that good faith should be preserved between sovereigns and their subjects, and that the latter should not be permitted to injure the former, by their fraudulent conduct.*

There are also others, who, although they are not properly called pirates, yet on account of the atrocity of their crimes, are punished as such. It is so with those hostile ships who come too near our shores, in violation of the prohibition of the sovereign. On the 24th of February 1696, the states-general issued an edict, by which it was enacted, "that all French privateers which should come close to the land, within the buoys, a fleet not being at hand to protect them, should be capitally punished, and this law was actually carried into execution, at Groningen, on the 14th of March of the same year. By what right such things are done, I have discussed in a former chapter. Those also by our laws are punished as pirates, who commit frauds in matters of insurance, and likewise those who cut the nets which are spread out for the herring fishery.§

Albericus Gentilis,|| and several other writers are of opinion, that those nations of Africa, whom we call Barbarians, are to be considered as pirates, and that captures made by them, work no change of property; but that opinion cannot be defended on any rational principle. The Algerines, Tripolitans, Tunisians, and those of Salee, are not pirates, but regularly organized societies, who have a fixed territory and an estab

In England and in the United States, the rule is, that the courts take no notice of the revenue laws of other countries; and therefore, insurances made on goods or voyages prohibited abroad are supported when not contrary to the stipulations of the parties. Planché v. Fletcher, Dougl. 238. This principle, however, has been much contested by writers on both sides of the question; of which controversy see an account in Park on Insur. 341. 6th edit. T.

† Above, c. 3. p. 19.

Edict of Philip the 2d on Insurance, of the 26th of January 1550 § 22. We have not been able to ascertain the precise extent of this law. It is not mentioned in the Curia Philipica, nor inserted with the other maritime ordinances of the same sovereign, in Les Us & Coutumes de la Mer, nor in Adriaan Verwer's collection of Spanish and Dutch maritime laws, entitled "Over de Zee- Rechten."

§ Edict of Philip the 2d. of the 9th of March 1580. § 23.

De Advoc. Hispan. 1. 1. c. 15.

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lished government, with whom we are now at peace and now at war, as with other nations, and who, therefore, are entitled to the same rights as other independent states. The sovereigns of Europe often enter into treaties with them, and the states-general have done it in several instances.* Cicero defines a regular enemy "one who hath a commonwealth, a court of justice, a treasury, the consent and agreement of the citizens, and who pays some regard to treaties of peace and alliance. All these things are to be found among the Barbarians of Africa, for they pay the same regard to treaties of peace and alliance that other nations do, who generally attend more to their convenience than to their engagements. And if they should not observe the faith of treaties with the most scrupulous respect, it cannot be well required of them; for, it would be required in vain of other sovereigns. Nay, if they should even act with more injustice than other nations do, they should not on that account, as Huberus‡ very properly observes, lose the rights and privileges of sovereign states.

Indeed, as the Algerines constitute a republic, ambassadors are sent to them by other princes, and those who are made prisoners by them, change their condition and become slaves. Perhaps the Spaniards do not reckon those Barbarians among the number of regular enemies; but, although it may be correct, as to them, the principle will not bear to be extended beyond Spain. The Dutch, it is true, are in the habit of carrying their Algerine prisoners into Spain, and there by the lex talionis, to sell them into slavery, but this is conformable to the law of war, which may be carried into execution against

* Particularly on the 30th of April 1679, and 1st of May 1680, and often afterwards.

† Qui haberet Rempublicam, curiam, ærarium, consensum & concordiam civium, rationem aliquam, si res ità tulisset, pacis & fœderis. Cic. Philip. 4. C. 14.

De Jure Civitat. 1. 3. c. 5. 4. n. ult.

Hence, those who are taken by the Algerines are not only privately, but sometimes publicly, redeemed. The states-general, on the 25th of September 1681, ordained, that the bailiffs of towns should report to the magistrates those of their inhabitants who should be taken by the Algerines, and that the magistrates should report to the counsellors of the states of Holland, that they might take measures to effect the redemption of the captives.

an enemy, if one thinks proper, under such circumstances as I have above discussed in the third chapter.

There has been a case, however, in which those Africans have been considered to a certain degree as pirates, so far, at least, that their capture was not thought to have worked any change of property. On the 15th of July 1664, the admiralty of Amsterdam restored, without salvage, a vessel which the Algerines had taken from the English, and which the Dutch admiral had recaptured from the Algerines, and the said vessel was so restored, as Aitzema relates,* at the request of the English ambassador, in hopes that the English would do the same by us in similar cases. But lest this case should be drawn into a precedent, it ought to be known, that the Algerines had taken that vessel in the midst of a peace which had been lately concluded by them with the English and Dutch, and for that reason alone it had been considered that their capture under such circumstances, had worked no change of property. Such, according to Aitzema, was the reason given by the English ambassador; whether it was sufficient or not, I shall not now consider, being satisfied with observing, that this ought to be, and in fact it was considered by both parties at the time, as a singular case.

