The judgments recorded above emphasise the expediency both of a more extended provision for war emergencies in charterparties and for more precise language in expressing the same. Having regard also to the fact that such contracts are often signed some months before the anticipated inception of performance, it is obvious that shipowners and merchants would alike do well to see that charterparties make suitable provision for warlike contingencies which may at any time arise to interfere with the due performance of contracts.

If the goods of an enemy be seized on board a neutral vessel, the captor must ordinarily pay full freight to the neutral carrier (0).

If the ship of an enemy be seized with neutral cargo on board, the captors are entitled to carry the goods to their destination and to receive the freight thereon (p).

If contraband of war be seized on board a neutral vessel, the prohibited goods are subject to confiscation and the carrier will receive no freight (g).

(0) Vide p. 339, supra.
(p) Fide p. 343, supra.
(2) Vide p. 188, supra.

XIV.

PIRACY.

Ir is not within the objects of this work to enter into discussion under the above head; but as it has sometimes occurred that a doubt has arisen whether a certain capture should be deemed to have been effected by lawful belligerents or by pirates, a brief reference to the subject may not be out of place.

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Piracy," says Chancellor Kent, quoting the case of The United States v. Smith (a), “is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition." In the case cited, the mutinous crew of a private armed vessel, commissioned by the Buenos Ayres Government, then at war with Spain, had seized a similar vessel commissioned by the Government of Artigas, also at war with Spain. Having appointed officers to the vessel thus seized, the defendant Smith, without any commission, proceeded on a cruise in her, in the course of which a Spanish vessel was encountered and plundered. For this offence he was brought to trial in the United States, the Court finally deciding that the offence "amounted to the crime of piracy as defined by the law of nations." The point to be decided was whether the act was or was not piracy, and the notes to the case are especially valuable as a summary of the definitions of this crime, as collected from the various writers on the law of nations.

It does not in the above case appear that the prisoners had

(a) 5 Wheat. 153.

been animated, in the strict sense of the words quoted, by a spirit of universal hostility; but this seems not to be an essential condition of the offence. For Dr. Lushington, in The Magellan Pirates (b), declared that "in the administration of our criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts; and piratical acts are robbery and murder on the high seas. . . . It was never deemed necessary to inquire whether the parties so connected had intended to rob or to murder on the high seas indiscriminately." As the learned judge in this case made reference to our criminal law, it should be noted that while an act may be piratical within the provisions of a country's municipal law, this circumstance will not of itself make the act piracy under the law of nations; for neither municipal laws nor international treaties can make that an offence under the law of nations which is in fact no such offence. Thus, Sir W. Scott, in giving judgment in the case of The Le Louis (c), declared that slave trade was not piracy in legal consideration, nor was it a crime by the universal law of nations. The slave trade has, however, been, both by international treaty and by municipal law, declared illegal and piratical so far as carried on by subjects of the states thus prescribing it.

"An offence committed on the high seas is not piracy jure gentium so long as the ship on which it is committed remains subject to the authority of the state to which it belongs. A chief ingredient of piracy is throwing off this authority" (d).

"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 (e); but this right ceases to exist on the recognition of the rebels as belligerents. When rebels cannot produce a regular commission from their government, the question of

(b) Shipg. and Merc. Gaz., 27 July, 1853.

(c) 2 Dods. 210.

(d) Wheat. Int. Law, 2 Eng. ed. p. 167, ed. note.

(e) For a very recent case in connexion with the question of recognition of a de facto government, vide The Republic of Peru v. Dreyfus Bros. & Co., 4 Times L. R. 333 (an. 1888).

whether they are pirates becomes to a great extent one of intention. If their acts are not done with a piratical intent, but with an honest intention to assist in the war, they cannot be treated as pirates. But it is not because they assume the character of belligerents that they can thereby protect themselves from the consequences of acts really piratical. If their acts are at first unauthorized, but are subsequently avowed by the insurgent government, this may or may not take them out of the category of pirates. A recognition of belligerency does not imply that other acts than those of war will be recognized, and the avowal of any past proceedings is not an act of war" (f).

In Att.-Gen. for Hong-Kong v. Kwok-a-Sing (g), the following definition was accepted by the Court:-" Piracy is only a sea term for robbery, piracy being a robbery within the jurisdiction of the Admiralty." But it is not every forcible and unlawful depredation on board ship which will constitute the crime of piracy (h).

In The United States v. Pirates (i), the Court decided that a vessel at anchor in an open roadstead might well be found by a jury to be on the high seas. Also, that it was no objection that the vessel was within the jurisdictional limits of a foreign state, for those limits, though neutral to war, are not neutral to crime.

Some of the elements of piracy were present in the cases of The Cagliari, The Virginius, and The Huascar. The Cagliari (k) was a Sardinian merchant steamer which, in the Neapolitan insurrection of 1857, was taken possession of by persons who had shipped as passengers, and who then landed at a Neapolitan island, and released persons imprisoned in a fortress there. The vessel was subsequently seized by Neapolitan warships, and two of her engineers, Englishmen, were imprisoned. They were, however, in no way in complicity with the persons who had seized the ship, and the Neapolitan Government was ultimately prevailed upon to pay the sum of 3,000l. as an indemnity for

(f) Wheat. Int. Law, 2 Eng. ed. p. 169.

(g) L. R. 5 P. C. 179.

(h) Vide Nesbitt v. Lushington, 4 T. R. 783.
(i) 5 Wheat. 200.

(1) Parl. Papers, Vol. 59, 1857-8.

their imprisonment.

The circumstances in this case, though interesting, are, however, not of great value in considering the subject of piracy generally.

The case of The Virginius occurred in 1873. This vessel was originally registered in the United States, but subsequently, as it would seem, she lost or abandoned the right to carry the American flag. In October, 1873, she sailed from Kingston, Jamaicawhere certain arms and ammunition which were on board had been confiscated under the Customs laws-ostensibly for a Costa Rican port, but really for Cuba, where an insurrection was then raging. Whilst thus proceeding under the American flag, she was seized by a Spanish warship, and carried into Santiago de Cuba. Most of the passengers and crew were Cubans, and it appeared that their intention was to assist in the insurrection. The Spanish authorities, having tried the prisoners by courtmartial, shot thirty-seven of them, including sixteen British subjects, who, it appeared, had shipped under the belief that the vessel was really going to Costa Rica. Prompt action having been taken by the United States and British Governments, Spain ultimately agreed to restore The Virginius and the survivors of the crew to the United States Government, and to compensate the families of the British subjects illegally condemned and shot. The Virginius was not a pirate. She was, no doubt, on her way to assist in an insurrection, but at the time she was captured she was on the high seas, and had not as yet committed any overt acts implicating her in the revolt. Spain was entitled, perhaps, to treat her own subjects as she pleased, but the execution of foreigners found on board a foreign ship, upon the mere supposition that they were going to assist rebels, was wholly unjustifiable (7).

The third case, The Huascar, occurred in 1877 in connexion with a revolutionary outbreak in Peru. The Huascar, a Peruvian turret vessel, was seized at Callao by some of her officers and crew, acting in the interests of the insurgents. The vessel then cruised about the coast and stopped several British vessels, demanding despatches destined for the Peruvian Government, and in one case appropriating, without paying for it, a quantity of coal. The British admiral, De Horsey, on the Pacific station

(1) Wheat. Int. Law, 2 Eng. ed. p. 171, ed. note.