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could be declared forfeited at the discretion of the president.40 By treaties*1 and statutest? privateers were required to furnish bond or other security for good behavior. An act of 181243 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.44
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,45 or a vessel manned by a neutral or even an enemy crew46 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.
(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.
45The Joseph, 1 Gall. 545, Upton, op. cit. 178.
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.
(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 search 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.
48Hague 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.
51 As 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. 1730.
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.
In instructions issued to war vessels upon the outbreak of wars,55 and in general naval regulations and instructions, 57 methods of conducting visit and search and other duties of naval vessels toward neutral persons, required by treaty and international law, have been specifically enjoined.
The courts have held that the making of seizures without probable cause or proper authorization by law even when done under specific order of the president, as commander in chief of the navy, renders the captor liable to damages.58 A seizure in violation of international law, however, when specifically authorized by municipal law, is permissible so far as the captor is concerned.59 The only recourse in such cases is through diplomatic protest.
CARE AND TREATMENT OF PRIZES
A prize having been seized, five courses are open to the captor, (1) bringing in to home port for adjudication, (2) destruction, (3) ransom, (4) sequestration in a neutral port or sale in neutral territory, (5) release. The treatment which a neutral state has a right to expect under international law and the measures which the United States has taken to prevent its naval forces infringing those rights will now be considered.
(1) A number of early treatieso required the preservation of prizes intact until adjudication by a prize court, and the hospitable treatment of the officers and crew.
The Declaration of London 61 requires prizes to be brought to port for adjudication and forbids the destruction of either vessel
55 Naval Instructions, Apr. 3, 1776, (Jour. Cong., Ford, ed., 4;253); Apr. 7, 1781, (Jour. Cong., Ford, ed., 19;361); Aug. 28, 1812, (2 Wheat. App. 80, Moore's Digest, 7;544); 1813, Special Instructions, (Am. St. Pap., Nav. Aff., 1;373, Moore's Digest, 7;516); May 14, 1846, (Br, and For, St. Pap., 34;1139); Dec. 24, 1846, (Moore's Digest, 7;790); May 14, 1862, (Upton, op. cit., p. 490); Aug. 18, 1862, (Rec. Union and Conf. Navies, Ser. I, 1;417, Moore's Digest, 7;700); June 20, 1898, (For. Rel., 1898, p. 780).
56 Navy Regulations, 1913, sec. 1634.
58 Little vs. Barreme, 2 Cranch 170, (1804); The Thompson, 3 Wall. 155; The Dashing Wave, 5 Wall. 170; see also Moore's Digest, 7:593-598.
59La Maissonaire vs. Keating, 2 Gall. 334. See Upton, op. cit., p. 189.
B0As an example see treaty with France, 1800-1809, art. 20, 21, Malloy, p. 503.
61 Declaration of London, 1909, art. 48-54.
or cargo, unless the prize would be liable to condemnation and an attempt to bring it in for adjudication would involve danger to the ship of war or to the success of the operation in which she is at the time engaged.” If the prize is destroyed, persons on board and the ship's papers must be saved and the captor is declared liable to pay compensation if he cannot prove the existence of circumstances justifying destruction, irrespective of the validity of the capture. A decree of restitution of the vessel or part of its cargo in such a case involves compensation.
By the articles for the government of the navy, 82 punishment by death or other sentence of court martial is authorized to anyone destroying or injuring prizes or maltreating persons on board of them, and in the instructions for the navy issued on the outbreak of war, as well as in permanent instructions, rules for the care of prizes and their crew have generally been specified and their prompt bringing in required.
The courts have declared that it is the captor's duty to bring prizes in for adjudication as soon as possible64 and to deliver papers and necessary witnesses to the court.65 Failure to perform these duties will result in damages to the neutral owner but it is only for "gross misconduct without excuse or palliation" that they may be had. "Much indulgence is extended to errors and even improprieties of captors when no malignity or cruelty is justly chargeable."?66
(2) Special instructions to privateers and warships in the war of 181267 particularly advised destruction of prizes and this
62 Resolution, Nov. 25, 1775, Journ. Cong., Ford, ed., 3;373; Act, Apr. 23, 1800, 2 stat. 52; July 17, 1862, 12 stat. 600; Rev. Stat. sec. 1624, art. 6, II, 12. See other statutory provisions relating to the administration of prizes, Act, March 3, 1800, I stat. 16; June 26, 1812, 2 stat. 760; June 27, 1813, 2 stat. 793; March 25, 1862, 12 stat. 375; March 3, 1863, 12 stat. 759; June 30, 1864, 13 stat. 306; Rev. stat. sec. 4615-4617.
