In addition to statutory provisions, the navy is governed by bodies of rules known as navy regulations and naval instructions which are promulgated by the president and have the force of law until repealed.82

No statutory provisions deal with violations of neutral territory, but regulations and instructions, 33 since the Revolutionary war, have enjoined officers to respect neutral rights and especially to refrain from hostilities in neutral territory. Thus by the Navy Regulations of 1913 commanders in chief are to "scrupulously respect the territorial authority of foreign civilized nations in amity with the United States. ''34

(2) The duty of preventing its naval forces injuring neutral individuals involves largely restraints which such forces are bound to observe in exercising the belligerent right of seizing neutral prizes on the high seas. The law applied by courts in enforcing the government's duty to abstain from illegally confiscating neutral prizes has been considered. Here we will consider the methods by which naval forces are prevented from making such seizures, or otherwise injuring neutral persons.

It must be observed that the acts prohibited in performing these duties of prevention and abstention are not exactly the same. The belligerent must prevent a prima facie unjustifiable seizure, but even when the seizure is justifiable the government may be bound to abstain from confiscating the prize. Thus it

32 Regulations for the government of the Navy of the United States, Washington, 1913, under authority of Rev. Stat., sec. 1547.

33 Naval Instructions, Apr. 3, 1776, Apr. 7, 1781, (Journ. Cong., Ford, ed., 4;253, 19;361); Aug. 28, 1812, (2 Wheat. App. 80, Moore's Digest, 7:545. Authority for the issuance of these orders was given in the prize act of 1812, 2 stat. 760, sec. 8. They were upheld in the Thomas Gibbons, 8 Cranch 421, (1814), but in the Mary and Susan, 1 Wheat. 46, 57, (1816) it was held that the captor must be notified of the order before his right to prize money from vessels, captured contrary to them, would be affected); May 14, 1846, (Br. and For. St. Pap., 34;1139, Moore's Digest, 7:828); Dec. 24, 1846, (Moore's Digest, 7;790); Nov. 6, 1861; May 14, 1862, (Upton, op. cit. p. 490); Aug. 18, 1862, (Official Records, Union and Confederate Navies, Ser. 1, 1;417, Moore's Digest, 7;700); June 20, 1898, (Gen. Ord., Navy Dept., 1898, No. 492, For. Rel., 1898, p. 780); Jan. 27, 1900, (Gen. Ord., Navy Dept., 1900, No. 551, revoked, Ibid., Feb. 4, 1904, No. 150); Navy Regulations, 1913, sec. 1645, 1647.

34 Navy Regulations, 1913, sec. 1645. Naval commanders are allowed some discretion under these rules. See note at head of chapter 15, Navy Regulations, 1913, p. 159г.

frequently happens that a naval officer will be held completely justified in making a seizure even though the prize after adjudication is restored to the neutral owner.35

It might be supposed that the means adopted to prevent illegal seizure of neutral property at sea would be a matter of purely national concern and would not be specified by international law. This is not the case. The exercise of belligerent rights over neutral commerce is so important and so subject to abuse that international law has to some extent specified the exact means which a state must provide for carrying out this obligation. Thus, it forbids captures by privateers, requires certain specified formalities of visit and search, and demands adjudication of the prize by a court acting in the usual form of judicial bodies. The belligerent state is of course at liberty to enact supplementary laws better to fulfill its duties under this head. Among such acts in force in the United States may be mentioned the statutes abolishing prize money, and those affixing criminal penalties for the spoliation of prizes. Before the abolition of privateering the requirement of bonds from privateers and the enforcement of liability against the owners of privateers were rules of this character. The abolition of privateering and the attempted abolition of prize money at the Second Hague conference are illustrations of the tendency of international law to enter more and more this field, formerly left to the discretion of states.

