorized belligerent as
to furnish a just defense upon a criminal indictment, though none the less
should the vessel and those who commissioned her be held engaged in an illegal
and piratical expedition. See U.S. v. Gibert, 2 Sum. 19. Here the
court has to do only with the character and design of the expedition upon which
the Ambrose Light was sent out by the insurgents who owned and commissioned
her. And, so far as respects the lawfulness of her seizure, the question is the
same as if she had actually captured one of our merchantmen, or sunk her and
killed the officers and crew while they were lawfully entering the port at
Cartagena. 1. Piracy has two aspects: (a) As a violation of the common right
of nations, punishable under the common law of nations by the seizure [*416] and
condemnation of the vessel only, in prize courts; (b) its liability to
punishment criminally by the municipal law of the place where the offenders are
tried. Accordingly, the definitions of piracy, aside from “statutory
piracy,” fall naturally into two classes, according as the offense is
viewed more especially as it affects the rights of nations, or as amenable to
criminal punishment under the municipal law. The common-law jurists, and our
standard authors on criminal law, define piracy as “robbery on the
high seas;” or “such acts of violence or felonious taking on
the high seas as upon land would constitute the crime of robbery.” 1
Russ.Cr. 144; 1 Bl.Comm. 72; Whart. Crim. Law, Sec. 2830; Sir CHARLES HEDGES,
13 How.St.Tr. 454; Sir L. JENKINS, 13 Petersd. 349, note; Phil. Int. Law, 414.
The majority of authors on international law, however, define it substantially
as Wheaton defines it, viz., as “the offense of depredating on the high
seas without being authorized by any sovereign state; or with commissions from
different sovereigns at war with each other.” Mann. Int. Law, 160;
Hall, Int. Law, 218, and note; Bac. Abr. 163; 2 Browne, Civ. & Adm.Law,
461. See numerous citations to same effect by R. H. Dana, and (now Mr. Justice)
GRAY, Dole v. New England Ins. Co., 5 Wheat. 153,
163; U.S. v. Holmes, Id. 412, 417; The Malek Adhel, 2 How. 211, 232;) and the
other common-law definition is also frequently used. Prof. Perels, in his recent work on International Maritime Law,
(Berlin, 1882, Sec. 16, p. 125,) defines piracy generally in substantially the
same terms as Wheaton, giving afterwards some 12 different forms of the
offense. Among these are included making captures under a commission after the
commission has expired, or after it is revoked; or after knowledge that the war
has ended; or outside the proper territorial limits of the war. Piraterie, Sec.
16; Caper, Sec. 34, pp. 186, 187. Both the above general definitions, in most cases, lead
practically to the same results. The latter is equally well established with
the former, and is more appropriate in a case of prize. This definition makes
piratical, and is intended to make piratical, all private, unauthorized
maritime warfare. The reason is that all such warfare is incompatible with the
peace and order of the seas, with due security for maritime commerce, or due
responsibility for injuries to others. Ocean belligerency embraces the right to
arrest, to visit, and to search the vessels of all nations; to seize contraband
goods; to blockade ports; and, if need be, to capture or destroy the vessels
and crews of all nations that resist or violate the blockade. These are high
prerogatives of sovereignty. 3 Phil.Int.Law,(2d Ed.) 474; Lawr. Wheat. pt. 4,
c. 1, Sec. 5; Hall, Int. Law, Sec. 178, p. 448; Wools Int. [*417] Law, Sec. 116.
They are neither permitted to mere private persons, or combinations of persons,
nor suffered by other nations at their hands. Such private warfare is,
therefore, everywhere held unlawful; and, as it involves the infliction of the
highest injuries in the destruction of life and property, it is rightly held to
be among the highest of crimes, and therefore piracy. There is no other offense
that covers it. It is either piracy or no offense at all. To show their right
to carry on such warfare, both privateers and public vessels of war are required
to be duly commissioned by some proper authority, and to sail under their
proper flags. One of the forms of piracy mentioned by Prof. Perels (Int. Mar.
Law, Sec. 16, p. 127) is, “ships that sail without any flag, or
without a flag sanctioned by any sovereign power; or that usurp a flag, and
commit acts of violence under it.” And again, “ships that
carry on privateering without a commission. Section 34, VIII. p. 185.
Accordingly, our statutes authorize both our public vessels of war and our
merchantmen to resist and to capture all such vessels. Rev. St. Secs. 4294,
4295. Our naval regulations provide, (1876, c. 20, Sec. 18:) “If any
vessel shall be taken acting as a vessel of war, or privateer, without having a
proper commission so to act, the officers and crew shall be considered as
pirates, and treated accordingly.” The same are the English naval
regulations. Section 1861, Perels, Mar. Law, p. 185. A commission by
unrecognized rebels is manifestly not “a proper commission;”
and if such vessels, whenever “taken,” cannot be detained as
piratical, these naval regulations are unlawful. In the persistent demand made upon the states-general in 1779 by
Sir Joseph Yorke, the British minister at the Hague, for the surrender of Paul
Jones’ prizes, as having been piratically captured, the long practice
on this subject was referred to as follows: “All the placards
(decrees) of your Mightinesses require that all the captains of foreign armed
vessels shall, upon arrival, present their letters of marque, or commissions
and authorities, according to the customs of admiralties to treat all those as
pirates whose letters are found to be illegal for want of being granted by a
sovereign power.” Ann. Reg. 1779, p. 430. The rules above stated are so familiar to seamen that they are
seldom violated in recent times except by mutineers, plunders, or outlaws. In
revolutions conducted with discretion, before interrupting the commerce of the
seas, such assurances of at least friendly regard from some foreign powers are
secured, as shall afford a justification of naval warfare. In our own
revolutionary struggle, although Washington, in 1775, employed some armed
vessels in the defense of the coast, and for procuring necessary stores and
supplies, no public ships of war were sent out by congress, nor were privateers
authorized, until the spring of 1776, after assurances of friendly support by
France and Spain, and when they had in fact resolved upon rendering [*418] us large pecuniary
aid. 8 Bancroft’s History U.S. 114, 136, 215-216, 320-323, 342, 343; 9
Bancroft’s History U.S. 63, 134. 2. The recognition by foreign states of a state of war in civil
strife, or, what is the same thing, a recognition of the belligerent rights of
the insurgents, authorizes courts of law to treat the insurgents as lawful
combatants. In the language of Burke, “it is an intermediate treaty
that puts rebels in possession of the law of nations.” It gives them
temporarily, and for war purposes, the status of an established nation, and all
the rights of public war. On the one hand, it is a concession to rebels in the
interest of humanity and expediency. On the other hand, since recognition of
belligerency is not usually accorded till rebellion rises to the dignity of
real war, and in its general aspects is fairly entitled to belligerent rights,
notwithstanding the burdens it inflicts on other nations, it may be viewed as
an adjustment by foreign nations of their own relations, so as to accord with
the just requirements of the actual facts. If recognition be granted, it
relieves the parent state from all responsibility for damages for any
irregularities or violence committed by the other belligerent. Had the Ambrose
Light sunk one of our merchantmen off Cartagena, we should have had claims for
damages against Colombia, in the absence of any recognition of the usurpers;
but if they had been recognized by us, Colombia would have been released, and
the blockade would have been lawful. 3. Since recognition of belligerency is pro tanto, and for war
purposes, a recognition of quasi sovereignty, and is attended by such important
consequences, the power to grant or to withhold it, like recognition of full
independence, falls within the exclusive province of the political or executive
department. “No doctrine is better established,” says STORY,
J., in Gelston v. Hoyt, 3
Wheat. 246, 324, “than that it belongs exclusively to governments
to recognize new states in the revolutions that may occur in the world; and
until such recognition, either by our own government or the government to which
the new state belonged, courts of justice are bound to consider the ancient
state of things as remaining. This was expressly held in Rose v. Himely, 4 Cranch, 241, and to that
decision on this point we adhere.” To the same effect is the language
of Chief Justice MARSHALL in U.S. v. Palmer, 3 Wheat 610, 635. This is
again affirmed in Kennett v. Chambers, 14 How. 38, where TANEY,
C.J., adds, in reference to any inquiry by the courts, in cases of foreign
civil strife, whether new states should be recognized or not: “Such an
inquiry would be to take on ourselves the exercise of political authority, for
which a judicial tribunal is wholly unfit, and which the constitution has conferred
exclusively upon another department.” Page 51. Equally emphatic was
the language of Chancellor KENT in Gelston v. Hoyt, 13 Johns. 561, 587;
and similar is the rule of the English law. City of Berne v. Bank of England, 9 Ves.Jr. 347; The
Manilla,
Edw. Adm. 1. Insurgents do not, from the mere fact of revolt, or by their
acquisition [*419] of a seaport, become entitled to the rights of sovereignty
on the high seas, nor to the right of recognition from other nations, whether
they will or no. Recognition may rightfully be given or withheld by other
nations, according to their views of their own interests, their moral
sympathies, their ties of blood, or their treaty obligations; or according to
their views of the merits or demerits of the revolt, its extent, or
probabilities of success. In the Case of Smith, tried for piracy before Mr.
Justice GRIER in 1861, he said in his charge to the jury: “But it does not follow that every
band of conspirators who may combine for the purpose of rebellion * * * becomes
ipso facto a separate and independent member of the great family of sovereign
states. A successful rebellion may be termed a revolution; but until it has
become such it has no claim to be recognized as a member of the family, or
exercise the rights or enjoy the privileges consequent on
sovereignty.” Dana’s Wheat. Int. Law, Sec. 21. In the case of the officers and crews of the Savannah, tried for
piracy in 1861, before Mr. Justice NELSON, Mr. Evarts, in his argument for the
prosecution, (page 302,) used the following language in reference to a
recognition by a foreign nations of rebel belligerency: “Now, what is the duty of other
nations in respect to that? Why, their duty and right is this: that they may
either accord to these struggling, rebellious, revolted populations the rights
of war, so far as to recognize them as belligerents, or not; but whether they
will do so or not is a question for their governments, and not for their
courts, sitting under and by authority of their governments. For instance, you
can readily see that the great nations of the earth, under the influence upon
their commerce and their peace which I have mentioned, may very well refuse to
tolerate the quarrel as being entitled to the dignity of war. They may say: No,
no; we do not see any occasion for this war, or any justice or benefit that is
to be promoted by it. We do not see the strength or power that is likely to
make it successful, and we will not allow a mere attempt or effort to throw us
into the condition of submitting to the disturbance of the peace, or the
disturbance of the commerce of the world.” Or they may say:
“We recognize this right of incipient war to raise itself and fairly
contend against its previous sovereign,— not necessarily from any
sympathy or taking sides in it, but it is none of our affair, and the
principles of the controversy do not prevent us from giving to them this
recognition of their supposed rights.” Now, when they have done that,
they may carry their recognition of right and power as far as they please, and
stop where they please. They may say, “We will tolerate the aggression
by public armed vessels on the seas, and our vessels shall yield the right of
visitation and search to them.” They may say, “We will extend
it so far as to include the right of private armed vessels, and the rights of
war may attend them;” or they may refuse to take this last step, and
say, “We will not tolerate the business of privateering in this
quarrel.” And whatever they do or say on that subject their courts of
all kinds will follow.” Judge NELSON, in his charge to the jury in the same case, (U.S. v.
