462 CAPTORS SHOULD BE DULY COMMISSIONED. of her commander and crew, in preying upon and destroying the whaling fleet in the Pacific Ocean, after notice of Lee's surrender, was alike unauthorized and illegal, and may be justly stigmatized as piratical proceedings and conduct, liable to incur condign punishment and certainly deserving it. In the United States, upon the breaking out or declaration of war, the public vessels are employed by the government to make prize; and their commanders are duly authorized so to do by precise and appropriate instructions issued from the Navy Department. Theoretically, the prizes thus taken by government vessels belong not to the captors but to the government. Yet by the act of Congress for distribution of prize-money, a mode is provided for practically distributing a portion of it among the officers and crew. This prescribed mode of distribution, however, though long acquiesced in, can hardly be deemed or called fair and equal. This unequal scale was adopted by the act of April 23, 1800, entitled "an Act for the better government of the Navy of the United States," and has been continued to the present time. Whether at any future period, Congress shall deem a modification of the existing scale expedient and just, it would not be hazardous to claim and suggest, that a basis similar to that of dividing bounties among fishermen, would be far more just, inasmuch as the distributive shares would not be so widely disproportioned among men and officers. An act of Congress was passed March 23, 1863, whereby it was provided that "in all domestic and foreign wars, the President is authorized to issue commissions, or letters of marque and general reprisal, to PRIVATEERS IN THE WAR OF 1812. 463 private armed vessels of the United States, and to make regulations for their government, and for the disposal of prizes ;" and this act was to continue in force for three years from the time of its passage. It has been since repealed,1 or has now expired by its own limitations, and no commissions, it is believed, were issued under the act during the American Rebellion. Sometimes, however, privateers are authorized, during war, to arm themselves and make war upon the enemy's commerce. In such cases, the privateer is commissioned by the government, and should any person, without such commission, make war, he would be liable to be treated as a pirate or robber on the high seas, and incur the prescribed penalties. During the war of 1812, between the United States and England, numerous vessels of this description were commissioned and in service at sea, and the private armed vessels, thus fitted out from the sea-ports of the United States, became very formidable, and quite effective in damaging and crippling British commerce. But such enterprises must first obtain the sanction of the existing executive government, for the want of which, all so engaged may incur the penalties recognized by the law of nations for such offenses. On the ocean, however, during the existence of hostile relations between belligerents, all vessels, whether armed or not, have the right to defend themselves against attack; and whenever a commander shall, in self-defense, capture a hostile vessel, he will be fully justified in taking possession of the captured vessel, manning out his prize, and sending her into port for adjudication. 1 Vide U. S. Prize Act, 1864, (Appendix K.) 464 LAWFUL CAPTURES MAY BE MADE FOR CONTRABAND If a capture be made by a non-commissioned captor, it is made for the government, the captors themselves having only a claim for salvage, not prize money per se. -- In awarding quasi salvage, as a substitute for a distributive share of prize money, prize courts, as a general rule, should exercise a large discretion and award liberally, thus, at the same time, strictly observing any recognized but arbitrary rule of international law, and doing exact justice to a meritorious captor, as his conduct would be viewed by the local law of his country. The aim and object should be to render the so-called salvage award a precise equivalent for prize money. Capture of prize may be generally defined as the taking by a belligerent of enemy property on the high seas with an intent to convert and appropriate it to the belligerent's use. It is permissible only in time of war, and if the captured property be notoriously not neutral or hostile, it is subject to confiscation and condemnation as prize of war. Capture is justifiable for breach of neutrality or trading with the enemy. Breach of neutrality may be committed: 1. By carrying on or attempting to carry on any contraband trade with the enemy; or, 2. By violation of blockade or attempting so to do. The first offense against neutrality will occupy but little space, however interesting and inviting may be the discussion of that branch of prize law. All munitions and materials of war are contraband articles; and, as such, are expressly inhibited, and all trade and transportation of them by neutrals to one of two belligerents, engaged in hostilities, strictly interdicted. So is it with TRADE-OR BREACH OF NEUTRALITY OR OF BLOCKADE. 465 provisions, clothing, necessaries, medicines, stores, comforts, or even luxuries, should the supply be short and the want great in an enemy territory. At this period, by far the most attractive discussion is that of blockade, rendered intensely so by recent events. By the law of nations, trade (to a certain extent) is permissible between neutrals and belligerents. But this license is restricted by general law, and it may be also by treaties. A neutral engaged in harmless commerce, enjoys unrestricted trade with belligerents. But a neutral otherwise employed, is at any time liable to capture as prize, whether it be while openly carrying on any illegal trade; or undertaking to conduct commercial enterprises in disregard of existing treaties; or in violating an existing and proclaimed or otherwise known blockade; or introducing articles into a belligerent country, with a view to supply a belligerent with inhibited merchandise for his "aid and comfort." Against all such illegitimate attempts and practices, the law is precise, rigid, and intended to be thoroughly effectual. All belligerent rights are clearly defined and well established, perhaps none more so than the right of blockade. It is as ancient as naval warfare itself; has the highest sanction of nations recognizing the principles of maritime jurisprudence; is deemed essential to national integrity and security; and in Admiralty courts, it is invariably upheld and enforced, in modern times, with the utmost vigor and precision, insomuch that, in its occasional practical application and effects, it is not unfrequently accounted a somewhat severe rule of international law. Notwithstanding its supposed severity, however, the 466 PREREQUISITES OF LEGAL BLOCKADE. good sense of nations has supplied several rules, with which compliance has been deemed an indispensable prerequisite, before judicial condemnation can take place. There must appear to be: 1st. A blockade existing; 2d, a knowledge of such blockade; 3d, a violation of it, or an attempt to do so. And all three must appear affirmatively before the judicial mind, in prize courts, can be prepared to determine or even hear the captor's claim. If a sov I. Blockades must be actual and absolute. ereign power impose any interdiction of trade by blockading certain given ports, it is then its duty to enforce such measure; and for this purpose, an adequate force should be employed to prevent either ingress or departure of vessels, hostile or not neutral, from such blockaded ports. This force may consist of war-vessels or shore batteries; but whether of one or the other, or both, the force, wherever and however stationed, on land or sea, must be sufficient to make the blockade effectual. A mere paper blockade is no blockade. All forcible commercial interdiction must be effective and continuous. But the supreme power only can declare and maintain a blockade. Yet neither the commander of a national vessel or fleet can authentically proclaim the existence of a blockade, unless thereto specially authorized so to do, by his sovereign or the exist ing government. When, however, a blockade is once duly declared and notified, it is incumbent upon the government to station the requisite naval or other force in the vicinity to effectually enforce it. And unless this be accomplished, much mischief may ensue. Innocent neutrals may be misled by the circulation of false ru |