ment 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.

III. Upon the same principle, the king has also the sole prerogative of making war and peace. 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:(g) and this right is given up, not only by individuals, but even by the entire body of people, that are under the 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 that should justify their proceedings, and thereby become partner in the guilt. 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,(h) hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: cæteri latrones aut *prædones sunt. And the reason which is given by [*258 Grotius(i) 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 king'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.

IV. But, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations 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 declaration of war. These letters are grantable by the law of nations,(k) 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)(1) 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 reprisals seems dictated by nature herself;

(2) Puff. b. 8, c. 6, 28, and Barbeyr, in loc.
(A) F: 50, 16, 118.

(1) De jure, b. & p. 1. 3, c. 3, 11.

(*) Thid. 7. 3, c. 2, 82 4, 5.
(4)Dufresne, tit. Marca.

[*259

12 The Congress of the United States have power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." (Const. U. S. art. 1, s. 8.) The President has power, " by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." (Ibid. art. 2, s. 1.) "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding." Ibid. art. 6, s. 2.-SHARSWOOD.

for which reason we find in the most ancient times very notable instances of it.(m) 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 Hen. 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 request of satisfaction be 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.13

(m) 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 Pylean kingdom; out of which booty the king took three hundred head of cattle for his own demand, and the rest were equally divided among the other creditors.

13 The statute of Hen. V. is confined to the time of a truce wherein there is no express mention that all marques and reprisals shall cease. This manner of granting letters of marque I conceive has long been disused, and, according to the statute of Hen. V., could only be granted to persons actually aggrieved. But if, during a war, a subject without any commission from the king should take an enemy's ship, the prize would not be the property of the captor, but would be one of the droits of admiralty, and would belong to the king, or his grantee the admiral. Carth. 399. 2 Woodd. 433. Therefore, to encourage merchants and others to fit out privateers or armed ships in time of war, by various acts of parliament, the lord high admiral, or the commissioners of the admiralty, are empowered to grant commissions to the owners of such ships; and the prizes captured shall be divided according to a contract entered into between the owners and the captain and crew of the privateer. But the owners, before the commission is granted, shall give security to the admiralty to make compensation for any violation of treaties between those powers with whom the nation is at peace. And, by the 24 Geo. III. c. 47, they shall also give security that such armed ship shall not be employed in smuggling. These commissions in the statutes, and upon all occasions, are now called letters of marque. 29 Geo. II. c. 34. 19 Geo. III. c. 67. Molloy, c. 3, s. 8. Or sometimes the lords of the admiralty have this authority by a proclamation from the king in council, as was the case in Dec. 1780, to empower them to grant letters of marque to seize the ships of the Dutch.-CHRISTIAN.

If, during war, a subject without a commission from the crown should take an enemy's ship, the prize would belong, not to the captor, but to the sovereign, or to the admiral as his grantee. In order therefore to encourage the fitting out of armed ships in time of war, the lord high admiral, or the commissioners of the admiralty, are authorized by several statutes to grant commissions to private persons fitting out such ships, which are thence called privateers. The prizes captured by such vessels are divided according to the contract entered into between the owners and the master and crew of the privateer; but the crown has still the prerogative of releasing any prize captured by such ships at any time previously to condemnation. Letters of marque, as these commissions are called, are valid only during the war, and may be vacated either by express revocation, or by the misconduct of the parties, as, for example, by their cruelty.

The conference which met at Paris in 1856, after the war with Russia, closed its labours by recommending to the established governments of the world the entire abolition of the system of privateering, and that in time of war neutral flags and neutral goods should be inviolable. The conference was of opinion that the abolition of privateering and the acknowledgment of neutral rights were alike desirable and necessary for improving our system of war and bringing it into harmony with the ideas and principles of modern civilization. This proclaimed opinion of several of the great powers of Europe may therefore lead, ere long, to treaties by which the prerogative of the crown in issuing letters of marque will become merely matter of history.-KERR. The government of the United States did not respond favourably to this proposal of the conference of Paris. The Secretary of State, William L. Marcy, proposed, however, what would still more bring the system of war into harmony with the ideas and principles of modern civilization, and at the same time be more just to states not possessing a powerful public marine,—the entire immunity of private property on the ocean from capture. Such has long been the established law of war in regard to property on land; and there exists no reason why it should not be extended to maritime warfare.-SHARSWOOD.

V. Upon exactly the same reason stands the prerogative of granting safeconducts, without which, by the law of nations, no member of one society has a right to intrude into another." And therefore Puffendorf very justly resolves(n) that it is left in the power of all states to take such measures about the admission of strangers as they think convenient; those being ever excepted who are driven on the coast 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, and they themselves behave peaceably, they are under the king's protection, though liable to be sent home [*260 whenever the king sees occasion. 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 or merchandise from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which, by divers ancient statutes, (o) must be granted under the king's great seal and enrolled in chancery, or else are of no effect; the king being supposed the best judge of such emergencies as may deserve exception from the general law of arms. But passports under the king's sign-manual, or licenses from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity.15

Indeed, the law of England, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. One I cannot omit to mention: that by magna carta (p) 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 merchandise, 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 the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and if ours be secure in that land, they shall be secure in ours. This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook, (q) that it was a maxim among the Goths and Swedes, “quam legem exteri nobis posuere, eandem illis ponemus." But it is somewhat extraordinary, that it should have found a place in magna carta, a mere interior treaty between the

(*) Law of N. and N. b. 3, c. 3, 29.

