Glazier on Why the Definition of Piracy Matters

by Kevin Jon Heller

Dave has kindly sent another post on piracy.  Here it is.

Kevin graciously offered me the chance to respond to his contrasting reading of the logic of Judge Jackson’s decision dismissing the piracy charge. But since we both reach the same ultimate conclusion—that the correct legal definition of piracy should be that contained in the 1958 High Seas Treaty/1982 UN Convention on the Law of the Sea—I’m happy to let those readers with sufficient interest read the court’s opinion and decide which (if either) of us they agree with. It is a close call and Kevin may well have a better read on it. (I also share his concerns about the invalidity of Khadr’s charges, by the way).

What I think would be a more helpful contribution to this dialog would be to articulate why I think the definition of piracy matters on a larger scale. It probably doesn’t matter much in this case; Said and his comrades still face seven other federal charges and could very well end up with prison sentences tantamount to life terms even without the piracy charge. The real problem with this decision is its potential to weaken overall anti-piracy efforts off Somalia.

Let me first state that I don’t think I’m overly naïve. I have spent some time studying the history of piracy and the results of that inquiry are quite clear. Pirates have always been dependent on shore bases where they can recruit crews, outfit their vessels, and return to enjoy the fruits of their activity, either with the tacit approval of local government or in areas without functional authority. Although naval efforts afloat have been important, ultimately the eradication of pirates, whether based in past hotbeds in England, colonial America, the Caribbean, or South East Asia, was dependent upon the establishment of effective governmental authority ashore. So history tells us that the only permanent solution to Somali piracy will be the reestablishment of an effective Somali state.

In the interim, international naval and judicial efforts can at least endeavor to damp down the volume and provide some measure of deterrence. Naval operations face a daunting challenge. Pirates generally have not been definitively identified until they commence an attack, giving naval forces a very small window of opportunity to react. Once an attack is successful, the risk of harm to the now captive crew and damage to the vessel generally leads to the conclusion that non-forcible means (i.e., paying ransom) are the only prudent solution, and the prospects of interdicting successful pirates heading ashore after receiving their ransom are fairly remote. As a result, most captured Somali pirates are similarly situated to those at issue here—they have launched an ultimately unsuccessful attack. The treaty definition of piracy, which is not limited to robbery but includes “any illegal act of violence . . . committed for private ends” on the high seas by the crew of one vessel against another as well as “any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship” are logically sufficient to allow the invocation of universal piracy jurisdiction over participants in failed attacks. It also offers the potential, not yet actively employed, that armed individuals on small unregistered vessels lacking fishing gear and proximate to shipping lanes could be presumptively treated as pirates based on the language about operating a pirate ship. Eugene Kontorovich tells me that a similar presumption was a key element of 19th century anti-slavery efforts, allowing the interdiction and seizure of vessels headed to Africa that were outfitted to carry slaves but had not yet taken onboard a human cargo.

Judge Jackson’s interpretation, requiring an actual robbery, eliminates not only the potential for preemption before an attack is launched but also piracy prosecutions for failed attacks. If this stands as the final U.S. legal interpretation, it becomes much more likely that regional countries like Kenya and the Seychelles will decline to accept pirates turned over by third countries, including particularly the United States, for prosecution. Any defense attorney worth his salt will insist that the U.S. position proves that international law still requires an actual robbery, current treaty language not withstanding.

I’m not suggesting that the U.S. should adopt a legal interpretation based on expediency, but rather that what I believe to be a truly erroneous decision, both as a matter of international and U.S. law, has potential consequences well beyond the scope of the cases at issue. If the government doesn’t get its act together and provide more coherent arguments on appeal, the U.S. Navy could find itself joining those other forces off Somalia treating pirates like trout; i.e., joining the “catch and release” program.

