Strengthening Constitutional Self-Government

No Left Turns


For some reason, a friend (who wishes to preserve his or her anonymity) can’t post this comment in response to Mac’s post below on how to respond to pirates, so I’m doing it for him here (having twice tried on his behalf to post it below).

Since Mac brings up the U.S.’s nineteenth-century policies on pirates, I think it’s worth considering these two federal laws about piracy: this from 1790 and this from 1819.

Each law, coming from a less tender-footed era in our history, does indeed establish the death penalty for piracy (FYI, these days, U.S. law gives pirates life in prison). But both of these old capital laws require judicial process -- i.e., the suspects’ being taken to a federal district or circuit court, tried, and found guilty -- before dispatching them (likewise, their vessels have to be condemned in a U.S. court). So no summary execution of the bastards (although the old laws allow actions of self-defense -- no further details provided -- by the threatened ship).

Mac, in your reference to "hanging" pirates, were you implying that summary execution was the policy? If that was a fact, how did it square with the trial requirements in the laws?

And -- most important of all -- how does this grim discussion affect our affection for Mark Twain?

Discussions - 4 Comments

That last part about Mark Twain was specifically designed to piss me off, but I am not falling for it. The days of romantic piratism are over, the End of History reich of the lawyers economists and social scientists is supreme, which is why everyone is now trying to get in on the brie eating chateau generalship of legal dispute.

My only hope is that everyone learns to use silverware, good grammar and etiquette, so that I can laugh when they reach a dispute over abortion and instead of drawing swords and cleaving heads they write huffy op-eds, or cry about moral abdication.

My fondest hope is that everyone becomes Kantian, that all who are spirited go on strike and adopt the legal spirit.

Like Twain says it is Aunt Polly who wins.

And when the unromantic pirates break up the brie eating, etc., will the legalists draw their silverware? History is never over.


I notice that these laws apply to individuals deemed to be citizens. I don't think they apply to non-citizens.

Mac, I don't think that either the 1790 or the 1819 laws necessarily apply only to citizens (e.g., in the 1790 law, Sec. 9 refers to "citizens" committing piracy, but Sec. 9 refers to "persons," as the law generally does).

And even if the laws did apply only to American citizens, what difference would it make to your argument about how to deal with piracy? That is, what can justify bringing any (accused) pirate -- American or not -- to court, and affording them particular rights of the accused?

I'm not posing that question rhetorically. The legal record seems to raise that question in earnest -- asking why Congress, from the Founding on, has declared that pirates must be tried, not summarily executed. I just would like to discover the answer, assuming that the answer is some principle.

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