the offenses enumerated in the statute, it is indispensably necessary, not that the party should be a citizen, but that the vessel against which, and the vessel on board of which the offense is committed, should belong to citizens. It is insisted on the other side, that although the vessel now in question, does not belong to citizens of the United States, yet she does not belong to any particular foreign nation; and, therefore, does not fall within the letter of the authority referred to. But if by her not belonging to any particular foreign state, it be meant that she is a piratical vessel, then the case falls within the late act of 1819, providing for the punishment of piracy as defined by the law of nations, and 149*] not within the act of 1790. If it *falls within the act of 1790, then the act of 1819 is entirely superfluous. But that act was made to provide for the very defect in the former law which was for the first time discovered in the case of Palmer; and it is impossible, consistently with the authority of that case, to bring the present case within the statute, which was the only law in force, on the subject, at the time when this offense was committed. Mr. Chief Justice MARSHALL delivered the opinion of the court: The first and second points made by the counsel for the prisoner may be considered together. As judgment can be arrested only for errors apparent on the record, we should feel no difficulty in certifying our opinion of the insufficiency of these on that ground, were we not persuaded that from some inattention, the questions which arise properly on a motion for a new trial, have been stated by the clerk as a motion in arrest of judgment, and that the same points, if undecided now, will recur when judgment is about to be pronounced. In a criminal case especially, we think it proper to decide the question on its real, as well as technical merits. So far as this court can take any cognizance of that fact, Aury can have no power, either as 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. Whether a person acting with good faith under such commission, may or may not be guilty of piracy; we are all of opinion 150*] that the commission can be no justification of the fact stated in this case. The whole transaction taken together, demonstrates that the Norberg was not captured jure belli, but seized and carried into Savannah animo furandi. It was not a belligerent capture, but a robbery on the high seas. And although the fraud practiced on the Dane may not of itself constitute piracy, yet it is an ingredient in the transaction which has no tendency to mitigate the character of the offense. The third and fourth errors assigned in arrest of judgment may also be considered together. The questions they suggest arise properly on the indictment, and require a reconsideration of the opinion given by the court in Palmer's case. The question propounded to the court in that case was in these words: “Whether the crime of robbery, committed by persons who are not citizens of the United States, on the high seas, on board of any ship or vessel belonging exclusively to the subjects of any foreign state or sovereignty, or upon the person of any subject of any foreign state or sovereignty, not on board of any ship or vessel belonging to any subject or citizen of the United States, be a robbery or piracy within the true intent and meaning of the said 8th section of the act of Congress aforesaid, and of which the Circuit Court of the United States hath cognizance, to hear, try, determine, and punish the same." The same question was again propounded, so varied only as to comprehend the offense if committed *by American citizens in a [*151 vessel belonging to foreigners. The court, in concluding its exposition of the act, thus sums up its opinion: "The court is of opinion that the crime of robbery, committed by a person on the high seas, on board of any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging exclusively to subjects of a foreign state, is not a piracy within the true intent and meaning of the act for the punishment of certain crimes against the United States." The certificate of the court conforms entirely to this opinion. This opinion and certificate apply exclusively to a robbery or murder committed by a person on board of any ship or vessel belonging exclusively to subjects of a foreign state. It is, we think, the obvious import of these words, that, to bring the person committing the murder or robbery within them, the vessel on board which