Mark," or the Latin Marcha, in the sense of a boundary; and Letters of Marque have been accordingly interpreted to mean Letters of Licence granted by a Sovereign Prince to his subjects to cross the frontier of his territory with the object of attacking a neighbouring Prince or his subjects. By other authors the phrase Letters of Marque has been held to mean Licences from an Independent Prince to set a mark upon, or to seize as a pledge, the goods of others. There is no doubt that the verb Marcare, or Marchiare, is used in documents of the thirteenth century in a sense akin to that of the pure Latin word pignorare. A Charter granted anno 1283, by Peter (III.) the Great, of Aragon, to the citizens of Barcelona, forbids any provisions imported into the city of Barcelona by sea or land from being arrested or taken in pledge. Victualia quæ apportantur in Barcinona per mare vel per terram... . non marcentur neque pignorentur. . . tam pro alienis debitis quam pro propriis 35. So, likewise, the Council of Marciac 36. in France, in the next century (anno 1326), enacted that, Personæ Ecclesiasticæ vel earum bona pro aliis non marchientur vel pignorentur. (Cap. LIV.) The analogy of the Roman Civil Law, which authorised a creditor in certain cases to proceed summarily against his debtor per pignoris capionem 37, in other words, to seize any property belonging to his debtor as a pledge for the payment of his debt, suggests rather that the original meaning of the word marcare, in connection with the jus marcandi, Droit de Marque, was that of arresting and sequestrating goods or property, and in this Letters of sense we find Letters of Contremarque issued by Sovereign Princes to their subjects, authorising them Contre marque. 35 Ducange, Glossarium, Vox Par. II. p. 1767. Marcare. 36 Labbei Concilia, Tom. XI. 37 Gaii Institut. L. IV. c. 26. in their turn to seize the goods of those who had taken from them their goods under the authority of Letters of Marque. § 14. The granting of Letters of Marque by Sovereign Princes to the commanders of private ships, armed and equipped for maritime warfare at the expense of their owners, although it may now be regarded as an institution of a barbarous age, which ought to be allowed to fall into desuetude, was nevertheless the first systematic attempt to regulate private warfare on the high seas, and thereby paved the way for its abolition. During that long period of anarchy, which prevailed on the high seas after the breaking up of the Roman Empire, merchants had been compelled to form themselves into voluntary associations for mutual defence against lawless sea-rovers, and thus it happened, that the police of the high seas came to be administered by voluntary associations. These bodies were accustomed to exact redress without waiting for any authority of Princes, not merely in behalf of the Growth of members of such associations, but also in behalf of ralty Jurisother honest merchants, who had been despoiled of diction. their goods by pirates, or had otherwise suffered violence on the high seas in the pursuit of their lawful calling. Besides these associations for mutual defence, other associations were organised in the great commercial cities of the Mediterranean, for the express purpose of making war against pirates, and articles of association came to be framed with a view to regulate the conduct of their expeditions, and the distribution of the booty captured from the enemy. There is extant a very ancient body of Ordinances of the fourteenth century for the government of the armed vessels of these voluntary associations going on a cruise, which are bound up with the Consolato del Mare in some ancient editions, as if they the Admi en Course. formed a portion of that work 38, but they deserve to be regarded as altogether distinct in their origin. They have most probably been confused with the Consolato del Mare owing to the circumstance that they are found in a very ancient manuscript joined on to the latter work, as if they were a continuance of it. M. Pardessus 39 has very properly separated these ordinances from the chapters of the Consolato, and has published them apart, under the title of Armemens "Chapitres sur les Armemens en Course," as being in substance a portion of the Maritime Law of Catalonia and Aragon. From these ordinances it would appear that these private Societies of cruisers, or to call them by their Italian name corsari, were allowed to appropriate to themselves the property which they had captured at sea, without the authority of a Commission from any Sovereign Prince, and without any necessity of bringing in their prizes for adjudication before disposing of them. It would not be unreasonable to suppose that this general licence of cruising against pirates, styled la guerra del corso, would degenerate in course of time into something very much akin to the evil practices which it was intended to suppress, and that it would become necessary for Sovereign Princes to regulate in its turn the practice of cruising (la course). We accordingly find Ordinances issued by Sovereign Princes, upon consultation with the Councils of Commerce (les prud-hommes de mer), for regulating the practice of cruising, and after the Admiralty Jurisdiction came to be exercised by Sovereign Princes, measures were taken by them to put an end to the system of private warfare on the high seas, by stipulating with one another that their subjects following chapters. 38 In some editions of the Consolato they form the 298th and 39 Lois Maritimes, V. p. 396. should not be allowed to make war without an authority to that effect from their respective Sovereigns. It would seem that, in the thirteenth century, Sovereign Princes had begun to forbid their subjects to cruise against the subjects of other Princes without their authority; but it was not before the fourteenth century that any mention of Letters of Marque occurs in Public Treaties, or that it came to be thought obligatory upon private cruisers to provide themselves with an authority from a Sovereign Prince, in the form of Letters of Marque, or Letters of Reprisals. Reprisals. § 15. When an injury has been committed by the subjects of an Independent Prince upon the subjects of another Independent Prince, and the former has plainly refused, or unreasonably delayed, to procure redress to be made by the offending parties, the latter, in virtue of his obligation to protect his subjects, is warranted in authorising them to make Grant of Reprisals" upon the offending parties and their fellow-subjects, for their fellow-subjects accept the responsibility of the acts of the offending parties by supporting the Sovereign Power of their State in its refusal or delay to procure redress. It is not an unreasonable view of the origin of this practice of Reprisals, which refers it to the inability of Independent Princes, in the infancy of international life, to induce their more powerful subjects to make redress for wrong done by them to the subjects of 4 Thus king Edward I. of England says, in a letter of the year 1295, "Bernardus nobis supplicavit ut nos sibi licentiam marcandi homines et subditos de regno Portugalliæ et bona eorum per terram et mare, ubicunque eos et bona eorum invenire possit, concederemus, quousque de sibi ablatis integram habuisset restitutionem." Rymer. Fœdera, 41 The Law and Custom of other Independent Princes; as in such cases Princes would be likely to prefer that the injured parties should exact redress for themselves, rather than they should have to turn their arms against their own subjects to compel them to make such redress. The employment of force by an Independent Prince, for the purpose of making Reprisals against the subjects of another Independent Prince, has accordingly been held to be compatible with the maintenance of general pacific relations between the two Reprisals Nations. Bynkershoek observes that Reprisals 2 have with Peace. only place in time of peace. Reprisals are for the consistent 42 most part resorted to for the purpose of redressing a wrong inflicted upon an individual, after he has ineffectually demanded justice from the Sovereign Power of the Nation, of which the wrong-doer is a member. Under such circumstances, everything that belongs to the Nation is subject to Reprisals, whereever it can be taken, provided that it is not a deposit entrusted to the public faith; for as a Nation has control over the latter only in consequence of that implicit confidence, which the owner of the deposit has placed in its good faith, it ought to respect it as sacred even in the case of open war. But as between Nations, the property of individuals is regarded as belonging to the Nation at large of which they are members. Accordingly the private property of every individual member of a Nation is liable to Reprisals in redress for wrong inflicted upon a member of another Nation. Further, it is only from the Sovereign Power of a Nation, that authority is rightfully derived to make Reprisals upon the private property of the members of another Nation. Vattel holds that when Reprisals have been made, it is the duty of the Sovereign to 42 Repressaliis locum non esse nisi in pace. Bynkershoek, Quæst. Juris Publici, c. 24. 43 Vattel, L. II. c. 18. § 344 |