In the case in question, the Guernsey privateer certainly had a commission from the King of Great Britain, against American vessels at least. But admitting, for argument's sake, that he had no commission at all, the question arises, whether the two nations of France and England are at war or not. And, although there has been no formal declaration of war on either side, yet there seems to be little doubt that the two nations have been at actual war, at least from the time of the mutual recall of their Ambassadors, if not from the moment of the British King's most warlike speech to his Parliament.
Now, if it is admitted that the two nations are at war, we believe it would be without a precedent in the history of jurisprudence to adjudge the subject of any nation to be guilty of piracy for an act of hostility, committed at sea against the subject of another nation at war. Such a principle, for what we see, would conclude all the admirals and other officers of both nations guilty of the same offence.
It is not the want of a commission, as we humbly conceive, that makes a man guilty of piracy; but committing hostilities against human kind, at least against a nation not at war.
Commissions are but one species of evidence that nations are at war. But there are many other ways of proving the same thing.
Subjects and citizens, it is true, are forbidden by most civilized nations to arm vessels for cruising against their enemies, without a commission from the sovereign; but it is upon penalty, of confiscation or some other, perhaps, milder punishment, not on the penalties of piracy.
Moreover, perhaps, prizes made upon enemies by subjects or citizens, without commission from their sovereigns, may belong to the sovereigns, not to the captors, by the laws of most nations; but, perhaps, no nation ever punished as pirates their own subjects or citizens, for making a prize from an enemy without a commission.
We beg your Excellency's pardon for detaining you so long from objects of more importance, and have the honor to be, &c.
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.
TO THE PRESIDENT OF CONGRESS.
Passy, 17th September, 1778.