In 1847 Don David Pacifico's home in Athens was attacked by an anti-Jewish mob. His allegations that ensued against the Greek government included the accusation the the sons of a Greek minister had participated in the vandalism and that the Greek police had looked on and done nothing. As Pacifico had been born in Gibraltar, he had a rather strong argument that he was a British subject. Hence, when the Greek government refused compensation, claiming (with some merit) that he had inflated his claims for damage, Britain, in the form of Henry John Temple, The Third Viscount Palmerston, the then British Foreign Secretary, adopted the cause and used the British Navy to blockade Greece. What resulted is now commonly called "The Don Pacifico Affair." The House of Lords proposed a censure of what it saw as poorly formed ministerial foreign policy and, Mr. Roebuck, member for Sheffield, moved a resolution in opposition which should:

...test the confidence of the House of Commons and therefore of the people of England in the government: "That the principles which hitherto have regulated the foreign policy of Her Majesty's Government are such as were required to preserve untarnished the honor and dignity of this country, and in times of unexampled difficulty the best qualified to maintain peace between England and various nations of the world."1

It bears mentioning that the course taken by Lord Palmerston was thought by many to lead inexorably to war with France. There is also the view, forwarded by some historians, that Lord Palmerston's seizing of the plight of a single British subject was also effectively intended as a larger warning Greece to avoid interfering in the affairs of the Ionian Islands, where the British government had of late quite harshly suppressed a rebellion, specifically in Cephalonia. This interpretation was not self-evident, as, though Lord Palmerston delivered a rousing speech in the House of Commons in support of Pacifico and his foreign policy, and though it lasted between four and a half to five hours, it barely mentioned the Ionian Islands:

Now, the resolution of the House of Lords involves the future as well as the past. It lays down for the future a principle of national policy, which I consider totally incompatible with the interests, with the rights, with the honour, and with the dignity of the country; and at variance with the practice, not only of this, but of all other civilised countries in the world. Even the person who moved it was obliged essentially to modify it in his speech. But none of the modifications contained in the speech were introduced into the resolution adopted by the other House. The country is told that British subjects in foreign lands are entitled -- for that is the meaning of the resolution -- to nothing but the protection of the laws and the tribunals of the land in which they happen to reside. The country is told that British subjects abroad must not look to their own country for protection, but must trust to that indifferent justice which they may happen to receive at the hands of the Government and tribunals of the country in which they may be.

The House of Lords has not said that this proposition is limited to constitutional countries. The House of Lords has not said that the proposition is inapplicable, not only to arbitrary and despotic countries, but even to constitutional countries where the courts of justice are not free; although these limitations were stated in the speech. The country is simply informed by the resolution, as it was adopted, that, so far as foreign nations are concerned, the future rule of the Government of England is to be, that, in all cases, and under all circumstances, British subjects are to have that protection only, which the law and the tribunals of the land in which they happen to be, may give them.2

His speech did, however, include this line:

Well, this being the state of things in Greece, there have always been in every town in Greece a great number of persons whom we are bound to protect -- Maltese, Ionians, and a certain number of British subjects. It became the practice of this Greek police to make no distinction between the Maltese and Ionians and their own fellow-subjects.3 (Emphasis added).

Lord Palmerston famously concluded with:

I therefore fearlessly challenge the verdict which this House, as representing a political, a commercial, a constitutional country, is to give on the question now brought before it; whether the principles on which the foreign policy of Her Majesty's Government has been conducted, and the sense of duty which has led us to think ourselves bound to afford protection to our fellow subjects abroad, are proper and fitting guides for those who are charged with the Government of England; and whether, as the Roman, in days of old, held himself free from indignity, when he could say "Civis Romanus sum;" so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England, will protect him against injustice and wrong.4

Two days later, on the 27th of June, 1850, William Ewart Gladstone, having apparently given the matter much thought, replied in the House of Commons thus:

