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Private citizens are under no legal obligation of scrupulously weighing the justice of a war, and indeed have not always the means or opportunity to enable them to do so; they are, therefore, bound to rely upon the judgment of the supreme power of the nation, and may, doubtless, with a safe conscience, serve their country by fitting out privateers. “ But,” says Vattel, “it is an infamous proceeding on the part of foreigners, to take out commissions from a prince, in order to commit depredations on a nation innocent with respect to them. The thirst of gold is their only inducement, nor can the commission they have received efface the infamy of their conduct, though it screens them from punishment."
Formerly, reprisals were considered lawful, when made by a private subject of a belligerent power, without a commission.
It was not until the fifteenth century that they Privateers were considered essential, and that private citizens missioned were forbidden, without license, to fit out vessels to cruise against the enemy. It was about this time that laws to this effect were passed by Germany, France, Spain, and England. It soon became, and until late years uniformly continued to be, the practice of maritime nations, to make use of the voluntary aid of individuals against their enemies, as auxiliary to the public force. Indeed, it is said by Bynkershoek, that the Dutch formerly employed no vessels-of-war but such as were owned by private persons, and to whom the government allowed a portion of the captured property, as well as indemnity from the public treasury. It was held by Sir
must be com
1 Vattel, B. III., c. XV., 88 223, 229.
Doctrine of courts of Uni
Matthew Hale to be an unlawful depredation, in a subject, to attack the enemy's vessels, except in his own defence, without a commission.
The subject has undergone frequent discussion in ted States on the courts of Great Britain and in the Supreme this subject. Court of the United States; and the doctrine of the
law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under commission; but that they may, nevertheless, seize upon hostile property in their own defence. If they commit depredations upon the property of the enemy without a license, they act upon their own peril, and subject themselves to punishment by their own country; but the enemy are, notwithstanding, precluded from treating them as criminals; and as respects the enemy, they violate no rights of capture.'
The practice of cruising with private armed vesprivateering.
sels under government commission, in other words, of privateering, which has been heretofore regarded as a legitimate mode of destruction of the enemy's commerce, by all maritime nations, has been, of late years, arraigned as subject to enormous abuses, as an encouragement of the spirit of lawless depredation, or piracy, and as inconsistent with the humane rules which have been universally adopted in mitigation of the severities of modern warfare.
Earnest endeavors have been made, by many the spirit of philanthropic and enlightened persons, to procure
the entire abrogation of the system, as in conflict with the liberal spirit of the age.
The Haase, 1 Rob., 286; The Rebecca, i Rob., 227; The Amor Parentum, 1 Rob., 303; The Twee Gessuster, 2 Rob., 284; The Melomane, 5 Rob., 41; The Joseph, 1 Gallis, 545.
Considered in conflict
as a relic of
wars of the
It has lately been declared, by distinguished History of he peers in the British Parliament, that the system of United States privateering would have been abolished by all the 60 great powers, by the treaty of Paris, which succeed- privateering, ed the war with Russia, but for the objection of the private the United States, through her representative then middle ages. at that court. This declaration, though perhaps, literally true, can scarcely be considered ingenuous, inasmuch as it was made without disclosing the fact, which could not have been unknown to those who made it—that the ground of objection of the representative of the United States was, that the proposed treaty prohibition did not go far enough to attain the purpose which the well-known policy of the United States government required. A brief review of the efforts which, in this behalf, have heretofore been made by that government, will sufficiently demonstrate this policy.
In the treaty of 1778, between the United States and France, it was stipulated, “That no subject of the most Christian king shall apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the said United States, or any of them, or against the property of any of the inhabitants of any of them, or against the people, subjects, or inhabitants of the United States, or any of them, from any prince or state with which the United States shall be at war; nor shall any citizen, subject, or inhabi. tant of the United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects of the most Christian king, or any of them, or the property of any of the inhabitants or
any of them, from any prince or state with which the United States shall be at war; nor shall any citizen, subject, or inhabitant of the said United States, or any of them, 'apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects of the most Christian king, or any of them, or the proper- . ty of any of them, from any prince or state with which the said king shall be at war; and if any person of either state shall take such commission or letters of marque, he shall be punished as a pirate. It shall not be lawful for any privateers, not belonging to the subjects of the most Christian king, nor citizens of the said United States, who have commission from any other prince or state at enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other way whatsoever to exchange their ships, merchandise, or any other lading, neither shall they be allowed to purchase victuals, except such as shall be necessary for their going to the next port of that prince or state from which they have commissions.”
In the message of President Jefferson to Con. gress, in December, 1805, in referring to the acts of privateers off the American coast, he says: “Some of them are without commissions, some with illegal commissions, others with legal form, but committing piratical acts beyond the authority of their commissions;" and then he proceeds to apprise the Congress that he has equipped a force to capture all vessels of this description and “to bring the of. fenders in for trial as pirates."
In 1812, eight days after the declaration of war
against Great Britain, the Congress of the United States passed a law, limiting and defining the rights of privateers, and endeavored, as far as practicable, to assimilate them to national vessels.
The first section confers upon the President the power to annul, at pleasure, all licenses or commissions which he might grant under the act of June, 1812.
The second section is as follows: “All persons applying for letters of marque and reprisal, pursuant to the act aforesaid, shall be required to state in writing the name, and description, and tonnage and force of the vessel, and the name and residence of the owner, the intended number of the crew, etc.;" and the third section provides for ample security to be given for the strict and due observance of the treaties and laws of the United States, and of the instruetions given them for their conduct; and the remaining sections require the captures which
may be made, to be brought into port for adjudication by the court of admiralty; prohibit their sailing without special instructions; compel the commanders to keep regular journals of afl that occurs, daily, and transmit them to the gov- . ernment; and impose upon the commanders of public armed vessels the duty of examining these journals when meeting the privateer at sea, and to compel their commanders to obey their instructions, and all this under penalty of forfeiture of all interest in any captures which they may make.
In 1846, during the war between Mexico and the United States, President Polk, in his message to Congress, in December of that year, held the following language: