Questions of Public Law (1737)
Cornelius van Bynkershoek
Regarding Pirates, and the Status of the Barbary Peoples of Africa
IT is of interest to define the terms ‘pirate’ and ‘robber’, since things captured by these are not considered to have changed masters, and accordingly do not require an application of the principles of postliminy. This rule is supported by reason, by Roman Law, and by various treaties, as I have shown in Chapter XV. I need not, therefore, add the authority of Grotius, Alberico Gentili, Zouche, and others, who hold the same opinion. Now, those who rob on land or sea without the authorization of any sovereign, we call pirates and brigands. Hence we punish as pirates those who sail out to plunder the enemy without a commission from the admiral, and without complying with Articles 5 and 69 of the rules of the Admiralty of August 13, 1597. Furthermore, the edicts of the States-General of July 27, 1627, and April 26, 1653, stipulate that no inhabitant of the United Provinces may sail out from a home or other port, with a commission from a foreign prince, and that no one who holds a commission from the admiral of the United Provinces, may accept another from a foreign prince without the permission of the States-General, and they add that any one who infringes these rules shall be punished by the forfeiture of life and goods, and the sum of money deposited as security before sailing. And it is indeed very reasonable that those should be treated as pirates, who sail out for depredations on a commission of a foreign prince, or of several princes, who have not the same friends and enemies, for if this were permissible they might plunder neutrals and bring our state into war with other nations. Even the States-General specifically announce that such must be considered as pirates by the edict of January 29, 1658, an edict that was perhaps called forth by the acts of those who, in November, 1657, committed depredations on double commissions from France and Portugal.
But what are we to say of those who use double passports, as shipmasters often do in order the more safely to carry contraband and commit other frauds? They are not indeed as guilty as pirates, and yet, Article 5 of the edict of the States-General against the Portuguese of December 31, 1657, has ordered the vessels and goods of such to be confiscated. Certain inconsequential lawyers have put forth the sophistical argument that such acts do no harm unless committed in such a way as to defraud us, but this is hardly convincing, for it is of importance to the state that good faith be preserved between sovereigns and their subjects, and that no injury be committed through fraud.
There are also various other persons who are punished as pirates on account of the atrocity of their crimes, though they are not actually pirates, as for instance those who sail too near the land contrary to the prohibition of the sovereign. So the States-General, on February 24, 1696, decreed that no French privateer should come close to land within the buoys, without a protecting fleet, under penalty of death, and the people of Groningen carried this decree into execution on March 14, 1696. I have discussed the justice of this act in Chapter III. Those are also punished as pirates who commit frauds in matters of insurance according to Article 22 of the ‘edict on insurances’ of Philip II, dated January 20, 1570; and also those who cut the nets of the herring-fishers, according to Article 23 of Philip’s decree, dated March 9, 1580.
However, I do not think that we can reasonably agree with Alberico Gentili and others who class as pirates the so-called Barbary peoples of Africa, and that captures made by them entail no change in property. The peoples of Algiers, Tripoli, Tunis, and Salee are not pirates, but rather organized states, which have a fixed territory in which there is an established government, and with which, as with other nations, we are now at peace, now at war. Hence they seem to be entitled to the rights of independent states. The States-General, as well as other nations, have frequently made treaties with them, and I may refer to our treaties of April 30, 1679, and May 1, 1680, by way of example. Cicero defines as a regular enemy ‘one that has a commonwealth, a senate, a treasury, the unified support of its citizens, and that shows some respect for treaties and covenants of peace when an occasion is offered to make one’. All these requirements they satisfy; they even have some respect for treaties, as other nations have, though nations are usually more concerned about their own advantage than about treaties. That they should have complete respect for treaties, no one could require, since we cannot require that even from other nations. And Huber observes that they do not properly deserve to lose the rights and the name of a sovereign state even if they acted with less justice than others. Indeed, the people of Algiers form a commonwealth so that envoys are sent to them, and those who are captured in war by them change their status and become slaves. Hence those who have been captured by Algerians have sometimes been redeemed not only privately but even publicly. So the Estates of Holland on September 25, 1681, decreed that the bailiffs should report to the respective magistrates the persons out of their cities that were captured by Algerians, and that these in turn should report to the counsellors of the Estates of Holland so that these might take measures to effect the redemption of the captives. It may be that the Spaniards do not consider the Barbary people as deserving to be reckoned among regular enemies, but that applies only to the Spanish. Indeed the Dutch carry their Barbary captives to Spain and sell them into slavery there on the ground of retaliation; but this is practised according to the laws of war, which can properly be invoked against any enemy under such conditions as I have discussed in the third chapter.
There was, however, a certain case which seemed to entail the inference that those Africans were to be considered as pirates, and that, therefore, property which they captured did not thereby change ownership. The Admiralty of Amsterdam on July 15, 1664, restored without salvage a vessel which the Algerians had taken from the English, and the Dutch admiral had later recovered from the captors; and, as Aitzema relates, this was done by order of the States-General at the request of the English ambassador in the hope that the English would do the same for us in similar cases. But lest this case be used as a general precedent, we must note that the Algerians had seized this ship at a time of peace soon after signing a treaty of peace with England and Holland, and that this circumstance was the sole reason why the ownership of the English vessel was not considered altered; at least that is the reason which Aitzema attributes to the English ambassador. Whether or not his argument is sound I shall not now consider; I am content to observe that the case must be considered as peculiar, as indeed it was considered by both parties involved.
