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

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, or on 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 principle, 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. § 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 jurisdiction 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 lawf 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

Jaw, 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.

* Edicts of the 27th of July 1627, and 26th of April 1653. Edict of the 29th of January 1658.

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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.

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§ 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.

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account of those who, in the month of November 1657, committed depredations under double commissions from France and Portugal,* of whom I have read in the newspapers of that time.

1

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 lawyersf 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. Fenk. 714. There may be a difference, however, if the commisşions 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. § 7.-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.

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* 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.

Consil. Belg. vol. 4. Cons. 203.

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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.

† Above, c. 3. p. 19.

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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 magis trates 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.