(While some acts beyond the definition of piracy can potentially be prosecuted under quasi-universal jurisdiction based on the Suppression of Unlawful Activity (SUA) Convention, the specific definitions found in that treaty would still exclude many attempted attacks – including ones on warships which are at issue in the two sets of Norfolk cases. While SUA is a deliberate effort to overcome problems in the international definition of piracy, it is primarily the “high seas,” “two vessel,” and “private ends” requirements that it addresses, responding to issues raised by cases like the Achille Lauro hijacking and not the Ashland incident.)

http://opiniojuris.org/2010/08/19/glazier-on-why-the-definition-of-piracy-matters/

10 Responses

  1. I agree something has to be done.  A student of mine wrote a law review note on the state of US piracy law and all the debates.  He compared our law with Kenya and Australia (i.e. other former English colonies) as well as England and France.  I remember being amazed that no one had done something about modernizing this area of US law since the 1819 law.  190 years!
    Best,
    Ben

  2. In Article I Section 8, the Constitution grants Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”. This is a grant of two powers. First, Congress can define and punish Piracies, presumably under domestic law. Then, it can pass laws to punish Offenses against the Laws of Nations.

    Sometimes US domestic law disagrees with international law. Sometimes you have to choose one or the other. However, here Congress is given the power to both create a US specific definition of “Piracy” and to create punishments for violations of the laws of nations including laws that offer a different definition of a different crime that they also happen to call “Piracy”. There is no requirement, logically or under the constitution, for the US use of the word to be the same as its use in international law, nor does the use of the same word for two different crimes with two different definitions prevent the prosecution of both laws (provided that the charge clearly establishes which is being used).

    Now 18 USC 1651 clearly exercises the power of Congress to “define and punish … Offenses against the Law of Nations”. Specifically, it says “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” It establishes a punishment for someone who violates a particular Offense against the Laws of Nations. There is a qualification. It restricts this punishment to the subset of all such violations that occur “on the high seas” (in case the Laws of Nations also defines forms of piracy that occur elsewhere, say in airplanes).

    Apparently Congress did not use its additional power to define Piracies separately under US domestic law. While it is clear that when Congress passes a US domestic criminal law it must define the elements of the crime itself, this one item in Article I grants Congress the power to pass a law specifying a punishment for an Offense against the Laws of Nations which presumably is defined (and modified over time) by the agreement of other countries. Even if this is entirely different from the way the other 99.9999% of the criminal cases that go before this judge are handled, that is what the Constitution says and the judge should accommodate his analysis in this case to the instructions that the Constitution provides in this special type of charge.

  3. Oops, apparently Congress did use its additional powers to define Piracy in domestic law, in 18 USC 1652 (for US citizens) and 18 USC 1653 (for aliens). Since they immediately follow 1651, this underscores my claim that there are two sets of laws concerning Piracy, 1651 addressing the term as defined in the laws of nations, and 1652/3 concerning Piracy defined as a domestic crime, while 1659 defines an additional crime “attack to plunder vessel” that is a lesser included charge.

    However, if the current case is a dead end, you can at least recharge under 1659 (which explicitly mentions intent):
    “Whoever, upon the high seas …, by surprise or open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined under this title or imprisoned not more than ten years, or both.”

  4. These are very interesting posts and comments.

    One aspect of the treaty definition discussed in this post and others raises a question for me: In figuring out the meaning of “any illegal acts of violence,” what law must/should a U.S. federal court look to in determining whether any particular act of violence is “illegal”?  I ask because I am trying to figure out how a court should operationalize the suggestion to use the treaty definition for determining the meaning of piracy as criminalized in section 1651.

    If the answer is “illegal” as defined by U.S. law, then plugging 1659 into 1651 via the 1958 treaty would cause a violation of 1659 to also be a violation of 1651.

    If the answer is “illegal” as defined by any signatory country’s law, then piracy in 1651 reaches as broadly as any signatory country’s criminal code defining an illegal act of violence (so long as the other elements of the treaty definition, such as “private ends” and so on, are satisfied).

    If the answer is”illegal” as defined by the law of nations, then importing the treaty definition into 1651 doesn’t bring any additional clarity to the enterprise of figuring out the meaning of piracy in 1651.

  5. Can’t believe this decision, when the Netherlands just convicted 5 Somali pirates for piracy under a criminal provision that dates back to 1881. This provision includes an autonomous definition, but still…. I thought the ‘law of nations’ was making US law flexible in this regards. Yet, I am not a US law expert, only cognisant of the seemingly inherent hostility towards international law.
    Could anyone point me towards a link to the case?

  6. I can’t believe we’re using laws here that are 200 years old or more!  I guess human nature really hasn’t changed much.

