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than by the progress of civilisation, the ultimate peace of the world, and the happiness of the human race.1

$15. It being established that a belligerent has a right to commission and use private armed vessels in carrying on the war, it remains to enquire by whose authority such commissions may be issued, and who may use them. The right to issue letters of marque is inherent in the Government of every independent State, and is a part of its war-making power; but its own constitution, or internal laws, must determine? by what particular branch of the Government this right is to be exercised.

1 Marcy, Letter to Count Sartiges, July 28, 1856; The Paris Moniteur, July 14, 1858; Lawrence, Visitation and Search, p. 195.

2 From the fourteenth to the middle of the seventeenth century, maritime legislation respecting privateers was in every country of Europe involved in a chaos of obscurity. The French Government, when in alliance with the American States, in 1778, observed more than usual respect toward neutral vessels, but in 1796 they changed their views, and seemed to think that privateering could not be too much encouraged, and for some years after privateering absorbed the whole naval energy of the State. This was carried to such an unlimited and licentious degree, that neutral vessels avoided the French coast, which entailed much injury on the commerce of that country. Accordingly we find a decree of Napoleon Bonaparte, annulling the decisions of Merlin and others, and restoring the usages of 1778.

In 1861, the Confederate States of America employed privateers against the Federal States, in consequence of which a Bill was introduced into the Senate during the Session of 1861-2 (at the suggestion, it was stated, of the Government, but failed to become law), to authorise the President during the continuance of the insurrection, to grant letters of marque and reprisal, and to revive in relation to all that part of the United States, where the inhabitants have been declared in a state of insurrection, and the vessels and property to them belonging, the Acts passed on this subject during the war of 1812. It was opposed, because it was assumed that letters of marque could only be granted against an independent State, and that their issue might be regarded as a recognition of the Confederate States. Such a measure might also be regarded as a mark of weakness of the Federal navy. Moreover, privateering, when attempted by the Confederate States, was branded by the President and the public sentiment of the North as piracy. (See Congressional Globe, 1861-2, p. 3325.) Nevertheless, by the second section of the Act of August 5, 1861, the President might instruct the commanders of 'armed vessels sailing under the authority of any letters of marque or reprisal granted by the Congress of the United States or the commanders of any other suitable vessels,' to subdue, &c., vessels intended for piratical aggressions. The Secretary of the Navy, in a note to the Secretary of State, October 1, 1861, says 'under the (above) clause, letters permissive under proper restrictions, or guards against abuse, might be granted. This would seem to be lawful, and perhaps not liable to the objection of granting letters of marque against our own citizens, and that, too, without law or authority from the only constitutional power that can give it.' However, early in 1863, a bill was passed by Congress, empowering the President, during three years, to issue letters of marque, but this power does not seem to have been employed.

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When, in 1569, the Prince of Orange issued letters of marque to the gentleman and others, who became so notorious as the gueux de mer, many of them were punished as pirates; 'not so much,' says Martens, 'on account of their excesses, as because it was not thought that the Prince of Orange had power to grant such letters of marque.' The authority which grants the commission determines what limits shall be imposed upon the exercise by the privateer of belligerent rights; and, if such vessel exceed the limits of its commission, and commit acts of hostility not warranted by the letter which it carries, if such acts be not in violation of the laws of war, it is responsible to and punishable by the State alone from which the commission was issued. A vessel,' says Phillimore, which takes a commission from both belligerents is guilty of piracy, for one authority conflicts with the other. But a nicer question has arisen with respect to a vessel which sails under two or more commissions granted by allied powers against a common enemy. The better opinion seems to be, that such practice is irregular and inexpedient, but does not carry with it the substance or name of piracy.' Kent does not make this distinction, but states the proposition in general terms, 'that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate.' Hautefeuille says, that if a privateer receives commissions from two sovereigns, she is to be treated as a pirate, 'even where the letters of marque emanate from two powers allied for a common war?' Another question to be noticed is, what is the character of a vessel of a neutral State, armed as a privateer, with a commission from one of the belligerents? Phillimore says, 'that such a vessel is guilty of a gross infraction of international law; that she is not entitled to the liberal treatment of a vanquished enemy, is wholly unquestionable; but it would be difficult to maintain that the character of piracy has been stamped upon such a vessel by the decision of international law.' Kent is of opinion that the law of the United States, which declares such an act a high misdemeanour, punishable by fine and imprisonment, is 'in affirmance of the law of nations.' Ortolan thinks that such an act is not piracy in international law, but that it ought to be made so. Haute

