§ 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule pirata non mutat dominium became more and more recognised. Nowadays the conviction would seem to be general that ship and goods have to be restored to their proprietors, and may be conceded to the captor only when the real ownership cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called droit de recousse[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.
[565] See details regarding the question as to the piratical vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.
[566] See section 5 of the "Act to repeal an Act of the Sixth Year of King George the Fourth, for encouraging the Capture or Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).
Piracy according to Municipal Law.
§ 280. Piracy, according to the Law of Nations, which has been defined above (§ 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or passengers against their own vessel, must not be confounded with the conception of piracy according to the different Municipal Laws.[567] The several States may confine themselves to punishing as piracy a narrower circle of acts of violence than that which the Law of Nations defines as piracy. On the other hand, they may punish their subjects as pirates for a much wider circle of acts. Thus, for instance, according to the Criminal Law of England,[568] every English subject is inter alia deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the High Seas.
[567] See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. Nos. 2501 and 2502.
[568] See Stephen, "Digest of the Criminal Law," articles 104-117.
However, since a State cannot on the Open Sea enforce its Municipal Laws against others than its own subjects, no State can treat such foreign subjects on the Open Sea as pirates as are not pirates according to the Law of Nations. Thus, when in 1858, before the abolition of slavery in America, British men-of-war molested American vessels suspected of carrying slaves, the United States objected and rightly complained.[569]
[569] See Wharton, III. § 327, pp. 142 and 143; Taylor, § 190; Moore, II. § 310, pp. 941-946.