Baker, 5 Baltchf. 6, 14,) reiterated the same principle. He says speaking of
the recognition of belligerency: “It involves the determination of
great public and political questions, which belong to the departments of our
government that have charge of our foreign relations,— the legislative
and executive departments. When those questions [*420] are decided by
those departments the courts follow the decision, and until those departments
have recognized the existence of the new government, the courts of the nation
cannot; * * * the courts are obliged to regard the ancient state of things as
remaining unchanged.” He then refers to our acknowledgment of the independence of the
South American republics, and adds: “Prior to this recognition, and
during the existence of the civil war between Spain and her colonies, it was
the declared policy of our government to treat both parties as belligerents,
entitled equally to the rights of asylum and hospitality, and to consider them,
in respect to the neutral relations and duties of our government, as equally
entitled to the sovereign rights of war as against each other. This was also
the doctrine of the courts which they derived from the policy of the
government, following the political department of the government as it respects
our relations with new governments erected on the overthrow of old
ones.” The practice of our government, in such cases, is stated by
President Monroe in his message of March 8, 1822, above referred to. After
referring to the natural sympathies of our people with the provinces, he says: “As soon as the movement assumed such
steady and consistent form as to make the success of the provinces probable,
the rights to which they were entitled by the law of nations as equal parties
to a civil war were extended to them. Each party was permitted to enter our ports
with its public and private ships, etc. Through the whole of this contest the
United States have remained neutral.” 4. In the absence of any recognition by foreign powers, or by our
own government, it is clear from the above authorities that the court has no
power to institute any inquiries into the status of insurgents in foreign
countries, or to attempt to determine, or to lead the political department in
determining, whether or not there be a state of actual “open
war;” whether the parties are “enemies” or
“belligerents;” or whether the condition is that of armed
rebellion merely. It is not necessary to consider whether, in a case where
there has been notorious civil war for a considerable period, and where the
parent government has itself recognized a state of war, or where other foreign
nations have done so, and where the government in whose courts the cause arises
has taken no negative action, but has tacitly adapted itself to the situation
as one of war, the court might not hold such circumstances to amount to a tacit
recognition of belligerency by its own government. Nothing of that kind exists
here. Until some recognition by the political department, express, implied, or
tacit, of new conditions in foreign states, there is no “open
war,” no “belligerent;” there are no
“enemies” that the court can recognize, but only insurgents.
Under such circumstances no legal validity can be allowed in courts of law to
the commissions given by such insurgents. In the case of U.S. v. Klintock, 5
Wheat. 144, on an indictment for piracy committed in 1818, it appeared that the
privateer sailed under a commission from one Aury. Chief Justice MARSHALL said,
(page 149:) [*421] “So far as this court can take
any cognizance of that fact, Aury can have no power, either as a brigadier of
the Mexican republic— a republic of whose existence we know
nothing,— or as generalissimo of the Floridas, a province in the
possession of Spain, to issue commissions to authorize private or public
vessels to make captures at sea.” In the case of Dimond v. Petit, 2 La.Ann. 537,
(1847,) EUSTIS, C.J., says: “This capture was made under color of
an insurgent military authority at Campeachy, in the Mexican province of
Yucatan. We directed the attention of counsel to the necessity of furnishing
the court with information as to the course taken by the government of the
United States in relation to the belligerent rights of the province of Yucatan,
which is said to have been in a state of rebellion against the republic of
Mexico at the time of the capture. No justification has been exhibited to us
for this outrage upon our flag, and the capture can be viewed in no other light
by the court than as an act of lawless depredation. It is well settled that the
proceedings of courts in cases of this kind depend entirely on the action of
the general government. There being no evidence that a state of war was
recognized by our government as existing between this insurgent power and
Mexico, the rights of the former as a belligerent cannot be admitted by this
court.” In U.S. v. Greathouse, 2 Abb. (U.S.) 364,
380, Mr. Justice FIELD said: “The courts * * * cannot treat any
new government as having authority to issue commissions or letters of marque,
which will afford protection to its citizens, until the legislative and
executive departments have recognized its existence. The judiciary follows the
political department of the government in these particulars.” It follows that in the absence of any recognition by our
government of an existing civil war in Colombia, the commission executed by the
insurgents to their own vessel to carry on maritime war, and to blockade
Cartagena, has no validity that this court can recognize. Her depredations, or
intended depredations, in preventing other nations from pursuing lawful
commerce with Cartagena, must be viewed by the court as the acts of mere
private, unauthorized persons. The commission is void, and as no commission.
The vessel derives no protection from it, and must be held piratical, as she
would be held if cruising for similar purposes without any commission at all.
In addition to this, there was also the fraudulent exhibition of the Colombian
flag when approached by the Alliance; a flag to which the Ambrose Light clearly
had no color of right, since the rebels had no color of claim to constitute the
established government of the republic of Colombia, but were mere usurpers. 5. But it is urged that her cruise, to be held piratical, must
have been such in intent, and that an intent that, like this, is simply
belligerent, is not piratical; and that on two grounds: First, because a
belligerent vessel is directed against the ships or property of one nation
only; and, second, because her acts are not done animo furandi, for the sake of
plunder, but as acts of war only, animo belligerandi. It is curious to notice that, in the case of the privateers
commissioned [*422] by the deposed King James II., the same objections here
taken were urged before the privy council against any conviction for piracy.
The judges, it is said, smiled, and asked counsel “whether there was
ever any such thing as a pirate, if none could be a pirate but he that was
actually in war with all mankind.” Hostis humani generis, it was said,
is “neither a definition, nor so much as a description, of a pirate,
but a rhetorical invective to show the odiousness of the crime.” As
regards the intent, and the excuse furnished by King James’
commission, it was asked whether such a commission could excuse a forcible
taking of goods on land from the guilt of robbery; and, if not, why any more
excuse piracy; and that “piracy was nothing but seizing ships and
goods by no commission, or, what was all one, by a void or null one. Their
pretending to believe that he (the king) has still a right, is no more excuse
in the case of piracy than of treason, which every traitor may pretend
to.” See a full account of this interesting case in 1 Phil.Int.Law,
428. Phillimore concedes that the privateers in that case were rightly adjudged
pirates, jure gentium. Id. 436. This case, in principle, covers the whole ground of the objections
here urged; for those privateers intended warfare only, and warfare under the
king’s commission, and against England only. The king, being deposed,
was indeed but a titular king, without possessions; but this only served to
make his commissions unlawful and invalid, and that is the case with the
commissions of the insurgents here. The question of the legal consequences of
the invalidity of the commissions is the same in both cases. So, in Dole v.
New England Ins. Co., 2 Cliff. 394, 420, CLIFFORD, J., says that the Confederate
commission “would be utterly null and void as an answer to an
indictment for an offense against our municipal criminal law,” (i.e.,
against piracy.) But a felonious intent is as necessary to conviction under our
municipal law as under the law of nations. The only remaining question is
evidently the validity of the commission for war purposes, and that depends
wholly on recognition of belligerency. The objections here urged, it must be observed, challenge, not
merely the right to regard unrecognized belligerents on the high seas as
pirates, but the right to regard them as guilty of any offense at all. The
excuse, if good for anything, applies equally to any form of crime that might
be charged. In other words, if these objections be sound, the public vessels of
all nations must stand silently by and see their merchant ships seized while
engaged in lawful commerce, or sunk, if they resist, and their officers and
crews slaughtered with impunity, by rebels who are refused recognition as
lawful combatants. It would seem plain enough that the “law of
nations,” which is chiefly but an expansion of the common right of
self-protection among co-equal sovereignties, could admit of no such impotent
conclusion as that. If nations are unwilling to recognize insurgents as lawful
combatants on the high seas, they must, of necessity, and for
self-preservation, [*423] have the right to seize and suppress insurgent vessels
that, in spite of non-recognition, insist upon committing violence on vessels
of other nations under the name of war. Otherwise, their rights are prostrated
before mere usurpers, and the co-called recognition of belligerency becomes a
mere useless form. Thus, when the sea becomes the theater of operations, and
ports are blockaded, there is no alternative, as we shall find all publicists
and diplomatists agree, but to treat the rebel cruisers either as belligerents
or as piratical. Such seizures might, it is true, invite retaliation from the
insurgents, and lead to irregular, or, ultimately, even to open war, if the
insurgents had sufficient force to carry on such a struggle. But this is a
consideration addressed solely to the political and executive departments,
which, it is presumed, will take all such contingencies into account in
determining their course. It does not affect their legal rights. The objections named are really drawn from the usual definition of
piracy, viewed as a crime, viz., as “robbery upon the high
seas,” coupled with a further description of the offense as committed
in “a spirit and intention of universal hostility,” which has
been occasionally employed in describing the practice of general pirates,
rather than the essential elements of piracy itself. 1 Kent, 183, 184; Davison
v. Sealskins, 2 Paine, 333; per NELSON, J., in Case of Crew of the Savannah,
sub nom. U.S. v. Baker, 5 Baltchf. 6-10. But though indiscriminate depredations
are mentioned, it is added: “It is the same offense with robbery on
land;” which shows that “the spirit and intention of
universal hostility” is mere embellishment, and no part of the legal
definition. No doubt indiscriminate violence and robbery on the high seas are
piracy, (U.S. v. Smith, 5
Wheat. 153, 161;) but it is doubtful whether any pirates ever really
practiced, or intended to practice, wholly indiscriminate robbery upon all
vessels alike; and it is far from true that no acts are piratical by the law of
nations except such as are of that description, or even except such as have a
