Who, exactly, is a pirate? (by James J. Woodruff II, Associate Professor of Lawyering Process)
Stereotypes notwithstanding, the term “pirate” covers a much broader spectrum of activity than swashbucklers swinging from ship to ship, claiming booty as they go.
Watching Johnny Depp portray Jack Sparrow or Errol Flynn take the big screen as Captain Blood gives the viewer some idea of the answer.1 We may also remember Long John Silver and Captain Hook from our childhoods.2
In fact, the law of piracy is a mix of national and international laws dating back hundreds of years. Most of these laws provide specific acts in which an individual must engage to be considered a pirate. However, as the world’s political climate, technology, and tactics change, the legal definition of a pirate has remained remarkably stable.
The Term “Pirate” as Vaguely Defined by the United States
The United States Constitution gives Congress the power to “define and punish Piracies” under the Offense Clause.3 Pursuant to this clause, Congress set out its definition and punishments under Title 18, Chapter 81 of the United States Code.
Section 1651 states, “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.”4 This definition is weak on a number of fronts. Most glaring is that it delegates the definition of piracy to “the law of nations” without giving any clear limitations on what nations should be included in determining the definition or what defines “the law of nations.” Is a judge interpreting section 1651 required to make a survey of all the foreign nations’ laws regarding piracy? If so, should the judge limit the survey to the law, as it existed at the time section 1651 was enacted or survey the nations’ current law on the subject? While international treaties do exist that define piracy, is a judge allowed to rely solely on those treaties?5 Do a certain number of nations need to agree in order for the specified act to be considered that of a pirate?
Looking to the plain meaning of the language used is not helpful in determining the answer to our questions. As was already discussed, the phrase “the law of nations” is open to interpretation. In 1820, the United States Supreme Court, in United States v. Smith, answered the questions surrounding “the law of nations” quandary.6
In 1819, a jury found Thomas Smith committed a number of acts and submitted a special verdict for review by the Supreme Court.7 The trial court, it turned out, was uncertain as to the definition of piracy.8 The special verdict stated 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 mutinied, 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 government 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 cruize, without any documents or commission whatever; and while on that cruize, in the month of April, 1819, on the high seas, committed the offence 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 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.9
Upon reaching the Supreme Court, the defendant argued that Congress had a duty to define piracy in terms and not to leave the definition to judicial interpretation.10 He held to the position that the Constitution’s requirement that Congress define piracy illustrated the framers’ belief that the law of nations was an insufficient source for the task.11 As Congress had been given the task of defining what constitutes piracy, it was necessary for Congress to create a definition of acts that amounted to piratical conduct.12 The defendant believed that if the constitutional framers had confidence in the definition provided by the “law of nations” they simply would have given Congress the power to punish the offenses and relieve it of the duty to define piracy.13
The argument was made that “Congress must define [piracy] as the constitution has defined treason, not by referring to the law of nations in one case, or to the common law in the other, but by giving a distinct, intelligible explanation of the nature of the offence in the act itself.”14 This was a strong argument as the law of nations provided a definition for treason, but the constitutional drafters chose to define it in spite of such a body of law.15 The defendant argued that a crime should have a strict definition as to place the violators on notice the acts they are engaged in are against the law;16 that such matters should not be left to the whims of judicial interpretation.17 It was also brought to the Court’s attention that the “writers on public law do not define the crime of piracy with precision and certainty.”18
The Supreme Court rejected the defendant’s text-based arguments as taking “too narrow a view of the language of the constitution.”19 Instead, the majority relied upon “the works of jurists, writing professedly on the public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law” to define the law of nations.20 In order to develop a definition, the Court reviewed a long list of legal scholars’ opinions. They also examined court decisions on the subject. Most of the authorities reviewed were included in a rather lengthy footnote.21 Based on these sources, the Court stated the common law defined piracy as a punishable offense that is against the law of nations and a pirate an enemy of the human race.22
Of particular interest to the Court were the writings of Sir Charles Hedges and William Blackstone. The English Admiralty Court under Sir Charles Hedges had declared the crime of piracy as “being a robbery committed within the jurisdiction of the admiralty.”23 Blackstone was referenced by the Court as stating, “he considered the common law definition as distinguishable in no essential respect from the law of nations.”24
In the end, the Court stated the following definition of piracy:
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 offence 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 offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence 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.25
The Court’s opinion on the matter was not unanimous. Justice Livingston provided a dissenting opinion that raised serious constitutional concerns. He believed that Congress was obligated to give a definition of piracy “in terms, and not to refer the citizens of the United States for rules of conduct to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted.”26 Justice Livingston supported the position that it was not fair to punish someone with death when Congress subjected its citizens to a law of nations definition.27 The key finding by Livingston was “that there is not to be found in the act that definition of piracy which the constitution requires.”28
Perhaps not being comfortable with leaving the whole issue of defining piracy to the law of nations, several additional statutes were passed by Congress to further define what acts are piratical. The first of these statutes is currently found at § 1652 of the United States Code. It states as follows:
Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life.