63 Stockton's Naval War Code, 1900-1904, sec. 46, 47. Supra, note 57.
64 The Lively, i Gall. 318; The Nassau, 4 Wall. 634; Moore's Digest, 7;630.
65The Diana, 2 Gall. 95; The Bothnea and the Jarnstoff, 2 Gall. 88.
B&See Upton, op. cit. p. 200, citing, The Lively and Cargo, i Gall. 29; The Anne, 3 Wheat. 435; The George, 1 Mason, 24. On liability of captor for damages, see also, Slocum vs. Mayberry, 2 Wheat. I; The Apollon, 9 Wheat. 362; The Neustra Senora de Regla, 108 U. S. 92, 103, (1882), and Moore's Digest, 7;630. Declaration of London, 1909, art. 52, 53.
B7Special Instructions, 1813, Am. St. Pap., Navy Aff., 1;373 ; Moore's Digest, 7;516.
action was permitted by the instructions to blockading vessels in 1898,68 and in Stockton's Naval War Code.89 But in the last two cases bringing in was required unless there were “controlling reasons” for not doing so, such as “unseaworthiness, the existence of infectious diseases, lack of a prize crew,” or imminent danger of recapture.
These provisions of statutes and executive orders indicate that the destruction of prizes is permitted under certain circumstances, but the practice has been discouraged except during the war of 1812. In discussions of the subject in the Naval War College in 1905 and 1907 the release of neutral prizes which could not be brought into port was recommended.?
(3) Ransom or the release of the prize by the captor on sig. nature of a ransom bill generally accompanied by a hostage to insure payment is permitted by law in the United States. The
68Instructions to Blockading Vessels and Cruisers, June 20, 1898, For. Rel. 1898, p. 780, Moore's Digest, 7;518.
89Stockton's Naval War Code, art. 50; Moore's Digest, 7;526.
70 Naval War College, International Law Discussions, 1905, pp. 62-76; 1907, p. 75. In these discussions a dist ction is drawn between the destruction of neutral and enemy prizes, the former being forbidden. See also T. E. Holland, Neutral Duties in Maritime War, Proceedings British Academy, 2;12, quoted Moore's Digest, 7;521. International opinion generally condemns the destruction of neutral prizes and British courts have upheld this view. See The Zee Star, 4 Rob. 71; The Felicity, 2 Dods. 283; The Leucade, Spinks 221; W. E. Hall, International Law, 4th ed., p. 763; T. J. Lawrence, International Law, p. 405; L. Oppenheim, International Law, 2;469. Russian prize regulations of March 27, 1895, and Sept. 20, 1900, (For. Rel., 1904, pp. 735, 747, 752, Moore's Digest, 7:519) permitted destruction. A notable controversy arose from the destruction of the British vessel Knight Commander under these regulations in the Russo-Japanese War. The Russian prize court upheld this act. (Hurst and Bray, Russian and Japanese Prize Cases, 2 vol., London, 1912, 1;54; S. Takahashi, International Law applied to the Russo-Japanese War, N. Y. 1908, p. 310; Moore's Digest, 7;521). Destruction was permitted in exceptional cases by the Japanese Prize Regulations of March 15, 1904, art. 91 (Takahashi, op. cit. p. 788) and by the French Naval Instructions of July 25, 1870, (Snow cases, p. 577), and in certain cases of pressing necessity in the rules adopted by the Institute de Droit International. (Annuair de l'institut de droit international, 6;213, 221, 1882-1883, Moore's Digest, 7;526). The recent (1915) case of the William P. Frye, an American vessel destroyed by a German cruiser, was settled under the Prussian treaty of 1799, renewed in 1828, (art. 13, Malloy, p. 1490) which requires compensation to be made for all contraband goods destroyed.