be a question whether the provisions of that Treaty are to be interpreted in such a sense as will warrant their being regarded as exceptional to the general rule in such matters. The provisions of Art. XIII are as follows:-"Si une des deux Parties contractantes vient à avoir la guerre avec une puissance tierce, l'autre partie contractante, qui est restée neutre, sera la maitresse, en vertu de l'Article IV, d'admettre ou de refuser dans ses ports, de juger dans ses Tribunaux d'Amirauté ou de n'y pas juger des prises, qui se feraient respectivement par les puissances belligérantes." In construing this article of the Treaty regard must be paid to the provisions of Article IV, which stipulate that either party shall enjoy all the rights of neutrality, in case the other should be involved in war, on condition of its observing all the duties of neutrality. It is evident that Article XIII must be interpreted in conformity with Article IV, the object of which was not to enlarge the rights of a belligerent party, but to secure the recognition on its part of the rights of the neutral party. But amongst the rights of a Neutral Power are those of admitting or refusing to admit the vessels of Belligerent Powers to enter its ports, and likewise of admitting or refusing to admit captures to be made within its jurisdiction and in violation of its territory. The stipulations of Art. XIII of the Treaty refer expressly to a jurisdiction to be exercised by the Courts of Admiralty of a Neutral Power in virtue of Art. IV, the object of which is to secure to the Neutral Power the recognition of its full rights of neutrality; and such a result would be furthered by securing to its Courts of Admiralty the right to hold cognisance of all questions of Prize involving + Martens, Récueil, Tom. IV. p. 449. any violation of those rights. Proceedings in such matters, if originated in a Court of Admiralty of a Neutral Power, might have been prima facie open to objection on the part of a Belligerent Power in the absence of Treaty-stipulations, as the ordinary practice in modern times, in cases where a belligerent vessel has made capture of an enemy's vessel in violation of the territory of a Neutral Power, has been for the Neutral Power to prefer a complaint to the Government of the Belligerent Power, and when the capture is in controversy in a Belligerent Court of Prize, to claim the release of the vessel on the ground of the capture having been made in violation of its territory. But it is perfectly consistent with all due respect to the Rights of a Belligerent, as such, that the Courts of a Neutral Power should take cognisance of captures, which involve a violation of its Sovereignty, if the Captor and his prize should be found within its jurisdiction; and it seems reasonable to construe Article XIII of the Treaty as intended to provide against any dispute on the subject of the exercise of this Right, rather than to accept the interpretation suggested by Mr. Manning, that it was intended to concede to the Belligerent a privilege of holding a Belligerent Court of Prize within Neutral territory. CHAPTER X. ON PRIVATEERS. Privateers distinguishable from Letters of Marque-Gradual Restraint of Private Expeditions on the Sea-Privateers in the sixteenth and seventeenth centuries-A Commission of war must be on board a Privateer-What constitutes a lawful Commission of war— A Privateer may not have two Commissions of war from different Powers-Belligerent Powers may grant Commissions of war to Aliens -British Practice in issuing Commissions to the Commanders of private ships-Restraints upon Privateers-Purport of Instructions issued to British Privateers -Distinguishing Flag of British Privateers-The Flag of Foreign Privateers-Verification of the Military Flag of a Privateer-A Neutral merchant vessel cannot claim to verify a Privateer's belligerent character-The exercise of the Belligerent Right of Visit and Search regulated by TreatiesPrivateers not admitted to the same Comity as Public ships of war-Restrictions upon Privateers in neutral waters-Treaty-Restraints upon neutral Subjects accepting Letters of Marque from Belligerent Powers-Municipal prohibitions against Subjects accepting Commissions of war from Foreign Powers-Privateers under special conventions piratical vessels-Distinction between piracy under special conventions and piracy under the Common Law-Conventions amongst States against the Employment of Privateers - Declaration of the Congress of Paris of 1856. guishable § 187. PRIVATEERS are armed ships which are fitted Privateers out by private persons, and sail under a commander, are distinto whom a Belligerent Power has granted a commis- from Letsion to seize and take the ships and goods of the Marque. subjects of an Enemy Power. The term is of English ters of origin', and appears to have been employed to designate a particular class of private armed vessels in the reign of King Charles II; but it is applied in the present day indiscriminately to private ships which sail under Commissions of War, and to private ships sailing under Letters of Marque and Reprisals. The former class of vessels however is essentially distinguishable from the latter class, inasmuch as a Letter of Marque and Reprisals may be granted to the commander of a private ship in time of peace, and only empowers the bearer of it to make Reprisals against the ships and goods of the subjects of a Power, which has refused to make reparation for an injury done by one of its subjects; whereas a Commission of War empowers the person, to whom it is granted, not merely to seize and take the ships and goods belonging to the subjects of the Power, against which War has been declared or otherwise commenced, but such other ships and goods as shall be liable to confiscation pursuant to Treaties and the Law of Nations. The form however and the extent under which Commissions of War may be issued to the commanders of private ships, rests with the discretion of each Belligerent Power, subject however to the same limitations, whatever those may be, which the Law of Nations has attached to Commissions of War issued to public ships. Restraint tions on § 188. It would appear to have been the custom Gradual of Sovereign Princes in the fourteenth century, if we of Private may draw any general inference from the practice of Expedi the Kings of Aragon, to rely upon the voluntary the Sea. efforts of their Subjects, whenever there was occasion to resent any injury done to them on the High Seas, and to grant in such cases Letters Patent to the Commander of an armed Fleet (Armada), the ships or vessels of which were fitted out at the expense of private persons. Under the authority of such Letters Patent the Captain or Commander-in-chief of the Armada exercised over all the ships and vessels which took part in the expedition a jurisdiction secundum statum et consuetudinem Armatæ. The Ordinances sur les armemens en course, which are sometimes printed in continuation of the chapters of the Consolato del Mare, as if they formed a portion of those ancient Customs of the Sea, contain regulations for the government of private armed ships going on a cruise, from which it would appear that the Commander-in-chief of the expedition was styled Admiral, and exercised a jurisdiction according to an established usage, d'après les usages de la Course. The contents of these Ordinances, the compilation of which is assigned with great probability to the early part of the fourteenth century, as the use of artillery was evidently not known when they were drawn up, show that the Commanders of private cruisers did not at such time require any express License or Commission from a Belligerent Power, 3 Privilège pour les armateurs en course de 1330. Pardessus, Lois Maritimes, V. p. 393. 4 Capmany regarded these chapters as an addition to the Consolato del Mare, and M. Pardessus has published them in a separate form Tom. V. p. 396. |