While this definition does a great job of defining what acts someone must engage in and where those acts must occur in order to be considered a pirate, it limits its scope to U.S. citizens. This became an issue in the case of United States v. Baker.29
In Baker, the crew of a private armed schooner named Savannah took an American vessel, the Joseph, by force on June 3, 1861.30 Prior to taking the Joseph, the Savannah, its captain and its crew had received a commission from President Jefferson Davis of the Confederate States of America to carry out raids on U.S. shipping during the war between the states.31
The prosecutors brought multiple counts against the captain and crew. In addition to being charged with piracy under the language of § 1651, four of the crew were also charged with violating the language of § 1652.32 The defendants argued that they were operating under the “commission of a foreign state” and as such could not violate § 1652. The court disagreed. It first decided that four of the crew members – “Baker, Howard, Passalaigue, and Harleston” – were citizens of the United States.33 The court then determined the issue of the Confederate States of America to be resolved as the executive and legislative branch of the U.S. government had not recognized the Confederate States as a foreign nation.34 It determined the issue of the Confederate States to be a political question and that until the executive or legislative branch had recognized statehood for the rebellious states then the court could not treat them as such.35
The jury was unable to come to a verdict and was discharged.36 Based on the questions presented to the judge from the venire, it appears the major issues arose around whether or not the Confederate States had been recognized as a foreign power and the intent element of robbery.37
Other acts that Congress defined as acts of piracy include: foreigners engaging in acts of war on the United States, or engaged in operations against U.S. citizens or property, if those acts are contrary to treaties in effect between the United States and the foreigner’s state of residence;38 any U.S. citizen investing in a piratical enterprise;39 violence against a vessel’s commander by a “seaman;”40 a ship’s captain or her officers are determined to be pirates if they “piratically or feloniously” take their vessel;41 if a person attempts to get a captain or any other crew member to take the vessel, cargo, “or to turn pirate” that person may be punished by up to three years of imprisonment;42 or anyone who uses an amphibious landing from a vessel and thereafter attacks a town.43
20th Century International Treaties Narrow the Definition of Pirate
Thanks to Congress’s vague definition of piracy, problems arise with defining the term pirate when new international treaties arise providing a new “law of nations.” In 1932, a group of scholars and students met at Harvard College and prepared a draft convention for the regulation of piracy.44 The draft convention would eventually give birth to the language governing the prosecution of piracy found in both the Convention on the High Seas and the United Nations Convention on the Law.45
The Convention on the High Seas requires treaty members to cooperate in combating piracy “on the high seas or in any other place outside the jurisdiction of any State.”46 Under the convention, piracy has been defined by describing a series of acts listed under article 15. The United Nations Convention on Law of the Sea contains the exact same language in defining acts of piracy.47 These acts are as follows:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft,
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an
act described in subparagraph 1 or subparagraph 2 of this article.48
The Convention also states that if a government-owned vessel or aircraft is taken by a mutinous crew it will be treated as a private vessel and subject to article 15.49
At present, it appears that in order to fall within the international definition of “pirate” you must be a private individual using a vessel or aircraft to attack another vessel or aircraft with the intent to engage in violence, robbery, or detention of the vessel. Mutineers on vessels also achieve the rank of pirate. Anyone funding the pirate’s enterprise or facilitating the pirate is also a pirate. Of course, under the United States Code, those who attack U.S.-flagged shipping or towns falling under the jurisdiction of the United States also fall within the definition.
