all but Ambassadors are Subjects to the Prince in whose Territories they are His Words are clear Placuisse gentibus ut communis mos qui quemvis in alieno territorio existantem ejus loci territorio subjicit exceptionem pateretur in legatis ut qui sicut fictione quadam habentur pro personis mittentium senatus faciem secum â—ttulerat auctoritatem reipublicae ait de legato quodam M. Tullius ita etiam fictione simili constituerentur quasi extra territorium It is only their mutual Good that hinders Princes from exercising this Right over Ambassadors because each Prince expects the same for his Own in Another's Territories but there can be no such Reason urged in favour of a dispossessed King who carries no publick Authority with him or in what other Country shall he be supposed to be in since he has no Country he can call his own Having proved in general that a Prince that has no longer the managing the Affairs of a Nation has no Right to any of those Privileges that belong to them that have summum Imperium and therefore such a Prince being fallen from a publick to a private Condition and under the Power and Government of another can have no more Right than any other private Person to grant Commissions to private Men of War to disturb the Trade and Commerce of any Nation and that they that act by his Commission may be dealt with as if they acted by their own or the Authority of any private Person because there is no manner of inconvenience which will happen upon a private Person 's granting such Commissions but the same will happen if a Prince grants them after he is reduced to a private Condition they being both then in the very same Condition What other way have Nations to secure their Trade or hinder their Ships or Goods from being taken but by treating them as Pirates who Rob by such a Commission There is no way of making a Titular King weary of granting such Commissions as long as he can find People willing to accept and act by them Nothing can oblige him who runs no risque of losing any thing but may get a considerable Booty by what his Privateers take as well as disturb and molest his Enemies to forbear granting such Commissions No Reprisals to be made because he has no Ships to lose but those of the Privateers whose Interest it is that such Robberies should be continued He has no Trade or Commerce to be ruined There is no way of making him desist by invading his Territories since he has none to be invaded In short he has nothing to lose by Sea or Land and by consequence no way of making him weary of eternally granting such Commissions Therefore Nations have no other way to hinder the disturbing their Commerce but by using the utmost Rigor against such as accept his Commissions that by the terror of the Example they may fright others from attempting the like What if such a Prince should grant Commissions to seize the Ships and Goods of all or most Trading Nations which may easily be supposed since he may get a considerable livelihood by sharing the Spoil with his Privateers who if they were to be treated as Enemies out of hope of Booty would in mighty Numbers infest the Seas Would it not be madness in those Nations not to make use of the utmost Rigor to secure their Ships and Trade And if several Nations may use this Method why may not any single one since any one Nation has the same right to secure their Trade as any Number whatever But supposing he should grant Commissions to take the Ships but of a single Nation yet in effect it would be to grant a general Licence to rob because those who are so commissioned would be their own Judges of whatever they took whether it were lawful Prize or not because in another Princes Territories whither the pretended Prizes must be brought the ousted Prince could not pretend to so great a Power as to erect a Court of Judicature to judg according to the Maritime Laws concerning the Ships and Goods that are taken How can he whose very being in a Country is precarious and may be banished every moment claim a right to a power of Life and Death or to force Witnesses to give attendance and all other things that are necessary for such a Court Or how can he be able to restore Ships though never so unjustly taken that are in the Ports and Custody of another King It is true Soveraigns have sometimes forborn to punish a Titular King for privately destroying a Domestick but this is no Right he can pretend to by the Law of Nations but only by the Permission of that King in whose Dominions he is It was usual for the Supreme Powers in many Nations to allow Masters a power of Life and Death over their Servants insomuch that Caius Inst. lege de his qui sui juris vel alieni saith Dominorum potestas juris gentium est nam apud omnes peraeque gentes animadvertere possumus Dominis in servos vitae necisque potestatem fuisse And by the Roman and Carthaginian Laws even Parents had the same power over their Children and in several Countries at present a private Person in many cases particularly that of Adultery may kill the Adulterer and his Wife too if he takes them in the Fact without being punished for so doing The Ambassadors of Sovereign Princes as Grotius observes l. 2. cap. 3. have by the Law of Nations no right to exercise Jurisdiction in their own Families ipse autem legatus an Jurisdictionem habeat in familiam suam an jus asyli in domo sua pro quibusvis eo fugientibus ex concessione pendet ejus apud quem agit istud juris gentium non est If the Ambassadors of Sovereign Princes who as he saith fictione quadam habentur pro personis mittentium cannot pretend to this Power there is infinitely less Reason for a Dispossessed King to Claim a Power that is so much greater viz. that of erecting Publick Courts of Judicature Therefore his granting Commission to Privateers is but granting them Authority to rob whom they have a mind to who being Judges in their own Cause cannot be supposed but will judge all that comes to their Net to be Fish and Nations have no reason to take notice of his Commission which can have no manner of effect since he that grants it is no ways able to hinder them that take it from acting as they have a mind to nor is he able to punish them if they never so much exceed the bounds of it nor can he restore Ships though never so unjustly taken nor is he able to give any satisfaction for any Injustice his Privateers shall commit So that it is evident it is against the good of Mankind and consequently the Law of Nations to allow a Prince that is reduced to a private Condition a Right
