by Austria, Prussia, and Russia, is not such by the general international law; and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact. (a)

writer in the Am. Jurist, vol. x. 267-8, contends that "whoever takes a commission to wage private war from any other than his own sovereign, does it at his own peril, and must know that the commission he receives is lawful. Any other position appears inconsistent with the safety of mankind."

The course pursued by the British Government during the war of the American Revolution seems to have been this: An Act of Parliament was passed (17 Geo. III. ch. 9, 1777), reciting that acts of treason, piracy, and felony had been committed by sundry persons, many of whom were, and would thereafter be, confined for trial on charges of such crimes, and that it might be inconvenient to try them forthwith, and of evil example to let them go at large, and authorizing the detention of such persons "by the crown, with bail or judicial intervention, for one year. This act was renewed annually until the end of the war. Its object was to obtain a parliamentary declaration that the legal status of American rebels was that of felons or pirates, and to secure a mode of detaining them in custody without recognizing them as prisoners of war, or being obliged to bring them to trial as criminals. In the mean time, between the armies in America, prisoners were treated as prisoners of war, exchanged, paroled, &c. ; and it is believed that no persons were judicially tried and punished as criminals during the war: and the recognition of independence disposed of the question.

The next question is, how foreigners who aid the rebellion by cruising against commerce will be regarded by the courts of the parent country. It would seem that the court can make no distinction in their favor. The rebellion is a crime; and all who voluntarily aid it in arms are criminals, whether subjects or intervening foreigners. The fact that the sovereign, whose subjects those foreigners are, may have recognized the rebellion as belligerent, can have no legal effect on their status in the court of the State engaged in subduing the rebellion. It is a fact addressing itself solely to the political department of the government. In the debate in the House of Lords, on the 16th May, 1861, upon the President's proclamation, strong expressions were used by Lords Kingsdown and Cranworth and the Lord Chancellor (Westbury), to the effect that the United States ought not to claim the rights of a belligerent as against foreign commerce, - viz., search and blockade, and yet treat the rebels as traitors, and British subjects, cruising under rebel commissions, as criminals; and that, as Britain had acknowledged the rebels as capable of commissioning cruisers, she had a right to demand that their commissions should be respected by the United States in case of British subjects. These were, however, considerations addressed to statesmen and not to courts. And, at the same time, it seemed to be conceded by all the law lords, that, under the terms of the Queen's proclamation of May 13, 1861, recognizing belligerency, no British subject, making himself a party to the war against the United States, with which Great Britain was at peace, could expect the intervention of the crown in his favor.

The terms of the Queen's proclamation bearing on this point are these: It declares Great Britain to be at peace with the United States,— recognizing the persons in rebellion as belligerents, and both "the contending parties" as having the rights of belligerents against neutrals; declares strict neutrality and non-intervention; and com(a) Dodson's Adm. Rep. ii. 210, Le Louis. Wheaton's Rep. x. 66, La Jeune Eugenie.

The African slave-trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal mands all British subjects to observe strict neutrality, and "to abstain from violating or contravening either the law and statutes of the realm in that behalf, or the law of nations in relation thereto, as they will answer to the country at their peril." It calls attention to the neutrality or foreign-enlistment act of 59 George III.; and declares that British subjects, offending against that statute or the law of nations respecting war, will be liable to the penalties of the statute and the law of nations; and ends with the declaration, that British subjects "who may misconduct themselves in the premises... will do so at their peril and of their own wrong," and that "they will in no wise obtain any protection from us against any liabilities or penal consequences, but will, on the contrary, incur our high displeasure by such misconduct."

No case occurred, in this war, of a British subject, engaged in acts which Great Britain declares and considers belligerent when done by the parties to the war, being treated by the United States as a pirate, or otherwise as a criminal; the government giving all foreigners found in arms under rebel authority the same treatment they gave to citizens in arms, that of prisoners of war.

The proclamation of the Emperor of the French, of June, 1861, and of the Queen of Spain, of 17 June, 1861, are substantially to the same effect; and both warn their subjects, that, if they make themselves parties to the war, they shall have no claim to any protection from their government against any acts or measures, whatever they may be, which the belligerents may exercise or decree.

