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Article 1, Section 8, Clause 10

Document 11

James Kent, Commentaries 1:1--4, 15--19, 171--76


When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, "according to the general usages of Europe." By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind. According to the observation of the President de Montesquieu, it is founded on the principle, that different nations ought to do each other as much good in peace, and as little harm in war, as possible, without injury to their true interests. But, as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

There has been a difference of opinion among writers, concerning the foundations of this law. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that the law of nations was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligation and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force, and dignity, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel, the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others, the internal law of nations, because it is obligatory upon them in point of conscience.

We ought not, therefore, to separate the science of public law from that of ethics, nor to encourage the dangerous suggestion, that governments are not as strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community, the same binding law of morality and religion which ought to control his conduct in private life. The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relation and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce; and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.

The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and, above all, by the brighter light, the more certain truths, and the more definite sanction, which Christianity has communicated to the ethical jurisprudence of the ancients, have established a law of nations peculiar to themselves. They form together a community of nations, united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognising the same writers and systems of public law.

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Thus stood the law of nations at the age of Grotius. It had been rescued, to a very considerable extent, from the cruel usages and practices of the northern barbarians. It had been restored to some degree of science and civility by the influence of Christianity, the study of the Roman law, and the spirit of commerce. It had grown greatly in value and efficacy, from the intimate connexion and constant intercourse of the modern nations of Europe, who were derived from a common origin, and were governed by similar institutions, manners, laws, and religion. But it was still in a state of extreme disorder, and its principles were but little known, and less observed. It consisted of a series of undigested precedents, without order or authority. Grotius has, therefore, been justly considered as the father of the law of nations; and he arose like a splendid luminary, dispelling darkness and confusion, and imparting light, and guides, and security, to the intercourse of nations. It is said that Lord Bacon first suggested the necessity of such a work as that of Grotius, reducing the law of nations to the certainty and precision of a regular science. Grotius has himself fully explained the reasons which led him to undertake his necessary, and most useful, and immortal work. He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed widsom and learning, that war was a stranger to all justice, and that no commonwealth could be governed without injustice. The saying of Euphemus in Thucydides, he perceived to be in almost every one's mouth, that nothing which was useful was unjust. Many persons, who were friends to justice in private life, made no account of it in a whole nation, and did not consider it as applicable to rulers. He perceived a horrible licentiousness and cruelty in war, throughout the Christian world, of which barbarians might be ashamed. When men took up arms, there was no longer any reverence for law either human or divine, and it seemed as if some malignant fury was sent forth into the world, with a general license for the commission of all manner of wickedness and crime.

The object of Grotius was to correct these false theories and pernicious maxims, by showing a community of sentiment among the wise and learned of all nations and ages, in favour of the natural law of morality. He likewise undertook to show that justice was of perpetual obligation, and essential to the well being of every society, and that the great commonwealth of nations stood in need of law, and the observance of faith, and the practice of justice. His object was to digest in one systematic code, the principles of public right, and to supply authorities for almost every case in the conduct of nations; and he had the honour of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. The more it is studied, the more will our admiration be excited at the consummate execution of the plan, and the genius and erudition of the author. There was no system of the kind extant, that had been produced by the ancient philosophers of Greece, or by the primitive Christians. The work of Aristotle on the rights of war, and the writings of the Romans on their fecial law, had not survived the wreck of ancient literature; and the treatises of some learned moderns on public law, were most imperfect, and exceedingly defective in illustrations from history, and in omitting to place their decisions upon the true foundations of equity and justice. Grotius, therefore, went purposely into the details of history and the usages of nations, and he resorted to the testimony of philosophers, historians, orators, poets, civilians, and divines, because they were the materials out of which the science of morality was formed; and when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. His unsparing citation of authorities, in support of what the present age may consider very plain and undisputed truths, has been censured by many persons as detracting from the value of the work. On the other hand, the support that he gave to those truths, by the concurrent testimony of all nations and ages, has been justly supposed to contribute to the reverence for the principles of international justice, which has since distinguished the European nations.

