dividual subjects of the hostile state on land and on the

Treatment of enemies' property on land and sea. vessels.

sea, or more generally between such as falls within the power of invading armies, and such on the sea and along the coast as falls within the power of armed The former, as we shall see when we come anon to consider the laws and usages of warfare, is to a certain extent protected. The latter, owing to the jealous feelings of commercial rivalship, hardened into a system by admiralty courts, has been extensively regarded as lawful prey. We must, however, admit that there is some pretense of reason for this difference of practice upon the two elements. For, first, an enemy's intercourse with other states by sea more directly increases his capacity to sustain and protract the war. This is especially true of importations of articles necessary for the carrying on of the war. And secondly, there is a vast difference on the score of humanity between land and maritime capture. On the land, interference with private property, by stripping families of their all, is often the source of the deepest misery. Even if pillage on the land be entirely given up, the presence of an invading army in a country, the expense of warfare on the land, the contributions and requisition which can never entirely cease, the suspension of industry in invaded districts, or by the call of a multitude of men to defend their country, are far beyond the evils of naval warfare. It also embitters feeling, and drives non-combatants into guerilla warfare or into the regular service. Invasion always arouses a national spirit; but invasion with plunder rather defeats the end of war than promotes it, until a nation is bowed down to the dust. And at that point of time it disables the conquered from giving the compensation for which the war was set on foot. But capture on the sea is effected for the most part without much fighting; it rather deprives the foe of his comforts and means of exchanging his superfluities than destroys the necessaries of life; and it afflicts more directly the classes which have some influence upon the government, as well as the resources of the government itself, than the day-laborer and the cultivator of the soil, who have special claims to be humanely treated.

§ 127.

Forces employed in war, espec

ially on the

sea. Priva

teers.

On the land, in addition to standing armies, a militia and volunteers, often commanded by regular officers, have been employed in carrying on war, especially in national defense. As the different military corps are frequently united in their operations, and no great harm can be done by the less disciplined if under proper officers; to employ a militia or volunteers can furnish no just ground for complaint. On the sea the practice of commercial states has long been to make use not only of public but also of private armed vessels for the purpose of doing injury to the enemy. This usage in Europe runs back to the time when permanent public navies scarcely existed; for during a considerable part of the Middle Ages, the European states, having small fleets or none at all, impressed or hired merchant vessels for the uses of war. Private persons also engaged in naval warfare on their own account, employing their own vessels either at the public expense-called Kruyssers, cruisers, by the Dutch; or at their own expense- Kapers, Vrybuyters, captors, free-plunderers; or hiring a public vessel with a crew and outfit of their own; of which last description an expedition undertaken in the reign of Louis XIV., against the Portuguese at Rio Janeiro, to get satisfaction for an insult on a French ambassador, was an example.1

A private armed vessel or privateer is a vessel owned and officered by private persons, but acting under a commission from the state, usually called letters of marque.2 It answers to a company on land raised and commanded by private persons, but acting under rules from the supreme authority, rather than to one raised and acting without license, which would resemble a privateer without commission. The commission, on both elements, alone gives a right to the thing captured, 1 Bynkersh., Quæst. J. P., i., 18; Ortolan, ii., 52. Martens, Les Armateurs, chap. i.

2 From the signification, border, the marches, it is said, as being letters of license to go across the boundary and make reprisals, and thus referring first to expeditions on the land.

and insures good treatment from the enemy. A private vessel levying war without such license, although not engaged in a piratical act, would fare hardly in the enemy's hands.

The right to employ this kind of extraordinary naval force is unquestioned, nor is it at all against the usage of nations in times past to grant commissions even to privateers owned by aliens. The advantages of employing privateers are (1) that seamen thrown out of work by war can thus gain a livelihood and be of use to their country. (2.) A nation which maintains no great navy is thus enabled to call into activity a temporary force, on brief notice, and at small cost. Thus an inferior state, with a large commercial marine, can approach on the sea nearer to an equality with a larger rival, having a powerful fleet at its disposal. And as aggressions are likely to come from large powers, privateering may be a means, and perhaps the only effectual means, of obtaining justice to which a small commercial state can resort.

§ 128.

On the other hand, the system of privateering is attended Evils of pri- with very great evils. (1.) The motive is plunder. vateering. It is nearly impossible that the feeling of honor and regard for professional reputation should act upon the privateersman's mind. And when his occupation on the sea is ended, he returns with something of the spirit of a robber to infest society. Add to this that it is by no means certain that the motive of plunder or booty can be long endured in the international law of Christian nations. (2.) The control over such crews is slight, while they need great control. They are made up of bold, lawless men, and are where no superior authority can watch or direct them. The responsibility at the best can only be remote. The officers will not be apt to be men of the same training with the commanders of public ships, and cannot govern their crews as easily as the masters of commercial vessels can govern theirs. (3.) The evils are heightened when privateers are employed in the execution of belligerent rights against neutrals, where a high degree of

character and forbearance in the commanding officer is of especial importance.

of privateer

Hence many have felt it to be desirable that privateering should be placed under the ban of international law, Testimony and the feeling is on the increase, in our age of hu- to the ev manity, that the system ought to come to an end. ing. We cite as expressing this feeling only writers belonging to our own country. Dr. Franklin, in several passages of his correspondence, makes decided protests against it, as well as against the spirit of plunder in which it originates. "The practice of robbing merchants 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 authorizes 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 labor 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 ar1 Franklin's Works, edited by Sparks, ix., 41, 467. 2 Kent, i., 97, Lect. 5.

raigned, 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 practiced by land."1

vateering by

treaty.

Dr. Franklin expressed his feelings in regard to privateerEndeavors ing, in the treaty of 1785, between the United to stop pri States and Prussia, which he drew up. In this treaty (Article 23, end) it was provided that neither of the parties 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. After the French revolution, although privateering 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 Review," 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."

The most important step towards the entire abolition of privateering, has been taken in quite recent times. The pow1 Elements, iv., 2, § 10. 2 Kent, i., 98; Ortolan, ii., 54.