specific animus furandi, lucri causa. Of this last point Judge STORY says, in
the case of U.S. v. The Malek Adhel, 2 How. 211, 232: “If he willfully sinks or destroys an
innocent merchant ship without any other object than to gratify his lawless
appetite for mischief, it is just as much piratical aggression, in the sense of
the law of nations and of the act of congress, as if he did it solely and
exclusively for the sake of plunder, lucri causa. The law looks at it as an act
of hostility, and being committed by a vessel not commissioned and engaged in
lawful warfare, it treats it as the act of a pirate, and of one who is
emphatically hostis humani generis.” To the same effect see Dana’s Wheat. notes 15, 83, 84;
Hall, Int. Law, Sec. 81, pp. 215, 216. As regards the “intent of
universal hostility,” Dr. LUSHINGTON, in the case of The Magellan
Pirates,
1 Phil.Int.Law, 498-502,
said: “All persons are held to be pirates
who are found guilty of piratical acts; and piratical acts are robbery and
murder upon the high seas. * * * It [*424] was never deemed necessary to inquire
whether the parties so convicted had intended to rob or to murder on the high
seas indiscriminately.” In the case of U.S. v. Ross, 1 Gall. 624, some Portuguese convicts
at the island of St. Jago, in order to regain their liberty, had seized an
American schooner and run away with her, and in carrying out their design had
killed one of the persons on board. Judge STORY said, (page 629:) “It
was a clear case of piracy at common law.” See, also, In re Tivnan, 5
Best.&S. 645; Infra, p. 430. So, if mariners feloniously rise against the
master and run away with the ship, this is piratical at common law as well as
by statute. Molloy, De Jur. Marit. c. 4; U.S. v. Tully, 1 Gall. 247, 252,
255; 13 State Trials, 395, 454; The Magellan Pirates, supra. Yet in neither of
these classes of cases is there any intent of universal hostility, nor are the
offenders hostes humani generis, except in a general sense signifying a willful
disregard of the essential order and welfare of human society, such as
characterizes all other high crimes. In this sense Lord HALE speaks of
murderers as hostes humani generis. “When one voluntarily kills
another without any provocation it is murder, for the law presumes it to be
malicious, and that he is hostis humani generis.” 1 Hale, P.C. 455. In
the present case, however, the specific mission of the Ambrose Light to
“blockade” Cartagena was in itself a menace and an unlawful
aggression against the ships of all nations. The “intention of universal hostility,” in any
special sense, is applicable to pirates by profession only; to those who make
piracy a business, and live by some approach to indiscriminate plunder, and who
in that sense are “general pirates.” In other words, it is a
description of the supposed practice of one class of pirates only; just as the
animus furandi is descriptive of the particular motive of most piracies. But
neither the general intent in the one case, nor the particular and common
motive of plunder in the other, is necessary or essential to the offense of
piracy itself. And it is manifest that the offense may be as complete, though
but a single act be committed or intended, as if such acts were practiced as a
business, and indiscriminately on all vessels, to procure a livelihood. Upon an indictment under the United States Statutes of the
officers and crew of the rebel cruiser Savannah, in 1861, Mr. Justice NELSON,
incidentally referring to piracy by the law of the nations, says: “This is defined to be a forcible
depredation upon property on the high seas without lawful authority, done animo
furandi; that is, as defined in this connection, in a spirit and intention of
universal hostility. A pirate is said to be one who roves the sea in an armed vessel,
without any commission from any sovereign state, on his own authority, and for
the purpose of seizing by force and appropriating to himself, without
discrimination, every vessel he may meet. For this reason pirates, according to
the law of nations, have always been compared to robbers, the only difference
being that the sea is the theater of the operations of one, and the land of the
other. * * * Now, if it were necessary on the part of the government to bring
the crime charged in the present case against the prisoners within the
definition of robbery and piracy, as known to the common law of nations, there
would be [*425] great difficulty in so doing upon the evidence, and,
perhaps, upon the counts in the indictment; certainly upon the evidence, for
that shows, if anything, an intent to depredate upon the vessels and property
of one nation only— the United States— which falls far short
of the spirit and intent, as we have seen, that are said to constitute
essential elements of the crime. But the robbery charged in this case is that
which the act of congress prescribes as a crime, and may be denominated a
statute offense, as contradistinguished from that known to the law of
nations.” U.S. v. Baker, 5 Blatchf. 6, 11, 12. This passage embodies the objections urged in the present case.
From the last sentence quoted, however, it is clear that in the view of Mr.
Justice NELSON the case on trial before him was a statute offense only, and
that no careful consideration of the nature of piracy by the law of nations was
called for. His observations on that offense are therefore obiter, and cannot
be deemed to have been carefully considered, not intended to be made strictly
accurate, there being no occasion to make them so. Carefully observed, it will
be noticed that his remarks do not purport to express so much his own views as
what is said to constitute general piracy by the law of nations; and we are not
here considering general piracy, or the practices of general pirates. From what
has been said before, it is evident that the above description of piracy,
though applicable to pirates by profession, is not accurate as a definition, or
as a test in isolated cases. The different and inconsistent forms of expression
used in the passage quoted, as in similar passages in 1 Kent, 184, and in Davison
v. Sealskins, supra, refute the objections and the inferences which might otherwise
be drawn from them. Comparing piracy with robbery on land, it is said
“the only difference is that the sea is the theater of the operations
of the one, and the land of the other, “ which obviously neutralizes
the restrictions in the definition previously stated, since no such
restrictions apply to robbery on land. If A. should waylay B. and violently
despoil him of his purse, no one would doubt that the act was robbery, though
A. immediately threw the purse into the sea, and had no motive of pecuniary
gain, lucri causa, but acted from revenge only, and mediated no other offense
against B. or any other person. The charge to the jury in that case, moreover, in its general
drift and purport is opposed to the views of Mr. Justice CLIFFORD, as expressed
in Dole v. New England Ins. Co., supra, and to the charge of Mr. Justice
GRIER, on the trial of William Smith and others, under the same statutes, for
similar acts, very shortly before, who rules that the court was bound to hold
the accused to be pirates. The latter’s general views of the relation
of the government to its own citizens was sustained by a majority of the supreme
court in the Prize Cases, 2 Black, 635. This decision included the case of The
Amy Warwick, and affirmed, as respects that vessel, the decree of Judge
SPRAGUE, (2 Spr. 123,) who had declared her liable to be adjudged a pirate.
Id.
132. As respects intent, the question is the same in piracy as in all
other crimes, where the intent is material. All that is requisite to be shown
[*426] is that the act
is felonious. It is so stated by THOMPSON, J., in Davison v. Sealskins, 2 Paine, 332; by
STORY and DAVIS, JJ., in U.S. v. Tully, 1 Gall. 252, 255; Dole v.
Insurance Co., 51 Me. 465. A felonious intent in the criminal law, like
malice, means “the willful doing of an injurious act without lawful
excuse.” Per SHAW, C.J., in York’s Case, 9 Metc. 93, 104; per
BLACKBURN, J., in Queen v. Ward, 12 COX,Crim.Cas. 123; People v. Clark, 7 N.Y. 393; U.S.
v. Outerbridge, 5 Sawy. 620, 622. It is the same in robbery on land, or
spoliation with “wrongful intent.” Per NELSON, J., U.S. v.
Baker,
5 Blatchf. 6, 11. It is never necessary to show that the accused knew or
thought that what he was doing was a crime. U.S. v. Baldridge, 11 Fed.Rep. 552,
554. Very often, through the heat of passion, through thoughtlessness, or
through ignorance of the law, the fact is otherwise. But though these
circumstances may mitigate the grade of an offense, they never justify it.
Ignorantia legis neminem excusat is a familiar maxim; meaning, practically, not
that every man is presumed actually to know the law, but that ignorance of the
law shall not be admitted to excuse crime, or the breach of contracts. Per
BLACKBURN, J., Queen v. Mayor, etc., L.R. 3 Q.B. 629, 635. In the case of Reynolds v. U.S., 98 U.S. 145, the supreme
court held that the accused’s belief that polygamy was a religious
duty was no defense on an indictment for bigamy. The court say, (page 167:) “A criminal intent is generally an
element of crime, but every man is presumed to intend the necessary and
legitimate consequences of what he knowingly does. Here the accused knew he had
been once married, and that his first wife was living. He also knew that this
second marriage was forbidden by law. When, therefore, he married the second
time, he is presumed to have intended to break the law. And the breaking of the
law is the crime. Every act necessary to constitute the crime was knowingly
done, and the crime was therefore knowingly committed. Ignorance of a fact may
sometimes be taken as evidence of a want of criminal intent, but not ignorance
of the law. The only defense of the accused in this case is his belief that the
law ought not to have been enacted. It matters not that his belief was a part
of his professed religion; it was still belief, and belief only.” So, in U.S. v. Anthony, 11 Blatchf. 200, it appeared that Miss
Anthony had voted under a claim of a constitutional and legal right to vote,
and was indicted for so doing under the act of congress that imposed fine or
imprisonment on any person who shall “knowingly * * * vote, without
having a lawful right to vote.” Mr. Justice HUNT says: “If she believed she had a right to
vote, and voted in reliance upon that belief, does that relieve her from the
penalty? * * * Two principles apply here: First, ignorance of the law excuses
no one; second, every person is presumed to understand and to intend the
necessary effects of his own acts. * * * There was no ignorance of any fact,
but, all the facts being known, she undertook to settle a principle in her
person. She takes the risk, and she cannot escape the consequences. It is said,
and authorities are cited to sustain the position, that there can be no crime
unless there is a culpable [*427] intent, and that, to render one
criminally responsible, a vicious will must be present. A. commits a trespass
on the land of B., and B., thinking and believing that he has a right to shoot
an intruder upon his premises, kills A. on the spot. Does B.’s
misapprehension of his rights justify his act? Would a judge be justified in
charging the jury that, if satisfied that B. supposed he had a right to shoot
A., he was justified, and they should find a verdict of not guilty? No judge
would make such a charge. To constitute a crime, it is true there must be a
criminal intent; but it is equally true that knowledge of the facts of the case
is always held to supply this intent. An intentional killing bears with it
evidence of malice in law. Whoever, without justifiable cause, intentionally
kills his neighbor, is guilty of a crime. The principle is the same in the case
before us, and in all criminal cases. “ See U.S. v. Taintor, 11 Baltchf. 374; Regina
v. Downes, 1 Q.B.Div.
