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 Jenkins, "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. Jenk. 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. Jenk. 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 ter

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 a 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. 1. 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. Jansen. 2 Dallas, 133. and by an act of congress of the 5th of Fune 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.

* Aitz. 1. 41.

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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)† 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 Aitzema, (1. 48.) is as follows: The Dutch ambassadors 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 Jupiter of Amsterdam, which those corsair's 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 Jupiter, the ambassadors should present a memorial to the council of state, who would take order upon the subject. "The me morial," continues Aitzema, “was accordingly presented, on which his. majesty was pleased to resolve, that the captain of the privateer and his ship 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.