Volume I Part 43 (1/2)

It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (_animus furandi_) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]

[Footnote 559: This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see below, vol. II. -- 410, No. 1.]

[Sidenote: Mutinous Crew and Pa.s.sengers as Subjects of Piracy.]

-- 274. The crew or the whole or a part of the pa.s.sengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a simple act of violence alone on the part of crew or pa.s.sengers does not const.i.tute in itself the crime of piracy, at least not as far as International Law is concerned. If, for instance, the crew were to murder the master on account of his cruelty and afterwards carry on the voyage, they would be murderers, but not pirates. They are pirates only when the revolt is directed not merely against the master, but also against the vessel, for the purpose of converting her and her goods to their own use.

[Sidenote: Object of Piracy.]

-- 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate whether he does so or kills the crew and appropriates the s.h.i.+p, or sinks her. On the other hand, it does not matter if the cargo is not the object of his act of violence. If he stops a vessel and takes a rich pa.s.senger off with the intention to keep him for the purpose of a high ransom, his act is piracy. It is likewise piracy if he stops a vessel for the purpose of killing a certain person only on board, although he may afterwards free vessel, crew, and cargo.

That a possible object of piracy is not only another vessel, but also the very s.h.i.+p on which the crew and pa.s.senger navigate, is an inference from the statements above in -- 274.

[Sidenote: Piracy, how effected.]

-- 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or pa.s.sengers who, for the purpose of converting a vessel and her goods to their own use, force the master through intimidation to steer another course, commit piracy as well as those who murder the master and steer the vessel themselves. And a s.h.i.+p which, through the threat to sink her if she should refuse, forces another s.h.i.+p to deliver up her cargo or a person on board, commits piracy as well as the s.h.i.+p which attacks another vessel, kills her crew, and thereby gets hold of her cargo or a person on board.

The act of violence need not be consummated to const.i.tute the crime of piracy. The mere attempt, such as attacking or even chasing only for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.[560]

[Footnote 560: See Stephen, ”Digest of the Criminal Law,” article 104.

In the case of the _Ambrose Light_--see above, -- 273--the Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.]

[Sidenote: Where Piracy can be committed.]

-- 277. Piracy as an ”international crime” can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State.

Some writers[561] maintain that piracy need not necessarily be committed on the Open Sea, but that it suffices that the respective acts of violence are committed by descent from the Open Sea. They maintain, therefore, that if ”a body of pirates land on an island unappropriated by a civilised Power, and rob and murder a trader who may be carrying on commerce there with the savage inhabitants, they are guilty of a crime possessing all the marks of commonplace professional piracy.” With this opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.

[Footnote 561: Hall, -- 81; Lawrence, -- 102; Westlake, I. p. 177.]

[Sidenote: Jurisdiction over Pirates, and their Punishment.]

-- 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to punish pirates. And the vessels of all nations, whether men-of-war, other public vessels, or merchantmen,[562] can on the Open Sea[563]

chase, attack, seize, and bring the pirate home for trial and punishment by the Courts of their own country. In former times it was said to be a customary rule of International Law that pirates could at once after seizure be hanged or drowned by the captor. But this cannot now be upheld, although some writers a.s.sert that it is still the law. It would seem that the captor may execute pirates on the spot only when he is not able to bring them safely into a port for trial; but Munic.i.p.al Law may, of course, interdict such execution. Concerning the punishment for piracy, the Law of Nations lays down the rule that it may be capital.

But it need not be, the Munic.i.p.al Law of the different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.[564]

[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt, -- 26; Ullmann, -- 104; Stiel, _op. cit._, p. 51) maintain, however, that men-of-war only have the power to seize the pirate.]

[Footnote 563: If a pirate is chased on the Open Sea and flees into the territorial maritime belt, the pursuers may follow, attack, and arrest the pirate there; but they must give him up to the authorities of the littoral State.]

[Footnote 564: Thus, according to the German Criminal Code, piracy committed by foreigners against foreign vessels cannot be punished by German Courts (see Perels, -- 17). From article 104 of Stephen's ”Digest of the Criminal Law,” there seems to be no doubt that, according to English Law, all pirates are liable to be punished. See Stiel, _op.

cit._, p. 15, note 4, where a survey is given of the Munic.i.p.al Law of many States concerning this point.]

That men-of-war of all nations have, with a view to insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated above (-- 266, No. 2).

[Sidenote: _Pirata non mutat dominium._]

-- 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule _pirata non mutat dominium_ became more and more recognised. Nowadays the conviction would seem to be general that s.h.i.+p and goods have to be restored to their proprietors, and may be conceded to the captor only when the real owners.h.i.+p cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called _droit de recousse_[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.

[Footnote 565: See details regarding the question as to the piratical vessels and goods in Pradier-Fodere, V. Nos. 2496-2499.]

[Footnote 566: See section 5 of the ”Act to repeal an Act of the Sixth Year of King George the Fourth, for encouraging the Capture or Destruction of Piratical s.h.i.+ps, &c.” (13 & 14 Vict. ch. 26).]

[Sidenote: Piracy according to Munic.i.p.al Law.]