Manual addressed to all Commanders of Privateers, in a separate form from the Instructions issued to the Commanders of King's ships, although on some occasions the Instructions to the Commanders of either class of vessels were conjoint Instructions. These Instructions were binding upon the Commander of every privateer, who upon obtaining a warrant from the Lord High Admiral or the Commissioners for executing the office, was required to appear in the Registry of the High Court of Admiralty, and there make a declaration respecting the tonnage and fittings of his vessel, and to sign and execute a bond to the Crown with two approved sureties, that he would in every respect conform himself to the Instructions issued by the King in Council, and to all future Instructions. It was accordingly to his Instructions that the Commander of every privateer was bound to look for the interpretation of the general language of his Commission, and the authority contained in these Instructions, equally as the Commission, was granted to the Commander personally. It was necessary therefore that the Commander himself should be on board the privateer at the time of its making any capture, in order that the legal interest in the capture should enure to the private captors under the Commission. In the case of the "Charlotte" privateer", Lord Stowell held that a capture made by her, when her Commander was on shore, must be condemned as a Droit of the Admiralty. An exception appears to have been made in favour of the captors on one occasion, where the Commander of the privateer being dead, the Lieutenant had captured the prize. +2 The Charlotte, Witt. 5 Ch. Rob. p. 280. 43 In a MS. note-book in the possession of the author, purporting to contain notes of Sir Nathaniel Lloyd, Advocate Ge But in most cases in modern times, where non-commissioned captors have made prize of enemy's property, it has been usual for the Crown to grant to the captors on their petition the ships and goods of the enemy, although the same have been taken without any legal authority or Commission of War. Such is the purport of a Report" made by Sir James Marriott, the King's Advocate General, in 1765, to the Lords Commissioners of the Treasury. According to that Report the practice in the High Court of Admiralty of Great Britain has been for the Lord High Admiral to proceed for Droits by his own Law Officers, ever since the time of the Duke of York, who was Lord High Admiral in the reign of King Charles II, and who, subsequently to his appointment and to the Order in Council of 6 March 1666 declaring the Droits of the Lord High Admiral, granted them back to the Crown. This precedent of granting back the Droits of the Lord High Admiral to the Crown was followed by Prince George of Denmark, after he had been appointed Lord High Admiral, and by the Earl of Pembroke; but whilst the office of Lord High Admiral is in Commission, the Droits of the Lord High Admiral remain vested in the Crown. vateers. 195. The Commission of a Privateer, although Restraints it is issued in general terms, is taken subject to all por the restraints which the legislature may have imposed upon it. In the case of British privateers, their Commissions are revocable by the Lord High Admiral or the Commissioners for executing his neral in 1716, there is this passage: "The Privateer's Captain being dead, the Lieutenant took a prize. Salvo jure Admirali, for once adjudged to the owners of the Privateer. 30 May 1704." + MS. book of Sir James Marriott, in possession of the author. office. In the case of privateers belonging to the United States of America, their Commissions are revocable by the President. Under the Prize Act of 1812, the President of the United States was empowered to grant, annul, and revoke at his pleasure, the Commissions of privateers, and by the Act declaring War he was authorised to issue the Commission in such form as he should deem fit, and further to establish and order suitable Instructions for the better governing and directing the conduct of private armed vessels commissioned under that Act, their officers and crews. "It has been the great object," observes Mr. Justice Story, "of every maritime Nation to restrain and regulate the conduct of its privateers. They are watched with great anxiety and vigilance, because they often involve the Nation by irregularities of conduct in serious controversies, not only with public enemies, but with neutrals and allies. If a power did not exist to restrain their operations in war, the public faith might be violated, cartels and flags of truce might be disregarded, and endless embarrassments arise in the negotiations with foreign Powers." The Commission of a privateer was declared by the British Prize Act to be forfeited upon due proof of the breach of any of his Majesty's Instructions relating to Prize, or of any offence against the Law of Nations; and upon representations being made to the Lords of the Admiralty, that the Commander of any privateer had committed a breach of his Instructions or offended against the Law of Nations, it was usual for them to direct proceedings to be instituted in the Admiralty Court against the privateer to deprive her Commander of his Commission 6. Such a proceeding 45 The Thomas Gibbons, 8 46 The Mariamne, 5 Ch. Rob. Cranch, 428. p. 10. was ad publicam vindictam, and was intended to prevent a repetition of bad conduct. The misuse of the authority conveyed to the Commander of a privateer by his Commission rendered her Commander and the owners liable in damages to the party injured; and each part-owner, if there were several, was liable not merely pro rata for his own share respectively, but for the total amount of what might be awarded against them all 7. So far back as 1672 it was held that every owner of a privateer is liable in solidum for damages awarded against the master and owners of the vessel. 48 Instruc Privateers. § 196. The Instructions, which have been generally Purport of furnished to British privateers, authorise them to tions issued attack and seize all men-of-war, ships, and other to British vessels whatsoever, as also all goods, wares, and merchandises belonging to the enemy, but so as not to commit any hostilities within the harbours of Powers or States at amity with Great Britain, or in their rivers, or roadsteads, within the shot of their cannon; also to attack and seize all ships carrying Contraband of War to the ports of the Enemy, and all ships, whatever be their cargoes, that may be found attempting to enter any blockaded ports It has been usual for the Crown to issue additional Instructions from time to time to privateers, as occasion may require, precisely as to public vessels of war, for the purpose of restraining or enlarging, as the case may be, the exercise of the powers contained in their Commissions. The Commanders are further required by their Instructions to bring their prizes into port for adjudication, to aid and 47 The Karasan, 5 Ch. Rob. p. 292. 48 Praris v. Captain Martine and his owners, A.D. 1675. Lord Stair's decisions, Vol. II. 49 Marriott's Formulary, pp. vateers. succour all co-belligerent vessels, to make reports from time to time of their proceedings to the Lord High Admiral or the Commissioners for executing his office, to refrain from ransoming their prizes, to deliver up all prisoners of war to Commissioners authorised to take charge of them, to send copies of their journals to the Secretary of the Admiralty, and not to hoist any jack, pendant, or other ensign Distin- or colours usually borne by King's ships; but beguishing Flag of sides the colours usually borne by merchant ships, British Pri- to wear a red Jack with the Union Jack described in the canton at the upper corner thereof, near the staff. Such appears to have been the substance of the Instructions issued on 30 Dec. 1739, for the Commanders of such ships and vessels as may have Letters of Marque or Commissions for private menof-war against the King of Spain, his vassals, and subjects inhabiting within any of his Countries, Territories, or Dominions, by virtue of our Commission granted under the Great Seal of Great Britain bearing date the thirtieth day of November 1739 50. It appears that precisely similar Instructions, as to the distinguishing Jack to be carried by British privateers, have been issued on all subsequent occasions. The Flag $197. The French Ordinance of 1681 may be of Foreign regarded as furnishing a permanent body of InPrivateers. structions to the Commanders of all ships having Commissions from the Admiral, but it has been supplemented by Règlemens on the subject of Prize, issued from time to time as circumstances may have 50 A copy of these Instructions will be found in Beauwes, Lex Mercatoria, edited by Chitty, Vol. I. p. 345. These particular Instructions are silent on the subject of blockade, but Instruetions to privateers on the subject of Blockade will be found in Marriott's Formulary, p. 49. |