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dent of the states-general had signed by mistake, their deputies attended at a meeting of the states, they were refused admittance. This certainly appears to be an act of injustice, particularly as neither the states-general nor the provincial states* have ever given any reason for their refusal to admit them, in which they persist to this day. It may, perhaps, be alleged, that the Drenthers did not renounce their allegiance to the king of Spain, as the other confederates did on the 26th of July 1581; consequently, that they remained under the dominion of the Spaniards, and are to be treated as a conquered country. But I would not exclude them on that account, as I am not clear that they forfeited the privileges of the Dutch union, merely because they did not renounce the king of Spain, nor do I find that this has ever been objected to them. Therefore, I see no reason why the Drenthers should not enjoy the benefit of the law of postliminy.]
The inhabitants of those parts of Brabant, which were under the dominion of the king of Spain, but were afterwards taken by the United Dutch,] also petitioned the states-general, in 1648, to be admitted into the confederation of Utrecht; but they were not even permitted to manage their own internal government. Some of the provincial states, however, gave power to their delegates to decide upon that business, but nothing was done in it. The Brabanters again petitioned on the 22d of March 1651, but to no purpose. Their case does not appear to come properly within the principle of the law of postliminy, for none of their cities, except Breda, had ever been admitted into the confederation of Utrecht. But as to the inhabitants of Breda, I entertain the same opinion which I have already expressed with regard to those of the district of Drenthe.
* Of Over-Yssel, within which the territory of Drenthe was included. T.
f They were not, however, admitted to that benefit, and they were still a dependent territory at the time of the invasion of Holland by the French. T.
% The districts of Maesland, Kuyck, and Kempenland, with the cities of Boisleduc, Breda, Bergen-op-Zoom and their territories, which constituted what was formerly called Dutch Brabant. T.
The case of Guelderland, Utrecht, and Over-Tssel, three out of the seven united provinces, comes much more properly within the law of postliminy. In the year 165% they were taken by the French,* and afterwards recovered by us. While they were in the power of the enemy, they certainly were not entitled to their former rights as confederates, and on that account their delegates were very properly ordered not to attend^ any longer at the meetings of the states-general; but when those provinces again came into our possession, they were with equal propriety, considered as being restored to their former rights, by virtue of the law of postliminy. Indeed, the States-general decreed, on the 20th of April 1674, that those provinces should be restored to their former municipal and confederate rights, as they .enjoyed them before their capture, except, however, that they deprived Guelderland of one vote in the assembly of the states, and several other conditions were, in fact, imposed upon them before they were readmittted into the union; for, they were informed, that they should swear anew to the articles of confederation, as if they were admitted for the first time. But if, by the operation of the law of postliminy, every thing is to be restored as if the captivity had not taken place, as it is every where understood, and is conformable to the usage of nations, every thing ought to have been restored to those provinces, which they possessed before their capture. They were, in my opinion, fully entitled to the benefit of the law of postliminy, and if so, why was a part of their rights retained? If, on the contrary, they were not, why was any thing granted to them?
It has been objected, I know, that the decrees of the statesgeneral, on the subject of postliminy, speak of our subjects only, and that no mention is made in them of our allies and confederates; but that was not the question at the time when those decrees were made. Nay, even if the point were to be decided by those decrees, those should certainly be considered as subjects of this state or republic, who constitute so large a part of it. Others are more properly of opinion, that on the subject of postliminy, there ought to be no difference between ourselves and our allies and confederates. Hence the decree ofthe states-general, of the 23d of October 1676, which I have mentioned above,* grants the benefit of that law, not only to those things which have been taken on board of our vessels, and afterwards recaptured, but also to those which are taken by the enemy, on board of the vessels of allies and of neutrals, and afterwards recaptured by us. I have also herein before shewn, that such was formerly the doctrine adopted by the states-general, and that they blamed the French for having followed a different principle.!
While the kingdom of Portugal was in the possession of the Spaniards, with whom we were at war, the states-general conquered a considerable part of the colony of Brazil, and several others of the Portuguese dominions in different parts of the world. After Portugal had recovered her independence, a truce of ten years was signed between that country and the states-general, in 16404 But our government would not permit that the Portuguese should claim by virtue of the law of postliminy, any part of the dominions which once had belonged to them, and which we had taken from the Spaniards. In 1657, the truce being expired, but before any notice given of the renewal of hostilities, the Portuguese retook some of those places, and on the states-general complaining of it, they refused to restore them, but offered to pay a sum of money by way of compensation, which our government not being disposed to accept, they declared war against Portugal, on the 22d of October 1657. At last this controversy was settled by the treaty of peace which was made on the 6th of August 1661.
The Portuguese were undoubtedly in the right, to claim the dominions which the states-general had taken from them, be
• C. 5. 1 Above, p. 119.
\ Shortly after the restoration ofthe house of Braganza to the throne of Portugal, the states-general made a treaty of alliance with that kingdom against Spain, notwithstanding which the two allies remained at war with each other, and although they united their forces against the common enemy, their mutual hostilities were only suspended by a truce of ten years, which was not very religiously observed. Cerisier, Hist. Gen- des Prov. Un. v«l. vi. p. 148.—Raynal, Hist. Philos. Isf Polit. 1. 9.
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,f 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,\\ 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, (prcedonesJ those, who, without the authorization of any sovereign, commit depredations by sea or land.H Hence, by the law of this country, they
* ff. De Capt & Postlim. Revers. 1. 19. § 2. Ibid. 1. 24. 27. t C. IS.
4 De J. B. ac P. 1. 3. c. 9. §. 16. Wfc
§ De Jure Belli, 1. 1. c. 4.
II De Jure Fee. P. 2. § 8. Q; 15. .
U 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. Hawiins seems deficient, inasmuch as-jtimight possibly be applied to those who sail iw7A,.as.well as to those wlxyftVilgKftAout a commission from a sovereign. He defines a pirate, "one who to enrich himself, either by surprise or open force, sets upon merchants or others, trading by sea, to spoil them of their goods and treasure." 1 Havii. P. C. 267. Independent of the objection which we have made, there appears to be in this definition a great deal of unnecessary redundancy.