There has often arisen a discussion regarding what court has jurisdiction in the trial of pirates. Our first question is whether cases of piracy belong to the common court or to the court of admiralty. So far as the United Provinces are concerned, and we are chiefly concerned with our own government, we may refer to the third clause of the regulations which the States-General drew up for the Admiralty on August 13, 1597: ‘This court shall have jurisdiction over all booty and all prizes that may be taken and brought in by vessels of war or by privateers fitted out under orders of the admiral; it shall also have jurisdiction in all questions and differences that may arise between any of the above-mentioned vessels of war or regarding the aforesaid privateers in respect to all crimes and misdeeds that may be committed by any of these, and also over such as may be found in or accused of any act of piracy.’ I have given this tedious phraseology in full so that the reader may judge for himself what it means; for the last clause, regarding piracy, might perhaps be taken merely as a qualification of the preceding statement about warships and privateers. If this be true, the clause would merely mean that accusations of piratical acts brought against our own war vessels and privateers belong to the Admiralty, while other cases of piracy belonged to the common courts. But the clause may also be understood disjunctively as containing a general rule about pirates, as the phrase ‘and also over such’ implies. The same implication that the rule is general is found in the phraseology of Article 18 of the same regulations: ‘When any pirate or any other public enemy is brought to port the lieutenant admiral shall if possible attend on all court days and especially when the final judgement is to be pronounced.’ This certainly is a general statement applying to piracy, and is no mere qualification of another rule.
An Englishman, whose ship was captured by three Dutch commanders, claiming that the seizure was illegal, arrested one of the commanders and hailed him before the court at Amsterdam. This court, however, released the man and referred the case to the Admiralty, and, as Aitzema says, the States-General in a decree of 1662 pronounced this act to be in accordance with well-known principles. This decree was correct if, as in that instance, the commander is proved to have failed in his duty, or if it be a question of one who has sailed out as a privateer under official orders; for the Admiralty has jurisdiction in such cases only, according to the above-cited Article 3. Accordingly, all actions brought against others for the recovery of damages for illegal seizure belong to the ordinary courts, though this fact is sometimes disregarded through carelessness.
If any one who has committed depredations upon us should be captured, even though he be a foreigner, I do not doubt that he can properly be tried and punished by our courts, and that not only if he is arrested in the act, but also if he is arrested among us on any other occasion. To this principle every one will agree if he committed the plundering against us without letters of reprisal from his sovereign; if, however, he did it under a commission and it is only charged that he exceeded this, then there would be greater room for doubt. This question arose in 1667 between the English and the States-General when they were discussing those who had continued in time of peace the depredations which they had, under letters of reprisal, carried on during hostilities. The English contended that the sovereign who had given the letters ought to have jurisdiction; the envoys of the States-General urged that those who committed hostile acts without a legitimate commission from their sovereign, should be treated as pirates, that it was the law of all nations that such could be punished by any sovereign into whose hands they chanced to fall, and that this principle was supported by numerous precedents. The French envoys at that time concurred in this view, and this principle was accordingly adopted by the English and the States-General. But the question whether or not a man is a pirate depends upon whether he carries a commission as a privateer; if he has such a commission and it is charged that he has exceeded his commission, I should nevertheless not at once pronounce him a pirate. Sovereigns generally assume jurisdiction over their own commissions because the prizes are brought to them; however, I should readily permit such decisions to be made by the sovereign whose subjects complain about depredations if the culprit is taken in his territory or is brought before him. In Article 22 of the peace between the King of France and the States-General, dated April 27, 1662, it is agreed regarding ships seized by privateers that the cases of such should not be tried except in the courts of the sovereign which furnished the commission.
It is more difficult to decide whether a foreigner who has committed depredations upon foreigners can be brought before our courts when taken upon our territory. This question was raised in 1661 in connexion with a man who had received a commission from the King of Portugal, and had plundered subjects of a nation at peace both with us and with Portugal; since, however, the pirate died before the case was tried, there was no decision. In 1668, at the request of the envoys of the States-General, the King of England ordered the detention of an Ostend ship which, while bearing a commission from the Spanish King, had seized a Dutch ship, and he commanded that the laws be enforced against the commander. If, as in the two edicts of Holland cited at the end of Chapter XV, the laws ordain that no one may sell ships and goods captured on a foreign commission, except when condemned at the port of the sovereign issuing the commission, it might seem unjust to give an action against the captor, either to the government, on a criminal charge, or to the foreign owners of ships and goods, for the damage suffered. Both foreigners ought to have the same rights; either the injured party can here bring his case against the captor or he cannot; if he can, then the captor also should have access to this court to prove that his prize was legally captured. And yet it would be hard and unexampled to deny access to the courts to the owners of the ships and goods who found their property here in the hands of a foreigner who might depart at any moment. And if you grant that, you can hardly refuse the captor. Accordingly, there is an added reason why I do not approve of those two edicts of the States-General.
The usual punishment of pirates is the forfeiture of life and goods, as may be inferred from all the above-cited edicts dealing with those who are to be treated like pirates because of the atrocity of their crimes. We have also a special edict of the States-General, dated August 25, 1611, directed against pirates and their aiders and abettors, by which these 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 the judge does not have the privilege of mitigating the penalty, though the severity of the mode of inflicting the penalty is usually varied according to the prevalence of the crime and to other attendant circumstances. Indeed, this matter is usually left to the discretion of the judge, as is generally the case in crimes for which the death penalty is simply prescribed.