The United States has taken measures to prevent the illegal seizure of prizes by restricting the classes of vessels which may make seizures, by prescribing rules for visit and search of neutral vessels, and by affixing penalties for making unjustifiable seizures. An improper treatment of prizes and their crews is also prevented by municipal law. Definite rules for the conduct of prizes have been prescribed. Criminal penalties enforceable by court martial proceedings against persons in the navy violating these rules, as well as liability to civil suit for damages, add sanctions to their enforcement. Adjudication of prizes has also been provided for by the establishment of courts of prize jurisdiction. These matters will be considered in greater detail in the following sections dealing with the seizure of prizes, the care and treatment of prizes and the adjudication of prizes.

35 The Marianna Flora, 11 Wheat. 1, (1826).

SEIZURE OF PRIZES

The United States has authorized seizures during war by three varieties of vessels, (1) privateers, (2) converted merchantment, (3) vessels of the navy.

37

(1) The use of privateers or private armed vessels in war was prohibited by the Declaration of Paris of 1856. The United States has not acceded to this declaration,36 but refrained from using privateers during the Civil war, and by proclamation at the outbreak of the Spanish war of 1898 disclaimed intention to use them during that war.3 Privateers have not been extensively used since 1856 and it may safely be said that their use is now forbidden by international law.

38

The United States made free use of privateers in the Revolutionary war and the War of 1812. On these occasions efforts were made to prevent illegal seizures through rules of municipal law expressed in treaties, statutes, naval instructions and court decisions. Privateers were provided with commissions or letters of marque accompanied by special instructions stating the scope and limits of their right to seize property.30 These commissions

36 The United States did not accede to the Declaration of Paris because not having a navy it considered this type of naval militia necessary until the right to capture private property at sea should be abolished altogether. This complete exemption has been a tradition of American policy since earliest times. In a treaty with Bolivia, of 1858, it was reciprocally agreed to give asylum to privateers until the two parties should relinquish their use, "in consideration of the general relinquishment of the right of capture of private property upon the high seas," art. 9, Mal. loy, p. 117.

37 On proposals to issue letters of marque during the Civil War and reasons for not doing so, see Moore's Digest, 7;556. An act of March 3, 1863, 12 stat. 758, gave the president authority to issue letters of marque. 38 Proclamation, Apr. 26, 1898, 30 stat. 1770; Moore's Digest, 7;541. 39 Privateers were authorized by a resolution of the Continental congress, March 23, 1776. On April 2 and 3, forms of commission were adopted to be sent in blank to the colonies. About 1700 letters of marque were issued during the Revolutionary war. See Allen, Naval History of the American Revolution, 1;451; 2;701. During the War of 1812, privateers were of great importance. In the Civil war the Confederate states issued letters of marque and an act of Mch. 3, 1863, authorized their issuance by the federal government. Regulations and instructions were drawn up on Mch. 20, 1863, but as a matter of policy no commissions were issued. See Moore's Digest, 7:556. See Resolutions of Congress, Mch. 23, 1776, Instructions Apr. 3, 1776, Apr. 17, 181, (Journ. Cong., Ford, ed., 4;230, 253, 19;361); Instructions, Aug. 28, 1812, (2 Wheat. App. 80) (Moore's Digest, 7;544). On necessity of carrying commissions see Upton, op. cit. p. 177.

could be declared forfeited at the discretion of the president.40 By treaties" and statutes*2 privateers were required to furnish bond or other security for good behavior. An act of 181213 required privateers to keep a journal which was to be inspected by the commanders of naval vessels meeting the privateer at sea, prohibited cruising without special instructions, and declared prize money forfeited in case of illegal seizures. Courts have held the owners of privateers responsible for the conduct of the officers and crew of the vessel to the full value of property injured or destroyed."

It should be noted, however, that an illegal act done by a privateer would not operate to invalidate the captures so far as the United States government was concerned. The captor might forfeit his prize money, bond and commission, but if the vessel were declared good prize by the court, the neutral owner would have no recourse. Thus a non-commissioned vessel, or a vessel manned by a neutral or even an enemy crew16 might make a capture, valid as against the belligerent or neutral owner, although the officers, crew and owners themselves might be subject to criminal punishment or civil liability.

