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the 22d article of the treaty of peace between the king of France and the states-general, of the 27th of April 1662, it is stipulated, “ that vessels which shall be taken by ships of war or commissioned privateers, shall be tried in the dominions of the sovereign by whom the commission shall have been granted, and not elsewhere."
It is more difficult to decide, whether a foreigner who has committed depredations on other foreigners, may, if he should be found among us, be tried by our tribunals? In the year 1661, doubts were entertained upon this subject, in the case of a Portuguese privateer who had committed depredations on the subjects of a nation in amity with us and not at war with Portugal, but the spoliator having died in the meanwhile, nothing was decided upon it.* In the year 1668, the king of England, on the representation of the ambassadors of the states-general, ordered an Ostend ship, cruising under à com
ritory. 2 Hubn. 44.-Galiani is for vesting that jurisdiction, in some cases, in the tribunals of the captor, and in others in those of the captured. De' doveri, &c. l. 1.c. 9. $ 8., but the ancient practice has continued and still continues to be followed.
It is true, however, that when prizes are brought into a neutral port, the neutral sovereign will restore the property of its subjects or citizens, if it has been illegally captured. That this doctrine is not new, appears clearly from the 15th article of the marine ordinance of Louis the XIV. title des Prises, which contains this express clause: “ If on board of the prizes which shall be brought into our ports by foreign armed vessels, there shall be found goods belonging to our subjects or allies, those of our subjects shall be restored to them,” and this right, says Valin, " is exercised by way of compensation for the asylum, granted to the captor and his prize." 2 Valin's Comment. 274.
The same right has been exercised by the courts of the United States, in various instances, during the last war between Great Britain and France. Glass & Gibbs v. The Betsy. 2 Dallas's Reports 6.-Hollingsworth v. The Betsy. 2 Peters's Admiralty Reports, 330.
In like manner, prizes taken by foreign privateers fitted out in the United States, in violation of our neutrality, and brought into our ports, have been invariably restored. Talbot v. Fansen. 2 Dallas, 133. and by an act of congress of the 5th of June 1794, the district courts are authorized “ to take cognizance of complaints, by whomsoever instituted, in case of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof." 3 Laws U. S. 91.
T. * Aitz. 1. 41.
mission from the king of Spain, which had taken a Dutch vessel, to be detained, and the laws to be executed upon the captain. *
It is clear, that if the law of the neutral country (like the two edicts which I have mentioned above)t forbid the selling of prizes on the neutral territory, unless they have been carried into the port where the privateer was fitted out, and there legally condemned, it will appear unjust to give an action against the captor, either to the government for the punishment of the offence, or to the owners of the captured property for the damage suffered. The condition of both foreigners ought to be alike; if the spoliated party is permitted to bring his action against the captor, the latter ought to be allowed to justify himself, by shewing that his prize was legally captured. And yet, it would be hard and unexampled, to deny to the owner of the captured ship and goods, the right of claiming satisfaction from a foreigner whom he finds here, and who may be immediately going nobody knows whither. For this reason, I am not satisfied with the two edicts above mentioned.
* The fact, as related by Aitzerna, (1. 48.) is as follows: The Dutch am. bassadors complained to his majesty of the intolerable insolence of the Ostend privateers, and expressed their opinion of the manner in which it should be proceeded against them; they spoke in particular of the ship Fupiter of Amsterdam, which those corsairs had shot at for a long time, (making them believe that they were Turks), and had frightened them so much, that the crew of the Jupiter had forsaken her, and made their escape to the shore, and the privateer had run in with the ship into the Isle of Wight.
The king was pleased to answer, that he had heard great complaints on all sides of the conduct of the Ostend privateers; that they were, in fact, mere pirates, but that he would put a stop to it; that if any of his subjects should be found on board of such privateers, they should be hanged, and that he would make strong representations to the court of Brussels, that they should inflict the severest penalties upon such robbers; that with regard to the ship Fupiter, the ambassadors should present a memorial to the council of state, who would take order upon the subject. “The memorial,” continues Aitzema, "was accordingly presented, on which his majesty was pleased to resolve, that the captain of the privateer and his s'uip should be arrested, and proceeded against according to law.” 6 Aitz. 395: fol. edit. What was afterwards done with them, does not appear.
T C. 15. p. 121.
