of ambassadors, (d) as observed in the most civilized countries. (12) 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 con[ *257] stantly allowed in the courts of common law. (e) II. It is also the king'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; (f) 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 plentitude of authority should be abused to the detriment of the public, the constitution (as we hinted before) hath here interposed a check, by the means of a 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. (13) (d) Sæpe quæsitum est an comitum numero et jure habendi sunt, qui legatum comitantur,non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. Et, quamvis hos sæpe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum. Van Bynkersh. c. 15. prope finem. (e) Fitzg. 200. Stra. 797. (ƒ) Puff. L. of N. b. 8, c. 9, § 6. (12) [And the exceptions are said to be agreeable to, and taken from, the law of nations. Lockwood v. Coysgarne, 3 Burr. 1676. A person claiming the benefit of the 7 Ann. c. 12, as domestic servant to a public minister, inust be really and bona fide his servant at the time of the arrest, and must clearly show by affidavit the general nature of his service, and the actual performance of it, and that he was not a trader or object of the bankrupt laws. 2 Stra. 797; 2 Ld. Raym. 1524; Fitzg. 200; S. C., 1 Wils. 20, 78; 1 Bla. Rep. 471; S. C., 3 Burr. 1676, 1731; 3 Wils. 33, and 3 Campb. 47; 4 Burr. 2016. This privilege extends to the servants of a public minister, being natives of the country where he resides, as well as to his foreign servants: 3 Burr. 1676; and not only to servants lying in his house, for many houses are not large enough to contain and lodge all the servants of some public ministers, but also to real and actual servants lying out of his house. 2 Str. 797; 3 Wils. 35; 1 Bar. and Cres. 562. Nor is it necessary to entitle them to the privilege that their names should have been registered in the secretary of state's office, and transmitted to the sheriff's office: 4 Burr. 2017; 3 Term. Rep. 79; though, unless they have been so registered and transmitted, the sheriff or his officers cannot be proceeded against for arresting them. See the statute, § 5; 1 Wils. 20, and a modern order. And it is not to be expected, that every particular act of service should be specified. It is enough if an actual bona fide service be proved, and if such a service be sufficiently made out by affidavit, the court will not, upon bare suspicion, suppose it to have been merely colorable and collusive. 3 Burr. 1481. Where the servant of an ambassador did not reside in his master's house, but rented and lived in another, part of which he let in lodgings, it was held that his goods in that house, not being necessary for the convenience of the ambassador, were liable to be distrained for poor rates. Novello v. Toogood, 1 Bar. and Cres. 554. This act does not extend to consuls, who are therefore liable to arrest. Viveash v. Becker, 3 Maule and Sel. 284. See 1 Chitty's Com. L. 69, 70.] (13) By the constitution of the United States the president has power, "by and with the consent of the senate, to make treaties, provided two-thirds of the senators present concur." Art. 2, 1. In practice, the president, through the proper minister or secretary of state, first agrees with the foreign power upon the terms of a treaty, and, when it is drawn up in due form, submits it to the senate for ratification. The senate may either ratify the treaty as it stands, or reject it altogether; or that body may ratify it with amendments, in which case the amended treaty must be submitted to the foreign power for concurrence in the amendments. Another clause of the constitution provides that "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." Art. 6, § 2. A treaty, although agreed to by the president, does not become binding on the United States until ratified by the senate; but by that ratification it becomes the "supreme law of the land," and as such binds all departments of the government. It has sometimes been claimed, that, when a grant of money is essential to give the treaty effect, the house of representatives can exercise their own judgment to make the grant or refuse it; but though they have the power to refuse, it seems clear that, under the constitution, they have not the right. See the discussions on this subject in the house of representatives, as connected with Jay's treaty with Great Britain in 1794, with the reciprocity convention with the same country at the close of the war of 1812, and with the treaty with Russia for Alaska in 1867. 164 III. Upon the same principle the king has also the sole prerogative of making war and peace. (14) 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 Grotius, (i) why according to the laws of nations a denunciation of war ought [*258] 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 (g) Puff. b. 8, c. 6, § 8, and Barbeyr. in loc. (h) Ff. 50, 16, 118. (i) De jure v. p. l. 3, c. 4, § 11. (k) Ibid. l. 3, c. 2, § 4 § 5. (1) Dufrense, tit. Marca. It is proper to remark in this connection, in order to keep plainly before us the distinction between the sphere of powers of the United States as a nation, and the several states individually, that the latter are forbidden by the constitution to enter into any treaty, alliance or confederation, or to grant letters of marque and reprisal: art. 1. § 10; nor can they enter into any agreement or compact with another state or with a foreign power without the consent of congress. Ibid. (14) The power to declare war has not been confided to the president of the United States, but is conferred upon