And now I will grapple with the noble Lord on the ground which he selected for himself, in the most triumphant portion of his speech, by his reference to those emphatic words, Civis Romanuns sum. He vaunted, amidst the cheers of his supporters, that under his administration an Englishman should be, throughout the world, what the citizen of Rome had been. What then, Sir, was a Roman citizen? He was the member of a privileged caste; he belonged to a conquering race, to a nation that held all others bound down by the strong arm of power. For him there was to be an exceptional system of law; for him principles were to be asserted, and by him rights were to be enjoyed, that were denied to the rest of the world. Is such, then, the view of the noble Lord, as to the relation that is to subsist between England and other countries? Does he make the claim for us, that we are to be uplifted upon a platform high above the standing-ground of all other nations? It is, indeed, too clear, not only from the expressions, but from the whole spirit of the speech of the noble Viscount, that too much of this notion is lurking in his mind; that he adopts in part that vain conception, that we, forsooth, have a mission to be the censors of vice and folly, of abuse and imperfection, among the other countries of the world ; that we are to be the universal schoolmasters, and that all those who hesitate to recognise our office, can be governed only by prejudice or personal animosity, and should have the blind war of diplomacy forthwith declared against them.

And certainly if the business of a Foreign Secretary properly were to carry on such diplomatic wars, all must admit that the noble Lord is a master in the discharge of his functions. What, Sir, ought a Foreign Secretary to be? Is he to be like some gallant knight at a tournament of old, pricking forth into the lists, armed at all points, confiding in his sinews and his skill, challenging all comers for the sake of honour, and having no other duty than to lay as many as possible of his adversaries sprawling in the dust? If such is the idea of a good Foreign Secretary, I for one would vote to the noble Lord his present appointment for his life. But, Sir, I do not understand the duty of a Secretary for Foreign Affairs to be of such a character. I understand it to be his duty to conciliate peace with dignity. I think it to be the very first of all his duties studiously to observe, and to exalt in honour among mankind, that great code of principles which is termed the law of nations, which the learned member for Sheffield has found, indeed, to he very vague in their nature, and greatly dependent on the discretion of each particular country ; but in which I find, on the contrary, a great and noble monument of human wisdom, founded on the combined dictates of reason and experience- a precious inheritance bequeathed to us by the generations that have gone before us, and a firm foundation on which we must take care to build whatever it may be our part to add to their acquisitions, if, indeed, we wish to maintain and to consolidate the brotherhood of nations, and to promote the peace and welfare of the world.5

What would become a conflict of "Palmerston Whiggery" and "Gladstone Liberalism," continues to such an extent, that one can still divide the whole of America into one camp or the other without many citizens left unclassified. Said the then Lord Robert Cecil (later Lord Salisbury) of Palmerston's oration: "I am aware that, whatever folly or madness an English Government may commit, the appeal to the civis Romanus doctrine is rarely without its effect upon an English audience."

The civis Romanus doctrine, to which Lord Cecil refers, and which Kennedy later badly perverts with his grammatically incorrect misstatement in Berlin6 has its origins with Cicero, and in particular in the Orations Against Verres, his singular prosecutorial venture. Therein he entreats:

Homines tenues obscuro loco nati navigant, adeunt ad ea loca, quae numquam antea viderunt, ubi neque noti esse iis, quo venerunt, neque semper cum cognitoribus esse possunt. Hac una tamen fiducia civitatis non modo apud nostros magistratus, qui et legum et existimationis periculo continentur, neque apud cives solum Romanos, qui et sermonis et iuris et multarum rerum societate iuncti sunt, fore se tutos arbitrantur, sed, quocumque venerint, hanc sibi rem praesidio sperant [esse] futuram. 168. Tolle hanc spem, tolle hoc praesidium civibus Romanis, constitue nihil esse opis in hac voce: 'Civis Romanus sum,' posse impune praetorem aut alium quemlibet supplicium, quod velit, in eum constituere, qui se civem Romanum esse dicat, quod, qui sit, ignoret: iam omnes provincias, iam omnia regna, iam omnes liberas civitates, iam omnem orbem terrarum, qui semper nostris hominibus maxime patuit, civibus Romanis ista defensione praecluseris.