Now having a working definition, we can definitely say that Jack Sparrow and Capt. Blood are pirates. The mutinous crew of the HMS Bounty would fall under the definition of pirates. Those, however, who hijack a non-U.S.-flagged ship, but do not intend to attack another vessel, aircraft, or town, are not pirates under the current “law of nations.”50
(Illustrations by Tony Rodriguez)
James J. Woodruff II is an Associate Professor of Lawyering Process at Florida Coastal School of Law. During his career as a practicing lawyer he handled cases arising under admiralty law. He holds a B.S. in Maritime Administration from Texas A&M University and a J.D. from South Texas College of Law. This article is a modified section taken from The Prosecution of Piracy Under the Offenses Clause, 2011 CARDOZO LAW REVIEW DE NOVO ___.
1 Johnny Depp portrays the rascal Jack Sparrow in Disney’s The Pirates of the Caribbean. He is a cunning adversary who gives the outward appearance of a flamboyant drunk. He leads his companions on many adventures, frequently using highly improvised methods to escape from certain doom.
Captain Blood was a popular character portrayed most recently by Errol Flynn in a 1935 film. Capt. Blood is a physician who is wrongfully convicted and sentenced to a life of slavery in the Caribbean. He escapes the chains of slavery and begins a piracy career. Toward the end of the film Capt. Blood receives a pardon and commission in the Royal Navy from King William of Orange. This leads him to defend the colony under attack, and he is made governor after successfully defeating the colony’s French aggressor.
2 Robert Louis Stevenson made famous Long John Silver, the sea cook with a missing leg. Silver had a constant companion in Captain Flint, his pet parrot. Robert Stevenson, Treasure Island, (the Macmillian Company 1922).
Captain Hook has been a villain to children ever since his introduction by J. M. Barrie in his children’s story, Peter and Wendy, more popularly known as Peter Pan, hit the stands. J. M Barrie, Peter and Wendy, (Charles Scribner’s Sons 1912). Reference is even made to Long John Silver in Peter and Wendy. Id. at 168, a testament to the power the image of Long John Silver has in defining the popular image of pirates in literature.
3 U.S. CONST. art. I, § 8, Cl. 10.
418 U.S.C. § 1651 (2006).
5 See generally, United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]; United Nations Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312 , 450 U.N.T.S. 82 [hereinafter High Seas Convention].
6 U.S. v. Smith, 18 U.S. 153 (1820).
7 Id. at 154.
9 Id. at 154-55.
10 Id. at 156-57.
11 Id. at 157.
15 U.S. CONST. art. III, § 3.
16 Smith, 18 U.S. at 157.
19 Id. at 158.
20 Id. at 162.
21 Id. at 163 n.h. This footnote compiles a great number of sources in a number of languages. A reoccurring theme appears to be that piracy must occur at sea and lack the authority of “prince or state” Id. (citing Woodeson). Lord Coke is quoted as defining “pirate” meaning á rover and “robber upon the sea.” Id. (citing Coke (3 Inst. 113. Co. Litt. 391). So at its core, piracy is a robbery occurring on the sea lacking any state authority.
Murder falling within the definition of piracy is discussed using the case against Capt. Kidd. Id. William Kidd was tried for the murder of W. Moore on the Adventure Galley while on the high seas near Malabar. Id. His crew was tried for “seizing and running away with” the Quedash, a merchant ship. Id. Lord Chief Baron Ward instructed the jury as to the definition of piracy as “seizing and taking this ship and the goods in it piratically and feloniously.” Id. If the crew had engaged in such conduct and did not have a “French Pass, then it is piracy . . .” Id. Capt. Kidd and his crew were convicted and sentenced to death.
