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private property of pacific persons for the sake of gain, and destroys private dwellings, or public edifices, devoted to civil purposes only; or makes war upon monuments of art, and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world. Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Rutherforth not Law of re to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because the community, of which he is a member, is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle, that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation, Professor Martens is not so strict. While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retaliation as

a Vattel, b. 3. c. 9. sec. 168. In the case of the Marquis De Somerneles, (Stewart's Vice-Adm. Rep. 482.) the enlightened judge of the Vice-Admiralty Court at Halifax, restored to the Academy of Arts in Philadelphia, a case of Italian paintings and prints, captured by a British vessel in the war of 1812, on their passage to the Uni. ted States; and he did it "in conformity to the law of nations, as practised by all civilized conntries," and because "the arts and sciences are admitted to form an exception to the severe rights of warfare."

b Inst. b. 2. c. 9.

c Summary of the Law of Nations, b. 3. c. 1. sec. 3. notc.

a sad extremity, and it is frequently threatened without being put in execution, and, probably, without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war, occurred in this country during the revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war.a

Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy. If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies, and the captures which they make in such a case, are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of their sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the protection of the mitigated rules of modern warfare."


It was the received opinion in ancient Rome, in the times of Cato and Cicero, that one who was not regularly enrolled as a soldier, could not lawfully kill an enemy. But the law of Solon, by which individuals were permitted to form associations for plunder, was afterwards introduced into the Roman law, and has been transmitted to us as part

a Journals of Congress under the Confederation, vol. 2. p. 245. vol. 7. p. 9. and 147. vol. 8. p. 10. British Orders in Canada of 27th October, and December 12th, 1813, and President's Message to Congress, of December 7th, 1813, and of October 28th, 1814.

b Bynk. Q. J. P. ch. 20. Vattel, b. 3. c. 15. sec. 226. Journals of Congress, vol. 7 187. Martens, b. 8. c. 3. sec. 2.

c De Off. b. 1. c. 11.

to cru ze ne

of their system. During the lawless confusion of the feudal ages, the right of making reprisals was claimed, and exercised, without a public commission. It was not until Commission the fifteenth century that commissions were held necessary, cessary. and began to be issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without license; and there were ordinances in Germany, France, and England, to that effect. It is now the practice for maritime states to make use of the voluntary aid of individuals against their enemies, as auxiliary to the public force; and Bynkershoeck says, that the Dutch formerly employed no vessels of war but such as were owned by private persons, and to whom the government allowed a proportion of the captured property, as well as indemnity from the public treasury. Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission. Sir Matthew Hale held it to be depredation in a subject to attack the enemy's vessels, except in his own defence, without a commission. The snbject has been repeatedly discussed in the Supreme Court of the United States, and the doctrine of the law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under a commission, but they may still lawfully seize hostile property in their own defence. If they depredate upon the enemy without

a Dig. 47. 22. 4. Bynk. Q. J. P. b. 1. c. 18,

b Code des Prizes, tom. 1. p. 1. Martens on Privateers, p. 18. Robinson's Collectanea Maritima, p. 21.

c Bynk, ub. sup. Martens, b. 8. c. 3. sec. 2. Judge Croke in the case of the Curlew, Stewart's Vice-Adm. Rep. 326.

d Harg. Law T. 245, 246, 247.

e Brown v. United States, 8 Cranch, 132-135. The Nereide, 9 Cranch, 449. The Dos Hermanos, 2 Wheaton, 76. and 10 Wheaton, 306. The Amiable Isabella, 6 Wheaton, 1.


a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy are not warranted to consider them as criminals, and, as respects the enemy, they violate no rights by capture.

Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous; and they would probably expose the party to the unchecked severity of the enemy, but they are not acts of piracy. Vattel, indeed, says, that private ships of war, without a regular commission, are not entitled to be treated like captures made in a formal war. The observation is rather

loose, and the weight of authority undoubtedly is, that non-commissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates. They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favour of the government of the captor, as droits of the admiralty. It is said, however, that, in the United States, the property is not strictly and technically condemned upon that principle, but jure reipublicæ; and it is the settled law of the United States, that all captures made by non-commissioned captors, are made for the government.

In order to encourage privateering, it is usual to allow the owners of private armed vessels to appropriate to themselves the property, or a large portion of the property they may capture; and to afford them, and the crews, other fa

a B. 3. c. 15, sec. 226.

b Com. Dig. tit. Admiralty, E. 3. 2 Wood. Lec. 432. 1 Dodson's Adm. 397. The Georgiana. 1 Gall. Rep. 545. The brig Joseph. The Dos Hermanos, 10 Wheaton, 306. The American Commissioners at the Court of France, in 1778, (Benjamin Franklin, Arthur Lee, and John Adams,) in a letter to the French Government, laid down accurately and with precision, the law in the text, as to captures of enemy's property without a commission. Diplomatic Correspondence, by J. Sparks, vol. 1. 443.

cilities and rewards for honourable and successful efforts. This depends upon the municipal regulations of each particular power, and as a necessary precaution against abuse, the owners of privateers are required, by the ordinances of the commercial states, to give adequate security that they will conduct the cruise according to the laws and usages of war, and the instructions of the government, and that they will regard the rights of neutrals, and bring their prizes in for adjudication. These checks are essential to the character and safety of maritime nations. Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. They are sometimes manned and officered by foreigners, having no permanent connexion with the country, or interest in its cause. This was a complaint made by the United States, in 1819, in relation to irregularities and acts of atrocity, committed by private armed vessels sailing under the flag of Buenos Ayres. Under the best regulations, the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity. Efforts have been made, from time to time, to abolish

a Bynk. Q. J. P. c. 19. Journals of Congress, 1776, vol. 2. 102. 114. Acts of Congress of 26th June, 1812, ch. 107. and April 20th, 1818, ch. 83. sec. 10. President's instructions to private armed vessels, 2 Wheaton, app. p. 80. Danish instructions of 10th March, 1810, Hall's L. J. vol. 4. 263. and app. to 5 Wheaton, 91. Vattel, b. 3. c. 15. sec. 229. Martens' Summ. 289, 290. note. Ord. of Buenos Ayres, May, 1817, in app. to 4 Wheaton, 28. Digest of the code of British instructions, app. to 5 Wheaton, 129.

b Reports of the United States Secretary of State, March 2d, 1794, and June 21st, 1797.

c Mr. Adams' Letter of 1st January, 1819, to Mr. De Forest, and his Official Report of 28th January, 1819.

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