What is the proper forum or jurisdiction for the trial of pirates may be and has often been questioned? If such a one, although a foreigner, should commit depredations upon our citizens, and be taken, I have no doubt but that he may

* Aitz. 1. 44.

In the original, there is in this place, a long dissertation on the subject of the respective jurisdictions of the Dutch admiralty courts and their ordinary tribunals, which we have left out, as uninteresting and useless.

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As the law of nations is at present understood, it is of no importance, for the purpose of giving jurisdiction, on whom or where the piratical offence has been committed. A pirate is considered as an enemy of the human race, (hostis humani generis;) and therefore, may be tried, convicted and punished in any country where he may be found. "Every man," says sir Leoline Fenkins, "by the usage of our European nations, is justiciable in the place where the crime is committed; so are pirates; being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken. 2 L. Fenk. 714.

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properly be tried and punished by our own tribunals, not only if he is taken in the fact and brought into our country, but also if he should be found and taken among us on any other occasion. This must be admitted, if he has committed depredations upon us without any commission from his sovereign, but if he had a commission, and it is only alleged that he exceeded it, then the question becomes more susceptible of doubt.

In the year 1667, this subject was agitated between the English and the states-general, concerning those who had obtained letters of reprisal while there were differences sub

The English, however, a few years afterwards, unjustly, in our opinion, claimed and exercised the right of trying and punishing a regularly commissioned privateer for having exceeded the bounds of his commission. The case is related by sir Leoline Jenkins, whose advice was taken and followed on the occasion. In the year 1675, one Cheline, the commander of a French privateer, having committed several unwarrantable depredations at sea, and among other things, plundered several English vessels of their provisions, (England being at that time in amity with France), went with his ship into the port of Kinsale, in Ireland, where his crew having informed against him, sir Leoline Jenkins was consulted by the king on his case, and gave it as his opinion, that he was liable to be punished with death as a pirate, and that his goods and vessel should be confiscated. Cheline, however, having had wind of the intended prosecution, escaped from Ireland, but his vessel and goods were seized, proceeded against in the court of admiralty and confiscated. In vain the king of France, whose commission he bore, demanded that the cause should be remitted to him for trial; sir Leoline answered, that this matter of renvoy (remitting of causes to foreign sovereigns for trial) was quite disused among princes; and as to Cheline's commission, he said, that it had only been given to him to cruise against the enemies of the most christian king, and did not give him the right of pillaging the king's friends. 2 L. Fenk. 714. 754-Mr. Wooddeson is mistaken, when he says, that Cheline was held not to be punishable for piracy, because he had a commission from the king of France. 2 Wooddes. 425. He was actually punished as a pirate as far as the confiscation of his ship and goods, and if his person had been laid hold of, would have been hanged as such, for plundering the English vessels at sea. It is true, that among the charges exhibited against him, there was one for attacking and taking a Dutch ship, near the port of Dublin, and that on this particular charge, sir L. Jenkins gave it as his opinion, that he could not be capitally convicted; but it was not on the ground of his being bearer of a French commission, but because the statute had provided a different punishment. 2 L. Fenk. 754.

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sisting between the two nations, and who committed depredations even after the peace. The English contended, that they were to be tried by the courts of the sovereign who had granted the letters of reprisal. The ambassadors of the statesgeneral insisted, that those who committed hostilities without a lawful authority from their sovereign, were to be considered as pirates, that such was the general law of nations, and that offenders of that description might be punished by any sovereign into whose dominions they might be brought, of which there was a great number of examples. The French ambassadors at that time were of the same opinion in which the English and the states-general then concurred.*

But whether one be a pirate or not, depends upon the fact, whether he has or not, a commission to cruise; and if it should be alleged that he exceeded the authority which that commission gave him, I would not, on that account, hold him to be a pirate. Generally, the sovereigns who grant the commissions, decide on the captures that are made by virtue thereof, because the prizes are brought within their dominions;† but I would have no objection to such decision being made by the sovereign whose subjects complain of depredation, if the perpetrators should be brought or apprehended within his territory. By

* Aitz. 1. 47.

↑ Professor Rutherforth, in his Institutes of Natural Law, gives a different reason for allowing to the sovereign of the captors, the exclusive right of adjudicating prizes made under his authority. "It is not," says he, "because the prize has been brought into the territory of that sovereign, that he is entitled to an exclusive jurisdiction in such cases; for, the controversy arose upon the main ocean, which is out of his territory, and as he had no jurisdiction in the first instance, the subsequent act of bringing the prize into his territory will not give him any. But the reason is, that the state to which the captors belong has a right to inspect into their behaviour; both because they are members of it, and because it is answerable to all other states for what they do in war." 2 Ruth. 595, 596. Cambridge edit.

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Several plausible schemes have been proposed for establishing a more impartial jurisdiction for the trial of neutral property taken in war, but none of them has yet obtained the general assent of mankind, or has even been adopted by a single nation. Hubner is for a mixed tribunal, to consist of commissioners respectively appointed by the sovereigns of the captors and the captured, with the addition, when the prize is carried into a neutral port, of one or more judges appointed by the sovereign of the neutral.te