25, 30. So in the indictment of Dorr for treason, his plea of no criminal
intent, but of an honest belief that he was the lawful governor of Rhode
Island, was held untenable. See Pittman’s Dorr’s Trial;
Whart. Am. Crim. Law, 786-790. To constitute a criminal offense, it is only necessary to show,
therefore, that the accused committed intentionally, with design to injure
another, and without legal excuse, an act which the law makes criminal. 3
Greenl.Ev.Secs. 1, 13, 20. The law of nations necessarily makes unlawful the
capture or destruction of ships by a vessel sailing without any commission, or
without a lawful commission from some recognized power, as well as a capture
under a usurped flag. Such captures, considered by themselves, are acts of
spoliation and robbery; and when committed knowingly, with intent to injure,
and without lawful authority, the are felonious, and therefore piratical, even
in its criminal aspect. That such spoliation and capture are done under the
name of war, cannot furnish a legal defense, if the court cannot recognize the
warfare as lawful. The animus belligerandi, if unlawful, becomes animus
furandi, and more; as the greater includes the less. War means and intends the
destruction of life and property. Such destruction is lawful, if the war be
lawful; if it is not lawful, the intent to despoil of life and property remains
the same; but as the legal excuse for it fails, the intent then becomes in law
felonious, and hence the act is punishable as criminal. See 10 Amer.Jur.
265-267. The law never admits the ultimate object or motive to be a
justification, where the means are unlawful. Per COCKBURN, C.J., and BLACKBURN,
J., in Reg. v. Recorder of Wolverhampton, 18 Law t. 395, 397, 398. Again, a felonious intent is as necessary to constitute treason as
to constitute piracy. Rebellion, whether conducted on land or sea, is felonious
and treasonable, and punishable with death by the parent state. Our history
furnishes numerous instances. (Whart. Am. Law, “Treason,”
771-790,) and Riel’s case is a current instance. The same acts upon
the high seas, if not recognized as lawful war, must be equally felonious in
law, as respects other nations injured thereby, and as such liable to be
treated as piratical. That a belligerent intent is no defense, provided the acts, or the
vessel’s [*428] commission, be unlawful, is further illustrated in one of
the recognized forms of piracy stated by Prof. Perels (section 34, VIII. 6, p.
181) as follows: “Persons who, contrary to a prohibition of their own
government, practice privateering under a foreign authority, may be treated as
pirates by all governments save that which issued the commission.” He
refers to the French ordinance of 1681 (III. 9, art. 3) to that effect; and he
adds: “The newer view answers perfectly to this rule, which has even
found expression in several treaties.” 2 Valin, Ord.Mar. 235. In 1861
the proclamations of Belgium and of the Netherlands and of other states
announced explicity that their subjects violating such a prohibition would be
liable to be treated as pirates abroad as well as at home, (see Barnard,
Neutrality, 145, 146; Perels, 189;) and this upon the ground that such commissions
were no longer to be deemed valid or lawful. Numerous treaties are to the same
effect. 1 Kent, 100, and Hall, Int. Law, 220-222, notes. The insurgent leaders, in sending out the Ambrose Light to
blockade Cartagena, were, so far as this court can recognize, in the position
of seeking some political revolution or usurpation by means that were unlawful
as respects foreign nations. They could not, by merely commissioning their own
vessels, without any recognition by the executive or political departments of
any other government, make them selves lawful belligerents, or become entitled
to exercise acts of constraint or of violence towards the vessels of other
nations. They knew that, with this lack of legal authority, they took the risk
of having the vessel treated as piratical. They knew that, until recognition,
their position in the courts, both at home and abroad, was that of mere
usurpers who, in addition to treason against their own country, were
threatening, by their attempted blockade, the lives and property of the
subjects of all other commercial nations. They took all the risks of being
treated as criminals, or as piratical cruisers, until they secured recognition
of belligerent rights from abroad. 6. That recognition by at least some established government of a
“state of war,” or of the belligerent rights of insurgents,
is necessary to prevent their cruisers from being held legally piratical by the
courts of other nations injuriously affected, is either directly affirmed, or necessarily
implied from many adjudged cases; and I have found no adjudication in which a
contrary view is even intimated. I have already referred to the case of U.S. v. Klintock, 5 Wheat. 144, in which it was
held that the court could not recognize any validity in a commission from the
unknown “Mexican Republic.” The case of U.S. v. Palmer, 3 Wheat. 610, arose upon
alleged acts of piracy committed in 1817 under a commission from revolutionists
carrying on a struggle for independence against Spain, who had already been
acknowledged by our government as belligerents. In response to a certificate of
division from the circuit court upon the question whether the cruise was
piratical, MARSHALL, C.J., said: “If the government of the Union
remains neutral, but recognizes the [*429] existence of a civil war, (which
imports belligerents and belligerent rights,) its courts cannot consider as criminal
those acts of hostility which war authorizes,” (pages 635, 644,) and
such was the certificate of the court. The clause in italics is the more
significant in that case, because the certificate of division from the circuit,
though reciting all the other circumstances of the rebellion, its new de facto
government, and its independence as not established, did not allude to the fact
that recognition of belligerency had been previously accorded by our
government, though it mentioned the fact of a civil war. The answer of the
supreme court turned wholly on the recognition of belligerency by our
government. The same principle was again applied, and the decision based
entirely upon our previous recognition of belligerent rights in the revolting
colonies of Spain, in the cases of The Divina Pastora, 4 Wheat. 52, 63, and The
Neustra Senora de la Caridad, Id. 497, 502. The same principle was again
declared in The Santissima Trinidad, 7 Wheat. 283, 337; but in
the case of The Nueva Anna, 6 Wheat. 193, where the
existence of “a state of war” had not been recognized, it was
held that the condemnation of prize at Galveston in 1821 was wholly void. The case of The Invincible and the Pocket very closely resembles
the present, except in the single circumstance of the previous recognition of
the belligerency of Texas by our government. 3 Op.Attys.Gen. 120. In that case,
during the struggle between Mexico and Texas, the Invincible, an armed cruiser
of Texas, had seized the Pocket for carrying contraband goods to Mexico. On the
complaint of insurers, a United States vessel had seized the Invincible as a
pirate, and brought her, with her crew, into New Orleans for trial and
adjudication. On reference of the matter to Attorney General Butler, for
decision whether they were liable for piracy or not, he says: “Where a civil war breaks out in a
foreign nation, and part of such nation erect a distinct and separate
government, and the United States, though they do not acknowledge the
independence of the new government, do yet recognize the existence of a civil
war, our courts have uniformly regarded each party as a belligerent nation in
regard to acts done jure belli. * * * The existence of a civil war between the
people of Texas and the authorities and people of the other Mexican states was
recognized by the president of the United States at an early day in the month
of November last. Official notice of this fact, and of the president’s
intention to preserve the neutrality of the United States, was soon after given
to the Mexican government. This recognition has been since repeated by numerous
acts of the executive, several of which had taken place before the capture of
the Pocket.” The vessel and crew were accordingly released. See, also, Dimond
v. Petit, supra, p. 421. The case of The Georgiana, 9 Op.Attys.Gen. 140.
The tribunal at Marseilles, in 1823, refused to adjudge a rebel South American
cruiser as a pirate; but that was long after belligerent rights had been
expressly accorded the colonies by this country, and impliedly by Spain
herself, through her treaty with England stipulating for the latter’s
neutrality. See infra, p. 438. The [*430] Huascar, in 1877, with the
Peruvian insurgent Pierola and his band on board, was attempting to keep up
operations against Peru, and had done some violence to British shipping. She
was attacked by a British admiral, but eluded capture by running into shallow
water. Sir W. HARCOURT said: “In strictness they were pirates, and
might have been treated as such; but it was one thing to assert that they had
been guilty of acts of piracy, and another to advise that they should be tried
for their lives and hanged at Newgate.” Boyd, Int. Law, 172. In the Case of Tivnan, 5 Best&S. 645,
where some persons had come on board the American schooner Joseph E. Gerrity,
in November, 1863, at Matamoras, and afterwards, upon the high seas, had
violently seized her in the name of the Confederacy and set the master and
officers adrift, the act was held by all the judges to be prima facie an act of
piracy, and not an act of war. Pages 684, 689, 696. BLACKBURN, J., at the close
of his opinion, clearly intimates that any defense of the act as a possible act
of war, was dependent upon previous recognition of belligerency. He says: “But, looking at the evidence, what
was done by the prisoners is either taking the ship for plunder, which would be
piracy, jure gentium, in which case there is no power vested in us by statute
to give them up, or an act of war, and consequently not triable anywhere. For,
although the Confederate States are not recognized as an existing power, yet
they are (recognized) as belligerents.” From all these cases the implication is very strong that, in the
absence of any recognition of belligerent rights by the political or executive
branches of any government, the cases would have been deemed cases of piracy by
the law of nations, as that of the Huascar was declared to be. The burning of the Golden Rocket by the rebel cruiser Sumpter, in
July, 1861, gave rise to several suits upon policies of insurance which had
insured against “pirates;” but, by a marginal indorsement,
excepted losses by capture. The causes were heard in the supreme courts of the
states of Maine, Massachusetts, and Pennsylvania, in the circuit court of
Massachusetts, and in the United States supreme court. In all it was held that
the loss was by capture, and that upon that ground the insurance companies were
not liable. In the case in Maine, (Dole v. Insurance Co., 51 Me. 465,) DAVIS,
J., delivering the opinion, held the case piracy also. In the circuit court, (Dole
v. Insurance Co., 2 Cliff. 394,) CLIFFORD, J., held it not piracy within the
meaning of a commercial document issued before the war broke out. And the same
view is intimated in Dole v. Insurance Co., 6 Allen, 373, 392. In Fifield v.
Insurance Co., 47 Pa.St. 166, the views of the different judges were quite
diverse; the majority regarded the act of the Sumpter as a belligerent capture,
under the president’s mode of treatment of the case. In the supreme
court, (Mauran v. Insurance Co., 6 Wall. 1,) the case, as in
the other courts, was exhaustively [*431] argued in both of its aspects, by
Messrs. Dana, Gray, and Caleb Cushing, on one side, and Messrs. B. R. Curtis
and Storrow, on the other. In that argument I find one point on each side,
touching the question here discussed, that seems to me an exact statement of
the law. The latter say, (page 7:) “No authority can be produced to show
that a capture under a commission issued by a regularly organized de facto
government, engaged in open and actual war, to cruise against its enemy, and
against its enemy only, is piracy, under the laws of nations.” This is true, when that state of things can be recognized by the
court; but no foreign court has authority to treat revolters as a
“regularly organized de facto government,” or to recognize
“open and actual war,” or the parent government as an
“enemy,” in advance of the action of the political or executive
department. In that case recognition of the Confederates had already become
general at home and abroad. The plaintiff’s point in the same case is
equally true: “Looking to all the conditions of the
rebellion, cruising by rebels who are as yet unacknowledged by anybody, even as
a de facto government, would be cruising without being authorized by any
sovereign, and so would be piracy by the law of nations.” Page 4. Both sides, it will be observed, either expressly or by
implication, made the legal situation depend upon previous recognition of
belligerency. So, in the treatment of the case by CLIFFORD, J., the previous
recognition of belligerency, not by foreign powers only, but by the United
States itself, is manifestly made the turning point, (2 Cliff. 420-425;) and in
6 Allen, 392, the supreme court of Massachusetts adverted to the fact that the
rebel cruisers had been recognized abroad as “entitled to the
privileges of a belligerent power.” In the opinion of the supreme court,
the question of “capture” only was considered, and the south
was held to constitute such a de facto ruling power as to make the case one of
technical “capture,” and therefore within the exception of
the policy. So, too, in various cases that have arisen in our courts out of
violent acts on land during the late rebellion; though there is some difference
of opinion whether the rebels had any good legal defense for such acts done in
course of war, yet the authorities that hold the affirmative rest the defense
upon the recognition of belligerency. Thus, in Smith v. Brazelton, 1 Heisk. 44, it is
said: “But homicide, by any person forming part of a belligerent army,
recognized as such, is not murder, when committed in due course of war.”
