as

llow the owners of such vessels to appropriate to themselves 1 portion, at least, of the property they may capture;1 and, i necessary precaution against abuse, such owners are required to give adequate security that they will conduct the cruise according to the laws and usages of war, and bring their prizes in for adjudication.2 But this depends upon the muni

In 1814, during the war between the United States and Great Britain, the Legislature of New York passed an Act, to constitute every association of five or more persons embarking in the trade of privateering, a body politic and corporate, with corporate powers, on their complying with certain formalities.

55 Geo. III. c. 160, which was enacted to expire with the last French war, contained provisions with reference to letters of marque. Security was always taken on the grant of letters of marque for the due observance of the conditions thereof, and this security became forfeited on their transgression (R. v. Ferguson, Edw. 84). Letters of marque may be vacated by the Court of Chancery (R. v. Carew, 3 Swan. 669; 1 Vern. 54). Cruelty, such as firing into a prize and killing a man after she has struck, has been held to forfeit letters of marque under the provisions of the above statute (the 'Marianne,' 5 Rob. Adm. R. 9), but this seems no more than a formal declaration of the ancient law of the Admiralty.

Instructions for the commanders of vessels, having letters of marque and reprisal against the inhabitants of Genoa and the territories of the Pope, styling themselves the Ligurian and Roman Republics, were issued by the British Government, September 29, 1798, and enacted (inter alia) that these privateers should succour any British ship in distress, set on or taken by the enemy; should keep up a correspondence with the Admiralty; should not wear any jack, pennant, or other ensign usually borne by ships of war, but that they should, besides the colours usually borne by merchant ships, wear a red jack with the union jack described in the canton at the upper corner thereof; should not ransom or set at liberty any captured ship, or cargo, or any prisoners; and should find bail for good behaviour in the sum of 3,000l., or, if the vessel carried less than 150 men, 1,500/.

A proclamation, given at St. James's, January 1, 1801, after ordering that no ships or vessels should wear any flags, jacks, pendants, or colours in imitation of those of the Government, and that those ships having letters of marque and reprisal should wear the merchant colours, with the red jack as above mentioned, but that no one else should presume to wear those distinctions, enjoins the Admiralty to punish all offenders against this proclamation. In pursuance of the 1st Article of Union between England and Scotland there was a similar proclamation. The United States Government, in 1812, issued the following instructions to commanders of American privateers:

'The high seas referred to in your commission you will understand generally to refer to low-water mark; but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and the United States. You may nevertheless execute your commission within that distance of the shore of a nation at war with Great Britain, and even on the waters within the jurisdiction of such nation, if permitted so to do. You are to pay the strictest regard to the rights of neutral Powers and the usages of civilised nations; and in all your proceedings towards neutral vessels you are to give them as little molestation or interruption as will consist with the right of ascertaining

cipal regulations of each particular State, and the instructions of the particular Government which issues the commission or licence. All commercial States have deemed checks of this kind essential to their own character and safety, as well as for the protection of the rights of neutrals. But even with these precautions, privateering is usually accompanied by abuses and enormous excesses. The use of privateers, or private armed vessels under letters of marque and reprisal,' has often been discussed by publicists and text-writers on international law, and has recently been made the subject of diplomatic correspondence and negotiation between the United States and the principal European powers. The general opinion of textwriters is that privateering, though contrary to national policy and the more enlightened spirit of the present age, is, nevertheless, allowable under the general rules of international law. It leads to the worst excesses and crimes, and has a most cor

their neutral character, and of detaining and bringing them in for regular adjudication in the proper cases. You are particularly to avoid even the appearance of using force or seduction, with a view to deprive such vessels of their crew or of their passengers, other than persons in the military service of the enemy. Towards enemy's vessels and their crews you are to proceed, in exercising the rights of war, with all the justice and humanity which characterise the nation of which you are members. The master and one or more of the principal persons belonging to the captured vessels are to be sent, as soon after the capture as may be, to the judge, or judges, of the proper court in the United States, to be examined upon oath touching the interest or property of the captured vessel and her lading; and at the same time are to be delivered to the judge, or judges, all passes, charter-parties, bills of lading, invoices, letters, and other documents and writings found on board; the said papers to be proved by affidavit of the commander of the capturing vessel, or some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement.' See, on instructions to privateers of the United States, the 'Mary and Susan,' 1. Wheat. 46.

1 With reference to the origin of letters of marque, it appears that if a foreign prince or State seized or spoiled the goods of subjects in England, the king made reprisals upon the goods of the other's subjects within the realm, or enabled the party to whom the wrong was done, by letters of marque, the goods of other subjects of the same State mercare retinere et appropriare quousque restitutio facta sit. (See 2 Rol. 114, 175, 1. 20, per Coke; i Rol. 175; 4 Com. Dig. 428.) But a subject of the king cannot take the goods of the subjects of a prince in amity with the king by force of letters of marque of another sovereign or State. (2 Ver. 592; 4 Com. Dig. 428.) As to the grant of letters of marque, see introduction to Godolphin's Adm. Jur.