  7. Further to the comment I posted (into moderation) in an earlier thread, quoting portions of the 1825 anti-piracy legislation debate in Congress:

    Although I could find no preserved record in the Annals of Congress of the Congressional debates about the passage of the 1819 anti-piracy legislation,  the full version of the legislation that the House and Senate passed that year is available on Pages 2523-2524 of the Appendix to the 15th Congress, 2nd Session.

    The 1819 bill read in full, as passed by Congress:

    “An Act to protect the commerce of the United States, and punish the crime of piracy.

    Be it enacted, &c., That the President of the United States be, and he hereby is, authorized and requested to employ so many of the public armed vessels, as, in his judgment, the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States and their crews from piratical aggressions and depredations.

    SEC. 2. And be it further enacted, That the President of the United States be, and hereby is, authorized to instruct the commanders of the public armed vessels of the United States to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel; and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas.

    SEC. 3. And be it further enacted, That the commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel owned as aforesaid, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States; and may subdue and capture the same; and may also retake any vessel, owned as aforesaid, which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

    SEC. 4. And be it further enacted, That whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any court having admiralty jurisdiction, and which shall be holden for the district in which such captured vessel shall be brought; and the same court shall thereupon order a sale and distribution thereof accordingly, and at their discretion.

    SEC. 5. And be it further enacted, 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.

    SEC. 6. And be it further enacted, That this act shall be in force until the end of the next session of Congress.

    Approved, March 3, 1819.

    [http://memory.loc.gov/ll/llac/034/0600/06562523.tif]

    Because of Section 6, the Congress took up the measure again in the First Session of the 16th Congress, and passed the following legislation (as first reported, with amendments, from the Senate Judiciary Committee):

    “An Act to continue in force ‘An act to protect the commerce of the United States, and punish the crime of piracy,’ and also to make further provision for punishing the crime of piracy.

    Be it enacted, &c, That the first, second, third, and fourth sections of an act, entitled “An act to protect the commerce of the United States, and punish the crime of piracy,” passed on the third day of March, one thousand eight hundred and nineteen, be and the same are hereby continued in force, from the passing of this act, for the term of two years, and from thence to the end of the next session of Congress, and no longer.

    SEC. 2. And be it further enacted, That the fifth section of the said act be and the same is hereby continued in force, as to all crimes made punishable by the same, and heretofore committed, in all respects, as fully as if the duration of the said section had been without limitation.

    SEC. 3. And be it further enacted, That if any person shall, upon the high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river, where the sea ebbs and flows, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship’s company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate; and being thereof convicted before the Circuit Court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death.  And if any person engaged in any piratical cruise or enterprise, or being of the crew or ship’s company of any piratical ship or vessel, shall land from such ship or vessel, and on shore shall commit robbery, such person shall be adjudged a pirate, and, on conviction thereof before the Circuit Court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death: Provided, That nothing in this section contained shall be construed to deprive any particular State of its jurisdiction over such offenses, when committed within the body of a county, or authorize the courts of the United States to try any such offenders, after conviction or acquittance, for the same offence in a State court.

    SEC. 4. And be it further enacted, That if any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel owned in whole or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall land, from any such ship or vessel, and on any foreign shore seize any negro or mulatto, not held to service or labor by the laws of either of the States or  Territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall receive, such negro or mulatto on board any such ship or vessel, with intent, as aforesaid, such citizen or person shall be adjudged a pirate, and on conviction thereof before the Circuit Court of the United States for the district wherein he may be brought or found, shall suffer death.

    SEC. 5. And be it further enacted, That if any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel, owned wholly or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall forcibly confine, or detain, or aid and abet in forcibly confining, or detaining, on board such ship or vessel, any negro, or mulatto, not held to service by the laws of either of the  States or Territories of the United States, with intent to make such negro or mulatto a slave, or shall, on board any such ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto, not held to service as aforesaid, or shall, on the high seas, or anywhere on tide water, transfer, or deliver over, to any other ship or vessel, any negro or mulatto, not held to service as aforesaid, with intent to make such negro or mulatto a slave, or shall land, or deliver on shore, from on board any such ship or vessel, any such negro or mulatto, with intent to make sale of, or having previously sold, such negro or mulatto, as a slave, such citizen, or person, shall be adjudged a pirate, and, on conviction thereof before the Circuit Court of the United States for the district wherein he shall be brought, or found, shall suffer death.