(*) 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.

14

(P) C. 30.

(9) De jure Sueơn, l. 3, c. 4.

By the act of Congress April 30, 1790, s. 27, (1 Story's Laws, 88,) it is enacted that if any person shall violate any safe-conduct or passport duly obtained and issued under the authority of the United States, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court.-SHARS

WOOD.

15 By the act of Congress July 6, 1798, (1 Story's Laws, 521,) it is enacted that in case of war between the United States and any foreign nation, and in case of actual or threatened invasion, all native citizens, denizens, or subjects of the hostile nation aged fourteen years and upwards, not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. And the President is authorized by proclamation to direct the conduct to be observed on the part of the United States towards such aliens; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security, their residence shall be permitted; and to provide for the removal of those who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety. It provides, however, that such aliens not being chargeable with actual hostility shall be allowed the full time to remove stipulated in any existing treaty with the nation to which they belong, (see act of July 6, 1812, 2 Story's Laws, 1275,) or, when no such treaty exists, the President may ascertain and declare such reasonable time as may be consistent with the public safety and according to the dictates of humanity and national hospitality. All courts, State or Federal, are authorized to carry the provisions of this law into effect.-SHARSWOOD.

king and his natural-born subjects; which occasions the learned Montesquieu to remark with a degree of admiration, "that the English have made

*261] *the protection of foreign merchants one of the articles of their national liberty."(r) But indeed it well justifies another observation which he has made,(s) "that the English know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." Very different from the genius of the Roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonourable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune:(t) and equally different from the bigotry of the canonists, who looked on trade as inconsistent with Christianity,(u) and determined at the council of Melfi, under pope Urban II., A.D. 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law.(w)

These are the principal prerogatives of the king respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. But in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives.

I. First, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament as he judges improper to be passed. The expediency of which constitution has before been evinced at large. (x) I shall only further remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised (“any person or persons, bodies politic or corporate, &c.") affect not him in the least, if *262] *they may tend to restrain or diminish any of his rights or interests.(y) For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without its own express consent, by constructions and implications of the subject. Yet, where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject:(2) and, likewise, the king may take the benefit of any particular act, though he be not named.(a)

II. The king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community and the principal use of government is to direct that united strength in the best and most effectual manner to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of its institution, that in a monarchy the military power must be trusted in the hands of the prince.

In this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak more, when I come to consider the military state. We are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I.; but, upon the restoration of his son, was solemnly declared, by the statute 13 Car. II. c. 6, to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the

() Sp. L. 20, 13.

() Ibid. 20, 6.

(4) Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus. C. 4, 63, 3.

(u) Homo mercator vix aut nunquam potest Deo placere: et ideo nullus Christiamus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia Dei. Decret. 1, 88, 11.

(w) Falsa fit pænitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quæ sine peccatis agi ulla ratione non prævalet. Act. Concil, apud Baron. c. 16. (*) Ch. 2, page 154.

() 11 Rep. 74.

(2) Ibid. 71.

(a) 7 Rep. 32.

*undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.16

[*263

This statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom:(b) and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our Saxon ancestors the trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem.(c) And this they were called upon to do so often, that, as Sir Edward Coke from M. Paris assures us,(d) there were, in the time of Hen. II., 1115 castles subsisting in England. The inconveniences of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as William of Newburgh remarks in the reign of king Stephen, "erant in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum:" but it was felt by none more sensibly than by two succeeding princes, king John and king Henry III. And, therefore, the greatest part of them being demolished in the barons' wars, the kings of after-times have been very cautious of suffering them to be rebuilt in a fortified manner: and Sir Edward Coke lays it down,(e) that no subject can build a castle, or house of strength embattled, or other fortress defensible, without the license of the king; for the danger which might ensue, if every man at his pleasure might do it.

It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the prerogative of appointing ports [*264 and havens, or such places only, for persons and merchandise to pass into and out of the realm, as he in his wisdom sees proper. By the feodal law all navigable rivers and havens were computed among the regalia,(f) and were subject to the sovereign of the state. And in England it hath always been holden, that the king is lord of the whole shore, (g) and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm;(h) and therefore, so early as the reign of king John, we find ships. seized by the king's officers for putting in at a place that was not a legal port.(i) These legal ports were undoubtedly at first assigned by the crown; since to each of them a court of portmote is incident,(j) the jurisdiction of which must flow from the royal authority: the great ports of the sea are also referred to, as well known and established, by statute 4 Hen. IV. c. 20, which prohibits the landing elsewhere under pain of confiscation: and the statute 1 Eliz. c. 11 recites, that the franchise of lading and discharging had been frequently granted by the crown.

But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing and confining their limits when once established; but any person had a right to load or discharge his merchandise in any part of the haven: whereby the revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and private corners. This occasioned the statutes of 1 Eliz. c. 11, and 13 & 14 Car. II. c. 11, § 14, which enable the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and quays in each port, for the exclusive landing and loading of merchandise.

The erection of beacons, light-houses, and sea-marks, is also a branch of the

66

16 The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States." Const. U. S. art. 2, s. 2.-SHARSWOOD.