he is, or to which he belongs, must be at the time, in point of fact, as well as right, the property of the subjects of a foreign state, who must have at the time, in virtue of this property, the control of the vessel. She must at the time be sailing under the flag of a foreign state, whose authority is acknowledged. This is the case which was presented to the court; and this is the case which was decided. We are satisfied that it was properly decided. But the reasoning which conducted the court to this conclusion is founded on sections of the act, the general words of which ought to be restricted to offenses committed by persons who, at the time of *committing them, [*152 were within the ordinary jurisdiction of the United States; and the language employed may well be understood to indicate an opinion that the whole act must be limited in its operation to offenses committed by, or upon, the citizens of the United States. Upon the most deliberate reconsideration of that subject, the court is satisfied that general piracy, or murder, or robbery, committed in the places described in the 8th section, by persons on board of a vessel not at the time belonging to the subjects of any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government whatever, is within the true meaning of this act, and is punishable in the courts of the United States. Persons of this description are proper objects for the penal code of all nations; and we think that the general words of the act of Congress applying to all persons whatsoever, though they ought not to be so construed as to extend to persons under the acknowledged authority of a foreign state, ought to be so construed as to comprehend those who acknowledge the authority of no state. Those general terms ought not to be applied to offenses committed against the particular sovereignty of a foreign power; but we think they ought to be applied to of fenses committed against all nations, including the United States, by persons who by common consent are equally amenable to the laws of all nations. CERTIFICATE.-This cause came on to be heard on the transcript of the record from the 153*] Circuit Court *for the District of Georgia, and was argued by counsel. On consideration whereof, this court is of opinion: 1st. That Aury's commission does not exempt the prisoner from the charge of piracy. 2d. That although the fraud practiced on the Dane may not in itself support the charge of piracy, the whole transaction, as stated in the indictment and in the facts inserted in the record, does amount to piracy. 3d. That the prisoner is punishable under the provisions of the 8th section of the act of 1790. 4th. That the act of the 30th of April, 1790, does extend to all persons on board all vessels which throw off their national character by cruising piratically and committing piracy on other vessels. HIS was an indictment for piracy against prisoner. 154*] Circuit Court of Virginia, on the act of Congress of the 3d of March, 1819, c. 76. The jury found a special verdict as follows: We, of the jury, find, that the prisoner, Thomas Smith, in the month of March, 1819, and others were part of the crew of a private armed vessel, called the Creollo (commissioned by the government of Buenos Ayres, a colony then at war with Spain), and lying in the port of Margaritta; that in the month of March, 1819 the said prisoner and others of the crew muti- | nied, confined their officer, left the vessel, and in the said port of Margaritta, seized by violence a vessel called the Irresistible, a private armed vessel, lying in that port, commissioned by the gov 1. Which provides (s. 5), "That if any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall afterwards be brought into, or found in, the United States, every such offender or offenders shall, upon conviction thereof, before the Circuit Court of the United States for the district into which he or they may be brought, or in which he or they shall be found, be punished with death." ernment of Artigas, who was also at war with Spain; that the said prisoner and others, having so possessed themselves of the said vessel, the Irresistible, appointed their officers, proceeded to sea on a cruise, without any documents or commission whatever; and while on that cruise, in the month of April, 1819, on the high seas, committed the offense charged in the indictment, by the plunder and robbery of the Spanish vessel therein mentioned. If the plunder and robbery aforesaid be piracy under the act of the Congress of