Men of no importance, born in an obscure rank, go to sea; they go to places which they have never seen before; where they can neither be known to the men among whom they have arrived, nor always find people to vouch for them. But still, owing to this confidence in the mere fact of their citizenship, they think that they shall be safe, not only among our own magistrates, who are restrained by fear of the laws and of public opinion, nor among our fellow-citizens only, who are united with them by community of language, of rights, and of many other things; but wherever they come they think that this will be a protection to them. Take away this hope, take away this protection from Roman citizens, establish the fact that there is no assistance to be found in the words "I am a Roman citizen;" that a praetor, or any other officer, may with impunity order any punishment he pleases to be inflicted on a man who says that he is a Roman citizen, though no one knows that it is not true; and at one blow, by admitting that defense, you cut off from the Roman citizens all the provinces, all the kingdoms, all free cities, and indeed the whole world, which has hitherto been open most especially to our countrymen.7

And again:

Caedebatur virgis in medio foro Messanae civis Romanus, iudices, cum interea nullus gemitus, nulla vox alia illius miseri inter dolorem crepitumque plagarum audiebatur nisi haec: 'Civis Romanus sum.' Hac se commemoratione civitatis omnia verbera depulsurum cruciatumque a corpore deiecturum arbitrabatur; is non modo hoc non perfecit, ut virgarum vim deprecaretur, sed, cum imploraret saepius usurparetque nomen civitatis, crux, crux, inquam, infelici et aerumnoso, qui numquam istam pestem viderat, comparabatur.

The necks of Roman citizens were broken in a most infamous manner in the prison; so that very expression and form of entreaty, "I am a Roman citizen," which has often brought to many, in the most distant countries, succour and assistance, even among the barbarians, only brought to these men a more bitter death and a more immediate execution.8

It is relevant, I think, and particularly in light of the events of yesterday and today, that many of the charges attaching to Verres involve piracy, and that this topic absorbs much of Cicero's concern during his prosecution. So much so that the contemporary phrase considered an essential part of the modern treatment of piracy "hostis humani generis," (enemy of mankind) is purportedly (and erroneously) derived from Cicero.9 It seems instead that the earliest source for the phrase is Sir Edward Coke.10

Today the Wall Street Journal carries the news that:

U.S. sharpshooters killed three pirates holding Capt. Phillips after concluding that he was in "imminent danger," a U.S. commander said.

Vice Adm. William E. Gortney, commander of all naval forces in the Middle East, told a Pentagon news conference that the USS Bainbridge had been towing the lifeboat holding the pirates and Capt. Phillips into calmer waters when Navy Seal sharpshooters, positioned at the tail of the ship, saw the head and shoulders of the three remaining pirates, with one of them pointing an AK-47 machine gun at the head of Capt. Phillips.

Adm. Gortney said the Navy officer in charge of the operation ordered the pirates to be fired upon.

Before the incident, Adm. Gortney said U.S. officials had hoped to resolve the standoff peacefully. A fourth pirate was on the Bainbridge as part of hostage negotiation talks. But Adm. Gortney said tensions escalated between the pirates and negotiators, prompting commanders to believe Capt. Phillips, who was tied up on the lifeboat, was at risk of getting killed.

Adm. Gortney said he had received standing orders from President Barack Obama to rescue Capt. Phillips if the hostage's life appeared in danger, and the officers on the ship acted on that authority. No specific order from higher command came signing off on the shooting.11

The apologetic undercurrent issuing forth from the office of the President and the Navy literally drips from this prose. Forgetting for a moment the entanglement of piracy, that the United States Navy would be reduced to borderline apologizing for drawing a close to hostage negotiation in a manner that would require no additional explanation whatsoever from any U.S. city's SWAT team, and that the Chief Executive should engage in such rank gluteus maximus integere should cause one pause. Why should such care be taken to highlight the astounding excess of restraint against common pirates and kidnappers to such an extent so as to endanger the life of a citizen of the United States?