A question cognate to the present was presented in the cases arising out of the burning of the American merchant-ship Golden Rocket. This vessel was seized at sea and burned in July, 1861, by the steamer Florida, commanded by one Semmes, who held a commission as an officer in the navy of the rebel government. Actions were brought on the policies of insurance in the Supreme Courts of Maine and Massachusetts, and in the Circuit Court of the United States for Massachusetts. Among the questions of law argued was this: Whether the owners could recover for a loss under policies which did not insure against belligerent capture, but did insure against pirates and assailing thieves. The Supreme Court of Massachusetts, by a unanimous opinion, that of Maine by an opinion of a majority of the court, and Mr. Justice Clifford in the Circuit Court of the United States, decided, that, this being a mere civil private contract, the question was, what the parties meant by the words they used: and, although the legal status of the citizens of the United States who committed this act, in the view of the law of the Union, in any criminal proceeding against them, would be that of traitors, criminals, and, at least under the statute law, of pirates, the contract between underwriters and merchants looked, not to the code or policy of any one nation in its use of the term "pirate" as distinguished from a belligerent, but referred to general commercial usages of speech, and to such a state of things as constituted piracy by the general, public, commercial law of the world; and that, as the rebellion had risen to the dimensions of an actual war waged by a de facto government, which the chief commercial nations of the world recognized as belligerent, and in which war the United States had exercised powers and privileges accorded by neutrals only to a state of war, the act of destroying The Golden Rocket was not piracy in the sense of the

laws of Denmark, the United States, and Great Britain, to the own subjects. Its final abolition was stipulated by the treati of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration the Congress of Vienna, of the 8th of February, 1815, and reite ated by the additional article annexed to the treaty of peace co cluded at Paris, on the 20th November, 1815. The accession Spain and Portugal to the principle of the abolition was finall obtained, by the treaties between Great Britain and those power

policy. See The Golden Rocket Cases- viz., Dole v. The N. Eng. M. M. Ins. C Allen, vi. 392; Dole v. Merch. M. M. Ins. Co.; and Dole v. N. Eng. M. M. Ins. Co., i the United States Circuit Court for Massachusetts, October, 1864.

The following propositions are offered, not as statements of settled law (for mo of them are not covered by a settled usage of nations, by judicial decisions of preser authority, or by the agreement of jurists), but as suggestions of principles :

I. The courts of a State must treat rebellion against the State as a crime, an the persons engaged in it as criminals. If the acts are depredations on commerc protected by the State, they may be adjudged piracy jure gentium by the courts of th State. It is a political and not a legal question, whether the right so to treat ther shall be exercised.

II. The fact that the State has actually treated its prisoners as prisoners of wa exchanged prisoners, respected flags of truce, &c., or has claimed and exercised th powers and privileges of war as against neutrals, does not change the abstract rule c law, in the Court. If the State presents such persons to the court for trial, the cour must adjudge them criminals. The question whether they shall be so presented is one not of law, but of policy, which the political department of the State must hold in it hands, and which may be varied from time to time, according to circumstances.

III. If a foreigner knowingly cruises against the commerce of a State under rebel commission, he takes the chance of being treated as a pirate jure gentium, o a belligerent. In point of law, his foreign allegiance or citizenship is immaterial. I this respect, it is immaterial whether the sovereign whose subject he is has recog nized the rebel authorities as belligerents or not. It is not the custom for foreig 'nations to interfere to protect their citizens voluntarily aiding a rebellion against friendly State, if that State makes no discriminations against them.

IV. If a foreigner cruises under a rebel commission, he takes the chance of being treated as a pirate or a belligerent by his own nation and all other nations, as well a by that he is cruising against. If his own nation does not recognize the belligerency of the rebels, he is, by the law of his own country, a pirate. If it does, he is not In this respect, each nation acts independently of others and for itself; and the court of each nation are governed by the consideration whether their own political authori ties have, or have not, recognized the belligerency.

V. Where a rebellion has attained such dimensions and organization as to be a State de facto, and its acts reach the dimensions of war de facto, and the parent Stat is obliged to exercise powers of war to suppress it, and especially if against neutra interests, it is now the custom for the State to yield to the rebellion such belligeren privileges as policy and humanity require; and to treat captives as prisoners of war make exchanges, respect flags of truce, &c. Yet this is a matter of internal State policy only, changeable at any time. See note 32, ante, The United States a Supreme Government.]-D.

200

of the 23d September, 1817, and the 22d January, 1815. And by a convention concluded with Brazil, in 1826, it was made piratical for the subjects of that country to be engaged in the trade after the year 1830.