the United States, entitled, An act to protect the commerce_of the *United States, and punish the [*155 crime of piracy,' then we find the said prisoner guilty; if the plunder and robbery above stated be not piracy under the said act of Congress, then we find him not guilty." The Circuit Court divided on the question whether this be piracy as defined by the law of nations, so as to be punishable under the act of Congress, of the 3d of March, 1819, and thereupon the question was certified to this court for its decision. The Attorney-General, for the United States contended, that Congress, by referring to the law of nations for a definition of the crime of piracy, had duly exercised the power given them by the constitution, "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.' By this reference they adopt the definition of the offense given by the writers on public law. All these writers concur in defining it to be depredation on the seas, without the authority of a commission, or beyond its authority.? there be any defect of precision or slight uncertainty in the definitions of the crime of piracy given by different writers on the law of nations, it is no more than what is to be found in common law writers on the crime of murder. Yet we are constantly referred *by [*156 the legislature to the common law for the definition of murder and other felonies which are If mentioned in statutory provisions. But there is no defect in the definition of piracy by the authorities to which we are referred by this act. The definition given by them is certain, con humani generis, are punishable in the tribunals of all nations. All nations are engaged in a league against them for the mutual defense and safety of all. This renders it the more fit and proper that there should be a uniform rule as to the definition of the crime, which can only be drawn from the law of nations, as the only code universally known and recognized by the people of all countries. Mr. Webster, contra, argued, that the special verdict did not contain sufficient facts to enable the court to pronounce the prisoner guilty of the offense charged. The facts found do not necessarily infer his guilt, but, on the contrary, are consistent with his innocence; inasmuch as it appears that he was one of the crew of a vessel belonging to Buenos Ayres, although not 2.-Grotius de J. B. ac. P.,l. 2, c. 15, s. 5; Puffendorf, 1. 2, c. 2, s. 10; Vattel, Droit des Gens, 1. 3, c. 15, s. 226; Bynk. Q. J. Pub., 1. 1; Duponceau's Trans. p. 127; Marten's Hist. of Privateers, p. 2; Horne's Trans. Molloy, b. 1, c. 4, s. 5; 2 Bro. Civ. and Adm. Law, 461; 2 Azuni, 351; Johns. Trans., and the authorities there cited. acting at the time when the supposed offense the power of ascertaining and fixing the definiwas committed under the commission of that tion of the crime. And it has been very justly colony, but acting as a non-commissioned cap- observed, in a celebrated commentary, that the tor, and as such, seizing the property of Span- definition of piracies might have been left withish subjects on the high seas. But even sup- out inconvenience to the law of nations, posing the offense to be well found by the though a legislative definition of them is to be special verdict, it cannot be punished under this found in most municipal *codes. But [*159 act, because the law is not a constitutional the power is also given "to define and punish exercise of the power of Congress to define the felonies on the high seas, and offenses against crime of piracy. Congress is bound to define the law of nations." The term " felonies" 157*] it *in terms, and is not at liberty to leave has been supposed, in the same work, not to it to be ascertained by judicial interpretation. have a very exact and determinate meaning in To refer to the law of nations for a definition relation to offenses at the common law comof the crime, is not a definition; for the very mitted within the body of a county. Howthing to be ascertained by the definition, is the ever this may be, in relation to offenses on the law of nations on the subject. The constitu- high seas, it is necessarily somewhat indeter tion evidently presupposes that this crime, and minate, since the term is not used in the crimother offenses committed on the high seas, were inal jurisprudence of the admiralty in the technot defined with sufficient precision by the law nical sense of the common law. Offenses, too, of nations, or any other law, to form a rule of against the law of nations, cannot, with any