See Whart. Crim. Law, Secs. 283, 1866; Whart. Hom. Sec. 13, note; Gunter v.
Patton,
2 Heisk. 261; U.S. v. Greathouse, 2 Abb.(U.S.) 364; U.S.
v. Hutchings, 2 Wheeler, Crim.Cas. 543, 546; Whiting, War Powers, note to 43d
Ed. p. 391,(1870.) See Hickman v. Jones, 9 Wall. 197; The Amy
Warwick, 2 Spr. 132. But killing even an alien enemy, unless such killing is in
the actual exercise of war, would be murder. 1 Hale, 433; State, etc., v. Gut,
13 Minn. 341, (Gil. 315.) [*432] 7. The same doctrine is directly stated by several recent
commentators and publicists. I have already referred to the definitions and
descriptions of piracy given by Prof. Perels, which clearly include cases like
the present. Manning, Int. Law, p. 160, says: “Whether rebels can or cannot be
treated as pirates, must depend (1) upon the amount of recognition for
belligerent purposes they receive abroad; and (2) upon their treatment by the
parent state.” Dana, in his notes to Wheaton, (notes 13, 83, 84, 153, 215,)
treats of this topic fully. Speaking of the great practical importance, whether
belligerency or a state of war be recognized or not by the political or
executive department of the government, he says: “If it is a war, the insurgent
cruisers are to be treated by foreign citizens and officials, at sea and in
port, as lawful belligerents; if it is not a war, these cruisers are pirates,
and may be treated as such. Note 13. Lawrence, in the notes to the last (7th) edition of Wheaton,
referring to many of the authorities here cited, expresses no opinion of his
own. But Wheaton himself, in his elaborate letter to Secretary Upshur, of
August 23, 1843, (Exec. Doc. 28th Cong. 1st Sess., vol. 6, p. 4, Doc. 264,)
concerning Paul Jones’ prizes, restored by Denmark to England in 1779,
says: “Denmark must either have considered
the United States as a lawful belligerent or as pirates, incapable of acquiring
any of the rights of just war.” And, as we shall see further on, the language of diplomacy may be
said to be almost unanimous that such are the only alternatives. The publicist
Hautefuille, in a letter
published in the New York Times of January 4, 1862 [Hautfeuille, PDF,
436Kb.],
says, in reference to the seizure of Mason and Slidell on the Trent, and the
claim at that time, often put forth in defense, that the Confederates were only
rebels, and not belligerents: “If there then be no war, if the
Americans be not belligerents, the act perpetrated by the commander of the San
Jacinto (Commander Wilkes) against England is an outrage committed against the
independence of the British flag; it is an act of downright piracy, for which
the perpetrator, if he acted without the special order of his government,
should be made responsible to the tribunals.” Boyd, in his notes on Wheat. Int. Law, (London, 1878,) says: “When the struggle is carried on by
sea as well as by land, the interests of neutral commerce render a recognition
of belligerency absolutely necessary. Without it the struggle is not, in the
eye of international law, a war; and, if not a war, there is no obligation on
the part of neutrals to respect any blockade, or allow their merchant vessels
to be stopped and searched on the high seas by the cruisers of either party. *
* * If the conflict continues entirely unrecognized as a war, every insurgent
is liable to be executed as a rebel or traitor on land, and as a pirate at
sea.” Page 36. “When an insurrection or rebellion has broken
out in any state, the rebel cruisers may be treated as pirates by the
established government, if the rebel government has not been recognized as a
belligerent by the parent state, or by foreign nations; but this right ceases
to exist on recognition of the rebels as belligerents. * * * The
president’s proclamation of nineteenth April, 1861, declaring the
Confederate ports blockaded, settled the point by virtually recognizing the
[*433] South. From
that time the duly-commissioned Southern cruisers became entitled to the rights
of war, and ceased to be pirates.” Page 169. Further authorities to the same effect will be found in
“Neutral Relations,” and “England’s
Liability,” by C. G. Loring, 1863-64; “Hasty
Recognition,” “Precedents of American Neutrality,”
and “American Neutrality,” etc., by George Bemis,
1864— 66; Mr. Sumner’s Speech at Cooper Institute, Sept. 10,
1863; Article by Charles P. Kirkland in Merchants’ Magazine, Nov.
1863, p. 330; English Neutrality, by G. P. Lowrey, March, 1863; Civil War in
Am. by Comte de Paris, vol. 1, p. 426. 8. Several authors, such as “Historicus,” Prof.
Barnard, in his work on Neutrality, President Woolsey, and Hall, who express
doubt, or the opposite opinion, either fall into clear inconsistencies, or
treat the matter in its political, rather than its judicial, relations. All
state that the judiciary are bound by the action of the political and executive
departments; yet, in discussing the position of unrecognized rebel combatants,
they sometimes fail to indicate whether they are treating of what ought to be
the political action or the judicial; or, if treating of the latter, the
limitations of the judiciary are more or less overlooked; so that the
conclusions of these writers are either ambiguous, or are inapplicable to
judicial action. As the action of the courts is wholly subordinate to that of
the political and executive departments, as regards recognition of
belligerency, the considerations presented on this subject by publicists are
usually those that belong to the political and executive departments. Thus, the
celebrated letter of Burke to the sheriff of Bristol is the letter of a
statesman, addressed to statesmen; eloquent and powerful as a guide for
political action, but having no relevancy to courts. It is rightly applied in
the political letter of DALY, C.J., to Senator Ira Harris, (New York, 1863.) So
the oft-quoted sections of Vattel concerning the rights of the two parties in a
civil strife (bk. III. cap. 18, Secs. 287-293) are “obviously
addressed to sovereigns, not to courts.” Per Chancellor KENT, in Hoyt
v. Gelston, 13 Johns. 141, 155; per MARSHALL, C.J., in Rose v. Himely, 4 Cranch, 241, 272. This
distinction must be continually borne in mind. (a) The letter of “Historicus,” (Sir Vernon
Harcourt,) dated March 18, 1865, and published in the London Times of March 22,
1865, (see, also, appendix to Bemis’ Hasty Recognition, Boston, 1865,)
is a vigorous defense of the political and executive action of England in
issuing her proclamation of neutrality. It has no direct discussion of the duty
of the judiciary, and alludes to it incidentally only. He contends that had the
queen’s proclamation of neutrality not been issued, the rebel cruisers
could not have been treated as pirates “by the governments and the
courts,” as though the two departments were in the same situation. But
he sustains this proposition by a reference only to the obiter remarks of Judge
NELSON in the case of The Savannah, by the rhetoric of Burke’s letter,
and the sections of Vattel [*434] above referred to, which, as we have
seen, are “addressed to sovereigns, not to courts.”
“An armed cruiser,” he says, “exercising force
against the ship of a foreign state, must be one of three things,— an
enemy, a pirate, or a belligerent.” She could not “be treated
by the English government as an enemy,” because England had no war
with the South; therefore, he argues, not being a pirate, she must be a “lawful
belligerent.” By this reasoning, if in any case a recognition of
belligerency may be rightfully withheld by a foreign government, of which there
is no doubt, then it follows that in the absence of recognition, according to
“Historicus,” such a vessel must be treated as a pirate;
which is the only point here in question. What is said in some passages of this
letter concerning the power of the government to confer or to withhold
belligerent rights has manifest reference to the particular circumstances of
the existing Confederate war; for he lays great stress on the fact that the
United States government had itself, by its own treatment of the revolt,
recognized a war, and “created belligerent rights in both
parties.” In other parts of the letter he repeatedly recognizes the
true doctrine that the action of the government as respects recognition
controls; and that the courts, in the absence of any recognition, must treat
rebel cruisers as pirates. “In such a question,” he says,
“the courts of law follow the action of the government.” The
proclamation was necessary, he argues, because the English merchantman was not
to be “left in ignorance whether an armed vessel, which overhauled and
captured him, was regarded by his own government in the light of a pirate,
committing robbery on the high seas, or as a lawful belligerent;” nor
was “the navy, posted in every corner of the globe to protect the
mercantile marine by arms, if necessary, to be uninformed whether they were to
sink, burn, and destroy as pirates, or to respect as lawful belligerents, the
cruisers that exercised such acts of force as war alone can justify.”
These alternatives clearly recognize all the rights here claimed on behalf of
the government against the Ambrose Light. Finally, he adds: “Why were
courts of law to wait to know in what light they were to regard vessels or
crews arraigned before them for forcible seizures at sea?” (b) Prof. Barnard, in his work on British Neutrality, (London,
1870,) says that legally the question turns on the inquiry “whether an
animus furandi, or lucri faciendi, in the strict sense of the phrase, be
necessary to constitute the legal offense 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. “ While not expressing any decided opinion on this
matter, as a legal question, he thinks such privateers, “at any rate,
ought not to be so tried and punished;” and that “if a
declaration of neutrality be necessary to prevent such an abuse of criminal
justice,” which he doubts, that “must be reckoned among the
legitimate and useful purposes of [*435] such a declaration.” Pages
120, 121. I have already stated above why, if the warfare be unlawful, the
animus belligerandi becomes felonious. At page 116, also, he suggests that
recognition (of belligerency) ought not only to be conceded, but ought not to
be withheld, from “any body of people whose number and organization
enable them to carry on regular warfare, and who are actually engaged in
it.” This rule would very materially diminish the conditions under
which rebels have been heretofore regarded as entitled to a recognition of
belligerent rights. See Message of President Monroe, supra; Canning’s
Dispatch, infra. It excludes all consideration of the merits of the contest, of
the probabilities of success, of the industrial and commercial interests of
other nations; and of the ties of treaty, blood, and moral sympathy. The
objection to this is that it subordinates all the interests of other nations to
the interests, the wishes, and the convenience of rebels, however undeserving
the struggle. It may be safely assumed that no government will ever be
administered upon that principle. But even if the rule laid down be correct, it
is a rule for the action of the government, not for the courts. The government,
and not the court, must determine whether “the number and organization
of the insurgents enable them to carry on regular warfare,” and
whether what they “are actually engaged in” is
“regular warfare” or not. Further on the author adds that
“it would be trifling with language to dignify with the name of war,
the rebellion of which Massachusetts was the scene in 786.” Page 117.
