refugees does not justify the commander in receiving them even upon the minister's request. The position of the Government has been set forth by Secretary Hay, in 1899, when speaking of shelter, "certain limitations to such grant are recognized. It should not, in any case, take the form of a direct or indirect intervention in the internecine conflicts of a foreign country, with a view to the assistance of any of the contending factions, whether acting as insurgents or as representing the titular government."

Conclusion. Considering the attitude of the Government, the policy toward the limitation of asylum, the fact that the minister may call upon the commander to protect the inviolability of the legation, the commander should reply that he has no authority to promise to receive any persons as refugees, and that the Regulations of the service state that even in the waters of countries where frequent insurrections occur, "officers should refuse all applications for asylum except when required by the interests of humantiy in extreme and exceptional cases, such as the pursuit of a refugee by a mob." Under these circumstances, when the pursuit is by the regular troops, the commander would not feel justified in interfering. Should these persons, however, appear at the side of his vessel seeking shelter under exceptional circumstances, he would be forced to decide at the time upon the propriety of receiving them.

SITUATION III, (b).

There is an insurrection in State X.

(b) The insurgents seize the Robin, a United States. merchant vessel in the harbor, and promising to recompense the owners sail away with the vessel. The owners request the commander of the United States war vessel to recover the Robin in case he meets the vessel. The commander meets the Robin on the high sea.

- What, if anything, should the commander do?

SOLUTION.

The commander of the United States war vessel is justified in using such force as is necessary to recover the vessel which has been seized by the insurgents.

INSURGENTS AS PIRATES.

NOTES ON SITUATION III,

(b).

35

Insurgents as pirates.-It has been maintained often that insurgents committing an act similar to the one. above mentioned are to be treated as pirates.

The statement of the Situation, however, admits the existence of an insurrection which is regarded as "a form of struggle, varying according to circumstances, but usually an armed struggle between two organized groups or parties within a state for public political ends. (Insurgency, Lectures Naval War College, 1900, p. 3.)

In many cases also the parent state may declare the insurgents to be pirates. This matter was very fully considered by the United States, in 1885, in consequence of the insurrection in Colombia at that time, when the President of the United States of Colombia declared certain vessels occupied by the rebels to be pirates' and to be "beyond the pale of international law."

In discussing the treatment of these vessels, Mr. Wharton, solicitor for the Department of State, gave an opinion which, since 1885, has been several times affirmed, as follows:

The Government of the United States can not regard as piratical vessels manned by parties in arms against the Government of the United States of Colombia, when such vessels are passing to and from ports held by insurgents, or even when attacking ports in the possession of the National Government. In the late civil war the United States, at an early period of the struggle, surrendered the position that those manning the Confederate cruisers were pirates under international law. The United States of Colombia can not, sooner or later, do otherwise than accept the same view. But, however this may be, no neutral power can acquiesce in the position now taken by the Colombian Government. Whatever may be the demerits of the vessels in the power of the insurgents, or whatever may be the status of those manning them under the municipal law of Colombia, if they be brought by the act of the National Government within the operation of that law, there can be no question that such vessels, when engaged as above stated, are not, by law of nations, pirates; nor can they be regarded as pirates by the United States. (U. S. Foreign Relations, 1885, p. 212.)

It is not denied, of course, that a local government may define what actions and what persons it will regard as piratical, but such local definition has significance only for the state making the definition. Indeed the United States Constitution specifically gives to Congress the

right to define and punish piracies and felonies committed on the high seas and offences against the laws of nations."' The definition of piracy in the international sense is, however, not dependent on these municipal provisions.

Policy of the United States.-As President Cleveland said, in his Message of December 8, 1885: "A question of much importance was presented by decrees of the Colombian Government, proclaiming the closure of certain ports then in the hands of insurgents, and declaring vessels held by the revolutionists to be piratical and liable to capture by any power. To neither of these propositions could the United States assent. An effective closure of ports not in the possession of the government, but held by hostile partisans, could not be recognized; neither could the vessels of insurgents against the legitimate sovereignty be deemed hostes humani generis within the precepts of international law, whatever might be the definition and penalty of their acts under the municipal law of the state against whose authority they were in revolt. The denial by this Government of the Colombian propositions did not, however, imply the admission of a belligerent status on the part of the insurgents.'