acconduct; or it would merely have given Con-curacy, be said to be completely ascertained gress the power of punishing these offenses, and defined in any public code recognized by without also imposing upon it the duty of de- the common consent of nations. In respect, fining them. The writers on public law do not therefore, as well to felonies on the high seas define the crime of piracy with precision and as to offenses against the law of nations, there certainty. It was this very defect which ren- is a peculiar fitness in giving the power to dedered it necessary that Congress should define, fine as well as to punish; and there is not the in terms, before it proceeded to exercise the slightest reason to doubt that this consideration power of punishing the offense. Congress had very great weight in producing the phramust define it as the constitution has defined seology in question. treason, not by referring to the law of nations But supposing Congress were bound in all in one case, or to the common law in the other, the cases included in the clause under considbut by giving a distinct, intelligible explana-eration to define the offense, still there is nothtion of the nature of the offense in the act itself. Mr. Justice STORY delivered the opinion of the court: The act of Congress upon which this indictment is founded provides, that if any person or persons whatsoever, shall upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offend er or offenders shall be brought into, or found in the United States, every such offender or of fenders shall, upon conviction thereof, &c., be punished with death." 158*] *The first point made at the bar is, whether this enactment be a constitutional exer cise of the authority delegated to Congress upon the subject of piracies. The constitution declares that Congress shall have power" to define and punish piracy and felonies committed on the high seas, and offenses against the law of nations." The argument which has been urged in behalf of the prisoner is, that Congress is bound to define, in terms, the offense of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by the counsel that it equally applies to the 8th section of the act of Congress of 1790, ch. 9, which declares, that robbery and murder committed on the high seas shall be deemed piracy; and yet, notwithstanding a series of contested adjudications on this section, no doubt has hitherto been breathed of its conformity to the constitution. In our judgment, the construction contended for proceeds upon too narrow a view of the language of the constitution. The power given to Congress is not merely "to define and punish piracy;" if it were, the words "to define" would seem almost superfluous, since the pow er to punish piracies would be held to include ing which restricts it to a mere logical enumera- It is next to be considered, whether the crime of piracy is defined by the law of nations 1. The Federalist, No. 42, p. 276. 2.-See 3 Inst. 112; Hawk. P. C., ch. 37; Moore, 576. with reasonable certainty. What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage 161*jand practice of nations; or by judicial *decisions recognizing and enforcing that law. There is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature; and whatever may be the diversity of definitions, in other respects, all writers concur in holding that robbery, or forcible depredations upon the sea, animo furandi, is piracy. The same doctrine is held by all the great writers on maritime law, in terms that admit of no reasonable doubt. The common law, too, recognizes and punishes piracy as an offense, not against its own municipal code, but as an offense against the law of nations (which is part of the common law), as an offense against the universal law of society, a pirate being deemed an enemy of the human race. Indeed, until the statute of 28th of Henry VIII., ch. 15, piracy was punishable in England only in the admiralty as a civil law offense; and that statute, in changing the jurisdiction, has been universally admitted not to have changed the nature of the offense. Sir Charles Hedges, in his charge at the admiralty sessions, in the case of Rer v. Dawson (5 State Trials), declared in emphatic 162*] terms, that "piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiralty." Leoline Jenkins, too, on a like occasion, declared that "a robbery, when committed upon the sea, is what we call piracy;" and he cited the civil law writers, in proof. And it is manifest from the language of Sir William