Among the disciples of Grotius, Puffendorf has always held the first rank. His work went more at large into the principles of natural law, and combined the science of ethics with what may be more strictly called the law of nations. It is copious in detail, but of very little practical value in teaching us what the law of nations is at this day. It is rather a treatise on moral philosophy than on international law; and the same thing may be said of the works of Wolfius, Burlamaqui, and Rutherforth. The Summary of the Law of Nations, by Professor Martens, is a treatise of greater practical utility, but it is only a very partial view of the system, being confined to the customary and conventional law of the modern nations of Europe. Bynkershoeck's treatise on the law of war, has always been received as of great authority, on that particular branch of the science of the law of nations, and the subject is ably and copiously discussed. The work is replete with practical illustration, though too exclusive in its references to the ordinances of his own country, to render his authority very unquestionable. The most popular, and the most elegant writer on the law of nations, is Vattel, whose method has been greatly admired. He has been cited, for the last half century, more freely than any one of the public jurists; but he is very deficient in philosophical precision. His topics are loosely, and often tediously and diffusively discussed, and he is not sufficiently supported by the authority of precedents, which constitute the foundation of the positive law of nations. There is no one work which combines, in just proportions, and with entire satisfaction, an accurate and comprehensive view of the necessary and of the instituted law of nations, and in which principles are sufficiently supported by argument, authority, and examples. Since the age of Grotius, the code of war has been vastly enlarged and improved, and its rights better defined, and its severities greatly mitigated. The rights of maritime capture, the principles of the law of prize, and the duties and privileges of neutrals, have grown into very important titles in the system of national law. We now appeal to more accurate, more authentic, more precise, and more commanding evidence of the rules of public law, by a reference to the decisions of those tribunals, to whom, in every country, the administration of that branch of jurisprudence is specially intrusted. We likewise appeal to the official documents and ordinances of particular states, which have professed to reduce into a systematic code, for the direction of their own tribunals, and for the information of foreign powers, the law of nations, on those points which relate particularly to the rights of commerce, and the duties of neutrality. But in the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favour of the solidity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law. England and the United States have been equally disposed to acknowledge the authority of the works of jurists, writing professedly on public law, and the binding force of the general usage and practice of nations, and the still greater respect due to judicial decisions recognising and enforcing the law of nations. In all our foreign negotiations, and domestic discussions of questions of national law, we have paid the most implicit respect to the practice of Europe, and the opinions of her most distinguished civilians. In England, the report, made in 1753, to the king, in answer to the Prussian memorial, is very satisfactory evidence of the obedience shown to the great standing authorities on the law of nations, to which I have alluded. And in a case which came before Lord Mansfield, in 1764, in the K. B. he referred to a decision of Lord Talbot, who had declared that the law of nations was to be collected from the practice of different nations, and the authority of writers; and who had argued from such authorities as Grotius, Barbeyrac, Bynkershoeck, Wiquefort, &c. in a case where British authority was silent. The most celebrated collections and codes of maritime law, such as the Consolato del Mare, the laws of Oleron, the laws of the Hanseatic league, and, above all, the marine ordinances of Lewis XIV., are also referred to, as containing the most authentic evidence of the immemorial and customary law of Europe.

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The Congress of the United States, during the time of the American war, discovered great solicitude to maintain inviolate the obligations of the law of nations, and to have infractions of it punished in the only way that was then lawful, by the exercise of the authority of the legislatures of the several states. They recommended to the states to provide expeditious, exemplary, and adequate punishment, for the violation of safe conducts or passports, granted under the authority of Congress, to the subjects of a foreign power in time of war; and for the commission of acts of hostility against persons in amity or league with the United States; and for the infractions of treaties and conventions to which the United States were a party; and for infractions of the immunities of ambassadors, and other public ministers.

Piracy is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi. 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 of piracy. Pirates have been regarded by all civilized nations as the enemies of the human race, and the most atrocious violators of the universal law of society. They are every where pursued and punished with death; and the severity with which the law has animadverted upon this crime, arises from its enormity and danger, the cruelty that accompanies it, the necessity of checking it, the difficulty of detection, and the facility with which robberies may be committed upon pacific traders, in the solitude of the ocean. Every nation has a right to attack and exterminate them without any declaration of war; for though pirates may form a loose and temporary association among themselves, and re-establish in some degree those laws of justice which they have violated with the rest of the world, yet they are not considered as a national body, or entitled to the laws of war as one of the community of nations. They acquire no rights by conquest; and the law of nations, and the municipal law of every country, authorize the true owner to reclaim his property taken by pirates, wherever it can be found; and they do not recognise any title to be derived from an act of piracy. The principle, that a piratis et latronibus capta dominium non mutant, is the received opinion of ancient civilians, and modern writers on general jurisprudence; and the same doctrine was maintained in the English courts of common law prior to the great modern improvements made in the science of the law of nations.