In the Act passed by the British Parliament during the American revolution, to authorise privateers against the Colonists, the words letters of permission were employed, not letters of marque, as the latter term applies to a foreign enemy only.-Annual Regis., 1777, p. 53.

pting influence upon all who engage in it, but cannot be inished as a breach of the law of nations. The enlightened inion of the world is most decidedly in favour of abolishing , and recent events lead to the hope that all the commercial ations of both hemispheres will unite in no longer resorting, 1 time of war, to so barbarous a practice. Nevertheless, it eing generally supposed that privateers furnish to the maller maritime powers a powerful instrument of war against he military marine of an enemy, it is not easy to obtain their consent to its entire abolition.1

§ 12. The efforts, however, which Mr. Wheaton says 'have been made by humane and enlightened individuals to suppress it (privateering), as inconsistent with the liberal spirit of the age,' have already produced their effects upon the conduct of belligerent nations, although they have not yet been able to change the law which tolerates it. During the war between the United States and Mexico, no letters of marque, it is believed, were issued by either party; Mexico offered commissions for privateers, but neutral States forbade their subjects to accept them. In the recent war between Russia, on the one side, and Turkey, France, England, and Sardinia, on the other, the allied powers resolved to issue no letters of marque, and the other States of Europe strictly prohibited their subjects from any participation, by accepting letters of marque, or otherwise, in aiding the belligerents. An Austrian decree of May 25, 1854, prohibits the subjects of his Imperial Majesty from using letters of marque, or any participation in the armament of a vessel, no matter under what flag, and if they infringe that order, they will not only be deprived of the protection of the Austrian Government, and liable to be punished by another State, but will also be proceeded against in the criminal courts of Austria. The entry of foreign privateers, into Austrian ports, is forbidden. An almost simultaneous order, issued by the Queen of Spain, prohibited-pro

1

1 Emerigon, Traité des Assurances, ch. xii. sec. 35; Edinburgh Review, vol. viii. pp. 13-15; North American Review, N. S., vol. ii. p. 166; Ortolan, Diplomatie de la Mer, tome ii. lib. iii. ch. i.; Pistoye et Duverdy, Traité des Prises, tit. iv. ch. ii. sec. 1; Franklin's Works, vol. 11. pp. 13, 15, 447, et seq.; Hautefeuille, Droit Maritime, liv. i. tit. ii. § 29; Valin, Com. sur l'Ord., liv. iii. tit. ix.; Encyclopædia Americana, verb. 'Privateering.'

The United States, in 1785, agreed by treaty with Prussia to employ no privateers in any future war with that power.

prietors, masters, or captains of Spanish vessels, from taking letters of marque from any foreign power, or giving them aid, unless in the cause of humanity, in the case of fire or shipwreck. Denmark, and Sweden, and Norway, gave notice to all friendly powers that during the existing contest, privateers would not be admitted into their ports, nor tolerated in the anchorage of their respective States. Other Governments issued similar orders with respect to their own subjects engaging (either directly or indirectly,) in privateering against the shipping or commerce of any of the belligerents, and the Secretary of State of the United States, in reply to the notes of the English and French ministers, communicating the resolutions of the two allied powers not to authorise privateering, said, 'the laws of this country impose severe restrictions, not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking part in any foreign war.'1

§ 13. On the 16th of April, 1856, at the Conference of Paris, the plenipotentiaries of Great Britain, France, Austria, Russia, Prussia, Sardinia, and Turkey adopted a 'declaration concerning maritime law,' containing the following principles, which were made indivisible: ‘1. Privateering is, and remains abolished. 2. The neutral flag covers enemy's goods, with the exception of contraband of war. 3. Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag. 4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coasts of the enemy. This declaration was not to be 'binding, except between those powers which have acceded to, or shall accede to it; but it was also agreed, by the plenipotentiaries, that the powers which had or should agree to it, 'cannot hereafter enter into any arrangements in regard to the application of the right of neutrals in time of war, which does not, at the same time, rest on the four principles which are the objects of the said declaration.'”

1 Wheaton, Elem. Int. Law, pt. ii. ch. ii. § 1o, note; Cong. Dec., zzď Cong., 1st. Sess., H. Rep. Ex. Doc. No. 103; Martens, Précis du Droit des Gens, § 289.

2 Protocols, Nos. 23 and 24, Congress of Paris, 1856; President's Message, Aug. 12, 1856; Phillimore, On Int. Law, vol. iii. app. p. 850; Ortolan, Diplomatic de la Mer, tome ii. app., special, pp. 516-518.

§14. This declaration of the six powers of the Paris Conference was communicated to other States, and it was stated, in the memorandum of the French Minister of Foreign Affairs to the Emperor, dated June 12, 1858, that the following powers had signified their full adhesion to all the four principles, viz.: Baden, Bavaria, Belgium, Bremen, Brazil, the Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic Confederation, Denmark, the two Sicilies, Ecuador, the Roman States, Greece, Guatemala, Hayti, Hamburg, Hanover, the two Hesses, Lübeck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, the Netherlands, Peru, Portugal, Saxony, Saxe-Altenburg, SaxeCoburg-Gotha, Saxe-Meiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, Würtemberg. The executive Government of Uruguay also gave its full assent to all the four principles, subject to the ratification of the Legislature. Spain and Mexico adopted the last three as their own, but, on account of the first article, declined acceding to the entire declaration. The United States adopted the second, third and fourth propositions, independently of the first, offering, however, to adopt that also, with the following amendment, or additional clause : ' and the private property of the subjects, or citizens of a belligerent on the high seas, shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband.' The proposition, thus extended, has been accepted by Russia, and some other States have signified their approbation of it. There is reason to hope that all the maritime nations of Europe will eventually adopt the extension. But if they should not, the United States will stand almost alone in their adhesion to, and advocacy of privateering-a practice condemned by their earliest statesmen and best writers on public law, and now abandoned by its former advocates and supporters in Europe. The abstract right, under the law of nations, to use privateers, cannot be questioned; and it must also be observed that the advantage to be derived from the use of private armed vessels, in case of war would be much greater to the United States than to any European power; moreover, that these European States, now most active in advocating the abolition of privateering, were its strongest supporters when it was most conducive to their own power. Unfortunately, nations, like individuals, are more influenced by immediate self-interest,