Lapas attēli

Damages for illegal acts.

the practice. In the treaty of amity and commerce between Prussia and the United States, in 1785, it is stipulated that, in case of war, neither party should grant commissions to any private armed vessel to attack the commerce of the other. But the spirit and policy of maritime warfare will not permit such generous provisions to prevail. That provision was not renewed with the renewal of the treaty. A similar attempt to put an end to the practice was made in the agreement between Sweden and Holland, in 1675, but the agreement was not performed. The French legislature, soon after the breaking out of the war with Austria, in 1792, passed a decree for the total suppression of privateering, but that was a transitory act, and it was soon swept away in the tempest of the revolution. The efforts to stop the practice have been very feeble and fruitless, notwithstanding that enlightened and enlarged considerations of national policy have shown it to be for the general benefit of mankind, to surrender the licentious practice, and to obstruct as little as possible, the freedom and security of commercial intercourse among the nations."

It has been a question, whether the owners and officers of private armed vessels were liable, in damages, for illegal conduct, beyond the amount of the security given. Bynkershoeck has discussed this point quite at large, and he concludes that the owner, master, and sureties, are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, and the sureties are bound only to the amount of the sums for which they became bound. This rule is liable to the modifications of municipal regula

a 1 Emerigon des Ass. 129-132. 457. Mably's Droit Public, ch. 12. sec. 1. Edinburgh Review, vol. 8. p. 13-15. North American Review, N. S. vol. 2. p. 166.

b Q. J. Pub. b. 1. ch. 19.

tions, and though the French law of prize was formerly the same as the rule laid down by Bynkershoeck, yet the new commercial code of France exempts the owners of private armed vessels in time of war, from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15. is to the same effect, in respect to embezzlements in the merchants' service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject, (and there is none with us,) the general principle is, that the liability is commensurate with the injury. This was the rule, as declared by the Supreme Court of the United States, in Del Col v. Arnold, and though that case has since been shaken as to other points, it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure of damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not rateably pro tanto.d



Foreign commission

Vattel admits, that an individual may, with a safe conscience, serve his country by fitting out privateers; but he to cruise. holds it to be inexcusable and base, to take a commission from a foreign prince, to prey upon the subjects of a state in amity with his native country. The laws of the United

a Code de Commerce, art. 217.

b 3 Dallas, 333.

c 1 Wheaton, 259. 1 Paine's Rep. 111. to the same point.

d 5 Rob. 291. The Karasan. 2 Wheaton, 327. The Anna Maria. But the owners of a privateer are not liable civilly beyond the security given by law, and the loss of the vessel, for piratical acts committed by the officers and crew of the privateer. They are only liable by the maritime law, for the conduct of the officers and crew, while in the execution of the business of the cruise. Dias v. Privateer Revenge, 3 Wash. Cir. R. 262.

e B. 3. c. 15. sec. 229.


States have made ample provision on this subject, and they may be considered as in affirmance of the law of nations, and as prescribing specific punishment for acts which were before unlawful. An act of Congress prohibits citizens to accept, within the jurisdiction of the United States, a commission, or for any person, not transiently within the United States, to consent to be retained or enlisted, to serve a foreign state in war, against a government in amity with us. It likewise prohibits American citizens from being concerned, without the limits of the United States, in fitting out, or otherwise assisting, any private vessel of war, to cruise against the subjects of friendly powers. Similar prohibitions are contained in the laws of other countries; and the French ordinance of the marine of 1681, treated such acts as piratical. The better opinion is, that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate; for though the two powers may be allies, yet one of them may be in amity with a state with whom the other is at war.d In the treaty of 1825, between the United States and the republic of Colombia, it is declared, that no citizen, of either nation, shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under pain of being treated as a pirate.

The right to all captures vests primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, but what he re

a Talbot v. Janson, 3 Dallas, 133. Brig Alerta v. Blas Moran, 9 Cranch, 359.

b Act of Congress of 20th of April, 1818, c. 83.

c See the Austrian Ordinance of Neutrality of August 7, 1803, art. 2,3. By the law of Plymouth Colony, in 1682, it was declared to be felony to commit hostilities on the high seas, under the flag of any foreign power, upon the subjects of another foreign power in amity with England. Baylies' Historical Memorial, vol. 2. part 4. 35. d Valin's Com. tom. 2. 235, 6. Bynkershoeck, c. 17. and note by Duponceau to his Translation, p. 129. Sir L. Jenkins' Works, 714.

ceives under the grant of the state. This is a general principle of public jurisprudence, bello parta cedunt reipublicæ, and the distribution of the proceeds of prizes, depends upon the regulations of each state, and unless the local laws have otherwise provided, the prizes vest in the sovereign. But the general practice under the laws and ordinances of the belligerent governments is, to distribute the proceeds of captured property, when duly passed upon, and condemned as prize, (and whether captured by public or private commissioned vessels,) among the captors, as a reward for bravery, and a stimulus to exertion.

When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; though, strictly speaking, as between the belligerent parties, the title passes, and is vested when the capture is complete, and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects, and the authors he refers to, maintain with great strength, as Lord Mansfield observed in Goss v. Withers, that occupation of itself transferred the title to the captor, per solam occupationem dominium præda hostibus acquiri. The question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to the change of title is open to dispute, and many arbitrary lines have been drawn, partly from policy, to prevent too easy dispositions of the property to neutrals,

a Grotius, b. 3. c. 6. Vattel, b. 3. c. 9. sec. 164. The Elsebe, 5 Rob. 173. Home v. Earl Camden, H. Blacks. 533. At common law, the goods taken from an enemy belonged to the captor. Finch's Law, 28. 178. 12 Mod. 135. 1 Wils. 213.

b Lord Loughborough, 1 H. Blacks. 189–191.

c Tom. 2. p. 1155.

d 2 Burr. 683.

and partly from equity, to extend the jus postliminii in favour of the owner. Grotius, and many other writers, and some marine ordinances, as those of Louis XIV. and of Congress during the American war, made twenty-four hours quiet possession by the enemy, the test of title by capture. Bynkershoeck says, that such a rule is repugnant to the laws and customs of Holland, and he insists, that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra præsidia, do most clearly change the property. But by the modern usage of nations, neither the twenty-four hours possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of the commercial nations, has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favour of a neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct, and individual outrage, has been long established in the English admiralty,

a B 3 c. 6.

b Q. J Pub. b.

c Carth. 423.

1. c. 4. and c. 5

10 Mod. 79. 12 Mod. 143. 2 Burr. 694. 3 Rob.

97. in notis.

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