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vessel, arms, ammunition, stores of war, goods and merchandise, and the persons claiming under such agreements, shall be entitled to any part or share thereof, except as to the customs and duties hereafter mentioned, any law, usage, or custom to the contrary thereof in anywise notwithstanding: provided always, that nothing in this act contained shall extend, or be construed to extend, to entitle any person or persons to any interest in such ships or vessels, goods or merchandize, as may be captured by any private ships or vessels of war, belonging to or hired by, or in the service of his majesty's commissioners of customs or excise, but that the same ships or vessels, goods and merchandise so captured, shall belong to his majesty, and be applied and disposed of in such manner as his majesty, under his sign manual, shall order and direct, after legal adjudication thereof."

Commissions to privateers and letters of marque are also issued by the judges of the several vice-admiralty courts in the British colonies, by virtue of warrants from the governors, who are deputies of the lord high admiral within the limits of their respective provinces.

The commission of privateers in the United States is to be taken in its general terms, with reference to the laws under which it emanates, and as containing within itself all the qualifications and restrictions which the act giving it existence has prescribed. In this view, the commission is qualified and restrained by the power of the President to issue instructions. The privateer takes it subject to such power, and contracts to act in obedience to all the instructions which the President may lawfully promulgate. (The Thomas Gib

bons, 8 Cranch, 421.) The American Courts also hold that it is of no consequence as respects the validity of a capture made by a privateer, that the commander is an alien enemy. The utmost that could result from this circumstance would be, the condemnation of his interest in the prize to the government as a droit of admiralty. The owners and crew are as much parties in the prize court as the commander, and his national character can in no wise affect their rights. (The Mary and Susan, 1 Wheaton, 46.)

Privateers, properly so called, are equipped for the sole purpose of war; but merchantmen carrying cargoes are frequently furnished by the Admiralty with what is called a letter of marque, enabling them to make reprisals against the enemy. But this object is collateral and secondary; and in this respect, letters of marque differ from privateers, though in many books, and also in popular language, all private ships commissioned for war are termed letters of marque. Sometimes the Lords of the Admiralty have this authority by a proclamation from the sovereign in council, as was the case in December, 1780, when they were thus empowered to issue letters of marque against the Dutch. Such commissions, however, are only available against countries at war with England; for if a letter of marque wilfully and knowingly take a ship belonging to a nation at amity with England, this amounts to downright piracy. (Molloy, c. 2, s. 23.) But in the case of The Sacra Familia (5 Rob. 360), where the prize was a Spanish vessel of considerable value, taken by a Liverpool privateer, not having on board a letter of marque against Spain, the master having made

the capture expressly on the ground of Spanish hostilities, and having in his possession the gazette containing intelligence of that occurrence, which he showed to the master of the Spanish vessel, though a king's ship came up after the capture and dispossessed the privateer, the claim of the latter to share as joint captor was established.

With regard to revenue cutters, it was decided in the case of The Helen (3 Rob. 224), that a revenue cutter, a custom-house vessel, with a letter of marque, was entitled to salvage, on recapture, as a private vessel of war. These vessels used occasionally in former wars to provide themselves with letters of marque at their own expense. This was found in some degree inconvenient to the proper service in which they were employed by the government; instead of looking after petty smugglers under their public commission, they were looking after rich vessels of the enemy, under their letters of marque, which entitled them to the whole benefit of such prizes, though they had been fitted out, manned and armed, not at the expense of the owners, but at the expense of that government, which was thus, to a certain degree, defrauded of their proper services. On the breaking out of the late war, it was deemed advisable to annoy the enemy's commerce upon their own coasts, and to intercept the return of their vessels into their own ports; and it was thought that these vessels were eminently qualified for this service, from their intimate acquaintance with the coasts of France, and their experience in that navigation. The government, therefore, directed them to be provided with letters of marque, for the purpose of

enabling them to act hostilely in the service required, but at the same time to prevent their acting without control and with injury to their other public duty, reserved the distribution of all prizes taken by these vessels to its own discretion. Besides these purposes of public policy which this arrangement answered, it had the additional advantage of providing a sort of general fund out of which the government might reward at its discretion such of them as had cruized with merit but without success; but Lord Stowell held that the Prize Act of 1801 did not extend to recaptures made by these vessels, and decreed salvage of one-sixth.

Ships furnished with letters of marque are to be deemed ships of war. "A ship furnished with a letter of marque is manifestly a ship of war, and is not otherwise to be considered, because she acted also in a commercial capacity. The mercantile character being superadded, does not predominate over or take away the other. (Lord Stowell, in The Fanny, 1 Dodson, 448.)

Upon granting letters of marque, the captain and two sureties must appear and give security; but upon consideration of convenience, where the captain is absent, the practice of the court permits some other person to appear for him, the person so appearing rendering himself by the act personally responsible. (Rex v. Fergusson, Edwards, 84.)

The owner of a privateer is the person whose name appears on the ship's register, and such person is alone responsible, by himself or his representative, for the claims of British subjects. Foreigners, however, are

not debarred, by this limitation, from maintaining a claim against bonâ fide owners not inserted in the ship's register. In The Nuestra Senora de los Dolores (1 Dodson, 290), where the part-owner of a privateer sought to evade a claim against him preferred by a foreigner, on the ground that his name was not on the ship's register, Lord Stowell said: "It appears that Mr. Parry was actively and directly concerned in the purchase and outfit of this vessel, and that the appointment of the master took place under his own directions. There is a series of letters, too, which show that he continued afterwards to bestow his time and attention in the management of this property, as property in which he was interested. Nothing, therefore, can be more clear, than that he is to be considered as a proprietor, and that he would in all justice be entitled to the benefit which might be acquired in that character, and consequently that he must be responsible for all the loss that may be sustained. Mr. Parry, having contributed his money in the purchase and outfit of this vessel, had a legal right to have his name inserted in the register, and he can have no right to plead his own laches in order to relieve himself from a claim.

The owners of a privateer are liable for any injury which, through ignorance or illegality, the officers and crew may inflict upon others in the execution of the business in which they may be employed; but where the master exceeds his orders, and is guilty of faults or crimes to the injury of others acting in some business different from that in which he was employed, the owner is not liable. To make the owners liable

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