and were under no naval discipline, that, when a single corsair or privateer nove in sight on the high seas, it caused a greater terror to a neutral merchant ship than a fleet of public ships of war. In the present century, however, as the practice of states in intrusting their defence on land to regiments of foreign origin serving them for pay has generally been discarded, so the practice of granting commissions of war to the subjects of foreign states, serving for plunder, has fallen into disrepute, to say nothing of the license of maritime warfare so conducted being intolerable to the civilisation of the present age. That a main object, which the two allied powers in the war of 1854 against Russia had in view, was to put an end to the practice of belligerents issuing letters of marque and reprisals to the subjects of neutral states, is confirmed by the memoir of M. Drouyn de Lhuys, already mentioned. “What influenced especially the English Government was the fear of America inclining against us, and lending to our enemies the cooperation of her hardy volunteers. The maritime population of the United States, their enterprising marine, might furnish to Russia the elements of a fleet of privateers, which, attached to its service by letters of marque and covering the seas with a net work would harass and pursue our commerce even in the most remote waters. To prevent such a danger the cabinet of London held it of importance to conciliate the favourable disposition of the Federal Government. It had conceived the idea of proposing to it at the same time as to the French Government and to all the maritime states, the conclusion of an arrangement, having for its object the suppression of privateering, and permitting to be treated as a pirate everyone, who in time of war should be found furnished with letters of marque. This project, which was in the end abandoned, is evidence of the disquiet felt by England. We thought, as they did, respecting privateering, a barbarous practice which marked too often, under an appearance of patriotic devotion, violence excited by the allurement of lucre. At former epochs, justified by the fury of war, it was able in the midst of numerous iniquities, to give rise to some heroic action, to transmit even to history some glorious names. But we considered it to be incompatible henceforth with the usages of civilized nations, which can not allow private persons to be armed with the rights of war, and which reserve their terrible application to the public power of established states.' "Such was the object in view of the allied powers in the war against Russia, according to the highest authority. We find also a statement from the same authority, namely, the French minister for foreign affairs, in his report to the Emperor of the French, of 29th March, 1854, that the motive of the allied powers was to miti gate the disastrous effects of war upon the commerce of neutral nations and to relieve it from all unnecessary shackles, and accordingly the Emperor of the. French published a declaration at the conclusion of which he announced that he had no intention to deliver "lettres de marque pour autoriser les armements en course.' On the other hand the British Government issued a corresponding declaration on 28th March, 1854, announcing that is was not the intention of the Queen of the United Kingdom to issue letters of marque for the commissioning of privateers. "No occasion for the interpretation of the first article of the declaration of Paris of 1856 arose in its application to a war, in which both the belligerent parties were signatories of that declaration, before the Franco-German war of 1870, when the Prussian Government issued a decree (24th July, 1870), relating to the constitution of a volunteer naval force. Under that decree the King of Prussia invited all German seamen and shipowners to place themselves and their forces and ships suitable thereto at the service of the fatherland. The officers and crews were to be enrolled by the owners of the ships and were to enter into the Federal navy for the continuance of the war, and to wear its uniform and badge of rank, to acknowledge its competence and to take an oath to the articles of war. The ships were to sail under the Federal flag and to be armed and fitted out for the service allotted to them by the Federal royal navy. The ships destroyed in the service of their country were to be paid for to their owners at a price taxed by a naval commission, and a sum was to be paid by the state as a deposit, when the ships were placed at the service of the state, which, at the end of the war, when the ships were restored to their owners, was to be reckoned as hire. The French Government, regarding the institution by Prussia of a volunteer naval force as the revival of privateering under a disguised form, lost no time in calling the attention of the British Government to the Royal Prussian decree, as instituting an auxil iary marine contrary to Prussia's engagements under the declaration of 1856. Earl Granville, on behalf of the British Government, referred the matter to the law officers of the Crown, and in accordance with their opinion returned for answer, that there was a substantial difference between the proposed naval volunteer force sanctioned by the Prussian Government and the system of privateering which, under the designation of "la course," the declaration of Paris was intended to suppress, inasmuch as the vessels referred to in the Royal Prussian decree would be for all intent and purposes in the service of the Prussian Government, and the crews would be under the same discipline as the crews on board vessels belonging permanently to the Federal navy.' Upon these considerations the British Government could not object to the decree of the German Government as infringing the declaration of Paris. (Brit. and For. St. Pap., LXI. p. 692.. Perels, Manuel de Droit Maritime International, p. 195. Paris, 1884.) "There is not an unanimity of opinion amongst text writers on international law on the subject of this Prussian auxiliary marine, as to whether its institution was in conflict with the declaration of Paris or not. M. Charles Calvo, ancien ministre, considers that vessels equipped in accordance with the Prussian decree may be regarded as privateers of an aggravated character, seeing that the owners are not required to give security for their good conduct (Le Droit International. Troisième edition. Tome Troisième, p. 303. Paris, 1880); and Mr. W. E. Hall, in his recent work on International Law, p. 455 (International Law. Oxford, at Clarendon Press. 