Blackstone, in his comments on piracy, that he considered the common law definition as distinguishable in no essential respect from that of the law of nations. So that, whether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offense against the law of nations, and that its true definition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offense against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offense is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined by the fifth section of the act of 1819. Another point has been made in this case, which is, that the special verdict does not contain sufficient facts upon which the court can pronounce that the *prisoner is guilty of [*163 piracy. We are of a different opinion. The special verdict finds that the prisoner is guilty of the plunder and robbery charged in the indictment; and finds certain additional facts from which it is most manifest that he and his associates were, at the time of committing the offense, freebooters upon the sea, not under the acknowledged authority, or deriving protection from the flag or commission of any govSir ernment. If, under such circumstances, the offense be not piracy, it is difficult to conceive any which would more completely fit the definition. 1.-Santerna (lib. 4, note 50), for instance, says, "Inter piratam et latronem, non sit alia differentia, nisi quia pirati depredator est in mari et potest dici fur et latro maris, quia latrocinium et furtum sicut fit in terra, sic fit in mari." And Emerigon 1 Emerig. Assur. ch. 12, s. 29, p. 523): "La piraterie est un brigandage sur mer. Le Brigandage, sur terre est appellé vol ou rapine." So Straccha "Piratae sunt latrones maritimni." 2.-Hawk. P. C. ch. 37, s. 2, 3 Inst. 112. 3.-4 Bl. Comm. 73. 4. To show that piracy is defined by the law of nations, the following citations are believed to be sufficient. Grotius (lib. 3, c. 3, s. 1,) says: "Supra dicere incepimus justum bellum apud probos auctores dici saepe, non ex causa unde oritur, neque ut alias ex rerum gestarum_magnitudine, sed ob peculiares quosdam juris effectus. Quale autem sit hoc bellum optime intelligitur ex hostium definitione apud Romanos jurisconsultos: Hostes sunt, qui nobis, aut quibus nos publice bellum decernimus; cæteri latrones aut prædones sunt, ait Pomponius (Dig. Lib. 50, tit. 16, 1. 118), nec aliter Ulpianus, (Dig. lib. 49, tit. 15, 1. 24), hostes sunt, quibus bellum publice populus Romanust decrevi, vel ipsi populo Romano; cæteri latrunculi vel prædones appellantur. Et ideo, qui à latronibus captus est servus latronum non est, nec postliminium illi, necessarium est. Ab hostibus autem captus; puta à Germanis et Parthis et servus est hostium, et postliminio statum pristinum recuperat. Et Paulus (Dig. lib. 49, tit. 15, 1. 19, s. 2). A piratis aut latronibus capti liberi permanent. Accedat illud Ulpiani; in civilibus dissentionibus quamvis sæpe per eas respublica lædatur, non tamen in exitium reipublicæ contenditur; qui in alterutras partes discedent, vice hostium non sunt eorum, inter quos jura captivitatum aut postliminiorum fuerint; et ideo captos, et It is to be certified to the Circuit Court, that upon the facts stated, the case is piracy, as defined by the law of nations, so as to be punishable under the act of Congress of the 3d of March, 1819.4 venundatos, posteaque manumissos placuit supervacuo repetere a principe ingenuitatem, quam nulla captivitate amiserant. (Dig. lib. 49, tit. 15, 1. 321, s. 2.") Grotius adds (s. 2): "Illud tantum notandum, sub exemplo populi Romani quemvis intelligi, qui in civitate summum imperium habeat." Again, he says (s. 2), “Non autem statim respublica aut civitas esse desinit, si quid admittat injustum, etiam communiter; nec coetus piratarum aut latronum civitas est, etiamsi forte æqualitatem quandam inter se servent, sine qua nullus coetus posset consistere. Nam hi criminis causa sociantur; illi etsi interdum delicto non vacant juris tamen fruendi causa sociati sunt, et exteris jus reddunt, si non per omnia secundum jus naturæ, quod multos apud populos ex-parte quasi obliteratum alibi ostendimus, certe secundum pacta cum quibus que inita, aut secundum mores." Again, he says (s. 2): "A latronibus captos capientium non fieri, supra dicentem audivimus Ulpianum. Idem captos á Germanos ait libertatem amittere. Atqui apud Germanos latrocinia, quæ extra civitatis cujusque fines fiebant, nullam habebant infamiam, quæ verba sunt Cæsaris, etc. Idam alibi Cattos nobilem Germaniæ populum latrocinia agitasse dicit. Apud