to grant such Commissions But it may be said that the Government under which this King is may give him sufficient Power to judge in these matters This Argument will as well hold for any private Person whatever because the Government may allow him the same Power as it can any exiled Prince The Laws of Nations are built upon Certainties and if a Person has no right to a Power to which certain Privileges are annexed he has no right to the Privileges though it were possible that a King may allow him such Privileges which he can enjoy but during his pleasure and other Nations as they are presumed to be ignorant of this so are not obliged to take notice of it Nor can there be any instance where a dispossessed Prince was allowed to erect a Court of Judicature in another King's Dominion it is erecting imperium in imperio and none but he that has Supream Power can be a Supreme Judge and all inferior ones act as his Ministers and must be subject and accountable to him Perhaps it may be said The King himself into whose Dominions the Prizes are brought may judge concerning them But what if he will not he is not obliged nor can he have a right to judge or punish those that acted not by his but another King's Commission for what they did super altum Mare for he cannot have a right to punish them except they are his Subjects even whilst they acted by Another's Commission and the same reason that makes them his Subjects will make the exiled King so too and consequently a private Person without Power to grant Commissions to his Fellow-Subjects All Authors both Modern and Ancient who have written on this Subject have esteemed none Enemies but those that have summum imperium and all others either Robbers or Pirates And Albericus Gentilis l. 1. De jure belli pacis cap. 1. and Grotius l. 3. cap. 3. do define an Enemy to be one qui habet Rempublicam Curiam Aerarium consensum concordiam civium rationem aliquam si res ita tulerit pacis foederis which in other words is but summum imperium because the Supreme Power in any Society must have all these And this they prove was looked on as the Definition of an Enemy even in Cicero's time who quotes it Philip. 4. as a known Definition or Description of an Enemy And I believe there is nothing in which Nations so unanimously agree as in esteeming none but him that has summum imperium an Enemy and all others Robbers or Pirates and there can be no instance given where any though at first they were Robbers Pirates Rebels c. yet when they had Dominions and possessed summum imperium were not treated as Enemies St. Austin de Civ Dei l. 4. c. 4. speaking of Robbers Hoc malum si in tantum perditorum hominum accessibus crescit ut loca teneat sedes constituat civitates occupet populos subjuget Regni nomen assumet And the beginning of most of the great Empires were not much better whatever any were at first yet when they had formed themselves into Civil Societies where Foreigners as well as Subjects might have Justice administred then they were looked on as Nations and Civil Societies and in their Wars with other Nations used as Enemies But until any Number of Men were a Civil Society and did associate for the sake of Laws Justice Government c. they were esteemed as Pirates and Robbers so all Authors do agree that those Qui civitatem non faciunt sunt piratae vel latrones and are supposed to associate Scéleris causa for the sake of Piracy or Robbery or some other wicked end But if as Grotius observes l. 3. c. 3. a Change happen and they form themselves into a Civil Society then they have all the Rights that belong to other Civil Societies his words are these Potest tamen mutatio incidere non in singulis tantum sicut Iephtes Arsaces Viriatus ex praedonum ducibus justi duces facti sunt sed etiam in caetibus ut qui praedones tantum fuerint aliud vitae genus amplexi civitas fiant So of later Years Argiers Tripoly Tunis though at first but Nests of Pirates and associated for the sake of Spoil and Plunder yet as soon as each of them had the face of a Republick they were esteemed as just Enemies and had all those Privileges allowed them that are due to Sovereign States Albericus Gentilis l. 1. c. 4. seems to be of another Opinion and after he has reckoned some few whom he is forced to allow that they from Robbers became Enemies saith it was only the Cause that made them so Quodque fiet non tam justi exercitus auctu urbium interceptu ut scriptores isti alii Historici credere videntur quam adeptione publicae causae However he is of this Opinion himself yet he is forced to confess that all the Antient Historians and other Writers were of a different Opinion If he mean by a Publick Cause a just Cause of War and none but those that have such a Cause should be treated as Enemies all Mankind would treat one another as Robbers and Pirates because each Party pretend their Enemies have no just Cause of War and there being no Superior to judge each side must judge for themselves and where there is no Common Judge in which both sides will acquiesce the pretence of Right can be urged to no purpose since each side pretends to be in the right so that there is a necessity for those that have summum imperium whatever the cause of the War be to use one another as Enemies and those that have acted otherwise have been esteemed by the rest of Mankind as infringers of the Law of Nations It is true some especially the great Conquerors as Alexander and the Saracens as he observeth have been called Robbers and really were so for whoever without a just Cause invadeth his Neighbours Rights as they did is a Robber yet they were always treated as just Enemies as were the Saracens by the Christians Nay Grotius gives instances of several Nations who without any distinction exercised Piracy yet were allowed the Rights of Enemies because they were a People Tantum discrimen est inter populum quantumvis sceleratum inter eos qui cum populus non sunt sceleris causa coeunt If Gentilis by a Publick Cause means some National Cause and that the War to make it just must not be for private Causes or by-Ends but for the sake of the People all that have summum imperium what way soever they get it as it is their Duty to protect those that are under them and make War with those that endeavour to oppress them will have the same Publick Causes of making War as any Kings whatever As Arsaces whom he mentions to have a Publick Cause had none to withdraw his Obedience from the Macedonians who
