[as observed in the most civilized countries. And in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the land, and are constantly allowed in the courts of common law (k).

2. It is also the sovereign's prerogative to make treaties, leagues and alliances with foreign states and princes (). For it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power (m); and then it is binding upon the whole community; and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as from criminal motives advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation.

3. Upon the same principle the sovereign has also the sole prerogative of making war and peace (n). For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power (0); and this right is given up, not only by individuals, but even by the entire body of people, that are under the

(k) See 2 Stra. 797; 2 Ld. Raym. 1524; Seacomb v. Bowlney, 1 Wils. 20; 3 Wils. 35; Triquet v. Bath, 1 Bl. Rep. 471; 3 Burr. 1478, 1676, 1731; 3 Wils. 33; Viveash v. Becker, 3 M. & S. 284; Delvalle v. Plomer, 3 Camp. 47; 4 Burr. 2016; Hopkins v. De Robeck, 3 T. R. 79; Novello v. Toogood, 1 Barn. & Cress. 554.

(1) Com. Dig. Prerogative, B. 2, 3; 1 Chitty's Commercial Law, 38, 615. (m) Puff. L. of N. b. 8, c. 9, s. 6. (n) Com. Dig. Prerogative, C. 1, 2, 3; Bac. Ab. Prerog. D. 4; 1 Chit. Commercial Law, 392, 414.

(0) Puff. b. 8, c. 6, s. 8, and Barbey. in loc.

[dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will, in a state of war. Whatever hostilities therefore may be committed by private citizens, the State ought not to be affected thereby; unless it should justify their proceedings. Such unauthorized volunteers in violence are not ranked among open enemies, but are treated like pirates and robbers; according to that rule of the civil law (p), "hostes hi sunt, qui nobis, aut quibus nos, publice bellum decrevimus; cæteri, latrones aut prædones sunt." And the reason which is given by Grotius (q), why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right,) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate, by the fundamental laws of society. So that in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the sovereign's authority; and then all parts of both the contending nations, from the highest to the lowest, are bound by it. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative.]

4. [As the delay of making war may sometimes be detrimental to individuals who have suffered by depredations

(p) Ff. 50, 16, 118.

(q) De Jure B. et P. 1. 3, c. 3, s. 11.

[from foreign potentates, our laws have in some respects armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal, upon due demand; the prerogative of granting which, is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the law of nations (r), whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case letters of marque and reprisal, (words used as synonymous, and signifying, the latter, a taking in return, the former, the passing the frontiers in order to such taking (s)), may be obtained, in order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. And indeed this custom of reprisal seems dictated by nature herself; for which reasons we find in the most antient times very notable instances of it (t). But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. In pursuance of which principle, it is with us declared by the statute 4 Henry V. c. 7, that if any subjects of the realm are oppressed in the time of truce, by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. Which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy-seal; and if, after such

(r) De Jure B. et P. 1. 3, c. 2, ss. 4, 5.

(s) Dufresne, tit. Marca.

(t) See the account given by Nestor, in the eleventh book of the Iliad, of the reprisals made by himself on the Epeian nation; from whom he took a multitude of cattle,

as a satisfaction for a prize won at the Elian games by his father Neleus, and for debts due to many private subjects of the Pylian kingdom; out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.

[request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these, he may attack and seize the property of the aggressor nation, without hazard of being condemned as a robber or pirate.] But this manner of granting letters of marque has been long disused, and the term itself is now somewhat differently applied. If during a war a subject should take an enemy's ship without commission from the king, the prize would, by the effect of the prerogative, become a droit of admiralty, and would belong not to the captor, but the crown (u). Therefore, to encourage merchants and others to fit out privateers, or armed ships, in time of war, the lords of the admiralty have been empowered by various acts of parliament, and sometimes. by proclamation of the king in council, to grant commissions to the owners of such ships, and the prizes captured by them have been directed to be divided between such owners and the captains and crews. These commissions when granted, have been usually denominated "letters of marque;" and it is in that sense alone that the term occurs in our own times (x).

5. [Upon exactly the same reason stands the prerogative of granting safe-conducts, without which, by the law of nations, no member of one society has a right to intrude into another (y). And therefore Puffendorf very justly resolves (z), that it is left in the power of all states to take

(u) Vin. Abr. Prerog. N. A. pl. 22; Nicholl v. Goodall, 10 Ves. 155.

(r) As to letters of marque, see 29 Geo. 2, c. 34; 19 Geo. 3, c. 67; 24 Geo. 3. c. 47; Molloy, c. 3, s. 8; Carth. 399; 5 Rob. Rep. 9; 2 Vern. 592; Stirling v. Vaughan, 11 East, 619. In the late war no "letters of marque" were issued to privateers; but by order in council, dated 29th March, 1854, "general reprisals"

were granted against the ships, vessels and goods of the Emperor of all the Russias, to give the benefit of the prizes taken by her majesty's ships to the captors. See 17 & 18 Vict. c. 18.

(y) Com. Dig. Prerogative, B. 5; 1 Chitty's Commercial Law, 60, 487. (z) Law of N. and N. bk. 3, c. 3, s. 9.

[such measures about the admission of strangers as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shown by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks), but with regard also to the admission of strangers who come spontaneously.] For so long as their nation continues at peace with ours, they enjoy the right of residence here with other large privileges, which have already been sufficiently explained (a). [But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safeconduct; which by divers antient statutes (b) must be granted under the great seal and inrolled in chancery, or else are of no effect: the sovereign being supposed the best judge of such emergencies, as may deserve exemption from the general law of arms. But passports under the sovereign's sign-manual, or licences from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity (c).]

[The law of England, as a commercial country, pays a very particular regard to foreign merchants, in innumerable instances. One we cannot omit to mention, viz. that by Magna Charta (d) it is provided, that all merchants (unless publicly prohibited beforehand) shall have safe-conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of merchandize, without any unreasonable imposts, except in time of war; and, if a war breaks out between us and their country, they shall be attached (if in England) without harm of body or goods, till

(a) Vide sup. p. 417.

(b) 15 Hen. 6, c. 3; 18 Hen. 6,

c. 8; 20 Hen. 6, c. 1.

(c) As to the offence of violation

of safe-conducts or passports, vide bk. VI. c. VIII.

(d) C. 30.