Privateers.

of the violent outrages common in ruder times, and to the greater efficiency of tribunals, and the readiness of governments to promote justice to foreigners as well as to natives. General reprisals are only used in time of war, and consist in authorizing any individuals whatever, whether suffering from private grievances from the hostile power or not, to act against the subjects of the opposed State. At the time of the " Continental System," Jefferson proposed to retaliate for the injuries sustained by American commerce, by general letters of marque and reprisal, "because, on a repeal of their edicts by the belligerents, a revocation of the letters of marque would restore peace without the delay, difficulties and ceremonies of a treaty." (1) But this would have been at variance with the customary law of Europe, which is stated by Vattel in the words of De Witt, "I do not see any difference between general reprisals and open war." (2)

Ships commissioned by letters of marque, and exercising general reprisals, are commonly termed Privateers. They constitute a species of force which has been resorted to in almost all wars; and a great number of treaties regulate the granting such commissions; especially stipulating that persons who take such letters of marque shall find large security to their government; so as to form a fund that may be applied for purposes of indemnification, in case neutrals should be injured by the lawless aggression of such privateers. The most extraordinary encouragement ever given to this species of force, was by Louis XIV., who, by an ordinance in 1688, lent his ships of war to private individuals, in a state of complete preparation for sea, with all necessary munitions, rigging and stores. The individuals who used these vessels as privateers were not

(1) Jefferson's Correspondence, Vol. IV. p. 119.

(2) Vattel, Droit des Gens, liv. II. ch. XVIII. § 345, note.

responsible if the ship were lost, and were to have the whole profits of the prizes made, only paying for the wages and provisions of the men, and replacing the stores consumed. (1) Ships of war had been lent by Louis XIV. as privateers, under less advantageous conditions, in 1674. This was a favourite species of force at that period; and Voltaire says that it was supposed, though not proved, that part of the great wealth of Mazarin was gained by his sharing in the profits of privateers. (2) When the United States, at the conclusion of the American war, sent ministers to Europe to negotiate treaties, they endeavoured, at the suggestion of Franklin, (3) to obtain the general insertion of an article forbidding the use of privateers. This was done in their treaty with Prussia in 1785, art. XXIII.; (4) but it was attended with no general results, and this article was not renewed in their Prussian treaty of 1799. The miseries of war might be lessened if the use of privateers were discontinued: but, as a chief end of maritime warfare is the annoyance of the enemy by the destruction of his commerce, privateers certainly exercise a direct influence on the issue of a war, and are often a very useful species of force. They increase the naval force of a State, by causing vessels to be equipped, from private cupidity, which a minister might not be able to obtain by general taxation without much difficulty; and though the custom of privateering may have many objections, yet one State will not be able to forego the use of this species of force, if it should be resorted to by its hostile antagonist."

(1) Valin, tom. II. pp. 226, 227.

(2) Sièc. de Louis XIV. tom. I.

(3) Jefferson's Correspondence, IV. 450.

(4) De Martens, Recueil, IV.

p. 106.

47.

[*The first clause of the celebrated Declaration annexed to the treaty of Paris of 1856 (of which a fuller

[account will be given in a later chapter), is "La course est et demeure abolie." Thus privateering may be said to be finally abolished as between the signataries to that treaty-that is, Turkey, Russia, Austria, Prussia, Italy, France and England,—and the States which have since given in their adhesion to it. The United States refused to become a party to the Declaration, on the grounds stated by the Secretary of State, Mr. Marcy, in his note of July 28th, 1856, addressed to M. de Rediges, minister of France at Washington, to the effect that the relinquishment of privateering would be a gain to nations which kept on foot a large naval force, but not to the United States, where a powerful navy is not maintained. He consented, however, to agree to an arrangement, by which the private property of the subjects of a belligerent power should be exempted from seizure by public armed vessels of the enemy, except it be "contraband of war;" and that with this the United States would consent to the placing of privateering under the ban of the Law of Nations.

The Declaration of the treaty of Paris came under the consideration of the House of Commons on April 13th, 1875, on a motion brought forward by Mr. B. Cochrane, in favour of England taking an opportunity to withdraw from the obligations the Declaration entailed upon her.

In the course of the debate, Mr. Bourke, who represented in the House the government department of foreign affairs, said: "He could not understand how "hon. gentlemen could justify privateering in a point "of view which had been called by almost every person "the curse of commerce. Even those by whom it had "been upheld as the last resource of war, had admitted "that it was most desirable it should, if possible, be got "rid of. Of one thing he was quite sure, and that

was, that this country would gain more by its aboli❝tion than any other, if we could only get the rest of "the world to act in that direction. No nation was

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["more open to privateers, in proportion to the strength "of our commercial marine, compared with that of a belligerent." Professor Sir W. Harcourt, in the course of the same debate, said: "We gained (by the "Declaration) the abolition of privateering, and he agreed with the under Secretary of State that to a great maritime power that was an infinite gain. It was more it was a gain to the civilized world. According to the French name for the word, a pri"vateer was a corsair, and that thoroughly expressed "the meaning. Privateers were not bound by the "sentiments which belonged to officers in the naval service, or by the discipline which was to be found among regular soldiers. His hon. friend compared "them to volunteers, but they were more like Franc"Tireurs, and volunteers did not go out for gain as "they did. That was not the spirit by which they were actuated." This important debate will have to be recurred to again, in connexion with the doctrine of "free ships, free goods." Suffice it for the present to notice, that the previous question was carried by a majority of 225, only 36 voting the other way.

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The subject of piracy, which is closely connected with that of privateering, has been already referred to (p. 120). It has mostly been discussed of late years in relation (1) to the right of treating vessels employed in transporting slaves from the coast of Africa as engaged in "piracy" of that universally recognised and peculiarly heinous sort which is termed "piracy by the law of nations ;" and (2) to the right of a State to treat its rebel citizens engaged in maritime warfare against itself as pirates, and to demand all friendly States to treat them as such likewise. Dr. Wheaton has collected the main cases illustrative of the law respecting the former sort of alleged piracy, and Mr. Dana has supplied a very elaborate note on the latter sort (Part II. chap. II.). The essential ingredients in the offence of piracy, as

[recognised by the Law of Nations, and not merely by the national law of particular States, or private conventions among them, have already been described as : (1) An intention of violating, coupled with, or evidenced by, acts of violation of the Law of Nations as operating on the high seas, whether such acts are directed against persons or things; and (2) an absence of responsibility towards any recognised sovereign government. Hence the offence may be committed either by persons who in their corporate capacity owe no allegiance to an organised and recognised government, or who for the time or purpose have thrown off such allegiance. The general current of the cases and of the best opinions seem to establish that engaging in the slave-trade is only made piracy by special convention; and whether rebels can or cannot be treated as pirates must depend (1) upon the amount of recognition, for belligerent purposes, they receive abroad, and (2) upon their treatment by the parent State.

There seems to be no doubt that a general right of visitation and search exists in the case of a bonâ fide suspicion that a ship is a pirate, on the hypothesis that pirates are the enemies of all States. In the case of the Le Louis (Dodson's Adm. Rep. vol. II., p. 210), in which the question of the existence of a right of search in time of peace was involved, Sir W. Scott said: "With professed pirates there is no state of peace. They are the enemies of every country, and at all times, and therefore are universally subject to the extreme rights of war.” See the recent case of the Virginius, mentioned post in a note to the chapter on "Search."-ED.]