1 A cruiser commissioned by two powers, even if they are allies, is a pirate. Sir Leoline Jenkins's Works, ii. 174.

feuille is of opinion that they are not to be treated as pirates, unless made so by interior laws or treaty stipulations of the neutral State. We have already alluded to the recent internal laws and instructions of European States on this question, and will only add here, that by the law of Plymouth Colony, in 1682, it was declared to be felony to commit hostilities on the high seas, under the flag of any foreign power, upon the subjects of another power in amity with England; and the same acts were declared to be felony by the law of the Colony of New York in 1699.1

§ 16. Some States have covenanted, in their treaty stipulations, that they will prevent their subjects, under heavy penalties, from accepting commissions or letters of marque from other States. Such was the character of the treaty of September 26, 1786, between France and England. In other treaties, it is stipulated that no subject, or citizen of either of the contracting powers, shall accept a commission or letter of marque to assist an enemy in hostilities against the other, under pain of being treated as a pirate. Such is the character of the treaties entered into between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Columbia, Chili, &c. Some of these treaties, however, have expired without this provision being renewed in any subsequent treaty. It may be remarked that, whatever be thought of the character, in international war, of a neutral vessel taking a commission from a belligerent, the other belligerent is justified in treating such vessel as a pirate, when it is so stipulated in a treaty with the neutral State, or when the laws of the neutral State declare such acts to be piracy. This case is readily distinguishable from that in which the slave trade is made piracy by the municipal law of a particular State, for such trade is not considered as prohibited by the law of nations.2

§ 17. The implements of war, which may be lawfully used against an enemy, are not confined to those which are openly employed to take human life, as swords, lances, fire-arms, and cannon; but also include secret and concealed means of de

1 Kent, Com. on Am. Law, vol. i. p. 100; Phillimore, On Int. Law, vol. i. § 358; Kluber, Droit des Gens, § 260; Ortolan, Dip. de la Mer, liv. ii. ch. xi.; Hautefeuille, Des Nations Neutres, tit. iii. ch. ii. ; Abreu, Tratado de las Presas, pt. ii. cap. i. §§ 7, 8; Martens, Essai sur les Armateurs, ch. ii. § 14.

" Wheaton, Elem. Int. Law, pt. iv. ch. i. § 10, note ".

truction, as pits, mines, &c. So also, of new inventions and nilitary machinery of various kinds; we are not only justiiable in employing them against the enemy, but also if possible, of concealing from him their use. The general effect of such inventions and improvements is thus described by a distinguished American statesman: 'Every great discovery in the art of war has a life-saving and peace-promoting influence. The effects of the invention of gunpowder are a familiar proof of this remark, and the same principle applies to the discoveries of modern times. By perfecting ourselves in military science (paradoxical as it may seem) we are therefore assisting in the diffusion of peace, and hastening the approach of that period when "swords shall be beaten into ploughshares, and spears into pruning hooks; when nation shall not lift up sword against nation, neither shall they learn war any more." The same views are expressed by Ortolan and other recent writers on the laws and usages of war. At one period, however, it was considered contrary to the rules of military honour and etiquette to make use of unusual implements of war. Thus the French Vice-Admiral, Marshal Conflans, issued an order of the day, on November 8, 1759, forbidding the use of hollow shot against the enemy, on the ground that they were not generally employed by polite nations, and that