The answer seems to be in two parts. First, the absolute and dangerously schizophrenic attitude the United States has with respect to its power and place in the world. Second, the absurd morass that is the body of the International Law of the Seas.

The process to confront and seize a boat clearly engaged in piracy is delineated in the United Nations Convention on the Law of the Sea. It provides:

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.12

This sounds great. Until you read on.

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.13

Ok, that's... annoying but not unreasonable. Then we continue:

A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.14

Hmmmm. And to cap it off:

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. (Emphasis added).15

It can quickly be seen that, as might even be expected, "International Law" in this respect is effectively beyond redemption. This, combined with an administration so frightened by the use of force that the death of three pirates and kidnappers armed with automatic weapons in the presence of a hostage they have taken requires the invocation of "imminent danger," as apparently being surrounded by hostage takers with AK-47s demanding ransom constitutes some lesser form of danger that does not rise to the level where deadly force might be used, is real cause for alarm by any United States citizen. That the President would hide behind language like "No specific order from higher command came signing off on the shooting," is no less than nauseating. Consider this further with the knowledge that the United States has not ratified the Convention.

One wonders what the likes of Cicero would have thought of circumstances where, far from seeking protection in the declaration that one is a citizen of the United States, many such take to sewing the Canadian Maple Leaf on their persons when abroad to avoid that distinction. And lest we mistake somehow the origins of this habit in recent administrations, it bears mentioning that the danger in being recognized abroad as a citizen of the United States easily extends back to the 1960s.

1. 1. Hansard CXII [3d Ser.], 380-444.
2. 2. Ibid.
3. 3. Ibid.
4. 4. Ibid.
5. 5. Substance of the speech of the Right Hon. W.E. Gladstone, M.P. for the University of Oxford: on the affairs of Greece, and the foreign policy of the administration, on the 27th of June, 1850
6. 6. "Two thousand years ago the proudest boast was civis Romanus sum. Today, in the world of freedom, the proudest boast is 'Ich bin ein Berliner'… All free men, wherever they may live, are citizens of Berlin, and, therefore, as a free man, I take pride in the words 'Ich bin ein Berliner!'" John F. Kennedy, Speech in West Berlin (June 26, 1963). (Kennedy should, of course, have said instead "Ich bin Berliner.")
7. 7. Actionis In C. Verrem Secundae Marcus Tullius Ciceronis Liber Quintus, LXV.
8. 8. Actionis In C. Verrem Secundae Marcus Tullius Ciceronis Liber Quintus, LXII.
9. 9. The closest Cicero gets is "Nam pirata non est ex perduellium numero definitus, sed communis hostis omnium; cum hoc nec fides debet nec ius iurandum esse commune." ("For a pirate is not included in the list of lawful enemies, but is the common enemy of all; among pirates and other men there ought be neither mutual faith nor binding oath.") Marcus Tullius Cicero, De Officiis, Book III, Ch. XXIX, 107.
10. 10. Sir Edward Coke, 49 The Third Part on the Institutes on the Laws of England, 113 (1797) that provided: "Before the Statute of 25 E. 3, if a subject had committed Piracy upon another... this was holden to be petit treason, for which he was to be drawn and hanged; because Pirata eft hostis humani generis, and it was contra ligeanciae fuae debitum....
11. 11. Sarah Childress et. al, "Cargo Ship Captain Is Rescued" The Wall Street Journal, (April 12, 2009).
12. 12. United Nations Convention on the Law of the Sea, Part VII, Section 1, Article 105.
13. 13. United Nations Convention on the Law of the Sea, Part VII, Section 1, Article 106.
14. 14. United Nations Convention on the Law of the Sea, Part VII, Section 1, Article 107.
15. 15. United Nations Convention on the Law of the Sea, Part VII, Section 1, Article 110.

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