    Approved, May 15, 1820.”

    [http://memory.loc.gov/ll/llac/036/0600/06742623.tif]

    In the House, in May of 1820, the report of the select Committee on the Slave Trade regarding this bill DID survive in the record, starting on Page 2207 of the Annals of Congress for that session, part of which report stated:

    “In many of the foreign treaties, as well as in the laws of the United States, examples are to be found, of piracies, which are not cognizable, as such, by the tribunals of all nations.  Such is the unavoidable consequence of any exercise of the authority of Congress, to define and punish this crime.  The definition and the punishment can bind the United States alone.”

    That House Committee then proposed as amendments to the original Senate Bill Sections 4 and 5.

    [http://memory.loc.gov/ll/llac/036/0400/04662207.tif]

    Subsequently, on Thursday, May 11, 1820:

    “The House then resolved itself into a Committee of the Whole on the bill from the Senate for the further prevention of the crime of piracy.

    The Committee were occupied some time in discussing the details of this bill and the amendments reported by the select committee [on the slave trade] of this House.

    The amendments of the select committee were finally all agreed to in Committee of the  Whole, concurred in by the House, and, with the bill, ordered to be read a third time.”

    The next day the House passed the bill, as amended.  [Its final form is as approved May 15, 1820 - see above.]

    The Congress revisited the issue again, in the 2nd Session of the 17th Congress, when it voted to provide funds for more Navy vessels to combat piracy in the Gulf of Mexico and the West India seas.  A bit of Senate debate is preserved there, which foreshadows the later 1825 debate (excerpted in my earlier comment) about combating piracy.  The 1822 House debate is preserved, and is excerpted below. That 1822/1823 debate and funding legislation was preceded by this message to Congress from President Monroe, on December 10, 1822:

    To the Senate of the United States:

    Recent information of the multiplied outrages and depredations which have been committed on our seamen and commerce, by the pirates, in the West Indies and Gulf of Mexico, exemplified by the death of a very meritorious officer, seems to call for some prompt and decisive measures on the part of the Government.  All the public vessels adapted to that service, which can be spared from other indispensable duties, are already employed in it; but, from the knowledge which has been acquired of the places from whence these outlaws issue, and to which they escape from danger, it appears that it will require a particular kind of force, capable of pursuing them into the shallow waters to which they retire, effectually to suppress them.  I submit to the consideration of the Senate the propriety of organizing such force for that important object.

    JAMES MONROE.

    Washington, December 9, 1822.”

    In his formal Message to Congress at the opening of the Second Session of the 18th Congress in December, 1824 (preserved in the Appendix for that session), President Monroe included (as part of a discussion of a proposed slave trade-suppressing treaty with Great Britain) excerpts from an earlier, April 12, 1822 Report by the select House Committee on the Suppression of the Slave Trade, which itself referenced and incorporated an earlier Committee report, and stated, in part:

    “Your committee are confident, however, that these [Executive] objections apply rather to a particular proposition for the exchange of the right of search, than to that modification of it which presents itself to your committee.  They contemplate the trial and condemnation of such American citizens as may be found engaged in this forbidden [slave] trade, not by mixed tribunals, sitting in a foreign country, but by existing courts, of competent jurisdiction, in the United States; they propose the same disposition of the captured Africans, now authorized by law, and, least of all, their detention in America.

    They contemplate an exchange of this right, which shall be, in all respects, reciprocal – an exchange which, deriving its sole authority from treaty, would exclude the pretension, which no nation, however, has presumed to set up, that this right can be derived from the law of nations; and, further, they have limited it in their conception of its application, not only to certain latitudes, and to a certain distance from the coast of Africa, but to a small number of vessels to be employed by each power, and to be previously designated.  The visit and search, thus restricted, it is believed, would ensure the co-operation of one great maritime power in the proposed exchange, and guard it from the danger of abuse.

    Your committee cannot doubt that the people of America have the intelligence to distinguish between the right of searching a neutral on the high seas, in time of war, claimed by some belligerents, and that mutual, restricted, and peaceful concession, by treaty, suggested by your committee, and which is demanded in the name of suffering humanity.”

