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chants on the high seas, a remnant of the ancient piracy, though it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it, or to the nation that authorises it.' 'There are three employments which I wish the law of nations would protect, so that they should never be molested nor interrupted by enemies even in times of war; I mean farmers, fishermen, and merchants.' In some observations on war, he pursues this subject of the evils of privateering at great length, and ends thus: There is then the national loss of all the labour of so many men during the time they have been employed in robbing, who, besides, spend what they get in drunkenness and debauchery, lose their habits of industry, are rarely fit for any sober business after a peace, and serve only to increase the number of highwaymen and housebreakers.'1

Privateering, says Chancellor Kent, '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 scourges of neutral commerce. 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.' 2

Dr. Wheaton says that this practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land.' 3

Dr. Franklin expressed his feelings in regard to privateering, in the treaty of 1785, between the United States and Endeavours to Prussia, which he drew up. In this treaty (article stop privateering 23, end) it was provided that neither of the parties by treaty. should grant or issue any commission to any private-armed vessels, against the other, empowering them to take or destroy its trading vessels, or to interrupt commerce. On the expiration of the treaty, in 1799, this article was not renewed. Another article of the same treaty deserves mention, which engages that in war all regular commerce of either party, being neutral, with the enemy of the other, shall not be interrupted. But before this treaty with Prussia, an unfulfilled agreement had been made between Sweden and the United Provinces, as early as 1675, to terminate this practice. Russia, in 1767, and the following years, abstained from giving commissions of this nature, but made use of them again in 1770. In 1792, the French legislative assembly agreed to suppress privateering, but the revolution soon made this a dead letter.4 After the French revolution, although pri1 Franklin's Works, edited by Sparks, ix. 41, 467. 2 Kent, i. 97, lect. 5. 3 El. iv. 2, § 10.

4 Kent, i. 98; Ortolan, ii. 54.

vateering continued to receive the sanction of the nations, some few voices were lifted up against it, and even against all capture of merchant vessels pursuing a lawful trade. Thus the reviewer of a pamphlet entitled War in Disguise' (Edinburgh Rev.,' No. 15, p. 14), says: 'We cannot help thinking that the practice of maritime capture is inconsistent with the generous and enlightened notions of public hostility which were brought to maturity in the last century, and that it is a stain upon that lenient and refined system of policy by which the history of modern Europe is distinguished from that of the rest of the world.'

in 1856.

The most important step towards the entire abolition of Treaty of Paris privateering has been very recently taken. The powers which concluded the treaty of 1856, at Paris, united in a declaration, by the first article of which privateering is and remains abolished.' (Compare § 175.) Other states were invited to adopt the principles of this declaration, but it was agreed that they must be accepted as a whole or not at all.

The United States, among other states, were invited to beAttitude of the come a party to this declaration. The secretary of United States. state, Mr. Marcy, in a letter of July 28, 1856, addressed to M. de Sartiges, minister of France at Washington, declined the proposal, although it secured what this country had so long been wishing for, the greater freedom of neutral vessels. The reluctance to adopt the principles of the declaration was owing to a cause already suggested that the relinquishment of privateering would be a gain to nations which keep on foot a large naval force, but not to the United States, where a powerful navy is not maintained, on account of its great cost, and its danger to civil liberty. On the breaking out of a war, therefore, with a nation powerful at sea, the United States must rely, to a considerable extent, on merchant vessels converted into vessels of war. The secretary, however, declares that our government will readily agree to an arrangement, by which the private property of the subjects or citizens of a belligerent power shall be exempted from seizure by public armed vessels of the enemy, except it be contraband of war, and that 'with this we will consent to the placing of privateering under the ban of the law of nations.' It will be the policy of our government, hereafter, it may be presumed, in all treaties, to couple the abolition of privateering with the entire immunity of merchant ships engaged in a lawful trade.1 (Compare § 175, and Note 10.)

1 The annotator on De Martens, ed. of 1858, M. Vergé, in speaking of this proposition of our government, expresses himself as follows: In the usages of war on land, the soldiers of belligerent powers have no right, and can, in the way of fact, exercise no control over the private property of the subjects of the hostile power.

§ 123.

range

The restrictions on privateering are of three kinds. 1. The laws of some states narrow the of their operations, and regulate the composition of their crews. Restrictions on They are forbidden to cruise in the rivers or within privateering to the sea-line of a hostile state, and the majority of a prevent its evils. crew is required to consist of natives.1 But these rules have not passed into international law, or general usage.

2. To give it the character of an honest and lawful pursuit, commissions, as already said, are granted, and bonds are taken from those who receive the letters of marque. These regulations, which vary with the municipal law of each country, subject the owners and officers of privateers to heavy penalties in case of transgression.2

It is only the commission which gives an interest in a prize, since all captures vest originally in the state. This maxim draws its truth from the right notion of war, as we have endeavoured to set it forth that war is undertaken by the state, for the sake of the state, and against another state.