45

(2) The use of converted merchant vessels in war was provided for in the mail subsidy act of 1891,47 and a number of vessels of this character were used during the Spanish war.

40 Act June 26, 1812, 2 stat. 760. See Upton, Op. cit., p. 181, 185; The Thomas Gibbons, 8 Cranch 421.

41 Treaties with Great Britain, 1794-1807, art. 19, Malloy, p. 602; France, 1800-1809, art. 23, p. 504; Netherlands, 1782-1795, art. 14, p. 1238; Prussia, 1785-1796, art. 15, p. 1482; Sweden, 1783-1798, revived treaty of 1827, art. 16, p. 1730.

42 Act July 9, 1798, I stat. 578; June 26, 1812, 2 stat. 760.

43 Act June 26, 1812, 2 stat. 760; Instructions to privateers, Aug. 28, 1812, 2 Wheat. App. 80, Moore's Digest, 7:544.

44 Del Col vs. Arnold, 3 Dall. 333, (1796). The liability of the owners was held to extend only to acts committed by the officers and crew in making captures in Davis vs. The Revenge, 3 Wash. 262. For acts done not in pursuance of the commission the owner was held not liable, see The Amiable Nancy, 1 Paine 11.

45 The Joseph, 1 Gall. 545, Upton, op. cit. 178.

46 The Mary and Susan, 1 Wheat. 46.

47 Act March 3, 1891, 26 stat. 830, sec. 9. See also act July 17, 1862, 12 stat. 600, sec. 8, for recognition of "armed vessels in the service of the United States" distinct from either privateers or vessels of the navy, and The Rita, 69 Fed. Rep. 763. Moore's Digest, 7;538-543.

One of the Hague conventions of 190748 contains regulations for the use of such vessels, but it was not signed or ratified by the United States. The United States has always put converted merchantmen under the command of regular naval officers and subjected their crews to naval discipline. The measures taken to prevent violation of the rights of neutral persons by regular naval forces are therefore applicable to them.

49

(3) In a number of its early treaties the United States put itself under the obligation to prevent warships exercising the right of visit and search over vessels under neutral convoy, or the right of search over vessels bearing a passport or sea letter of their country when neutral.50 Specific requirements for conducting visit and search51 were often included in these treaties and the right of action for damages received by the neutral individual from a United States warship or privateer52 was frequently granted. The treaty requirement of bonds, ensuring the good behavior of privateers, has already been mentioned.53

According to the declaration of London vessels under neutral convoy are exempt from visit and search.54 Illegal seizures are guarded against by the provision entitling the owner to compensation if his vessel was seized without sufficient reason and was subsequently released.

48 Hague Conventions, 1907, vii.

49 Respect for neutral convoy has been required in twenty-four treaties with nineteen countries, of which the following are in force: Bolivia, 1858, art. 23, p. 309; Colombia, 1846, art. 23, p. 309; Italy, 1871, art. 19, p. 975; Sweden, 1783-1798, revived 1816, 1827, art. 12, p. 1729.

50In most of the early treaties the carriage of sea letters was provided for in terms similar to that of the French treaty of 1778-1798, art. 24, 27, Malloy, pp. 477, 478. In some of them the carriage of such a passport was mandatory; a failure to produce it if not explained would result in condemnation as constructive enemy property. Supra, p. 161.

51As examples of treaty provisions prescribing method of conducting visit and search see treaties with Prussia, 1785-1796, art. 15, p. 1482; 1799-1810, art. 15, p. 1491; Sweden, 1783-1798, revived treaties 1816, 1827, art. 25, p. 1733.

52Treaties with France, 1778-1798, art. 15, p. 474; 1800-1809, art. 19, p. 504; Netherlands, 1782-1795, art. 13, p. 1237; Prussia, 1785-1796, art. 15, p. 1482; Sweden, 1783-1798, revived 1816, 1827, art. 15, p. 1739. 53 Supra, p. 181, note 41.

54 Declaration of London, 1909, art. 61, 64. On the status of the Declaration of London in 1914, see Am. Jour. Int. Law, 9;199, Jan. 1915.