Recognition, it is implied, ought, in cases like the last, to be withheld; and,
if rightfully withheld by the government in such a case, then, of necessity,
the courts must hold the rebel warfare in that case unlawful, and their acts of
menace or violence on the high seas as piratical; since it is mere
contradiction and absurdity to say that the government may rightfully withhold
recognition, and yet that its courts shall extend the same immunities without
recognition as with it. President Woolsey in a friendly review of Prof. Barnard’s
work in the N.A. Rev. for October, 1879, p. 259, dissents from that
author’s view of the right of rebels to recognition. On this point he
says: “No rule of international law forces
a neutral state into an impartial attitude. It has its choice between aiding
the parent state, and entire neutrality. * * * If it offer assistance, it is
assistance, not against a state known to nations, but against a nondescript
thing which has force and not law on its side, against a monster out of the
pale as yet of the law of nations, and which threatens the order of the world.
* * * International law is made for nations, and sides with the established
order of things. It does not frown on help offered by one friendly state to
another, and yet it and not law on its side, against a monster out of the pale
as yet of the does not frown on help offered by one friendly state to another,
and yet it allows states to sit still and see their friends fight their own
battles.” (c) Hall, in a recent and valuable work on International Law,
(London, 1880,) while rejecting the animus furandi as any criterion of piracy,
and regarding unrecognized rebel cruisers as “at first sight
technically piratical,” concludes as follows: “The true view
would seem to be that acts allowed in war, when authorized by a politically
[*436] organized
society, are not piratical, “ (though that society is not recognized
by other nations,) but are piratical if committed “by a body of men
acting independently of any politically organized society.”
“Whether a particular society is or is not politically organized, is a
question of fact which must be decided upon the circumstances of the
case.” Pages 217, 218. But decided by whom? By the courts, on trials
for piracy or prize? or by the political and executive authority? Our supreme
court, in U.S. v. Palmer, 3 Wheat. 634, upon that point say: “Such questions are generally rather
political than legal in their character. They belong more properly to those who
can declare what the law shall be; who can place the nation in such a position
with respect to foreign powers as to their own judgment shall appear wise; to
whom are intrusted all its foreign relations,— than to that tribunal
whose power, as well as duty, is confined to the application of the rule which
the legislature may prescribe for it. In such contests a nation may engage
itself with the one party or the other; may observe absolute neutrality; may
recognize the new state absolutely; or may make a limited recognition of it. *
* * If the government remains neutral, and recognizes the existence of a civil
war, its courts cannot consider as criminal those acts of hostility which war
authorizes, and which the new government may direct against its enemy. * * * It
follows * * * that persons or vessels employed in the service of a
self-declared government, thus acknowledged to be maintaining its separate
existence by war, must be permitted to prove the fact of their being actually
employed in such service by the same testimony which would be sufficient to
prove that such vessel or person was employed in the service of an acknowledged
state.” Manifestly no light is thrown on the subject by mere changes of
phrase. An “organization as a political society” can be of no
avail unless the organization be one that is competent to authorize warfare;
i.e., a quasi sovereign for war purposes. Every city, county, state, in this
country, is a “society politically organized.” But if the
mayor of New York should send out vessels commissioned in his own name to
blockade Baltimore or Boston, and to capture or sink any British ships seeking
to enter those ports, it would not be contended that the British navy must remain
quiet, and see such vessels sunk, unable to arrest the cruiser as piratical,
because New York city was a politically organized community. (d) President Woolsey says the Confederate cruisers were not
pirates. Int. Law, App. 3, note 12 to 4th Ed., Sec. 145 of 5th Ed. He does not
mention the fact in that connection, but does elsewhere, (App. 3, note 19; Sec.
180, 5th Ed.,) that the Confederates were recognized as belligerents at home
and abroad; but he says they lacked the animus furandi, and the intent of an
indiscriminate hostility; both of which, as we have seen, are not essential. He
then lays down this rule: “A privateer of an organized rebellious community, acting
under letters of marque, given by the supreme authority, according to law, is
not doing piratical work when, in a state of open war, it preys on the commerce
of its enemy, although its government (its independence?) be as yet
unrecognized.” [*437] The context does not show whether this rule is designed by
the author for political or for judicial guidance. But its language is
applicable to cases only where there has already been previous recognition of
belligerency; since in courts the words “open war,”
“enemy,” “organized rebellious community,”
import previous political recognition. The courts, as I have so often said,
cannot inquire into or determine the existence of those conditions. Thus
construed, his rule accords with the view here adopted. It is doubtful,
however, whether that is the sense intended by the author. He adds that
“such has been our (government’s) declared views and
claims;” and he refers to the action of Denmark in 1779 in treating
Paul Jones’ cruisers as piratical, and in restoring his prizes to England,
and to our long-continued reclamations. This, however, was a political, not a
judicial, act on the part of Denmark; and, as will appear presently, does not
sustain the view for which it is apparently cited. Indeed, in the same
author’s review of Prof. Barnard’s work above referred to,
(N.A. Rev. October, 1879, p. 261,) he cites the case of those prizes as
parallel with the situation of the Confederate privateers, which had full
foreign recognition of belligerency; so that they clearly could not justly be deemed
piratical by foreign nations. And in the same paragraph he recognizes the
position of Denmark as that of a neutral,— a position importing
previous recognition of belligerency, express or implied. “The
claim,” he says, “that the flag of rebellious colonies could
not be respected by neutrals, was brought forward when Paul Jones carried these
prizes into a port of Norway,” etc. From other passages in his work on International Law it is
doubtful whether the author intended to express any precise views on the point
here involved. At section 179, after saying that revolters have not strictly
any rights at the hands of other nations, be observes: “In a ceratin sense foreign powers must regard the
revolters as belligerents, entitled to all the rights of humanity, * * * such
as asylum given to political exiles, etc. * * * The vessels of such revolters
cannot be regarded as piratical, for their motive is to establish a new state;
while that of pirates is plunder. A pirate never ends his war with mankind.
They fight for peace.” See, also, section 180b, (5th Ed.) Those loose, equivocal, and inconsistent expressions of recent
authors show how vain is the endeavor to divest insurgent cruisers of their
technically piratical character in courts of justice, if they have been nowhere
politically recognized as lawful belligerents; and that this cannot be done,
except by clothing the courts with an original authority to inquire into the
facts, circumstances, and merits of a foreign strife, and thereupon to
determine, independently of the political and executive departments, the status
to be accorded it; or else by declaring that neither political nor executive
recognition is of any account; and that insurgent cruisers, though not recognized
as belligerents or as lawful combatants, shall yet enjoy the same immunities as
if they were both recognized and lawful. The error lies in [*438] not observing
the limitations of the judicial functions, which preclude the courts from
recognizing any new authority in foreign nations until the political or
executive department has done so. Until then, courts have no discretion in
holding all intentional, unlawful violence and injury to others as criminal.
The ulterior end and motive are, as I have said, not a justification in the
courts, whether that motive be plunder, a livelihood, political ambition, or
patriotic ardor. 9. The precedents in the history of the recognition of
belligerency, the conduct of diplomacy, treaties, and the declarations of the
most eminent statesmen on this subject, agree with the view here taken; and on
any other view they would be unintelligible. Recognitions of belligerency by
foreign nations in cases of civil strife have in great part this end in view:
to make the warfare lawful, so as to avoid the complications of what would
otherwise be irregular, unlawful, and piratical depredations. I have already
referred to King James’ privateers, to the Magellan pirates, and to
the Texan case of the Invincible; to the neutrality, or implied recognition of
our belligerency, by nearly all the European governments during our
revolutionary struggle; to our own early recognition of the belligerency of the
revolutionists of Texas, of Greece, and of the various Spanish-American
colonies. In the latter case the course of England was tacitly the same. During
the early part of the struggles of the South American colonies, England was at
war with Napoleon, and opposed his pretensions to the sovereignty of the
Spanish-American colonies. Upon their revolt they became in effect the allies
of England. An extensive and profitable trade sprang up between England and
those colonies; so that, upon the downfall of Napoleon and his dependencies, so
identified has English interests become with the provinces, that Spain, in
order to prevent a more pronounced hostility against her, secured by treaty
from England a stipulation for impartial neutrality in the struggle of Spain
with her colonies; although it was understood that this should not affect
England’s commercial privileges. 2 Stapleton’s Life of
Canning, 10-14, 86. And the merit of securing general recognition of the final
independence of the South American colonies is claimed by his biographer for
Canning. Id. 23, 72. Numerous treaties, in agreeing to prohibit letters of marque,
declare that their subjects, if accepting them, may be treated as pirates. See
Hall, Int. Law, 220-222. Such, also, were the declarations of the governments
of Belgium and of the Netherlands after the treaty of Paris, (1856,) before
alluded to; and I have already cited the rule declared by Prof. Perels on that
subject, that the commission, being unlawful as to such subjects, may be
disregarded, and the persons treated as pirates by all other nations. The
reclamations made by this country upon Denmark for the prizes of Paul Jones
restored by her to England in 1779, furnish no exception to the rule here laid
down. Some account of this claim is given in note 16 of Lawrence’s
Wheaton. A more complete history of it will be found in Reports [*439] of House
Committees, February 10, 1846, 29th Cong. 1st Sess. vol. 1, No. 206; and in Mr.
Wheaton’s letter to Secretary Upshur, August 23, 1843, (not indexed,)
in vol. 6 of Exec. Doc. 28th Cong. 1st Sess. Doc. 264, p. 4. From these
documents it appears that Denmark had previously professed to act as neutral,
and had thus, either expressly or by implication, already recognized our
belligerency. As Lawrence observes, (note 16, supra,) Count
Bernstof’s letter in reply to Franklin’s, (see
Spark’s Life of Franklin, vol. 8, pp. 407, 433, 460,) did not deny
this recognition, but pleaded a secret treaty with England, which, however, was
never produced. That letter indicates plainly enough secret pressure from England;
and shows that policy, and not principle, had controlled the action of Denmark.