The common punishment of pirates is the forfeiture of their lives and goods, which is sufficiently pointed out by all the edicts which I have above related, made on the subject of those, who, from the atrocity of their crimes, are to be considered as such. But there is a special edict of the statesgeneral, of the 25th of August 1611, against pirates, properly so called, their aiders and abettors, by which they are punished with the forfeiture of life and goods, one third of the goods being given to the informer. The penalty, therefore, is capital, and it is not in the power of the judges to mitigate the punishment: They do, however, execute the law with more or less rigour, on account of the frequency of piracies and other offences of the like nature. And, indeed, provided death is inflicted, the remainder may be left to the discretion of the judge, as is the case with almost all other crimes, for which the law in general terms directs a capital punishment.*
* If we have not mistaken the meaning of this passage, it seems that the mode of inflicting the punishment of death, when the law had not expressly provided it, was formerly left, in Holland, to the discretion of the judges. We wish that we may have misunderstood it.
HIS subject also properly belongs to the law of nations,
not only because privateering cannot be lawfully carried on without an authorization from the government, but because the controversies which arise out of it, often create disturbance within the state, and set sovereigns at variance with each other.
It was formerly held at Rome, that one who was not regularly enrolled as a soldier, could not lawfully kill an enemy of the Roman people. Such was the opinion of Cato, as we are informed by Cicero* and Plutarch. But it appears from the Digest, that the law of Solon, by which individuals were permitted to form associations for the purpose of plunder, was afterwards introduced into the Roman system of laws, and made a part of their code.ll
* De Offic. c. 11. The reference in the original is by mistake to c. 36, 37.
T. † Quæst. Rom. 39. ff. de Colleg. & Corpor. 1. 4.
$ Among the ancient Greeks and Romans, down to the time of Tarquin, it was considered as glorious, to plunder foreigners at sea, with whom there were no treaties of peace or alliance, even though there was no public or open war against them. Grot. De Jure B. ac P. 1. 2. c. 15. 5 5.—Justin. I. 43. c. 3. It seems, that the manners of those nations at that time were very similar in this respect to those of the barbarians of Africa at the present day, who plunder indiscriminately all those with whom they have not, by an express treaty, agreed to remain at peace.
|| But in the Latin translation which is subjoined in the Digest to the Greek text of Solon, the words of the original ist niev oi xómetros, (those who go out for plunder) are not translated, and the compilers have inserted in lieu thereof, sodales qui multum simul habitantes sunt, ( associates who live a great deal together.) This difference has very much exercised the ingenuity of the doctors of the civil law, to whose works we shall refer those of our
It is now, indeed, a long time since sovereigns have begun to make use of the aid of individuals against their enemies, as auxiliary to the public force. Formerly, in the United Netherlands, there were no vessels of war but such as were owned by private persons, to whom, besides bounties out of the captured and recaptured property, the state paid a certain sum, by way of indemnity from the public treasury, proportioned to the expense which they were at, and to the time which they employed in hostile expeditions. A great use was made of those private armed vessels (which were then called cruisers) by the states-general, in their war with Spain. Several edicts were made respecting them, which it is needless to relate.
At present, as well as formerly, when war takes place, vessels are fitted out, manned and armed by private adventurers at their own expense, with which they attack the enemy's vessels at sea, with no other inducement than that of the captures which they expect to make. These have been called capers and freebooters, but now by a more decent appellation are denominated privateers. It is not possible to ascertain whether they were the same description of men, who, in the Digest, are called latrunculi.* For my part, I do not believe it, nor do I think that Albericus Gentilis is right in giving them the name of pirates, which he does throughout his work De Advocatione Hispanicâ, whenever he has occasion to speak of them, and even when he treats of the laws and usages by which their conduct is regulated. This is so very absurd, that it does not deserve a serious refutation; for, after all, what those men do, is done under the sanction of public authority. In this country they are not allowed to sail without a commission from the states-general or the admiral, countersigned by the lieutenant of the admiralty of their particular district, nor without having first made oath and given satisfactory security that they will not do any injury to neutrals. These and other regulations are to be found in the Formæ Admiralitatum, and readers whose curiosity may lead them to investigate the subject. Our author has written a dissertation upon it, in his Obsero. Fur. Rom. 1. 1. c. 16.
T * ff. de Capt. & Postlim. Revers. 1. 6. + Instructions or regulations for privateers.