    [http://memory.loc.gov/ll/llrd/001/0300/03970021.tif]

    The Appendix to the Second Session of the 18th Congress has preserved some Congressional Committee reports in full, with regard to the subject of Piracy.

    The January 11, 1825 report of the standing House Committee on Naval Affairs, is one [http://memory.loc.gov/ll/llrd/001/0400/04240048.tif].

    The brief January 10, 1825 report of the standing Senate Committee on Foreign Relations is another [http://memory.loc.gov/ll/llrd/001/0400/04270051.tif].

    And the January 31, 1825 report of the standing House Committee of Foreign Relations, “on Piracy and Outrages on American Commerce by Spanish Privateers” is a third [http://memory.loc.gov/ll/llrd/001/0400/04250049.tif or try http://memory.loc.gov/cgi-bin/ampage?collId=llrd&fileName=001/llrd001.db&recNum=425. That committee report states in part:

    “The act of the third of March, 1819, was passed specifically to protect the commerce of the United States, and punish the crime of piracy.  It gave to the President power (a power, however, which the President possesses without an act of Congress) to employ the public armed vessels of the United States to protect our merchant vessels and their crews from piratical aggression and depredation, to authorize the detention, capture, and trial, of any armed vessels which attempted any piratical depredation, search, seizure, or restraint, of an American vessel.  It authorized our merchant vessels to capture armed ships not commissioned by a friendly power, and to recapture vessels taken by them; it directed the condemnation of the vessels so captured or recaptured; and it provided for the punishment of the pirates, when convicted by the competent tribunals.  This act was limited to one year, but was continued in force by the act of May 15, 1820, for two years, and the first four sections made perpetual by the act of the 30th January, 1823.”

    The preserved House action leading up to that 1/30/1823 act is as follows:

    “On motion of Mr. GORHAM, of Massachusetts, the House then resolved itself into a Committee of the Whole, on the bill in addition to an act to continue in force the act to protect the commerce of the United States against pirates, and to punish the crime of piracy.

    Mr. GORHAM said, the object of the bill was to make perpetual certain provisions of our laws which are now only temporary.  The first act on this subject was passed on the 3d of March, 1819.  [Describes the first four sections.]  This act was temporary; -skip- viz: to the end of the present session of Congress.  The object of the bill was to make these clauses perpetual.

    No objection being made to the bill, the Committee rose and reported it, and it was ordered to be engrossed, and read a third time to-morrow.”

    [http://memory.loc.gov/ll/llac/040/0200/02220447.tif]

    The House passed the bill – making perpetual the 1819 anti-piracy legislation’s first four sections – and sent it to the Senate the next day, Tuesday, December 24, 1822.  The Senate later proceeded to pass it, with no recorded debate preserved.  Its final version is available in the Appendix to the Annals of Congress for the 2nd Session of the 17th Congress [http://memory.loc.gov/ll/llac/040/0600/06671339.tif].

    Turning to the December, 1822 House debate leading to an act authorizing the purchase of more Navy vessels to combat piracy, in the same Second Session of the 17th Congress, Representative William Eustis of Massachusetts questioned a portion of the wording of the bill, and its possible underlying premise [Page 375 of the House debate recorded in the Annals of Congress; http://memory.loc.gov/ammem/amlaw/lwaclink.html:

    “Mr. EUSTIS said, he did not understand that, according to the law of nation, any one Power has a right to make war on the territory of a neutral, for any purpose whatever.  Every nation has a right to pursue pirates on the high seas, but Mr. E. very much doubted whether the officers of one nation had a right to enter the jurisdictional limits of another country for any purpose whatever.  We have a right to execute our own laws, but not to undertake to make or execute law for another country.  The  power to pursue pirates into the territories of another nation was a very broad one: it was in fact a power to make war.  If the bill were to pass in this shape, not only would the Executive and its officers feel disposed to fulfil the wishes of the Legislature, but they would be bound to do it.  He did not wish to be considered as making unnecessary objections; but it appeared to him that Congress could not, consistently with the laws of nations, confer the power which this bill appeared to him to give.”