The declaration by a state that a certain vessel or certain vessels are piratical does not make them such according to international law, nor does it give a foreign state a right to treat them as piratical. Mr. Bayard gave the opinion of the State Department, in 1885:

The principle upon which I based my note of April 24 was, generally, that there can not be paper piracy with international effects and obligations any more than there can be a paper blockade of effective character. In the one case, as in the other, no force or effect can be communicated by a municipal decree which is not inherent in the case itself, and I felt constrained to announce to you that this Government could not deem itself bound in any manner by such a decree, either as entailing any international obligation or as conferring upon it any derived jurisdiction in the premises. The position seemed so self-evident and is so abundantly supported by authority that I deemed it quite unnecessary to enter into argument or collation of precedents to sustain the simple announcement.

It would seem, however, that you have misunderstood that announcement, and you now seek to controvert on the assumption that it recognizes the vessels mentioned in the Colombian decree as legitimate belligerents, thereby divesting them of whatever inherent piratical character they may

POLICY OF POWERS.

37

possess. Your argument, and the precedent of the Magellan pirates adduced by you, aim to show that vessels of this character, even though ostensibly in the service of a hostile insurrection, may be tainted with piracy to a degree to bring them within the jurisdiction of a foreign state whose forces may have captured them on the high seas.

This position I am not disposed to deny, but I then did feel bound to deny, and do so still, that a municipal decree of a sovereign can communicate to a single vessel, or in comprehensive terms to a class of vessels, a character of piracy which they may not already possess under the circumstances surrounding each particular vessel, or that a foreign sovereign can derive or exercise any power, obligation, or jurisdiction in virtue of such a municipal decree which it does not already possess in the nature of the case under the law of nations. Were any foreign government to exercise such right or jurisdiction in the case of a vessel found committing acts in themselves piratical, a decree of this character could only, by the widest stretch, be deemed an acquiescence in and voluntary confirmation of the power and right so exercised by the law of nations. It could not be held to confer the right to capture and judge an actual pirate any more than, assuming the contrary position by way of hypothesis, it could deny or assume to annul that right in a given case. (U. S. Foreign Relations, 1885, p. 273.)

The declaration by a foreign state that certain vessels in revolt against the established government are piratical is often practically an admission of their insurgency and of the fact that hostilities exist with the faction in control of the ships, for piracy in the international law sense is determined by the intent of the act and not by domestic decree.

Attitude of Great Britain.-The Huascar, a Peruvian ship of war, was seized by its crew in a revolt in 1877. The Government of Peru declined to be responsible for the acts of the rebels. The Huascar boarded British vessels, seized coal, and took off passengers. "On the question being brought before the House of Commons, the attorney-general expressed his opinion that the Huascar was not a belligerent, but a rover committing depredations which made her an enemy of her Britannic Majesty, and therefore it could not be disputed that the admiral could wage war upon her. If she were a belligerent, or the vessel of a belligerent power, to which the representation of the British Government was under an obligation to extend belligerent rights, the proceedings of the admiral might be open to censure. But to make out that she was a vessel belonging to a belligerent power there must

be a rebellion; the rebels also must have established something like a government, to do certain acts upon the high seas against neutral ships. If a cruiser did commit acts of depredation without authority, the neutral states would demand satisfaction. If the Huascar was a belligerent, she would be responsible. In strictness the crew of the Huascar were pirates and might have been treated as such; but it was one thing to say that, according to the strict letter of the law, people have been guilty of acts of piracy and another to advise that they should be tried for their lives and hanged at Newgate. The Huascar was called upon to surrender, and she refused. The admiral took steps accordingly to make her surrender." (Halleck, Baker's ed. International Law, Vol. I, p. 449.)

Piracy according to international law.-Piracy in the international sense is not a political act, but an act implying animus furandi, an act entered upon in a spirit of robbery or marked violence. It is not aimed against any particular state or the citizens of any particular state. Lawrence gives, among the marks of a piratical act, that it be "an act of violence adequate in degree;" "an act done outside the territorial jurisdiction of any civilized. state;" and "an act the perpetrators of which are destitute of authorization from any recognized political community;" or, as Lawrence says, in summarizing, "An act to be piratical must be of adequate violence; it must be committed outside the jurisdiction of a civilized State; and it must possess no national authorization." (International Law, section 122, p. 210.)

Application to the Situation.-It is evident that it is not the policy of the United States to regard insurgent vessels as pirates, and hence this vessel while seizing a vessel within the harbor of State X can not be considered as a pirate from the point of view of international law.

The act is committed within the jurisdiction of State X and in derogation of the sovereignty of State X. It is unquestionably a violation of the laws of State X, and for the act State X may prescribe the punishment.

As the act is not piracy in fact or in intent, the United