To deliver up our prizes as captured piratically, after professions of
neutrality or implied recognition of our belligerency, without notice
prohibiting our entry to her ports, was so inconsistent with her previous
attitude as to afford just ground for reclamations. But had Denmark actually
refused us recognition of belligerency, and on that ground delivered up our
prizes which had put into her ports under stress of weather, without any
previous notice, that would have been politically so unjustifiable an exercise
of her discretionary power under our circumstances at that time as to furnish
us, on establishing independence, a just cause for reclamations for an
unreasonable abuse of her discretion. For these transactions were more than a
year and a half after our independence, even, had been actually acknowledged by
France, and after our alliance with her was publicly known. The grounds upon which these reclamations were urged in the house
report, and in the letter of Mr. Wheaton, were the violation of her neutral
obligations. Mr. Wheaton, in his letter above referred to, says: “Denmark remained passive, bound to the duties of
impartial neutrality. * * * It was not the case of an ordinary revolt which has
not assumed the character of a civil war. The United States, in 1779, were a
government de facto, engaged in a war with Great Britain, in which the rights
of war were acknowledged by the parent country itself. We were associated with
two powers, France and Spain, in war against Great Britain, and both had
acknowledged our independence. * * * The only reason said to have been alleged
by Denmark for rescuing the prizes was that Denmark had not yet acknowledged
the independence of the United States. But the question is, not whether she had
acknowledged the independence of the United States, but whether such a state of
war actually existed between the United States and Great Britain as made it the
duty of all nations professing to be neutral to respect the just exercise of
the rights of war by both. Denmark must either have considered the United
States as lawful belligerents, or as pirates, incapable of acquiring any of the
rights of just war.” These extracts cover the whole ground, not only of that case, but
of the present question. They state the question with Denmark as a political
one, which concerned her political duty under the actual facts; that she had
acted accordingly by professing neutrality; and that she had no alternative but
to regard us as lawful belligerents, [*440] or as pirates. Yet our claims, so far
as I can discover, have never been paid. Canning uses similar language in his oft-quoted dispatch to the
British minister at Constantinople, in reply to the protest of the Porte
against the recognition of the Greek insurrection as belligerent.
“Belligerency,” he says, “is not so much a principle
as a fact. A certain degree of force and consistency acquired by any mass of
population engaged in war entitles that population to be treated as a
belligerent, (through the action of the political department.) * * * A power or
community * * * which is at war with another, and which covers the sea with its
cruisers, must either be acknowledged as a belligerent, or treated as a
pirate.” 2 Stapleton’s Life of Canning, 408-414. This dispatch was cited and approved by Lord John Russell in his
speech in parliament on the sixth of May, 1861, (Hansard, Par. Deb. v. 163, p.
1566;) and in his speech in September, 1863, (London Times, September 26th,) he
says, in justification of the early recognition of Confederate belligerency:
“Our admirals asked whether the ships they met bearing the Confederate
flag should be treated as pirates or no.” It is possible, however,
that at the time of this speech there was some error of dates in Lord
Russells’ mind. See Geo. Bemis, Hasty Recognition, 12, note. By the treaty of Paris (1856) “privateering is and
remains abolished” as between the parties to it. Accordingly, the
Netherlands government, in June, 1861, issued a proclamation warning all its
subjects “in nowise to take part in privateering, because the
Netherlands government had acceded to the declaration of maritime rights set
forth by the treaty of Paris conference of 1856, whereby * * * privateering is
abolished, and no recognition of commissions got or letters of marque
permitted. Also that such commissions cannot have a lawful effect in behalf of
the king’s subjects. Those who, under such circumstances, shall engage
in or lend their aid in privateering to other people, will be considered as
pirates, and prosecuted according to law.” See U.S. Mess. & Doc.
1861, p. 354. The Belgian government and other governments issued a similar
general notice that all “its subjects who shall take any part in any
privateering expedition will expose themselves to the danger of being treated
as pirates abroad, and to their prosecution before Belgian tribunals with all
the rigor of the law. “ Barnard, Neutrality, 146; Perels, Mar. Law, p.
189. It is well known that early in 1861 the United States opened
negotiations with England and France towards joining in the treaty of Paris,
for the purpose of excluding rebel privateering. England and France both
refused to accede to the proposal “until after the present
war;” “because the provision of the treaty (of Paris)
standing alone might bind them to pursue and punish the privateers of the South
as pirates,” and consequently the negotiations failed. U.S. Mess.
& Doc. 1861, [*441] pp. 146, 242. Thus was an important international measure
defeated because those governments were of opinion that if the rebel
commissions of privateers should thus become legally invalidated their cruisers
must then be deemed pirates; and that the parties to the treaty of Paris would
be bound to seize and punish them as such, though no such express obligations
are found in that declaration. The same liability to the punishment of piracy, in the absence of
political recognition, was frequently stated in express terms, or implied, in
the important debate in the house of lords on May 16, 1861. Lord Derby said
that the “United States cannot be suffered to treat Englishmen who may
improperly engage in privateering as pirates, because we have declared that the
southern states are entitled to the rights of belligerents.” Lord
Brougham said: “Privateering was undoubtedly, in the case of
recognized belligerents, not piracy, according to the law of nations; * * * but
if any persons, subjects of this country, fitted out a vessel against another
country with which we were at peace, that in itself constituted a piratical
act.” Ex-Lord Chancellor CHELMSFORD (Sir Francis THESIGER) said: “If
the Southern Confederacy had not been recognized by us as a belligerent power,
any Englishman aiding them by fitting out a privateer against the Federal
government would no doubt be guilty of piracy.” Lord Chancellor
CAMPBELL said that “the president of the council had laid down the law
with perfect correctness. After the present proclamation, (recognizing
belligerency,) * * * there could be no doubt that he (a person entering the
service of a privateer) ought not to be regarded as a pirate for acting under a
commission from a state admitted to be entitled to the exercise of belligerent
rights, and carrying on what might be called a justum bellum.” Lord
Kingsdown said: “This country had recognized, not as an independent
power, but as a body possessing the rights of a belligerent, the confederation
of the southern states; therefore, they were treated as having power to issue a
regular authority for privateering.” This great weight of authority, drawn from every source that
authoritatively makes up the law of nations, seems to me fully to warrant the
conclusion that the public vessels of war of all nations, for the preservation
of the peace and order of the high seas, and the security of their own
commerce, have the right to seize as piratical all vessels carrying on, or
threatening to carry on, unlawful private warfare to their injury; and that
privateers, or vessels of war, sent out to blockade ports, under the
commissions of insurgents, unrecognized by the government of any sovereign
power, are of that character, and derive no protection from such void
commissions. It thus appears that the rules laid down and implied in the
decisions of our supreme court in the cases of Rose v. Himely and U.S. v.
Palmer, supra, nearly 70 years ago, have been since almost universally
followed. The practical responsibility of determining whether insurgent vessels
of war shall be treated as lawful belligerents, or as [*442] piratical,
rests where the supreme court then in effect decided that it ought to rest,
viz., with the political and executive departments of the government. These
departments have it in their power, at any moment, through the granting or
withholding of recognition of belligerency, and through the extent of such
recognition as they may choose to accord, virtually to determine how such
cruisers shall be treated by the courts. Even after judgment and sentence the
prisoners may, like Smith and his associates, convicted before Mr. Justice
GRIER, be treated, and exchanged, as prisoners of war. And it is with those
departments exclusively that the discretion ought to rest to determine when and
how its technical rights against rebel cruisers shall be enforced. Its naval
regulations will be framed accordingly; and any seizures made under such
regulations may be enforced, or at any moment remitted, at the pleasure of
those departments. Where insurgents conduct an armed strife for political ends, and
avoid any infringement or menace of the rights of foreign nations on the high
seas, the modern practice is, in the absence of treaty stipulations or other
special ties, to take no notice of the contest. One of the earliest
applications of this rule that I have met is in the answer of the
states-general to Sir Joseph York’s demand in 1779 for the surrender
of Paul Jones’ prizes as piratically captured, (supra, p. 417,) in which
their Mightinesses say that “they had for a century past strictly
observed the maxim that they will in no respect presume to judge of the
legality or illegality of the actions of those who, upon the open sea, have
taken any vessels that do not belong to this country. “ On this point
Prof. Lawrence, in his recent Hand-book Int. Law, (London, 1884,) says: “When a community, not being a state in the eye of
international law, resorts to hostilities, it may, in respect of war, be
endowed with the rights and subjected to the obligations of a state if other
powers accord it what is called recognition of belligerency. Neutral powers
should not do this * * * (4) unless it affect by the struggle the interests of
the recognizing state. If the struggle is maritime, recognition is almost a
necessity. The controversy of 1861 illustrates the whole question.” The practice is stated by Hall as follows: “When, however, piratical acts have a political object,
and are directed solely against a particular state, it is not the practice for
states other than that attacked to seize, and still less to punish, the persons
committing them. It would be otherwise, so far as seizure is concerned, with
respect to vessels manned by persons acting with a political object, if the
crew, in the course of carrying out their object, committed acts of violence
against ships of other states than that against which their political operation
was aimed; and the mode in which the crew were dealt with would probably depend
on the circumstances of the case.” Int. Law, Sec. 81, p. 223. Whether a foreign nation shall exercise its rights only when its
own interests are immediately threatened, or under special provocations only,
after injuries inflicted by the insurgents, as in this case, at Colon, is a
question purely for the executive department. But when [*443] a seizure has
been made by the navy department, under the regulations, and the case is
prosecuted before the court by the government itself, claiming summum
jus,— its extreme rights,—the court is bound to apply to the
case the strict technical rules of international law. The right here asserted
may be rarely enforced; the very knowledge that the right exists tends
effectually, in most cases, to prevent any violation of it, or at least any
actual interference by insurgents with the rights of other nations. But if the
right itself were denied, the commerce of all commercial nations would be at
the mercy of every petty contest carried on by irresponsible insurgents and
marauders under the name of war. In the absence of any recognition of these insurgents as
belligerents, I therefore hold the Ambrose Light to have been lawfully seized,
as bound upon an expedition technically piratical. Second. The additional facts proved show, however, such a
subsequent implied recognition by our government of the insurgent forces as a
government de facto, in a state of war with Colombia, and entitled to
belligerent rights, as should prevent the condemnation of the vessel as prize.