By the constitution of the United States, Congress were authorized to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. In pursuance of this authority, it was declared by the act of Congress of April 30th, 1790, sec. 8. that murder or robbery committed on the high seas, or in any river, haven, or bay, out of the jurisdiction of any particular state, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death, should be adjudged to be piracy and felony, and punishable with death. It was further declared, that if any captain or mariner should piratically and feloniously run away with any vessel, or any goods or merchandise to the value of fifty dollars; or should yield up any such vessel voluntarily to pirates; or if any seaman should forcibly endeavour to hinder his commander from defending the ship or goods committed to his trust, or should make a revolt in the ship; every such offender should be adjudged a pirate and felon, and be punishable with death. Accessaries to such piracies before the fact, are punishable in like manner; but accessaries after the fact are only punishable with fine and imprisonment. And, by the act of March 3d, 1819, sec. 5. (and which act was made perpetual by the act of 15th of May, 1820, sec. 2.) Congress declared, that if any person on the high seas should commit the crime of piracy, as defined by the law of nations, he should, on conviction, suffer death. It was again declared, by the act of Congress of 15th of May, 1820, sec. 3. that if any person upon the high seas, or in any open roadstead, or bay, or river, where the sea ebbs and flows, commits the crime of robbery in and upon any vessel, or the lading thereof, or the crew, he should be adjudged a pirate. So, if any person concerned in any particular enterprise, or belonging to any particular crew, should land, and commit robbery on shore, such an offender should also be adjudged a pirate. The statute, in this respect, seems to be only declaratory of the law of nations; for, upon the doctrine of the case of Lindo v. Rodney, such plunder and robbery ashore, by the crew, and with the aid of vessels, is a marine case, and of admiralty jurisdiction.

Under these legislative provisions, it has been made a question, whether it was sufficient to refer to the law of nations for a definition of piracy, without giving the crime a precise definition in terms. The point was settled in the case of the United States v. Smith; and it was there held not to be necessary to give by statute a more logical enumeration in detail of all the facts constituting the offence, and that Congress might as well define it by using a term of a known and determinate meaning, as by expressly mentioning all the particulars included in that term. The crime of piracy was defined by the law of nations with reasonable certainty, and it does not depend upon the particular provisions of any municipal code for its definition and punishment. Robbery on the high seas is, therefore, piracy by the act of Congress, as well as by the law of nations.

There can be no doubt of the right of Congress to pass laws punishing pirates, though they may be foreigners, and may have committed no particular offence against the United States. It is of no importance for the purpose of giving jurisdiction on whom or where a piratical offence has been committed. A pirate, who is one by the law of nations, may be tried and punished in any country where he may be found, for he is reputed to be out of the protection of all laws and privileges. The statute of any government may declare an offence committed on board its own vessels to be piracy, and such an offence will be punishable exclusively by the nation which passes the statute. But piracy, under the law of nations, is an offence against all nations, and punishable by all. In the case of the United States v. Palmer, it was held, that the act of Congress of 1790 was intended to punish offences against the United States, and not offences against the human race; and that the crime of robbery, committed by a person who was not a citizen of the United States, on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, was not piracy under the act, and was not punishable in the courts of the United States. The offence, in such a case, must, therefore, be left to be punished by the nation under whose flag the vessel sailed, and within whose particular jurisdiction all on board the vessel were. This decision was according to the law and practice of nations, for it is a clear and settled principle, that the jurisdiction of every nation extends to its own citizens, on board of its own public and private vessels at sea. The case applied only to the fact of robbery committed at sea, on board of a foreign vessel, at the time belonging exclusively to subjects of a foreign state; and it was not intended to decide, that the same offence, committed on board of a vessel not belonging to the subjects of any foreign power, was not piracy. The same court, afterwards, in the case of the United States v. Klintock, admitted, that murder or robbery, committed on the high seas, 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 or flag whatsoever, fell within the purview of the act of Congress, and was punishable in the courts of the United States. Persons of that description were pirates, and proper objects for the penal code of all nations. The act of Congress did not apply to offences committed against the particular sovereignty of a foreign power; or to murder or robbery committed in a vessel belonging at the time, in fact as well as in right, to the subject of a foreign state, and, in virtue of such property, subject at the time to his control. But it applied to offences committed against all nations, by persons who, by common consent, were equally amenable to the laws of all nations.

It was further held, in the case of the United States v. Pirates, and in the case of the United States v. Holmes, in pursuance of the same principle, that the moment a vessel assumed a piratical character, and was taken from her officers, and proceeded on a piratical cruise, she lost all claim to national character, and the crew, whether citizens or foreigners, were equally punishable, under the act of Congress, for acts of piracy; and it would be immaterial what was the national character of the vessel before she assumed a piratical character. Piracy is an offence within the criminal jurisdiction of all nations. It is against all, and punished by all; and the plea of autrefois acquit, resting on a prosecution instituted in the courts of any civilized state, would be a good plea in any other civilized state. As the act of Congress of 1790, declares every offence committed at sea to be piracy, which would be punishable with death if committed on land, it may be considered as enlarging the definition of piracy, so as not only to include every offence which is piracy by the law of nations, and the act of Congress of 1819, but other offences which were not piracy until made so by statute.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 10, Document 11
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.

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