eundem Garamantes latrociniis facunda gens; sed gens tamen. Illyrici sine discrimine maris proedas agere soliti; de iis tamen triumphus fuit; Pompeio de piratis non fuit. Tantum discrimen est inter populum quantumvis sceleratum et inter eos, qui, cum populus non sint, sceleris causa coiunt.' Again, he says (lib. 3, c. 9, s. 16): "Eae vexo res quæ intra presidia perductæ nondum sunt, quanquam ab hostibus occupatæ, ideo postliminii non egent, quia dominum nondum mutarunt, ex gentium jure. Et quæ piratæ aut latrones nobis eripuerunt non opus habent postliminis, ut Ulpianus et Javolenus responderunt; quia jus gentium illis 164*] *Mr. Justice LIVINGSTON dissented. | to define piracy can be attributed *to [*170 In a case affecting life, no apology can be nec- no other cause than to the uncertainty which 165*] essary for expressing *my dissent from it was known existed on this subject in the the opinion which has just been delivered. *law of nations, and which it must have [*171 166*] *The only question of any importance been the intention of the framers of the conin this case is, whether the act of the 3d of stitution to remove, by conferring on [*172 167*] March, 1819, be a *constitutional ex- the national legislature the power which has ercise of the power delegated to Congress of been mentioned. It was well known to the 168*] defining and punishing piracies. *The members of the Federal convention, [*173 act declares, that any person who shall commit that in treatises on the law of nations, or in on the high seas the crime of piracy as defined some of them at least, definitions of [*174 169*] by the law of nations, shall be punish- piracy might be found; but it must have been ed with death. The special power here given as well known to them that there *was [*175 non concessit ut jus domini mutare possint, &c. Itaque res ab illis captæ ubicunque reperiunter vindicari possunt, nisi quod ex naturali jure alibi censuimus ei qui suo sumtu possessionem rei adeptus est tantum esse reddendum, quantum dominus ipse ad rem recuperandam libenter impensurus fuerat." And (Id. s. 17), "Potest tamen lege civili aliud constitui; sicuti lege Hispanica naves a piratis captæ eorum fiunt, qui eas eripiunt piratis; neque enim iniquum est, ut privata res public utilitati cedat, presertim in tanta recuperandi difficultate. Sed lex talis non obstabit exteris, quo minus res suas vindicent." Again, he says (lib. 2, c. 17, s. 20): "Ex neglectu tenuntur reges ac magistratus, qui ad inhibenda latrocinia et piraticam non adhibent ea quae possunt ac debent remedia; quo nomine damnati olim ab Amphictionibus Scyrif. Quae potestatem predarum in maris ex hoste agendarum per codicillos plurimis dedissent, et eorum nonnulli res amicorum rapuissent, desertaque patriae mari vagarentur ac ne revocati quidem redirent an rectores eo nomine tenerentur, aut quod malorum hominum usiessent opera, aut quod cautionem non exigissent. Dixi eos in nihil amplius teneri, quam ut noxios, si reperiri possent, punirent, aut dederent; praetere a in bona raptoruin jus reddi curarent." Again, he says (Id. c. 18, s. 2, 3,: "Piratae et latrones qui civitatem non faciunt, jure gentium niti non possunt, &c. Sed interdum tales qui sunt jus legationis nanciscuntur fide data, ut olim fugitivi in saltu Pyrenaeo.' Again, (lib. 3, c. 13, s. 15): "Repudiandus ergo Cicero (De Offic. lib. 3, cap. 29), cum ait perjurium nullum esse predonibus pactum pro capite pretium non adservatur, nec si juratum quidem sit; quia pirata non sit ex perduellium numero desinitus, sed communis hostis omnium, eum quo nec fides esse debeat, nec jus jurandum commune, &c. Atque sicut in jure gentium constituto differe hostem a pirata verum est, et a nobis infra ostendetur; ita hic ea differentia locum habere non potest, ubi, etsi personae jus deficiat cum Deo negotium est; qua de causa juramentum voti nomine noncupatur. Neque id quod sumit Cicero verum est, nullum esse cum praedone juris societatem. Nam depositum ex ipso gentium jure reddendum latroni, si dominus non apparet recte Tryphonino responsum est." These passages abundantly show the opinion of Grotius, that piracy by the law of nations is the same thing as piracy by the civil law; and though he nowhere defines the crime, in precise terms, yet there seems to be no doubt as to what he understood to be comprehended in that crime. Piratae, latrones, prædones, are used to denote the same class of offenders: the first term being generally applied to robbers or plunderers on the sea, and the others to