disturb the Trade of a Nation which can only tend to exasperate and vex them That cannot in common Understanding be reputed a just Design to recover his Kingdom or to conquer his Enemies but only a Pretence to let those People that act by his Commission inrich themselves by exercising Piracy which is such an odious thing that Nations cannot be too careful in punishing whatever tends that way Besides the Laws of Nations respect the general Good of Societies more than the Right of any particular Person who to speak properly can have no Right when it is inconsistent with the Good of the Society because a particular must always give place to a general Good and the Interest of a King when he has no longer the Management of the Affairs of any Nation is no more sacred than that of any other private Person who by Nature is his equal it was only the Office which is sacred because it is so necessary for the Good of Mankind that made the Difference which when he is no longer possessed of he is but upon the same Level with the rest of Mankind and then the Peace and Quiet or Trade and Commerce of a Nation ought not to be disturbed more for his than any other particular Person 's Interest And People who have a Right even to the Lives of their Enemies use them when the mutual Good of Societies do not forbid it after the same manner as they do Pirates and Robbers and they use all Spies and those that privately attempt the Lives of their Enemies whatever Right the Prince has that employs them as Pirates The Pretence of his Right who employs them will be no manner of Plea to prevent their Execution And the same Reason the Good of Societies does more strongly require the putting those to Death that rob by the Commission of any private Person whatever Besides these Reasons which I think are sufficient to prove them who were taken acting by the late King's Commission Pirates there is another unanswerable One from the Persons who accepted the Commission Who being their Majesties Subjects and which the Question that was put to the Civilians justly supposeth were morally incapable to receive such a Commission it was not in their Power to take a Commission from any King whatever to invade in a hostile manner the Ships and Goods of their Fellow-Subjects The accepting the Commission was Treason and no Commission whatever can authorize People to commit Treason so that the Commission was null and void as well upon Their account that received it as His that granted it These Reasons or at least what is most material in them the Heads of them I will not pretend they were then as fully and largely handled as they are here set down were urged either by Dr. Littleton or my Self He did not upon a Question where so much could be said leave out as it were on purpose what was most material nor did not as the sham-Account reports only say That the late King had no right to grant Commissions because he had no Treasury or Aerarium and because there was no War between him and England or somewhat to that effect Nor did I as the Account will have it without offering at any Reasons my self assent to what he said but not only then but since I am in a manner forced to say so much when I gave my Opinion in Writing I made use of what I thought most material in these Arguments It is a great Sign of the Weakness of their Cause as well as their Disingenuity that they dare not repeat the whole Matter of Fact but only relate so much of the other side as they think may serve to give a better Gloss to what they without any respect to Truth have thought fit to divulge but they were under a kind of necessity of so doing and which is the only Excuse the Matter is capable of since they had no other way of making what they pretend was said by them appear tolerable but by representing what was said by those of the contrary Side if it were possible more absurd And it is no wonder where People have neither Law nor Reason on their side that they have recourse to Lies and Calumnies the usual Arts of that Party and the only Props they have to support their so often baffled Cause But to return The Occasion of sending for the Civilians after some of them that were consulted had given their Opinions in Writing was as the Lords told Sir T. P. and Dr. Ol. who had declared that they were not Pirates without offering to shew the least Reason why they were of that Mind to hear what Reason they had to offer for their Opinion Then Sir T. P. said It was impossible they should be Pirates for a Pirate was hostis humani generis but they were not Enemies to all Mankind therefore they could not be Pirates Upon which all smiled and one of the Lords asked him Whether there ever was any such thing as a Pirate if none could be a Pirate but he that was actually in War with all Mankind To which he did not reply but only repeated what he had said before Hostis humani generis is neither a Definition or as much as a Description of a Pirat but a Rhetorical Invective to shew the Odiousness of that Crime As a Man who tho he receives Protection from a Government and has sworn to be true to it yet acts against it as much as he dares may be said to be an Enemy to all Governments because he destroyeth as far as in him lieth all Government and all Order by breaking all those Ties and Bonds that unite People in a Civil Society under any Government So a Man that breaks the common Rules of Honesty and Justice which are essential to the well-being of Mankind by robbing but one Nation may justly be termed hostis humani generis and that Nation has the same right to punish him as if he had actually robbed all Nations Doctor Ol. said that the late King being once a King had by the Laws of Nations a Right to grant Commissions and that though he had lost his Kingdoms he still retained a right to the Privileges that belong to Sovereign Princes It was asked him by one of the Lords whether he could produce an Author of any Credit that did affirm that he that had no Kingdom nor right to any could grant Commissions or had a right to any of those Privileges that belong to Sovereign Princes and that no King would suffer those Privileges to be paid to Christina when she ceased to be Queen of Sweedland and that it was the judgment of all the Lawyers that ever mentioned that Point that she had no right to them and he did hope that those that had sworn to Their present Majesties did not believe the late King had still a right and that that Point was already determined and would not be suffered to be