    Representative Alexander Smyth of Virginia then proposed an amendment, as a third section of the bill, which made explicit what Eustis suspected was implicit in the original language:

    “And be it further enacted, That the President be and he is hereby authorized and required, to pursue the pirates by land, on any of the West India islands to which they may resort, as well as on the ocean, until they are exterminated.”

    Representative Louis McLane of Delaware spoke up in response:

    “We have not the right, said Mr. McL., on any principle of the laws of nations with which I am acquainted, to adopt such a provision.  Nor is it necessary for the objects in view that we should adopt any such provision.  In framing our laws, we ought to have regard to the laws of nations, by which we ourselves profess to be governed in our conduct towards other nations, and by which we insist that other nations shall be governed in their conduct towards us.  We have no right to pursue even a pirate into the territory of a neutral or friendly Power, until that Power has refused to interpose, or is incompetent by reason of its own imbecility to prevent and punish the crime.”

    [http://memory.loc.gov/ll/llac/040/0100/01870377.tif]

    Representative Daniel Cook of Illinois
    suggested amending Smyth’s amendment, to which Smyth suggested a modification, which Cook, and thus Smyth accepted, to add, after “islands,” the words: “permission being first requested from the Government to which such island may belong.”

    To which Representative Philip P. Barbour of Virginia responded:

    “Mr. BARBOUR (the Speaker) was equally opposed to the amendment as now modified and as originally proposed.  If, he said, the House were now legislating on a subject on which it had complete power unconnected with national law, they might give to it what direction they pleased.  But the power of any nation in relation to pirates depends on the doctrines of the law of nations.  We cannot, therefore, said Mr. B. by legislating here, impart any power to the Executive in regard to this subject beyond what is authorized by the law of nations.  He put this question to the House: The President is Commander-in-Chief of the Army and Navy of the United States; in the execution of any duty in which he is to call the Army and Navy into action, he is to act according to his legitimate power.  If the subject be one on which the legislation of Congress is binding, he will follow the law.  If the subject be one upon which the law of nations prescribes the rule of conduct, he will follow that.  Without this House, then, deciding the question of the law of nations, it is sufficient for us that the Executive has the question to decide, and that it is one on which this House ought not to attempt a decision.  With regard to the idea of pirates being the enemies of the human race, there could no doubt of it, and on the great highway of nations we have a right to take them and deal with them as we please.  But it was another question how far we have a right to pursue them on the territory of another and a friendly Power.  As to the idea of all nations being allies on such an occasion, the gentleman should recollect that there are no allies until the parties have determined to make war together.  -skip- Without having referred to the books on this subject, Mr. B. expressed his opinion to be, that we have not a right to enter into the territory of any neutral Power to suppress piracy, at least until it is ascertained that such nation has consented to our doing so.  Whatever rule we apply, it ought to be recollected, may of right be reciprocated upon us; and he asked the gentleman whether he would allow any foreign Power to land troops on our shores, or march through our country, on the plea of seeking for pirates?  Mr. B. concluded by expressing generally his decided objection to the amendment.”

    [http://memory.loc.gov/ll/llac/040/0100/01880379.tif]

    Representative John Floyd of Virginia
    then spoke:

    “Was there any nation so abject, he said, that it would not go to war with the United States rather than submit to the practical operation of a principle like that embraced in the amendment?  The law of nations, he knew, provided for the punishment of bad neighbors, and provided even in some cases for the expulsion of them from their territory and the occupation of it by another Power.  The shortest way for gentlemen, then, would be to go to the root of the evil, and take possession of Cuba!  But, Mr. F. said, we have set out wrong, in regard to the suppression of piracy.  The Constitution of the United States says Congress shall have power to define and punish piracy.  Congress have never yet defined it, though they have undertaken to punish it.

    And soon Representative Cadwallader David Colden of New York expanded on that last point:

    “Whence was derived the power which is now exercised by the Executive in regard to piracy?  There has been no law passed by Congress defining piracy: it is under the law of nations that we pursue and capture pirates. -skip-  Mr. C. then directed his attention to the amendment which was now before the House.  It proposed to extend the power of the Executive beyond the law of nations, and would be so far nugatory.  Was it possible such a right could exist as was there assumed?  Our own feelings tell us, said he, that this right can be no part of the law of nations.  That law is founded on the common feeling and common consent of all mankind; and it would be at once acknowledged, on reflection, that there could be no common feeling or common consent in favor of such a provision. -skip- The simple object of this bill was, to put into the hands of the Executive the means of executing the laws of nations with regard to pirates, and he hoped it would pass without amendment.”