robbers or plunderers on land. ali, p. 2, s. 8, qu. 15, aliorumque plurium in eandem sententiam. Qui autem nullius principis auctoritate sive mari sive terra, rapiunt, firatarum praedonumque vocabulo intelliguntur." Azuní (Part 2, c. 5, s. 3) says: "A pirate is one who roves the sea in an armed vessel without any commission or passport from any prince or sovereign state, solely 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 have always been compared to robbers. The only difference between them is, that the sea is the theatre of action for the one, and the land for the other." Sec. 11. "Thus, as pirates are the enemies of the human race, piracy is justly regarded as a crime against the universal laws of society, and is everywhere punished with death. As they form no national body, as they have no right to arm, nor make war, and on account of their indiscriminate plunder of all vessels are considered only as public robbers, every nation has a right to pursue, and exterminate them, without any declaration of war. For these reasons it is lawful to arrest them, in order that they may undergo the punishment merited by their crimes.' Sec. 12. "Pirates having no right to make conquests, cannot, therefore, acquire any lawful property in what they take; for the law of nations does not authorize them to deprive the true owner of his property, who always retains the right of reclaiming it wherever it may be found. Thus, by the principles of common law, as well as the law of nature, at whatever period, or in whatever manner, things taken by a pirate may be recovered, they return again to their former owners, who lose none of their rights by such unjust usurpation." See Azumi, part. 2, c. 5, art. 3, p. 351, 361, Mr. Johnson's translation. Lord Bacon, in his dialogue De Bello Sacro, says: "Indubitatum semper fuit, bellum contra piratas juste geri posse per nationem quancumque, licet ab iis minime infestatum et læsam, &c., &c. Vera enim causa hujus rei haec est, quod piratæ communes humani generis hostes sint; quos idcirco omnibus nationibus persequi incumbit, non tam propter metus proprios quam respectu fœderis inter homines sociales. Sicut eniin quaedam sunt fœdera inscriptis et in tractatus reducta contra hostes particulares inita; ita naturalis et tacita confœderatio inter omnes homines intercedit contra communes societatis humanæ hostes." (10 Bac. Works, 313, 314, edit. 1803.) Martens, in his Essay on Privateers, Captures and Recaptures (c. 1, s. 1,) says: "L'arinateur differe du Pirate (1), Le premier est muni d'une commission ou de lettres de marque du souverain, dont le pirate est destitué. (2.) L'armateur suppose le cas d'une guerre (ou du moins celui de represailles), le pirate pille au sein de la paix comme au milieu de la guerre. (3.) L'armateur s'oblige d'observer les ordonnances et les instructions qui lui ont été données, et de n'attaquer qu'en consequence de celles ci de l'ennemi, et ceux des vaisseux neutres qui font un commerce illicite, le pirate pille indistinctement les vaisseaux de toutes les nations, sans observer même les loix de la guerre." The terms are, indeed, convertible in many instances in the civil law. Thus, in the title, De Lege Rhodia de Jactu (Dig. lib. 14, tit. 2, s. 3), it is said, "Si navis a piratis redempta sit, Servius, Osilius, Labeo, omnes conferre debere aiunt. Quod vero praedones abstulerint, cum perdere cujus fuerit, nec conferendum ei qui suas merces redimerit." Rutherforth (Inst. b. 2, c. 9, s. 9, p. 481), speaking Bynkershoek (Quæst. Jur. Pub. lib. c. 17), treat- with reference to the law of nations, says: "All ing on the subject of piracy, says, interest scire wars of a nation against its external enemies are qui piratae ac latrones sunt, nam ab his capta do- not public wars. To make a war a public one, both minium non mutant neque adeo postliminio egent. the contending parties must be public persons; Sic docet ratio; sie auctoritas juris in 1. 19, s. 2, 1. that is, it must be a war of one nation against an24 and 1. 27, de Capt. et Postlim, rev. (Dig. lib. 49, other, &c. Where a nation makes war upon pirates tit. 15), et sic ex pactis quarandain gentium supra or other robbers, though these are external eneprobavi. Non est igitur ut addam auctoritates mies, the war will be a mixed one; it is public on Grotii de Jure B. et. P. 1. 3, c. 9, s. 16. Alberici Gen-one side, because a nation or public person is one tilis de jure belli lib. 1, c. 4. Zoucheii de Jure feci- [ of the parties; but it is private on the other side, |