§ 126. By the treaties of the 30th November, 1831, and 22d May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geographical limits, as a means of suppressing the slave-trade. The provisions of these treaties were extended to a wider range by the Quintuple Treaty, concluded on the 20th December, 1841, between the five great European powers, and subsequently ratified between them, except by France, which power still remained only bound by her treaties of 1831 and 1833 with Great Britain. By the treaty concluded at Washington, the 9th August, 1842, between the United States and Great Britain, referring to the 10th article of the treaty of Ghent, by which it had been agreed that both the contracting parties should use their best endeavors to promote the entire abolition of the traffic in slaves, it was provided, article 8, that "the parties mutually stipulate that each shall prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for the suppression of the slave-trade, the said squadrons to be independent of each other, but the two governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces, as shall enable them most effectually to act in concert and co-operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article; copies of all such orders to be communicated by each government to the other, respectively." By the treaty of the 29th May, 1845, between France and Great Britain, new stipulations were entered into between the two powers, by which a joint co-operation of their naval forces on the coast of Africa, for the suppression of the slave-trade, was substituted for the mutual right of search, provided by the previous treaties of 1831 and 1833.85

[85 The Slave Trade as Piracy.— As Mr. Wheaton's text and notes leave the subject, it stands thus: The slave trade was prohibited to their own subjects by the United

Decisions

of British

and Ameri

can courts of justice.

§ 127. This general concert of nations to extinguish the traffic has given rise to the opinion, that though once tolerated, and even protected and encouraged, by the laws of every maritime country, it ought henceforth to be considered as interdicted by the international code of Europe and America. This opinion first received judicial countenance from the judgment of the Lords of Appeal in Prize Causes, pronounced

States, Great Britain, France, Russia, Prussia, Austria, Spain, Portugal, Brazil, Denmark, and other powers. By the treaty of 1841, between Great Britain, Russia, Austria, and Prussia, the trade is declared piracy, and a mutual right of search is granted. Between Great Britain and France, and Great Britain and the United States, no mutual right of search was conceded; but, instead of that, were stipulations for maintaining naval cruisers, and for certain modes of naval co-operation. The history of the question, before as well as since, can be given to advantage in more detail.

By the treaty of Paris, of 1814, the eight powers engaged to exert themselves to suppress "the sin of the slave trade;" and, by a separate article, Great Britain and France agreed to co-operate in obtaining the assent of all the civilized powers to a treaty declaring the abolition of the slave trade. Afterwards, in 1815, Great Britain proposed to France to agree to a mutual right of search within certain latitudes. The French Government declined the proposition, on the ground that the concession of the right of search was unpopular and hazardous. (Lord Castlereagh to the Duke of Wellington, and correspondence of Wellington and Talleyrand, October and November, 1815.) Great Britain made the same proposal, the same year, to Portugal, with like ill success. The declaration of 8 February, 1815, between the parties to the Congress of Vienna, was to the effect that they considered the slave-trade as repugnant to the principles of humanity and of universal morality;" and the eight powers bound themselves to take measures to secure its abolition. Between Great Britain, Sweden, the Netherlands, and Portugal, there are stipulations for a right of search, either general or within certain latitudes, and for trials by a mixed commission. At the Congress of Verona, in 1822, France refused to consent to a right of search, or to declaring the trade piracy jure gentium. Wheaton's Hist. of Law of Nations, 614–689. Between Great Britain and Spain, the treaty of 1835 conceded a right of search, and established mixed tribunals.

Between Great Britain and the United States, while there were declarations of a purpose and desire to suppress the trade, the United States refused to concede any right of search. (Correspondence between Messrs. Adams, Gallatin, and Rush: Am. State Papers, v.) In 1820, the United States, by Act of Congress, declared the slave trade piracy; and, soon afterwards, Great Britain did the same by Act of Parliament. In 1824, a convention was signed which conceded a right of search within certain latitudes; but, by advice of President Monroe, it was rejected, for that reason, by the Senate. Both the President and Mr. Adams doubted the power of the government, under our Constitution, to subject American citizens to trial by mixed tribunals; and, in lieu of such tribunals, the proposed convention provided that offenders should be sent to their respective countries for trial.

The celebrated Quintuple Treaty of 1841 conceded the right of search between the five great powers; but France declined to ratify it. It is understood that the ministers of the United States in Europe, especially Mr. Wheaton in Prussia and Mr. Cass in Paris, were influential in obtaining this refusal by France; but between the