The communication from the department of state to the Colombian minister,
bearing date the day of the seizure, seems to me to constitute such a
recognition by necessary implication. It could not have been based upon any
facts, or have reference to any state of facts, not in existence at the time of
the seizure; and it should be held, therefore, to arrest and supersede any
subsequent condemnation for those acts of war which such a recognition
authorizes the insurgents to carry on. Recognition of belligerent rights may be tacit, implied, or
express. It is express when made by a proclamation of neutrality, as by the
queen of England’s proclamation of May 13, 1861. It is implied in a
declaration of blockade, as in that of President Lincoln of April 19, 1861. And
when there is long acquiescence in belligerent acts affecting another
nation’s interests, without protest or objection, such as the blockade
of ports, or the use of a nation’s ports as a harbor for prizes, a
tacit recognition of belligerent rights is to be reasonably inferred. See
Canning’s dispatch above referred to. Where no formal and express
action has been taken by the political or executive department as to
recognition of belligerency, courts, in determining the question of prize or no
prize, must necessarily pass upon the legal effect of such proved action of
those departments of the government as bears upon the question of recognition. On the part of the captors in this case a letter was put in
evidence from the secretary of state, dated July 1, 1885, in answer to an
inquiry as to the action of our government concerning any recognition of a
state of war between the insurgents and Colombia. In this letter the secretary
of state replies that “a state of war has not, in a formal sense,
either before or after April 20, 1885, been recognized by the government of the
United States as existing in the United States of Colombia; [*444] nor have the
insurgents now in arms against the latter government been recognized by the
United States as belligerents, nor, so far as advised, by the United States of
Colombia.” The claimants thereupon put in evidence certain
correspondence between the Colombian government and our department of state,
consisting of a communication from the former to our government, dated April 9,
1885, and the reply made thereto made by Secretary Bayard, dated April 24,
1885. The letter from the Colombian minister, after reciting information that
the “entire republic is now pacified, with the exception of the ports
of Panama, and those of Sabanilla, Santa Maria, and Barranquilla, in the states
of Bolivar and Magdalena,” and that “active military
operations were in preparation against the rebels who hold these points in our
territory,” directs the attention of our government to two decrees
that had been made by the government of Colombia, with a view to make these
operations more efficient. The first decree declared the ports of Sabanilla and
Santa Maria closed to foreign commerce, and all trade to or from these ports
illicit and contraband; the second decree declared, in effect, that the rebel
vessels then operating against Cartagena were irregular and unlawful, and were
flying the Colombian flag without authority, and were beyond the pale of
international law, and might be repressed by the vessels of any other nation
charged with watching its commercial interests. Our government, in the replay of the secretary of state, under
date of April 24th, declined to acquiesce in either of those decrees. The
secretary states his conclusion, as the result of an examination of the
authorities and precedents, “that a decree by a sovereign power
closing to neutral commerce ports held by its enemies, whether foreign or
domestic, can have no international validity, and no extraterritorial effect in
the direction of imposing any obligation upon the governments of neutral powers
to recognize it. “ After referring to the great efforts by which our
blockades were made effectual in the Confederate rebellion, he says that Great
Britain and France ceased to contest their effectiveness, and “united
in the most solemn repudiation of the position formerly taken by them, that a
belligerent can, by mere decree, give binding international effect to the
asserted closure of a port he does not hold.” Accordingly, the
secretary, while declaring that this government “will recognize any
effective blockade,” refused to admit the right of the Colombian
government to close its ports held by the insurgents, except by an effective
blockade; and declares that its decree, “by itself, is entitled to no
international respect,” and that “vessels manned by parties
in arms against the government, when passing to and from ports held by such
insurgents, or even when attacking ports in possession of the Colombian
government, are not pirates by the law of nations, and cannot be regarded as
pirates by the United States.” The attitude assumed by our government in these conclusions is of
itself, by necessary implication, a recognition of the existing insurrection
[*445] as constituting
a state of civil war. It assumes that the Colombian government, as respects the
ports in question, is a belligerent; that the insurgents hold those ports as a
de facto power, to the exclusion, for the time being, of the Colombian
government and of its sovereign authority; that they are in arms against the
latter government; and it is declared that our government will not recognize
any attempt by the Colombian government to close these ports by virtue of its
own sovereignty as lawful or valid; nor any closure, except by means of an
effectual blockade, i.e., by acts of war. In saying that it would recognize no
rights of the Colombian government at those ports, except belligerent rights,
our government implies belligerent rights in those who hold those ports
adversely. “The claim of the belligerent right of blockade for the North,”
says “Historicus,” in the letter before referred to,
“in fact declared the belligerent rights of the South.” And
in the Prize Cases (2 Black, 670) the supreme court say a blockade “is, of
itself, conclusive evidence of a state of war.” Our government could
not say that Colombia shall exercise no rights but belligerent rights, and at
the same time deny such rights to the opposite party. No stronger assertion by
implication of the rebel de facto authority, and of a state of war, as it seems
to me, could well be made. Moreover, almost the entire argument of the secretary’s
letter imports this. In stating the rule of international law by which he is
governed, he speaks of ports held by “enemies, foreign or domestic,”
and of the rights of “belligerents,” and refers to our own
government as a “neutral power,” not bound by a closure under
such circumstances. These are words of perfectly defined meaning in the
writings of diplomatists and publicists. Of themselves they import a state of
war, and of the belligerent rights that in a state of war belong equally to
both parties. Thus understood, the language and the doctrines of the letter on
this point give precise expression to the undoubted law of nations. Though it
contains no express recognition, no recognition “in a formal
sense,” the language and the substance of the letter import a virtual
and implied recognition of the insurgents’ belligerency. The same inferences must be drawn from the precedents and
authorities cited in the communication. These are too long to be here quoted in
full. First is quoted the rule deduced by Lawrence, (note on Wheat. pt. 4, c.
3, Sec. 28; note 241, p. 846): “Nor does the law of blockade differ in
civil war from what it is in foreign war. Trade between foreigners and a port
in possession of one of the parties to the contest cannot be prevented by a
municipal interdict. * * * Whenever the dominion over the land is lost by its
passing under the control of another power, whether in foreign war or civil
war, the sovereignty over the waters capable of being controlled from the land
ceases.” The situation of New Grenada in 1861 is cited, when her
notification to this government of the closing of certain ports, and that her
war-vessels [*446] would cruise about those ports to seize vessels attempting
to violate it, was interpreted by Mr. Seward as a notice of an effective
blockade; while the opinion of the British government, considering it not a blockade,
was that the closure was invalid, because “in the event of an
insurrection or civil war in that country it is not competent for its
government to close ports that are de facto in the hands of the insurgents, as
that would be a violation of international law with regard to
blockade.” The correspondence between our minister, Mr. Adams, and
Lord John Russell, to the same effect, in reference to the closure of the
Confederate ports, and the effective blockade that our government maintained, are
also referred to; also Mr. Cobden’s speech on October 25, 1862, in
which he says: “It is only upon condition that the blockade shall be
effectively maintained as between belligerents, that European nations recognize
it (closure by a mere municipal decree) at all.” Finally, the
authority of Prof. Perels is cited, in his work on Maritime Int. Law, above
referred to, to the effect that “closure of ports in possession of
insurgents is invalid except by blockade. “ The section of that work
in which this principle is said to be laid down, is not given; and I have been
unable to find this doctrine affirmed except in connection with a state of
recognized belligerency or civil war, such as that of the late Confederate
States. In the above extracts the italics are my own. They indicate and
imply, in each instance, except possible that of Grenada, the facts of which I
have not been able to ascertain, the previous existence of a recognized state
of war, or belligerent rights on the part of the insurgents. In the extract
from Lawrence it is a case of “civil war” that he is speaking
of; i.e., a case of recognized belligerency. The correspondence with Mr. Adams,
and the speech of Mr. Cobden, were long after the recognition of the Confederate
States as belligerents, both by this country and by England. The doctrine of
pacific blockades, maintained by some authors, Lawrence says, cannot be
sustained as to neutrals. Note 241, p. 845. “Blockade,” he
says, “is an act of war;” and repeated decisions of the
supreme court affirm this explicitly. Prize Cases, 2 Black, 670; The Venice, 2 Wall. 274; Mrs.
Alexander’s Cotton, Id. 417; The William Bagaley, 5 Wall. 402; Mauran
v. Insurance Co., 6 Wall. 14; Thorington v. Smith, 8 Wall. 1. See
Bemis’ Hasty Recognition, 25, 26. Our own example, which is most
strongly dwelt upon as an instance of an effective blockade under difficult
circumstances, was during a recognized state of war, of which the blockade
itself “was conclusive proof.” Upon these considerations and on these authorities I cannot doubt
that in thus notifying the Colombian government, in effect, that the United
States would recognize no right in Colombia to close the insurgent ports by
virtue of her own sovereignty, but only through the exercise of the belligerent
right of blockade, i.e., by war, our government recognized, by necessary
implication, the existing insurrection as a state of war, and the insurgent
forces as a de facto power, [*447] having the counter-rights of a
belligerent. From this indirect and implied recognition of the belligerency of
the insurgents, the conclusion of law follows that their vessels of war cannot
be regarded as piratical. The refusal of the department of state so to treat
them followed necessarily from the implied recognition previously declared. As
a mere declaration of the exercise of a discretionary executive authority, it
would not, and does not, announce any rule of law binding upon the court; and
my decision on this point is not based on that declaration as a discretionary
act, but upon the necessary implication of a recognition of a state of war in
Colombia in the previous parts of the communication. To avoid irritations among friendly powers it may often be
expedient, in cases of domestic strife, to withhold all express announcements
of neutrality, or recognition of belligerency, until some occasion makes it
necessary; and where the insurgents studiously avoid interference with foreign
vessels on the high seas, or with their freedom of commerce, recognition may be
long delayed, and no occasion arise for foreign nations to take notice of the
strife, whether on land or sea. Third. As to costs. Where the seizure has been upon probable
cause, but the vessel found not really liable to seizure, it is usually
released without costs. Thus, in The Marianna Flora, 11 Wheat. 1, 58, a
remarkable case of mutual mistake, neither costs nor damages were given to
either side. Here the seizure was rightful, as I find; and the discharge is
granted upon causes subsequent. The necessary disbursements should therefore
fall upon the vessel and not upon the United States. The Imina, 3 C.Rob. 167; The
Principle, Edw. 70; 2 Wheat.App. 57. These disbursements should be small, as
the trial was begun on the return-day of the process. But as there is no
condemnation, there can be no commissions nor counsel fees allowed. Only the
clerk’s, marshal’s, and prize commissioner’s fees
can be taxed; and upon payment of these, the vessel should be discharged from
custody. |