jured party alone to pronounce it broken. The treaty, in such cases, is not absolutely void, but voida le at the election of the injured party. If he chooses not to come to a rupture, the treaty remains obligatory. He may waive or remit the infraction, or demand a just satisfaction. But the violation of any one article of a treaty is a violation of the whole; for all its articles are dependant on each other, and are to be deemed mutual conditions of each other; and the breach of a single article may, at the election of the injured party, overthrow the whole treaty. This consequence may, however, be prevented by an express provision in the treaty itself, that if one article be broken, the others shall, nevertheless, continue in full force; and in such a case, Congress could not annul the treaty on the ground of the breach. The nullification of a treaty by an act of the legislative power, under the circumstances which render such an act justifiable, or its termination by war, does not divest rights of property acquired under it.* Nor do treaties become, ipso facto, extinguished by war between the parties. Those articles which stipulate for a permanent arrangement of territorial or other national rights, are, at most, suspended during the war, and revive at the restoration of peace, unless waived by the parties, or new or repugnant arrangements are made in a new treaty.

The supplementary power of sending and receiving ambassadors, and other public ministers and consuls, results as a necessary incident to the leading part in the treaty-making power assigned to the President; and it was first ex

* 8 Wheaton, 492.

ercised by General Washington, who broke off all intercourse with Citizen Genet, and demanded his recall by the French government, in consequence of his insolent assumption of authority to commission private vessels of war, equip them in our ports, and erect consular tribunals, with admiralty jurisdiction, within our territory. The only instance of the kind which has since occurred was that of the British minister, Mr. Francis Jackson, who had previously obtained some notoriety at Copenhagen, and, by his conduct on his extraordinary mission to this country relative to the attack on the Chesapeake frigate by a British line-of-battle ship, fully vindicated the nom de guerre which he had earned by an attack of a similar character, though on a larger scale, which he had promoted and sanctioned on the former occasion. It was very generally believed that he was selected by Mr. Canning as envoy to the United States in consequence of the celebrity he had gained in the Baltic; but a better motive was found in England, in the private friendship existing between the secretary of state and his envoy, derived from the gratitude of Mr. Canning to the father of his friend, Dr. Cyril Jackson, dean of Christ Church, Oxford,* under whose tuition he had been at that university. Be this as it may, the son behaved in this country as unlike as possible to what the conduct and manners of his father would have been in such a situation; and in consequence of his insolence, he was dismissed by Mr. Madi

son.

II. The power to define and punish piracies and

* The character of this learned and able man is admirably and faithfully drawn in Mr. Ward's novel of "De Vere."

felonies committed on the high seas, and offences against the law of nations, is substantively and separately vested in Congress; although, as to the former objects, it seems unavoidably incident to the power of regulating foreign commerce; and, as to the latter, to be implied from the authority to declare war and make treaties.

The power to define as well as punish seems rather applicable to felonies and offences against the law of nations than to piracies, as piracy is well defined by the law of nations; and by the high seas is understood not only the ocean out of sight of land, but waters on the seacoast beyond the boundary of low-water mark.

Piracy, according to the most approved writers on international law, consists in robbery, or a forcible depredation on the high seas, without lawful authority. But felonies on the ocean, or on waters on the coast, beyond low-water mark, and offences against international law, are by no means completely ascertained and defined by any code recognised by the common consent of nations; so that, with respect to this species of offence, there was a peculiar fitness in granting to Congress the power to define as well as to punish. Nor, in executing the power inregard to piracy, was it necessary for Congress to insert in the statute a definition of the crime in terms; it was enough to refer for its definition to the law of nations, as it is there defined with reasonable certainty, and does not depend on the particular provisions of any municipal code, either for its definition or its punishment.* Congress has the right to pass laws to punish pirates,

* 5 Wheaton, 153.

though they may be foreigners, and have committed no particular offence against the United States; and in executing this power, it has declared, in conformity with the law of nations, that the punishment of piracy shall be death. The act of Congress, which declares certain offences to be piracy which are not so by the law of nations, was intended to punish them as offences against the United States, and not as offences against the human race;* and such an offence, committed by a person not a citizen of the United States, on board of a vessel belonging exclusively to subjects of a foreign state, is not piracy under the statute, nor punishable in the Federal Courts. The offence, in such cases, must be left to be punished by the nation under whose flag the vessel sails, and whose particular jurisdiction extends to all on board; for it is a clear and settled principle, that the jurisdiction of every nation extends to its own citizens, on board of its own public and private vessels, at sea. But murder and robbery committed on the high seas by persons on board of a vessel not at the time belonging to any foreign power, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no government, is within the act of Congress, and punishable in the courts of the United States; for although the statute does not apply to offences committed against the particular sovereignty of a foreign power, and on board of a vessel belonging at the time, in fact as well as of right, to a subject of a foreign state, and in virtue of such property subject to his control, yet it does extend to all offences committed against all nations, by persons

* 3 Wheaton, 610. + Rutherford's Inst., b. ii., ch. xi.

who, by common consent, are amenable to the laws of all nations.*

In pursuance of this principle, the moment a vessel assumes a piratical character, she loses all claim to national character, and the crew, whether citizens or foreigners, are equally punishable under the statute, for acts which it declares to be piracy. The laws of the United States declare those acts piracy on one of their own citizens, which would be merely belligerant acts if committed on a foreigner; and a citizen of the United States who offends against the government or his fellow-citizens, under colour of a foreign commission, is punishable in the same manner as if he had no commission. The acts of an alien, under the sanction of a national commission, may be hostile, and his government may be responsible for them, but they are not regarded as piratical; and this rule extends to the Barbary powers, who are now regarded, by the law of nations, as lawful powers, and not as they deserve to be, pirates.

Felony, when committed on the high seas, amounts in effect to piracy, and has, to a considerable extent, been so declared by Congress, who, in pursuance of the authority vested in them by the Constitution, have enacted that any person, on the high seas, or in any open roadstead or bay where the sea ebbs and flows, committing the crime of robbery in and upon any vessel, or its crew or lading, shall be adjudged a pirate; and farther, that "if any person concerned in any piratical cruise or enterprise, or being of the crew or ship's company of any piratical ship or vessel, shall land and commit robbery on * 5 Wheaton, 144. Laws of U. S., 1820, § 3.

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