which it had no concern; and this was subsequently admitted by England. It must, however, be remarked that Bynkershoek, in mentioning that this had been done, says, "dubito au recte; si enim recipias repressalias pro subditis, esse non videtur cur pro exteris neges: nam justæ sunt, vel injustæ; si injustæ, et subditis per injuriam concedantur, si justæ, non possunt sine injuriâ peregrinis negari, in ratione juris enim Tros Tyrinsoe fuat, nullo discrimine habetur."(1) But this position is fallacious, because no nation can have a jurisdiction over other nations, nor be in a position to declare whether the conduct of other nations is just or unjust: a municipal tribunal pronounces judgment without considering who are the applicants submitted to its jurisdiction; but no state is such a tribunal for other states, each being independent, and in a state of nature with regard to other states. (2) In a great number of treaties it has been agreed, that if the subjects of either party take letters of marque from the enemies of the other, they shall be considered and punished as pirates. This was the case in the treaty between France and the United Provinces in 1662; (3) such conduct was declared unlawful in the treaty between England and the United Provinces in 1667; (4) and in the treaty between England and Denmark in 1669; (5) it is declared piracy by the treaty of Nimeguen in 1678; (6) and by the treaty at Ryswick between France and the United Provinces in 1697; (7) in the treaty between England and France at Utrecht, in 1713, it is forbidden, "sous les plus grandes peines qui puissent être ordonnées ; " (8) and in the treaty of the same time between France and the United Provinces it is declared (1) De Foro Legatorum, cap. XXII. (2) See further the opinion of De Martens in his Précis, liv. VIII. ch. II. §. 261. (3) Dumont, Corps Dipl. VI. II. 413. (4) Id. VII. 1. 46. (7) Id. VII. II. 387, Subjects of taking commissions from belligerents often declared pirates. neutral states But men acting commission treated as pirates, except from special convention. piracy. (1) It is declared piracy in the treaty between the United States and France in 1778; (2) in that between the United States and the Netherlands in 1782; (3) and in that between the United States and Sweden in 1783;(4) it is forbidden under the greatest penalties in the treaty between Great Britain and France in 1786; (5) and is again declared piracy in the treaties between Prussia and the United States in 1785 and 1799; (6) between Denmark and Genoa in 1782; (7) between Great Britain and the United States in 1795; (8) between the United States and Spain in 1795; (9) between the United States and Central America in 1825, (10) and between the United States and Columbia in 1824. (11) But although there are so many treaties among the under a regular chief maritime powers, declaring that the subjects of the ought not to be contracting parties shall be treated as pirates if they take letters of marque from the enemies of the other, yet no power would be justified in having recourse to that treatment where there is no special treaty stipulating that degree of punishment. No state would be justified, except by special convention, in treating as pirates men who are fighting under a regular commission. This opinion I find supported by De Martens, in his excellent essay on privateers. (12) Still, as the duties of neutrality require a state to abstain from allowing its subjects to take any part in a contest between belligerents, it is incumbent on governments to prohibit their subjects from such interference, which is clearly inconsistent with neutrality, and many examples lie before me in which (1) Dumont Corps Dipl. VIII. (2) De Martens Rec. II. 597. (4) Id. III. 576. (5) Id. IV. 157. (6) Id. IV. 45, and VI. 684. (8) Id. V. 678. (9) Id. VI. 154. (10) Id. Supp. X. 837. (12) De Martens, Essai sur les armateurs, translated by T. H. Horne, 1801, I. c. 13. this has been done by neutral states. James I. proclaimed that any ship, having more English than foreign sailors on board, committing any violence against an ally, should be treated as a pirate. (1) In the Ordonnance de la Marine of Louis XIV., French subjects are forbidden to take letters of marque from foreign princes, unless by their own sovereign's permission, under penalty of being treated as pirates. (2) But by the Swedish ordinance of 1715, art. I., commissions to act as privateers are offered not only to Swedish subjects, "mais aussi à ceux des puissances étrangeres ;"(3) subsequently, however, when Sweden was neutral, such interference was forbidden, by the ordinance of 1784. (4) During the American war the Grand Duke of Tuscany, in 1778, forbade his subjects to use such interference under a penalty of 3000 scudi; (5) the Pope did the same, in 1779, under