    [http://memory.loc.gov/ll/llac/040/0100/01890381.tif]

    Smyth then withdrew his amendment, and the bill was passed without it, on Friday, December 13, 1822, and sent to the  Senate (which was working on its own similar measure, but set it aside to pass the House bill on Monday, December 16, 1822, thereby quickly providing $160,000 for more Navy vessels to combat piracy).

    The final version of that funding bill, as signed by President Monroe on 12/20/1822, is available in the Appendix of the Annals of Congress for the 17th Congress, 2nd Session  [http://memory.loc.gov/ll/llac/040/0600/06660000.tif].

  8. Don’t have a handy link to the entire piracy case at issue here, Kenneth Manusama, but I do have some more-or-less verbatim evidence of a principled absence of “hostility towards international law” in the majority membership of the American Congresses of 1822 and 1825 – post-passage of the 1819 anti-piracy measure, which subsequent Congresses re-enacted. [Despite crisis levels of ongoing, savage attacks on American ships and their crews by pirates at that time.]

    At the moment, though, that evidence (in two long comments in different threads here) along with links to the Congressional piracy debates that have been preserved,  are in moderation limbo.

    As for Joe’s wonder at the unchanging state of human nature?  Human nature is precisely why we need and why our government ought to honor both domestic law and “universal” understandings of common/armed conflict/international law and norms.

  9. Anon – thanks for making the substantial effort to collect and post all this congressional material.  It certainly adds a great deal of context to this discussion, and we’re all in your debt for doing so!

  10. My pleasure, Dave.  I hope you and others can make good use of it, and perhaps dig deeper to find more.

    It’s a real loss to the nation that care wasn’t taken to record and preserve House and Senate debates (as opposed to the formal results of those debates) in any systematic way until the late 1800s.  For whatever reason, the actual, contested debates of our federal “self-government” seem to be chronically undervalued and unappreciated – to such an extent that, nowadays, such debate has become almost extinct in our House (especially) and Senate.

    Reading the words of earnest debaters, even those spoken almost 200 years ago, makes history come alive, and reveals the similarities between the ages.  I found the somewhat-reluctant 12/1822 comments of Rep. Eustis – obviously prompted by conscience, though he felt his colleagues would not welcome them – and the subsequent House debate sparked by his inquiry, quite inspiring.   We discount and overlook the value of such easily-avoided efforts and statements by individual legislators, now as much as then, to our national detriment.

    I think the following words of Speaker P.P. Barbour (brother of Senator James Barbour, and later briefly a Supreme Court Justice) in 1822 highlight where this subject now seems to most need further refinement and research:  On the working definition of “universal” understanding and interpretation [also known as "the common feeling and common consent of all mankind"] of the law of nations regarding piracy.  As part of the effort to establish whether widespread, modern, Senate-ratified treaty law on piracy and related matters faithfully reproduces customary international law and can legitimately be considered part of the evolving law of nations, or whether something more is needed to qualify for that exalted status:

    “If, [P.P. Barbour] said, the House were now legislating on a subject on which it had complete power unconnected with [inter]national law, they might give to it what direction they pleased.  But the power of any nation in relation to pirates depends on the doctrines of the law of nations.  We cannot, therefore, said Mr. B., by legislating here, impart any power to the Executive in regard to this subject beyond what is authorized by the law of nations.” [Authorized, that is, by current standards (which today may differ from 1819-20's law of nations), as I read this debate and Judge Jackson's opinion.]

    Keeping in mind throughout, of course, controlling Supreme Court precedent and the defined limits of Constitutional action, as well-described by Professor Kontorovich:

    “So in establishing the contours of piracy in the law of nations, it is entirely appropriate that [the judiciary] be tough-minded about vetting purported international law norms. This is what the Supreme Court in Sosa tells the courts to do in the Alien Tort Statute context; the judge here recognizes that this caution is not just a matter of legislative intent, it is a constitutional mandate. Going outside international law does not just take the court beyond the statute, it takes it past the Define and Punish Clause.”

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.