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cause the states themselves asserted, that the kingdom of Portugal did not belong to Spain. In addition to this, the Portuguese had been in alliance with the states-general in the war against Spain, so that the places belonging to them which had come into the possession of the Dutch, their allies, were clearly to return to their former sovereign, by virtue of the law of postliminy. It is true, that at the very time when those places came into the power of the Dutch, there was no king of Portugal, but when afterwards, that country was restored to its independency, the Portuguese were entitled to resume the possession of the territories that had been conquered by their allies from the enemies, saving the claim of the statesgeneral for the expenses which they had incurred in taking them.
IT is a principle consonant to reason and sanctioned by the
rules of positive law, that things taken by pirates or robbers, do not thereby undergo a change of property, nor require the operation of the law of postliminy to return to their former owners. The authority of the Digest is in point,* and I have shewn in a former chapter,t that this rule has been adopted by several nations in their treaties with each other. I need not, therefore, bring forward the additional authorities of Grotius, Gentilis, and Zouch,ll and of a number of other writers. But I shall proceed to examine who are the persons to whom we may properly apply the denomination of pirates and robbers.
We call pirates and plunderers, (prædones) those, who, without the authorization of any sovereign, commit depredations by sea or land. Hence, by the law of this country, they are punished as pirates, who sail out for the purpose of making depredations on the enemy, without a commission from the admiral, and without having complied with the requisites of
* ff. De Capt. & Postlim. Revers. I. 19. § 2. Ibid. 1. 24. 27.
9 Our author's definition seems to be intended to apply equally to pirates and land-robbers; whereas it might have been expected that he would have given one to be applied exclusively to the former description of men. We have not been able to find one in the books altogether satisfactory, that given by Mr. Hawkins seems deficient, inasmuch as it might possibly be applied to those who sail with, as well as to those who sail without a commission from a sovereign. He defines a pirate, “ one who to enrich bimself, either by surprise or open force, sets upon merchants or others, trading by sea, to spoil them of their goods and treasure." 1 Hawk. P. C. 267. Independent of the objection which we have made, there appears to be in this definition a great deal of unnecessary redundancy.
“ or on
Were we to presume to offer a definition of our own, we would say, that a pirate is “he, who sailing without being authorized by any sovereign to make captures, (or with commissions from different sovereigns at war with each other), commits depredations at sea or on shore.” We say, shore," because it appears to us, that on the principle of the celebrated case of Lindo v. Rodney, Doug. 591. (which, we think, may be extended thus far without straining its analogy), if the crew of an unlicensed cruiser should land on a defenceless coast, there commit depredations and carry off the booty on board of their ship, the act would be piracy; and to be tried in a court having admiralty jurisdiction. This doctrine (if correct) may find its application in case such pirates should be brought or found in a country different from that in which the depredations were committed. There, unless they could be tried as pirates, they could not be tried at all.
We mean to speak here of piracy by the law of nations only, not of that offence as it is considered at the common law. The definition above quoted from Hawkins, was clearly meant by him to apply merely to piracy by the law of nations, for, in the very next page he gives us the common law definition of the same crime, which is very different from the former one. “ A pirate," says he, “at the common law, is a person who commits any of those acts of robbery and depredation on the high seas, which, if committed at land, would have amounted to felony." 1 Hawk. P. C. 268. On the same prin. ciple, the law of the United States defines piracy in general, the commission at sea, or in a river, haven, bason or bay, out of the jurisdiction of any particular state, of murder, robbery, or any other offence, which, if committea within the body of a county, would, by the law of the United States, be punishable with death. Act of the 30th of April 1790. S 8.–1 Laws U. S. 102. Several other offences are made piracy by the same statute, which come within the proper scope of municipal legislation.
Here, then, appear to be two different and distinct species of offences; one against the general law of nations, and the other against the municipal law of the land. The laws which constitute the latter kind of crime, are in some respects more extensive, and in others more restricted than that which defines the former. They are more extensive, in as much as they make piracy of an act of felony committed by an individual at sea, even on board of a commissioned vessel of his own nation, and more restricted, because they require, in order to constitute a piratical act, the commission at sea of a common or statute law felony, whereas the law of nations in its definitions of crimes, does not take notice of the technical rules of the common or any other municipal law.
