[The fact of there being such a crime as piracy has never been doubted since the Law of Nations acquired its modern form, nor have the chief elements of the crime been matter of doubt. The exact nature and number, however, of the offences comprehended by the term is still a matter of uncertainty, and the text-book writers have been in great perplexity in their search for a satisfactory definition. The characteristic elements in the crime of piracy are-(1) a violation, actual or attempted, of the general rights by sea of all States, whether in respect of persons or things; and (2) an absence of allegiance to any one State, or an intention, actual or presumed, to establish an organisation subsisting by general rapine. Evidence of this intention has been held to be supplied by the fact of the commander of a ship accepting commissions from two opposed belligerents, or from a ship's crew throwing off all allegiance to their own captain and engaging in indiscriminate acts of pillage. The punishment for piracy, when detected in the act, was at one time universally death. It is now held that each State is entitled to visit the crime with the penalties which its own laws may determine.

It has been much argued whether the act of engaging in the slave-trade can be treated by the Law of Nations as piracy. The opinion seems decidedly to be that in the present division of sentiments on this matter on the past even of those States which hold themselves to be subjects of the Law of Nations, it is impossible to allow the act of engaging in the slave-trade to be treated with the absolute and peremptory rigour with which piracy is properly visited. It is a matter for the private engagements of particular States, so far as they may affect to bind the actions of their own citizens, and

[* See Dana's note in his edition of Wheaton's "Elements" and the authorities cited in it, Part II. ch. II. See, also, Woolsey, § 137, and Heffter, § 104.]

[for their joint action also in those cases in which a ship engaging in the trade does not belong to any recognised State. Thus, it does not seem that the mere act

of a ship's master and crew engaging in the slave

trade can of itself be treated as putting them out of the protection of their own State. The subject of piracy will be recurred to lower down in connection with that of privateers.*

More questionable rights than any of the above are those to commerce, to general comity,-as in respect of ceremonial, to patent and copyright legislation, and to the extradition of prisoners. It is not a very practical problem, in the present day, to determine how far it would be a ground for war, if a State refused to recognise in favour of another State rights of this description. The only cases in which it has been practically attempted to enforce them in modern times have been where the recalcitrant State has been too weak to resist, or too much isolated to be protected by the public opinion and conscience of Europe, as embodied in the Law of Nations; and even in these cases the monstrosity of the interference has been partially veiled by interposing a forced treaty. The history of the modern relations of England with China † supply abundant illustrations of the mode in which these quasi-rights are, in practice, alternately ignored and arbitrarily enforced.

SECTION II.

Of Rights accruing by Treaty.

The above classes of rights exist independently of treaty, or else, as in the case of commercial rights, international copyright and patent-right, and rights to the extradition of fugitive criminals,-are recognised as being of that doubtful sort that they are practically

[* See p. 159.]

[ See Dr. Bridges' article on "England and China" in the " Essays on International Policy” (Chapman and Hall, 1866).]

[valueless unless fortified by treaties. Thus there is a very large and important class of rights, especially those which are the subject-matter of a treaty of peace, which owe either their whole, or their main, support to the express conventional engagements of States.

The multitude of subsisting treaties, to which every State in the world is at the present day a party, and the boundless variety of topics with which they deal, is a remarkable tribute to the practical force which is attributed to the good faith of States.

There are many important particulars in which treaties differ from private contracts, though the parallelism with the doctrines of Roman law, which has characterised the historical growth of the Law of Nations, has naturally brought into relief rather the points of resemblance between treaties and contracts than the points of difference.

The most prominent mark of distinction between a treaty and a private contract is discoverable in the fact that treaties between States are the only forms of conveyance known to the Law of Nations. It is true that by some systems of national law,-as in certain cases by French law and English" equity," what was primarily intended as a mere engagement to sell is made to operate as an actual sale; and, still more frequently, the same document is made to serve the purposes both of transferring property and of preserving evidence of a contract as to acts to be done in the future. But in the Law of Nations, such a document as a one-sided conveyance or legal act is unknown. Every settlement of disputed claims, and every cession, sale, or exchange of territory, can only take place and be effectually confirmed through the medium of a treaty entered into by the two or more States concerned. Even those arrangements which concern the boundaries of territory, and which are intended, from their nature, to be as lasting as the States themselves, are not only guaranteed and

[fortified by treaties, but can only be expressed and carried into effect by the language and interposition of treaties. This comes about indeed from the inherently consensual characteristics of the Law of Nations itself. The basis of every arrangement and institution must be sought for in actual or presumed consent; and that basis is valid and immovable in proportion as the consent is express and unequivocal.

Another important distinction between treaties and private contracts is connected with the former one, and, in fact, flows directly from it. A valid private contract is always held to imply the unbiassed and deliberate intention of the contractors. The presence of such an amount and kind of force or fraud as may reasonably be held to have hindered one of the contractors either from taking an adequate view of his own interests and of relevant surrounding facts, or from acting in compliance with the dictates of his interests when ascertained, is, in all systems of national law, held vitally to impair the legal validity of the contract. Not so in the case of treaties under the Law of Nations. The most important class of treaties-treaties of peace-are invariably made under circumstances of the most aggravated physical pressure. They are, in fact, wrung from one of the parties at the point of the bayonet. Nevertheless, though this fact really qualifies the actual cogency of such treaties, it does not qualify their legal cogency in the minutest degree. No war, indeed, could ever come to an end, if such treaties had not an indefinite amount of formal validity arbitrarily imputed to them. It is, however, a matter much to be regretted, that the occasion of making treaties of peace has usually been taken as suitable for arranging general settlements of the relations of a variety of States, and for closing a number of controversies which have long been open sores. A treaty of peace always leaves one party, and generally more than one, grievously discontented, and strongly con

[cerned, if not firmly resolved, to upset it at the first favourable opportunity. Thus, settlements and arrangements which ought to have been finally placed on the most unassailable foundation become infected with the looseness of the structure to which they are accidentally attached.

Professor Mountague Bernard, in his Lecture on "The Obligation of Treaties," published in 1868, among his Lectures on Diplomacy, gives some interesting historical illustrations of the devices at one time resorted to for the purpose of giving to treaties an obligatory force which they did not seem inherently to possess. He says (p. 190) that "to the earliest extant "treaty of medieval Europe, negotiated in the sixth century, and recorded by Gregory of Tours, the parties swore by the name of God Almighty, by the Indi"visible Trinity, by all divine things, and by the dreadful

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day of the last judgment.' On the Cross, on the four Gospels, on the canon of the mass, and on my honour, "is the form used in Spanish treaties of the sixteenth "and seventeenth centuries." Professor Mountague Bernard goes on to say that between the thirteenth and sixteenth centuries the artificial securities were prodigiously multiplied. "An oath was not enough; the sovereign must swear that he would neither obtain, accept, nor profit by a papal dispensation from his "oath; he must submit himself expressly to the censures "of the Church; to excommunication, aggravation, re"aggravation, interdict, anathematisation, and other "heavier censures and fulminations whatsoever;' and "for this purpose must undertake to appoint within a "fixed period proctors authorized to appear and record "his submission before the Pope or some other eccle"siastical judge in due form of law. If, like the "French kings, he had the privilege of not being "excommunicated except after certain formalities, he "must renounce the privilege. He must release, in "case he should perjure himself, his vassals from their