consistently with the general principles of Public Law, to persons who owe allegiance to the Lawmaking Power. No Power can make an offence to Letween Conven Piracy un Law. be Piracy within the purview of the Law of Nations? by declaring it to be so. To make an offence Piracy, Distinction which has not been so considered and treated in Piracy unpractice by all civilised States, it must be so agreed der special to be by a General Convention amongst all civilised tion, and States. Such was the view maintained by Lord der the Stowell in regard to the African Slave Trade, that Common although formal Declarations had been made by individual States against that Trade, and Laws enacted by them, and Treaties concluded by them, yet there were other Nations which adhered to the ancient practice under all the encouragements which their own Laws could give it, and that the doctrine of Courts of the Law of Nations relatively to them must be, that their practice is to be respected. With regard therefore to Treaties, under which the contracting Parties have agreed that their subjects or citizens, who may contravene them, shall be punished as Pirates, the obligation of the Treaties is confined to the contracting Parties, and does not extend to any third Party. In the case therefore in which two States, such as the United States and Prussia, are under Treaty-engagements that no subject or citizen of either of the contracting Parties shall accept a Commission or Letter of Marque from a foreign Power against the other Party under pain of being treated as a Pirate, it is obvious that each of the contracting Parties has undertaken not to make any reclamation against the other, if it should punish as Pirates such of its subjects or citizens as may so conduct PART II. 7 Kent's Commentaries, I. p. 125. Ee themselves But if the United States should be at war with Austria, and Austria should have granted a Commission or Letters of Marque to a natural born Subject of Prussia, and if an Austrian privateer under the command of such natural born Subject of Prussia should be captured by a United States' cruiser, a complicated question of Public Law might arise, if the United States Government should propose to punish such a person, as a Pirate, against the reclamation of Austria, for Austria will have been no party to the Treaty-engagements between the United States and Prussia; and Austria is entitled by the Law of Nations to grant Letters of Marque to any person who will accept them, and to claim for all parties acting under such Letters of Marque all the jura belli, which the Common Law of Nations sanctions. During the war between the United States and Mexico, the President of the United States recommended to Congress to provide by Law for the trial and punishment, as Pirates, of any Spanish subjects, who should be found guilty of privateering against the United States, as by the Treaty of 20 Oct. 1795 it was agreed between Spain and the United States that if any person of either Nation should take a Commission or Letter of Marque from a foreign Power against the citizens of the other, he should be punished as a Pirate. Congress accordingly passed an Act on 3 March 1847, declaring it to be Piracy for any subject or citizen of a foreign State to make war upon the United States, or to cruise against their vessels or property, contrary to the provisions of the Treaties existing with that State. Mr. Lawrence has observed, that this Act of Congress is an extension of the crime of Piracy as known to the Law of Nations. It further appears, that on a suggestion 9 Lawrence's Wheaton, 2d annotated edition, Lond. 1863, p. 254. that a notice had been given by the United States Government that they would treat as Pirates any foreigners found on board Mexican privateers, the British Minister at Washington was instructed to express to the Government of the United States, that it was the expectation of the British Government that the threat would not be put into execution against any British subject 10. Other considerations of Law would apply to the case, if Prussia were the Power which proposed to punish such a person as a Pirate under the provisions of its Municipal Law, for Prussia by the Law of Nations may enforce its Territorial Law against all its natural born subjects, if they come within its jurisdiction. The general principles of Public Law will continue to govern the cases to which they apply, notwithstanding that the Territorial Law of the State, the Courts whereof are called upon to adjudicate upon such cases, may be altogether at variance with those principles. Thus the Courts of the United States, which would be bound by the Territorial Law of the United States to sentence to death, as a pirate and felon, any citizen of the United States, who should commit any act of hostility against the United States or any citizen thereof under colour of a Commission from any foreign Prince, have held that there is no reason why an Enemy's subject should not have granted to him by the President of the United States a Commission against his own country, as Commander of a privateer. "There is no positive law," observes Mr. Justice Johnson, in delivering the judgment of the Supreme Court, " prohibiting it; and it has been 10 Hansard's Parliamentary p. 163, 21 Jan. 1847. Lawrence's Debates, Series III. Vol. 89, Wheaton, London, 1863, p. 654. Conven tions the universal practice of Nations to employ foreigners, and even deserters, to fight their battles. Such an individual knows his fate, should he fall into the hands of the Enemy; and the right to punish in such a case is acquiesced in by all Nations. But, unrestrained by positive law, we can see no reason why this Government should be incapacitated to delegate the exercise of the rights of war to any individual who may command its confidence, whatever may be his National character "1" § 206. Endeavours have been made from time to against the time by individual States to discourage the practice Employment of of granting Commissions of War to the Commanders Privateers. of private ships. Thus Sweden and the United Provinces agreed in a Treaty of Commerce concluded at Stockholm on 26 Nov. 1675, "that none of their subjects should be allowed to equip Privateers12 against the subjects of the other, nor to accept Commissions of War from their respective Confederates; and that each of the contracting Parties would use their best endeavours to persuade their respective Confederates not to grant Commissions to private ships. It appears however from the separate articles of the subsequent Treaty of Peace concluded between these two Powers at Nimeguen on 12 Oct. 167913, that the exigencies of war had compelled Sweden to depart from her Treaty-engagements, and to issue Commissions of War to private ships after the example of France, her Confederate in the war, and that the States General at the conclusion of the war demanded and obtained compen 11 The Mary and Susan, I Wheaton, p. 57. audeat, quam Commissievaerders vocant. Dumont, Traités, Tom. 12 Quod nemo respective sub- VII. Part I. p. 318. ditorum vel incolarum earum Armaturam Navalem exercere 13 Ibid. p. 432. sation from the Swedish Government for certain of their Subjects, whose vessels and cargoes had been captured by Swedish Letters of Marque in violation of the Treaty-engagements between the two Powers. No further attempt seems to have been made in this direction until the United States of America claimed a place in the Family of Nations, when a Treaty was concluded between the United States and Prussia on 10 Sept. 1785, which does not appear to have gone quite so far as to bind either Party to renounce the practice of granting Commissions of War to private ships, but only bound each of the contracting Parties in case of war between them not to issue Commissions authorising privateers to commit depredations on the merchant vessels of the other party freighted with innocent cargoes 1. With regard to a third Power with which either Party might be at war, the continuance of the practice of arming private ships against them was evidently contemplated, and express provisions were made securing to the privateers of either Party a free admission with their prizes into the ports of the other Party. This Treaty was negotiated by Benjamin Franklin, whose real object appears to have been to obtain for private property on the High Seas an immunity from belligerent capture, in cases where it was not of a Contraband character and under transport to an Enemy's country; and the abolition of privateers was one of the means 14 Tous les vaisseaux marchands et commerçans, employés à l'échange des productions de differens endroits, et par consé quent destinés à faciliter et à répandre les nécessités, les commodités, et les douceurs de la vie, passeront librement et sans être molestés. Et les deux Puis 14. sances Contractantes s'engagent à n'accorder aucune Commission à des vaisseaux armés en course, qui les autorisat à prendre ou à détruire ces sortes de vaisseaux marchands, ou à interrompre le commerce. Martens, Recueil, IV. p. 47. Art. XXIII. |