An important question here occurs: “Whether an act of piracy, clearly considered as such by the law of nations, may be inquired of, and punished by the courts of England or the United States possessing admiralty juris. diction in criminal cases, although it should not be piracy at the common
the law, on the subject of privateering. If an inhabitant of the United Netherlands should sail out under a commission from any foreign prince, or, without the consent of the states-general, should take a foreign commission in addition to one from our own government, he is to be punished by the forfeiture of life and goods, and of the security given on receiving his commission here.* By another lawt it is decreed, that those who shall act thus are to be considered as pirates, which is very reasonable, because they might thus commit depredations on the subjects of nations in amity with us, and involve their own sovereign into a war. Probably this last law was made on
law, nor be expressly provided for by statute? The learned Wooddeson is in favour of the affirmative. “ Whether," says he, “a charge amounts to piracy or not, must still depend on the Law OF NATIONS, except where, in the case of British subjects, express acts of parliament have declared, that the crimes therein specified shall be adjudged piracy, or shall be liable to the same mode of trial and degree of punishment." 1 Wooddes. 140.
T. * Edicts of the 27th of July 1627, and 26th of April 1653. | Edict of the 29th of January 1658.
* By the law of the United States, “any citizen accepting or exercising within the American territory, a commission from a foreign prince, shall be fined not exceeding two thousand dollars, and imprisoned not exceeding three years; and any person who, in the United States, shall fit or attempt to fit out or be concerned in a privateer, with intent to commit hostilities against a foreign state, with whom the United States are at peace, or shall deliver a (foreign) commission for any ship or vessel to be employed as aforesaid, shall be fined not exceeding five thousand dollars, imprisoned not exceeding three years, and the vessel with all her materials shall be forfeited.” Act of the 5th of June 1794.3 Laws U. S. 89. And by a subsequent act, “ if any citizen of the United States shall, without the limits of the same, fit out or procure to be fitted out, or knowingly be concerned in the fitting out of a privateer for the purpose of cruising against the subjects of a nation in amity with us, or shall take the command, or serve on board of such privateer, or purchase any interest in her, he shall be adjudged guilty of a high misdemeanor, and be punished by a fine not exceeding ten thousand dollars, and imprisonment not exceeding ten years.” Act of the 4th of June 1797.--4 Laws U. S. 3.
T. § Sir Leoline Jenkins considers those who commit depredations under several commissions from different sovereigns, as pirates in the highest degree. “ The law," says he, distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all, or else hath two or three, and a lawful man of war that exceeds his commis.
account of those who, in the month of November 1657, com. mitted depredations under double commissions from France and Portugal,* of whom I have read in the newspapers of that time.
But what shall we say of those who make use of double passports or sea-letters, as is frequently done by masters of vessels, in order to carry on a contraband trade, or to commit other frauds with greater safety? They, indeed, are not equally guilty with pirates; yet, the states-general, by their edicts of the 31st of December 1657, have ordered the confiscation of their ships and goods. Certain sophistical lawyerst have pretended to argue, that such an act does no injury to us, if it is not done in fraud of our own laws; but this is a weak and silly argument, for it is important to the world at large, sion. 2 L. Jenk. 714. There may be a difference, however, if the commissions are from sovereigns in alliance with each other; but although in such a case it might not amount to the crime of piracy, still it would be irregular and illegal, because the two belligerents might have adopted different. rules of conduct with respect to neutrals, or may be separately bound by engagements unknown to the party. Regularly, no one ought to accept of a commission from a foreign prince, without the permission of his own sovereign.
On this subject, we know, that there have been various opinions. The chevalier de Abreu, (a Spaniard), in his Treatise on Captures, first published at Cadiz, in 1756, and lately at Paris, in a French translation, in 1802-thinks, that there can be no inconvenience in taking several commissions from different sovereigns allied in the same war, because they all tend to the same end, the destruction of the common enemy. Abreu, part 2. c. 1.97.—but we cannot agree with him on this point, because we think, that it does not belong to an individual to judge of the relations that may exist between different sovereigns, and on his single responsibility to run the risk of involving his own country into a war. Louis XIV. in his Ordonnance de la Marine of 1681, expressly forbids his subjects and all persons residing in France, to take commissions from other sovereigns, without distinguishing whether his allies or not, under the penalty of being punished as pirates. Ord. tit. des Prises, art. 3. Valin, for various excellent reasons, thinks, that independent of positive law, the taking of several commissions even from allied sovereigns, cannot be justified, and strongly combats the opinion of the chevalier de Abreu. 2 Val. Comment. 236.
T. France and the United Netherlands were at that time in alliance together against Spain, and the United Netherlands were engaged in a separate war against Portugal.
T. Consil. Belg. vol. 4. Cons. 203.