subjects from accepting Letters of Marque or Commissions of War from Foreign Powers, under pain of being treated and punished as Pirates. Thus in the Treaty of Commerce concluded between France and the States General 89, on 21 Dec. 1739, it was provided as follows: ART. XXXIII. Les sujets des dits Seigneurs Etats Généraux ne pourront prendre aucune Commission pour des armemens particuliers ou Lettres de représailles des Princes et Etats, qui pourroient devenir Ennemis de sa Majesté, ni troubler ou endommager d'aucune manière ses Sujets, en vertu de pareille Commission ou Lettres de représailles, ni même s'en servir pour aller en course, à peine d'être poursuivis et chatiés comme Pirates: ce qui sera pareillement observi par les sujets de sa Majesté à l'égard de ceux des Provinces Unies, et seront à cette fin toutes et quantes fois que cela sera requis de part ou d'autre, dans les terres de l'obéissance de sa Majesté, ou dans les Provinces Unies, publiées et renouvellées défenses très expresses et très précises, de se servir en aucune manière de pareilles Commissions ou Lettres de représailles, sous la peine sus-mentionnée, qui sera exécutée sevèrement contre les Contrevenans, outre la restitution entière de laquelle ils seront tenus envers ceux auxquels ils auroient causé du dommage. Provisions of a similar character are found in the Treaties concluded between Sweden and the Two Sicilies in 17420, between Denmark and the Two Sicilies in 174891, between the United Provinces and the Two Sicilies in 175392; and in various Treaties concluded in the course of the eighteenth century between the Christian Powers of Europe and the Ottoman Porte 93; and between the Christian Powers of Europe and the Dependencies of the Ottoman Porte 89 Wenck, Codex Juris Gentium, Tom I. p. 429. 90 Wenck, Tom. II. p. 136. Art. 23. 91 Ibid. p. 298. Art. 32. 92 Ibid. p. 771. Art. 36. 93 Treaty between the Two Sicilies and the Ottoman Porte in 1740. Wenck, Tom. II. p. 526. Art. 18. on the Barbary Coast. The object of these latter Treaties was to familiarise the Mahommedan Powers with the principles of Law which regulated the mutual relations of the Christian Powers, and to accustom them to respect them under the sanction of Treaty-engagements. The States of the New World have also in their turn been ready to cooperate in one system of Conventional Law on this subject with the States of the Old World. Thus the United States of America entered into Treatyengagements prohibiting their citizens from taking Letters of Marque from foreign Powers, with France in 1778; with the United Provinces in 178295; with Prussia in 178596; and with Great Britain in 179597, and also with Spain in 179598. Most of these Treaties, with the exception of that with Prussia, the provisions of which on this head were renewed by the Treaty of 1 May 182899; and possibly with the exception of that with Spain, are no longer in force, and their stipulations may have ceased to be obligatory, but their provisions serve to indicate the course in which the public opinion of the more civilised States of Christendom upon this subject has been steadily advancing. prohibi Subjects § 204. It will have been observed, that by the Municipal Treaty of Westminster (29 Nov. 1669), the con- tions tracting Parties agreed to prohibit their Subjects against from accepting Letters of Marque from any foreign accepting Power against the Subjects of the other Party. United Provinces had issued such a prohibition to their citizens as far back as 12 May 1611100; and Powers. 94 Martens, Récueil, II. p. 597. Art. 21. 95 Ibid. III. P. 447. Art. 19. 96 Ibid. IV. p. 45. Art. 20. 97 Martens, Récueil, V. p. 678. Art. 21. Letters of The Marque 98 Ibid. VI. p. 154. Art. 14. 99 Martens, N. R. VII. p. 619. Art. 12. 100 Groot Placaat Boek, Tom. I. p. 968. from foreign it appears to have become the rule in the course of the seventeenth century for the European Powers to issue general Ordinances1 to that effect, or to publish special Edicts at the commencement of any war, in which they desired to remain neutral. Such appears to have been the course adopted by Great Britain in 1677, after the conclusion of the Treaty of Westminster, when it seems to have been thought expedient by the British Government to determine with precision, what were the legal obligations upon the Subjects of the contracting Parties resulting from that Treaty. The following case was accordingly submitted by the Lords of his Majesty's Privy Council forming the Committee of Trade and Plantations to Sir Thomas