congress. Const. of U. S. art. 1, § 8. The president, however, is by the same instrument made commander-in-chief of the army and navy, and it is possible for him, in the recess of congress, if sufficiently reckless of consequences, to bring on a war with a foreign nation, by employing armed forces against it in a hostile manner. Those who opposed the action of the government in the ease of the war with Mexico, insisted that that war was brought on by the president wrongfully taking forcible possession of the territory in dispute; but congress justified the president, and declared that war existed "by the act of Mexico." offending state, until satisfaction *be made, wherever they happen to be [*259] found. And indeed this custom of reprisals seems dictated by nature herself; 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 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. (15) V. 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. 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 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, and they themselves behave peaceably, they are under *the king's protection; though liable to be sent [*260] home 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 (m) See the account given by Nestor, in the eleventh book of the Illad, of the reprisals made by himself of 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 equitably divided among the other creditors. (n) Law of N. and N. b. 3, c. 3, § 9. (15) [This manner of granting letters of marque has long been disused, and according to the statute of Hen. V, could only be granted to persons actually grieved. 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. The king has the right of releasing any prize captured by such ships at any time previously to condemnation. 11 East, 619. Letters of marque or general reprisals, as these commissions are called, are only valid during the war, and may be vacated either by express revocation, or by the misconduct of the parties, as for example, by their cruelty. 5 Rob. Rep. 9.] In a conference held at Paris, in 1856, it was agreed by the representatives of Austria, France, Great Britain, Sardinia, Prussia, Russia and Turkey, to abolish privateering, and that in time of war neutral flags and neutral goods should be inviolable. The United States was invited to concur in this modification of international law, but declined, unless the conference would go farther, and make all private property exempt from capture at sea. This offer was favorably received by France and Russia, but rejected by the British government. There the matter rested until the breaking out of the rebellion in America in 1861, when the government of the United States opened negotiations with the nations represented in the Paris conference of 1856, and proposed to withdraw the refusal to concur in the conclusions of that conference; but the offer elicited no favorable response. Since the close of the civil war in America, negotiations have been going on between the United States and the principal governments of Europe, which bid fair to result in a general agreement in substantial accord with what has always been the American view. 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 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. (16) 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 before hand) 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 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 king and his natural-born subjects: which occasions the learned Montesquieu to remark with a degree of admiration, "that the English have made *the protection of foreign merchants one of the articles of their national liberty." (r) But indeed it well justifies another observation which he [*261] 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 represenative 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 farther remark, that the king is not bound by (r) Sp. L. 20, 13. (0) 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1. (p) C. 30. (q) De jure Sueon. 1. 3. c. 4. (8) Ibid. 20, 6. (1) 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 Christianus 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. (x) Ch. 2, page 154. (16) The acts imposing restraints upon aliens have been very much modified and liberalized since these Commentaries were written, and an alien who is guilty of no breach of the municipal law, is not likely to be disturbed in Great Britain. In the United States the president is empowered, in case of war with any foreign nation, to impose restraints upon the citizens or residents of such nation who may be within the United States, and to remove them from the country in his discretion. 1 Stat. at Large, 577. 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, [*262] bodies politic or corporate, &c.") affect not him in the least. if 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: (z) and, likewise, the king may take the benefit of any particular act, though he be not especially 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 *undoubted right of his majesty, and his royal predecessors, kings [*263] and queens of England; and that both or either house of parliament cannot nor ought to pretend to the same. 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 Henry II, 1115 castles subsisting in England. The inconveniences of which, when granted out to private subjects, the lordly barons of those times, were 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 baron's wars, the kings of after-times have been very cautions 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 (a) 7 Rep. 32. (y) 11 Rep. 74. (d) 2 Inst. 31. (e) 1 Inst. 5. |