1880.) observes that unless a volunteer navy could be brought into closer connection with the state than seems to have been the case in the Prussian project, it would be difficult to show that its establishment did not constitute an evasion of the declaration of Paris.' But neither of these eminent publicists seem to have given sufficient weight to the provisions of the Prussian decree, under which the officers and crew were required to enter into the Federal navy for the continuance of the war, were to wear its uniform and to take an oath to the articles of war. Further, the vessels were to be fitted out by the state, and were to sail under the public flag of the state. "On the other hand, Professor Geffcken, in his recent edition of Heffter's Droit International de l'Europe (Paris, 1883), p. 278, and Dr. Charles D. Boeck in his masterly treatise on enemy's property under an enemy's flag, have recognised a broad distinction between such an auxiliary force, which under the Royal decree was intended to be employed solely against the enemy, and priv teers, which may be of no matter what nationality, and whose main object it has always been to prey upon neutral commerce, keeping up the worst traditions of private warfare under cover of letters of marque. It should be observed that the Prussian Government never gave practical effect to the Royal decree on this subject, and that no vessel of the seewehr,' as instituted in 1870, ever put to sea. (Staats Archiv., 4345, 4346.)" Twiss, Belligerent Rights, etc., London, 1884. See, also, W. B. Lawrence in 127 N. Am. Review for July, 1878, 32, citing 22 Solicitor's Journal, 523; 9 Rev. de Droit Int. 552. April 22, 1898, the Department of State, in a telegraphic instruction to the diplomatic representatives of the United States, declared among other things that, in the event of hostilities with Spain, the "policy" of the United States "will be not to resort to privateering." This announcement was reaffirmed in a proclamation issued by the President on the 26th of April. The Spanish Government, by a royal decree of April 23, 1898, embodying the rules which it proposed to observe during the war, reserved the right to issue letters of marque. Of this reservation Spain afterwards took no advantage. The decree also declared that the Government would, for the purposes of cruising, organize a service of " auxiliary cruisers of the navy," composed of ships of the Spanish mercantile navy" and "subject to the statutes and jurisdiction of the navy.” The United States organized an auxiliary force, under the command of officers of the Navy. The conditions under which this service was established are set forth in the case of The Rita, relating to the distribution of prize money among the officers and crew of the auxiliary cruiser Yale, formerly the steamer City of Paris of the International Navigation Company, commonly called the American Line. The City of Paris was one of a class of steamers which were, under the provisions of the mail-subsidy act of March 3, 1891, subject to be taken by the United States as cruisers or transports upon the payment of their actual value. By a charter party and supplementary agreement entered into April 30, 1898, between the company and the Secretary of the Navy, possession of the ship was transferred to the Government, by which she was heavily armed and converted into an auxiliary cruiser. The charter party provided that the ship should bemanned, victualled, and supplied at the expense of the charterer." The charterer was also to pay all other expenses and at the termination of the charter, which was to be at the charterer's will, was to return the ship in good repair, less ordinary wear and tear. The supplementary agreement provided that the ship was to be manned by her regular officers and crew, and in addition thereto was to take on board two naval officers, a marine officer, and a guard of thirty marines, and was to be victualled and supplied with two months' provisions, and about four thousand tons of coal; the actual cost to the owner of such additional equipment and services to be reimbursed by the charterer upon bills to be certified by the senior naval officer on board." There were also stipulations protecting the owner against all expenses and liability, and a provision that during the continuation of the supplementary agreement the steamship was to be “under the entire control of the senior naval officer on board.” Under these agreements the Government of the United States placed on board the ship a captain and a lieutenant of the Navy and a marine guard of 25 enlisted men. There were also on board 269 other persons, not commissioned by or regularly enlisted in the service of the United States, but comprising the ship's company, both officers and men, who were doing duty on board and were borne on the books of the ship. On a question that arose as to the distribution of prize money it was held that the Yale was neither a "vessel of the Navy" nor a privateer, but came within the statutory class of vessels “not of the Navy, but controlled by either executive department," and was, as an "armed vessel in the service of the United States," "entitled," in the words of the statute, " to an award of prize money in the same manner as if such vessel belonged to the Navy." The Rita, 89 Fed. Rep. 763. By the act of March 3, 1899, for the reorganization of the United States See, as to the "volunteer navy" organized by Prussia during the Franco- 2. BONDING AND RESPONSIBILITY. § 1216. By the act of July 9, 1798, privateers were required to give security in $14,000, if the vessel carried more than one hundred and fifty men, and in half that sum if she carries less. 1 Stat. 578. As to the administration of this provision, see Mr. Pickering, Sec. of State, to American ministers, Dec. 3, 1798, MS. Inst. U. States Ministers, V. 1; Mr. Pickering, Sec. of State, to Mr. Simons, collector at Charleston, S. C., March 30, 1799, 11 MS. Dom. Let. 275 "By the laws of most of the nations of Europe, the owners of privateers are required to give bond and security, in amount from $8,000 to $12,000, to comply with the regulations concerning their cruising, and to prevent them from committing illegal acts." 1 De Bow's Rev. 517, as quoted in Wharton's Int. Law Digest, III. 476. The owners of a privateer are responsible for the conduct of their agents, the officers and crew, to all the world, to the full value of the property injured or destroyed. Del Col v. Arnold (1796), 3 Dallas, 333. A privateer's commission fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although the parties intended to use it as a cover for illegal purposes. If a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intend to violate, under its protection, the laws of their country. A collusive capture conveys no title to the captors not because the commission is thereby made void, but because the captors thereby forfeit all title to the prize property. |