Exton and Sir Richard Lloyd, two of the most eminent civilians of that period, as appears from the Journal of that Committee of November 1677 It is agreed that the following question be sent to His Majesty's Counsel, learned in the Common and Civil Laws, for their opinion thereupon, viz. Whether the Kings of England having made alliance, by Treaty and League, with any foreign Prince or Potentate, and thereby agreeing to punish with extreme or utmost punishment such, as by colour of Commissions from Enemies to his said Allies shall take arms against the King's Peace and Treaty proclaimed and spoil the King's Allies, be not a levying a war against the King, and punishable by Death? Or what crime is it, and how punishable? It is our humble opinion that this is not a levying a war against the King, nor by the Law of the land punishable 1 Ordonnance de la Marine of the late Sir James Marriott, 1681, Tit. Prizes, Art. 3. King's Advocate General (1764), in the possession of the author. 2 A copy of this Report is in a MS. book from the library of by Death. It It is a crime against His Majesty's Treaties of Peace, and the strict Proclamation he has been pleased to set forth to enjoin the due observance of them. is also an offence against the Law of Nations, and by the Civil Law it is crimen læsæ majestatis. But by the Law of England we do conceive it to be no more than a Conspiracy against His Majesty's Crown and Dignity, and by the Statute for the trial of piracy (28 Henry VIII. c. 15.) punishable only by Fine and Imprisonment; and there is an offender in the Marshalsea who hath accordingly been so punished". Nov. 21. 1677 THOS. EXTON. RICH. LLOYD. under spe ventions § 205. Such was the view taken by very high Privateers authorities in the seventeenth century of the legal cial concharacter of the offence, which the Subjects of a Piratical Sovereign Power commit in accepting Commissions vessels. of War from a foreign Prince against a State, which is at amity with their Sovereign, contrary to the express stipulations of existing Treaty-engagements between their Sovereign and that State. It remains to be considered what is the effect of the provisions of subsequent Treaties made in the eighteenth century, under which it has been agreed that the Subjects of either contracting Party should be punished as Pirates, in case they should accept Commissions of war or Letters of Marque against the other Party, whilst it is at amity with their Sovereign. It may be accepted as a sound position of Public Law, that 3 This opinion is given with out the question in Chalmers's "Opinions of Eminent Lawyers," Vol. II. p. 329; from which it appears that the Lords present in the Council Chamber at Whitehall on this occasion were the Lord Privy Seal, Lord Fal- 5 no person who has a Commission of War from a Sovereign Prince commits piracy under the Common Law of Nations in attacking the subjects of the Power, against which the Commission has been issued. It was however the expressed opinion of Sir Leoline Jenkins', in 1675, that the Commander of a privateer, although he had a regular Commission from the King of France, was liable to be treated as a Pirate under the Law of Nations for having exceeded the terms of his Commission; but Bynkershoek has combated this opinion, and Chancellor Kent considers the reasoning of Bynkershoek to be just. Chancellor Kent goes on to observe, that if a natural born Subject were to capture property belonging to his fellow Subjects under the authority of a Commission from a foreign Prince, he would upon general principles of Public Law be protected by his Commission from the charge of Piracy; but it will be competent for every Sovereign Prince to declare that if any of his own natural born Subjects commit any act of hostility against others of his Subjects under colour of any Commission from any Foreign Prince, such offender shall be deemed and adjudged to be a Pirate, and if convicted in his Courts, shall suffer such pains of death and loss of lands and goods as pirates, felons, and robbers upon the sea ought to suffer. Such in fact are the provisions of the English Statute 11 and 12 Will. III. c. 7, and of the Act of Congress of the United States of America passed 7 April 1790, sect. 9. But Municipal regulations in matters over which all Nations have a concurrent jurisdiction, are only operative where the Municipal jurisdiction may be applied Life of Sir Leoline Jenkins, Vol. II. p. 754. c. 17. 6 Commentaries on American 5 Questiones Jur. Publ. L. I. Law, Part. I. sect. 9. p. 191. |