The Moors Were to be treated on Equal footing with other Nations
“The doctrine of infra praesidia was denied, and it was asserted that the property was vested by capture as to the enemy; that though it may be trespass as to the neutral, the taking vests the right in the captor, and the trespass done to the neutral is a subject for him to enquire into and obtain redress, but not for the party at war. And it appears by the British instructions to their privateers, that they are of opinion that a prize may be taken on neutral ground if the government of the neutral permits it. That if there are no adjudged cases in favour of the captors, there are none on the other side, and both are on an equal footing in this respect.”
“As to the Case of Palachi, reported by Bulstrode (3 Bulst. 28), I leave it to be judged of from an inspection of it, and the principles I have before mentioned as prevailing among the civilians in England at that day. My Lord Coke’s statement of it in his 4th Institute does not confine it to criminal proceedings under British statutes (4 Inst. 154). He says that if the Spaniards sue for the property taken civiliter in the admiralty, a prohibition should be granted. And yet in Bulstrode it appears that the prohibition was refused. The civilians and common lawyers of that day, held some opinions not accounted sound at this time.”
“My Lord Coke might have thought that the British laws and statutes alone should be attended to; and that the admiralty had no jurisdiction because the goods were on land, intra corpus comitatus; and the civilians thought otherwise, because the capture was not carried into the enemy’s territory. But both these opinions are now exploded: for the admiralty has cognizance of matters on land if they are incidents to those at sea; and the doctrine of the civilians, as before supposed, is confessed not to be the law of this day.”
“Modern improvements in jurisprudence have abolished many ancient opinions, and we must act upon the law as it now is. This case of Palachi has been insisted on by both sides, as favourable to their opposite opinions. This, it must be allowed, does not shew its precision and certainty. It is to be presumed (because it is mentioned by Lord Coke in delivering the opinion of the court, or stating the case as Bulstrode has reported 947it) that Palachi, or Pelagus, being a Jew, and having drowned some Spanish prisoners, had some influence on this case.”
“The Spanish ambassador was a formidable antagonist to the ambassador from Morocco. Gondemar governed King James, and royal influence was not unknown in the courts of justice. Political motives had their weight, and it was not as well settled then as it now is, that the Moors were to be treated on a footing with other nations. See 2 Wood. 425.”
“Damages may be superadded, but a proceeding for a marine trespass is different, as it is entirely a suit for damages, and not for the thing itself. Neither does this suit for a specific return of the property, appear to be included in the words of the judiciary act of the United States, giving cognizance to this court of “all causes where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.” Judiciary Act, § 9 [1 Stat. 76]. It cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for.”
“As late as 1398 we find the following reference to the ‘Moors’: “Also the nacyn (nation) of Maurys (Moors) theyr blacke colour comyth of the inner partes.”
Source: A New English dictionary on historical principles: founded mainly on the materials collected by the Philological society / edited by James A. H. Murray … with the assistance of many scholars and men of science.
“But, though these Flemish colonist, and others of “his own peaceful people,” supplanted the intractable “Moors” in certain districts of that northern “Moravia,” yet Mr. Skene seems to think that considerable numbers of the earlier inhabitants continued to inhabit their fatherland, even after the ownership of it had been given to others…All through the twelfth century, indeed, these half suppressed races appear to have been in a state of ferment: now acting as auxiliaries in the armies of their overlords; and again asserting their rights as distinct nationalities.