3. Many treaties provide that the subjects of either of the treaty-making powers, while in a state of peace, shall not take out letters of marque from a third power at war with the other party, and that those who violate this provision may be held by the other party to have committed the crime of piracy. Such treaties of longer or shorter duration have been made, for inWhy should not the same principles be applicable to maritime war? The additional proposition of the cabinet of Washington, is evidently logical. Vainly has it been contended (in the Journal des Débats of October 22, 1856) that the claim of the United States that land and sea warfare should be put on the same footing, is not admissible, nor just, nor good even, since the calamities of war afford this advantage, that in acting on the population of countries, they render war shorter and more unfrequent. It seems in all cases difficult to maintain the proposition that the pillage of private property by privateers is just, rational, and legitimate. One cannot admit that private property, which is free even in the enemy's land itself, on the soil invaded by an army victorious, and invested with the right of conquest, can be justly taken and plundered on the sea, on that element free by its nature, which is neither friendly nor hostile territory. Let us hope that the initiative so gloriously adopted by the congress of Paris will be fruitful for the future, and that diplomacy will one day reach the point of rendering commerce free for belligerents as for neutrals, that private goods and citizens, who are strangers to the profession of arms, will be freed from the disasters of war, and that private property will remain outside of contests exclusively concentrated in armies acting in the name and under the direction of the public power' (ii. § 289). Compare the recent resolutions of the chambers of commerce of Hamburg and Bremen, under § 139.

1 Compare Ortolan, ii. 57-59; Heffter, § 137.

2 For the rules of responsibility of owners, commanders, and sureties, compare Kent, i. 98, 99, Lect. v. A maritime ordinance of Pedro IV., King of Arragon, in 1356, speaks of such security. A sum of money was to be deposited in the hands of certain public officers by the owner of a vessel. Pardessus, Collection, v. 471. And another rule of 1364, passed by the German Hanse towns, to the same effect, is cited by De Martens, § 289, note C.

stance, by the United States, with France, Sweden, Prussia, Great Britain, Spain, Central America, and Colombia. In the absence of such treaties, a neutral may with impunity accept a military commission from a belligerent, for sea or land service. But municipal law often forbids the citizen or subject to take this step. (Compare § 162, § 165.)

SECTION II.-Laws and Usages of War, especially on Land.

The laws and

usages of war

are somewhat vague,

§ 124.

The subject of prize, or the rules of captured property,1 especially on the sea, we shall consider by itself in another section. At present we pass on to the important topic of the laws and usages of war. These rules are necessarily somewhat vague and fluctuating, partly because they have less to do with justice than with humanity, where clear lines of definition are wanting; partly because much must be left to the discretion of commanders with varying dispositions and principles; partly because nations sometimes enter with excited passions, sometimes with cool calculation, into war, and their spirit will modify all its movements.

Notwithstanding this vagueness, the rules of war have grown yet are improv. in humanity and mildness in recent times. The principal causes of this amelioration are:

ing.

1. The growth of a feeling of the brotherhood of mankind, Causes of their fostered by the spirit of Christianity. Thus, for amelioration. instance, slavery having ceased in nearly all Christian countries under the benign sway of the gospel, how could the old practice of enslaving captives taken in war fail to go out of use?

2. The influence of writers such as Grotius, and the example of great captains, who under the control of humane feelings have followed a better practice.

3. The greatly increased intercourse among Christian countries, the inhabitants of which are no longer strangers to one another and beyond each other's view; but are connected by various ties, which soften the asperity of a sense of injury.

4. The marked separation of the soldiery as a distinct class from the citizens, and an improved feeling among soldiers themselves, which is due to the substitution of regular for irregular troops, to the spread of professional honour among officers,

1 Compare, for this section, the instructions for the government of armies of the United States in the field, prepared by Dr. Lieber, revised by a board of officers, and approved by the President in 1863.

and to the cooler and more scientific way in which wars are carried on.

5. Add to this that an organised commissariat renders it unnecessary for the soldier to procure his daily food by plunder, while modern systems of finance and credit meet the expenses of armies abroad. Paid soldiers only,' says Colonel Napier, ' can be kept under discipline; soldiers without money become robbers.' 1

6. The different mode of warfare which the use of gunpowder has introduced. 'There is as much difference,' says the same authority, 'between the modern and the ancient soldier, as between the sportsman and the butcher. The ancient warrior, fighting with the sword and reaping his harvest of death when the enemy was in flight, became habituated to the act of slaying. The modern soldier seldom uses his bayonet, sees not his peculiar victim fall, and exults not over mangled limbs, as proofs of personal prowess.'

are:

§ 125.

The rules which lie at the basis of a humane system of war

Fundamental

1. That peace is the normal state of Christian rules of war. nations, to which they are bound to seek to return from the temporary and exceptional interruptions of war.

2. That redress of injuries and not conquest or plunder is the lawful motive in war; and that no rule of morality or justice can be sacrificed in the mode of warfare.

3. That war is waged between governments by persons whom they authorise, and is not waged against the passive inhabitants of a country.

4. That the smallest amount of injury, consistent with the sad necessity of war, is to be inflicted. And, finally,

5. That the duties implied in the improved usages of war, so far as they are not of positive obligation, are reciprocal, like very many rules of intercourse between states, so as not to be binding on one belligerent, as long as they are violated by the other. This leads us to retaliation in war.

§ 126.

That retaliation in war is sometimes admissible all agree: thus if one belligerent treats prisoners of war Retaliation. harshly, the other may do the same; or if one squeezes the expenses of war out of an invaded territory, the other may follow in his steps. It thus becomes a measure of self-protection, and secures the greatest amount of humanity from unfeeling military officers. But there is a limit to the rule.

1 Peninsular War, iii. 377 (Amer. ed. of 1842).

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