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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, bad 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
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 for an injury done by the master and crew of a privateer, there must be a capture as prize of war; but in a piratical seizure and spoliation, the owners are not liable beyond the penalty of the bond given according to law and the loss of their vessel. (Dias v. The Revenge, 3 Washington, 262.) Where, however, the master or crew commit acts of outrage exceeding their authority in the performance of legitimate acts, the owners are liable to the full value of the property injured or destroyed, though a claim for loss of voyage will not be admitted, the principle of the court being against vindictive damages for trespasses committed by a crew. (The Amiable Nancy, 1 Paine, 111.) In the same case, where a neutral vessel was plundered of ber papers by a privateer, in consequence of which she was seized by another belligerent, and proceeded against as prize, but made a compromise with her captors, and paid a ransom and costs, it was held that the owners of the privateer were not liable for those items (there being no privity to the compromise), nor for any other injurious consequences flowing from the compromise. A captor, though actuated by a sense of duty to his government in destroying the property he has taken, is still responsible to the fullest extent to the claimant, and must look to his own government for indemnification. (The Actæon, 2 Dod. 48.)
All the owners of a privateer are responsible conjointly and severally in solidum, and it will not avail a part owner to plead compensation pro tanto, or a release of the claimant as to him individually. (5 Rob. 291.) With reference to foreign claimants, however, Lord Stowell said (in the Neustra Senora de los Dolores, ubi sup.): “The Act of Parliament, commonly called Lord Liverpool's Act (26 Geo. 3, c. 60), makes it necessary that the name of the owner should appear in the register; and it has been decided in a variety of cases, and is to be taken as clear and established law, that third parties, if British subjects, have no claim on any but the person registered as owner. But I am yet to learn that this rule is applicable to foreigners, who are not bound by the municipal institutions of this country. This is a question of the law of nations, and the party complainant being a foreigner, comes to a court which has to administer that law. Being a British statute, it may well bind all the subjects of this country, but against the subjects of other countries it has no such force.”
Sentence of condemnation by a prize court is absolutely necessary in the case of a privateer to complete the transfer of maritime prizes from the original owners to the captors; so that if a ship taken by a privateer be not brought into a British port and condemned, the captors acquire no legal property in the prize, and the sale of the prize, under such circumstances, conveys no property in it to the purchaser. (15 Viner's Ab. 57.)
A subject of the British crown cannot take goods belonging to the subjects of a prince in amity with the sovereign by virtue of letters of marque granted by any other sovereign or state. (2 Vern. 592.)
Privateers are not within the terms of a capitulation protecting private property generally. The Dash, pierced for sixteen guns, with gun tackles, bolts, &c., was taken possession of, with two others, in the har