1 The laws of war do not allow to belligerents an unlimited power as to the choice of means of injuring the enemy.-Brussels Conference, 1874, Art. 12. According to this principle are strictly forbidden: (a) the use of poison or poisoned weapons; (b) murder by treachery of individuals belonging to the hostile nation or army; (c) murder of an antagonist who, having laid down his arms or having no longer the means of defending himself, has surrendered at discretion; (d) the declaration that no quarter will be given; (e) the use of arms, projectiles, or substances ('matières') which may cause unnecessary suffering, as well as the use of the projectiles prohibited by the declaration of St. Petersburg in 1868; ) abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the distinctive badges of the Geneva Convention; (g) all destruction or seizure of the property of the enemy which is not imperatively required by the necessity of war.-Ibid., Art. 13.

During the Franco-Austrian war (1859) the battle of Montebello was mainly won by the French, through the support they received in the Continual arrival of fresh troops by railway. Each train disgorging its hundreds of armed men and immediately hastening back for more.

* By declaration between Great Britain, Austria, Bavaria, Belgium, Denmark, France, Greece, Italy, Netherlands, Persia, Portugal, Prussia and North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey, and Würtemberg, signed at St. Petersburg, December 11, 1868, the contracting parties engaged to renounce, in case

the French ought to fight according to the rules of honour. The same view was taken of the use of hot shot, grape, chainshot, split balls, &c.1

§ 18. But, while the laws of war allow the use of new invention of arms, or other means of destruction, against the life and property of an enemy, there is a limit to this rule beyond which we cannot go. It is necessity alone that justifies us in making war and in taking human life, and there is no necessity for taking the life of an enemy who is disabled, or for inflicting upon him injuries which in no way contribute to the decision of the contest. Hence, we are forbidden to use poisoned weapons, for these add to the cruelties and calamities of a war, without conducing to its termination. We may wound an enemy in order to disable him, but when so disabled, we have no right to take his life; we, therefore, cannot introduce poison into that wound so as, subsequently, to cause his death. 'It is therefore with good reason,' says Vattel, 'and in conformity with their duty, that civilised nations have classed, among the laws of war, the maxim which prohibits poisoning of arms." of war among themselves, the employment by their military or naval troops of any projectile, of a weight below 400 grammes, which is either explosive, or charged with fulminating or inflammable substances. This engagement does not oblige when, in a war between contracting or acceding parties, a non-acceding party shall join one of the belligerents.

↑ Butler, B. F., Address on the Military Profession, p. 25; Ortolan, Diplomatie de la Mer, liv. iii. ch. i.

The 'Tourterelle' French ship in an action with the 'Lively' used red-hot shot. The employment of hot shot is not usually deemed honourable warfare; but the blame, if any, rested with those who had equipped the ship for sea. Jas. Nav. Hist. vol. i. 283.

Among the langridge which the American privateer, the General Armstrong,' used, in 1814, against the boats of the British ships Plantagenet' and 'Rota,' were nails, brass buttons, knife blades, &c.; and the consequence was that the wounded suffered excruciating pain before they were cured. Ibid. vol. vi. 350.

2 Vattel, Droit des Gens, liv. iii. ch. viii. § 156; Grotius (b. iii. ch. iv.) forbids the taking of the life of an enemy by poison, or by the hands of assassins, doing violence to women or to the dead, making slaves of prisoners, the wanton ravage of a country, or the destruction of buildings and public monuments. The use of barbarian troops in a war between civilised nations appears to be still tolerated, but due precaution should be taken by those employing them that such troops in no way outrage the laws of war. Russia brought Circassians into Hungary in 1848, and towards the end of the Crimean war (1855) she was preparing to arm some savage races within her empire. The French employed savages against the British in America; the British, notwithstanding Lord Chatham, did the same against their revolted colonists; the French Government employed the Turcos against the Austrians in 1859, against the Prussians in 1870. The last example was the employment of BashiBazouks by Turkey against the Servians in 1876.

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