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. T. CHAPTER XVIII. Of Privateers. THIS 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.|| * De Offic. c. 11. The reference in the original is by mistake to c. 36, 37. T. † Quæst. Rom. 39. ff. de Colleg. & Corpor. I. 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. l. 2. c. 15. § 5.—Justin. 1. 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. T. But in the Latin translation which is subjoined in the Digest to the Greek text of Selon, the words of the original i ríav oixóμevos, (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 Forma Admiralitatum,† and readers whose curiosity may lead them to investigate the subject. Our author has written a dissertation upon it, in his Observ. Jur. Rom. 1. 1. c. 16. * ff. de Capt. & Postlim. Revers. 1. 6. + Instructions or regulations for privateers. T. T in various edicts, which have been made on the subject of privateers whenever foreign powers have complained of their depredations. But as those edicts are in every body's hands, I think it unnecessary to give here a more particular account of the regulations which they contain. I think it more worth while to inquire whether the captains of privateer ships, who are not themselves the owners of the vessels, may enter into a partnership with each other for sharing in the prizes which they may each separately take? If they are sent out merely to cruise and make captures, and have no further authority, it is certain that they cannot form such partnerships without the consent of their owners, otherwise, the agreements which they make with each other are to be considered as null and void. Let it not be objected,* that by the law of Solon abovementioned, the partnership contracts of those who go out to plunder are declared valid, for it is sufficiently clear, that the legislator only meant to speak of those who are their own masters, and go out to plunder on their own account. So, if the owners of privateers should enter into partnerships with each other, and agree that their prizes should be equally divided among themselves, such agreements as well as every other which they might make, would undoubtedly be valid; because every one may dispose of his own property as he thinks fit: but such a power can never be exercised by captains of private armed ships, unless they are also the owners of them, which is hardly ever the case. We are speaking here only of those captains of privateers who have received an authority from their owners merely to cruise, and who exceed it by entering into particular agreements with each other. There was once a cause of very great moment decided upon this question, and which was even carried to the court of revision. Two privateers, one belonging to A and the other to B took a vessel together, and after * It ought to be remembered, that in Holland, at the time when our author wrote, the imperial law of Rome was the common law of the land. This will sufficiently account for the constant application which he endeavours to make of its rules and principles. T. wards (as B alleged) the two captains agreed together, that any future prize that they should make, should be divided between them. Afterwards they separated, and A's vessel alone took another prize, which B insisted should be divided between them, by virtue of their agreement. A denied that the agreement extended to prizes separately made, and if it did, he contended, that it was illegal and void. And so it was determined by the inferior court at Flushing. But B having appealed to the supreme court, the cause was decided in his favour, on the 3d of March 1696, and that judgment was affirmed by the court of review on the 4th of October 1697. To the same effect is the opinion of several advocates in Consilia Belgica, and a similar decision was given by the court of admiralty of Amsterdam, in 1665. But all these decisions, except that of the court of Flushing, appear to me to have been erroneous, and I think that the cause ought to have been determined in favour of A. I have read with astonishment in the acts of the supreme court, in which the opinions of several judges of that tribunal and of the court of review are inserted, that in the particular case that I have spoken of, the only question that was agitated was, whether there had actually been an agreement between the two captains, that the prizes which they should separately take should be common between them, or whether it contemplated merely those which they should take in company; but the question of the legality of the agreement, which was the first that suggested itself to me, does not appear to have been even thought of. Admitting that it had been expressly agreed between the two captains, that all the prizes which they or either of them should take, whether jointly or separately, should be equally or proportionably divided between them, still I do not think that A was at all bound by that agreement. He had sent out his vessel at his own risk, for the sole purpose of cruising and making captures; he had given no other instructions. to his captain, and had in no manner authorized him to * Vol. 4. Consil 204. |