a penalty of 2000 scudi. (6) It is true that the French Directory, in 1798, ordered that all neutral sailors found in the British fleet should be considered as pirates, (7) and this would probably have extended to ships bearing letters of marque; but this must be looked upon, not as a precedent of the law of nations, but merely as an instance of the ferocious warfare of its promulgators. If a neutral state were to encourage, or permit, its subjects to aid a belligerent by equipping ships and taking commissions as privateers, such conduct must provoke remonstrance, and might justify hostilities if persevered in; but, in my opinion, no state can be justified, except by special treaty, in executing as pirates men who have acted under a regular commission. (1) Albericus Gentilis, Hispan. Advoc. lib. I. c. x. (2) Valin, Ord. de la Marine, liv. III. tit. IX. art. III. (3) Robinson's Collectanea Maritima, p. 167. (4) De Martens, Rec. Supp. III. 551. (5) Id. Rec. III. 29. (6) Id. 55, 71, 77. (7) Id. V. 399. I Commissions indispensable in all cases of reprisals. Formerly reprisals were very frequently exercised without any commission; De Martens says, that up to the fifteenth century commissions were by no means regularly given to privateers making reprisals. (1) A curious instance occurred in 1292: an English and a Norman sailor quarrelled at Bayonne, and in the scuffle the latter was killed: the mariners of the Norman ship complained to their king, Philip le Bel, who, without inquiring into the fact, or demanding redress, told them to take their own revenge and give him no further trouble. Upon this the Normans seized an English ship in the channel, and hanged some of the crew at the yard-arm, and some dogs at the same time. In retaliation the mariners of the cinque-ports, without making any complaint to our king, committed similar barbarities upon French vessels: the sea became a scene of constant piracy: the English made private associations with the Irish and Dutch, and the French with the Flemish and Genoese. Two hundred Norman vessels, sailing to the south, seized all the English vessels they met with, hanged the seamen, and seized the goods. The English merchants fitted out a fleet of sixty sail, better appointed than the other fleet, and in an obstinate battle sunk or took the greater part of the French fleet; no quarter was given, and it is said that fifteen thousand French were massacred on the occasion. The affair was then taken up by the two governments, and merged in the war regarding Guienne. (2) As civilization advanced, private unauthorized reprisals ceased. When, in 1569, the Prince of Orange issued letters of marque to the gentlemen and others who became so notorious as the "gueux de mer," many of them were punished as pirates; "not so much,' says De Martens, on account of their excesses, as (1) Essay on Privateers, ch. I. § 5, 6. (2) See Hume, vol. II. ch. 13, and Ward's Enquiry, &c. I. p. 295. because it was not thought that the Prince of Orange had power to grant such letters of marque." (1) At the present day, as it is hardly necessary to observe, any vessel exercising hostilities without a commission, in time of peace, would be treated as a pirate. In our naval instructions it is declared, § 4, that "if any ship or vessel shall be taken, acting as a ship of war or privateer, without having a commission duly authorizing her to do so, her crew shall be considered as pirates, and treated accordingly." (2) general. Reprisals are either special or general. Special repri- Reprisals sals are such as we have been now considering, and special or consist of the indemnification, by forcible means, of injuries done to certain individual subjects of one state by the subjects of another state: special reprisals do not at all interrupt the relations of amity; they are only a means of obtaining redress where justice is refused, and as soon as such redress is obtained for the individuals injured, the right to exercise reprisals has ceased, and every thing is restored to its usual footing. This species of reprisals was formerly in frequent use; but is now seldom resorted to, owing to the diminution of the violent outrages common in ruder times, and to the greater efficiency of tribunals, and the readiness of governments to promote justice to foreigners as well as to natives. General reprisals are only used in time of war, and consist in authorizing any individuals whatever, whether suffering from private grievances from the hostile power or not, to act against the subjects of the opposed state. At the time of the "Continental System," Jefferson proposed to reta (1) Essay on Privateers, ch. I. § 7. (2) Regulations established by the King in council, and instructions issued by the Lords Commissioners of the Admiralty, re lative to his Majesty's service at |