22 Id. at 161.
23 Id. at 161-62. The opinion also describes that the crime of piracy was a civil law offence confined to the admiralty courts prior to the statute of 28th of Henry VIII. This illustrates English thought regarding piracy prior to Henry VIII. This treatment of piracy in a civil manner was possibly known by some members of the constitutional convention and taken into consideration when debating the offense clause.
24 Id. at 162.
26 Id. at 182.
28 Id. at 183.
29 United States v. Baker, 5 Blatchf. 6, 24 F.Cas. 962 (S.D.N.Y. 1861).
30 Id. at 964.
31 Id. at 962. The full statement of the commission as given by the court is as follows:
Jefferson Davis, President of the Confederate States of America, to All Who Shall See These Presents-Greeting: Know ye, that by virtue of the power vested in me by law, I have commissioned, and do hereby commission, the schooner or vessel called the Savannah, (more particularly described in the schedule hereunto annexed,) whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America their ships, vessels, goods and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States. This commission to continue in force until revoked by the president of the Confederate States for the time being. Given under my hand and the seal of the Confederate States, at Montgomery, this eighteenth day of May, A. D. 1861. (L. S.) Jefferson Davis. By the President. R. Toombs, Secretary of State. Schedule of description of the vessel: Name-schooner Savannah. Tonnage-fifty-three 41/95 tons. Armament-one large pivot gun and small arms. No. of crew-thirty.
32 Id. at 964. The language of both sections 1651 and 1652 is the same as the predecessor statutes. I have chosen to keep the current numbering in the discussion in order to avoid confusion.
34 Id. at 965-66.
36 Id. at 967.
37 Id. at 966. The jury asked two questions. The first was “whether, if the jury believed that civil war existed, and had been so recognized by the act of our government, or if the jury believed that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict.” Id. The second was that it was “understood you honor to charge that there must be an intent to take the property of another for your own use.” Id.
These questions illustrate the problems with prosecution under § 1652 when the nation is fighting a state or territory that has seceded. To clear up any citizenship issues, the members of the Savannah’s crew should have individually revoked their U.S. citizenship prior to engaging in their actions as privateers. Such revocation may lead to other legal ramifications, but for the purposes of § 1652, it would clearly remove them from falling thereunder.
38 18 U.S.C. § 1653 (2006).
39 18 U.S.C. § 1654 (2004).
40 18 U.S.C. § 1655 (2006).
41 18 U.S.C. § 1656 (2006).
42 18 U.S.C. § 1657 (2006).
43 18 U.S.C. § 1661 (2006).
43 Pirates have been known to engage in amphibious landings to assault and sack land-based towns. One of the most daring on record is Captain Morgan’s sacking of Panama. See generally, Peter Earl, The Sack of Panama: Captain Morgan and the Battle for the Caribbean, St. Martin’s Press (1981).
44 See generally Harvard Research draft convention, 26 AM. J. INT’L L. SUP 739 (1932). The draft convention created a proposed code to govern piracy. Much of that code eventually became law under the United Nations Convention on the Law of the Seas.
Article 3 covers the definition of piracy in the convention. The extensive comments to that article provided shed light on the disagreements that arose in creating a definition of piracy and the appropriate legal methods for its punishment. The comments to article 3 state that creating a definition for piracy was the most difficult issue that faced the convention. Id. at 769. The comment reflects that the definition they had created did not touch upon “many practical and technical problems in the field of piracy …” Id. The comments to article 3 comprise 53 pages.
45 I will not be discussing the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) as that convention does not use the term “pirate” to define a person who violates the convention.
46 High Seas Convention, supra note 6, at art. 14.
47 UNCLOS, supra note 6, art. 101.
48 High Seas at art. 15.
49 Id. at art. 16.
50 Those individuals would not be pirates by definition, but can face prosecution under the SUA. See International Maritime Organization: International Maritime Organization: Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, IMO Do. SUA/CON/15 (1988), reprinted in 27 I.L.M. 668 (1988).