Distinotions between

the English man-of-war, the 'Elizabeth,' had been forced by stress of weather, in 1746, to take refuge in the belligerent port of Havana, the captain offered to surrender himself to the Spanish governor as prisoner, and his vessel as a prize, but the latter refused to take advantage of his distress; on the contrary, he offered him every facility for repairing his vessel, and, on leaving, gave him a safe-conduct as far as the Bermudas. Again, in 1780, an English captain entered the Spanish port of San Fernando de Omoa, in Honduras, without knowing that it was belligerent. The Spanish commandant refused to take advantage of his ignorance, but permitted him to provision his ship and to sail unmolested to Jamaica. On the other hand, the French squadron which entered Louisburg, in the Island of Cape Breton, in 1745, ignorant of its hostile character, was captured as prize, and its officers and crews retained as prisoners of war. The French captain Nalin entered the port of Granada, in the Antilles, in the war of 1780, ignorant of its hostile character. He was immediately seized as a prisoner of war, and his vessel as a good prize. In 1799 a Prussian vessel, 'La Diana,' forced to take refuge in the port of Dunkirk, was restored by the French Tribunal on the principle of res sacra miseria; but in the analogous case of Maria Arendz,' in 1800, the Court condemned, in strict conformity with the French ordonnances. A court may be compelled by a sense of duty to condemn in such cases, but the sovereign power of the State might well exercise its sense of humanity and generosity by restoring even after condemnation. Notwithstanding the plea raised by French writers in such cases that le malheur opère de plein droit une trève, the principle is neither admitted by the general law of nations, nor by the maritime ordonnances of France, nor by her practice during the Revolution.1

§ 25. Letters of marque, or mart, are extraordinary commissions granted by the Admiralty to commanders of merchant reprisals ships for reprisals, in order to make reparation for those and pri- damages they have sustained, or the goods they have been vateering despoiled of, by aliens at sea, or to cruise against and make

prize of an enemy's ships either at sea or in his harbours.

1 Pistoye et Duverdy, Des Prises, vol. i. pp. 114, 122; Ordonnance de 1681; Ordonnance de 1696, May 12; Règlement de 1778, July 26, Arts. 14, 15; Arrêté de 1800, March 27, Arts. 19, 20; Déclaration de 1854, March 29.

There are two species of letters of marque-1st, those which are special, for the reparation of injuries sustained by individuals at sea, after all attempts to procure legal redress have failed; and 2nd, those which are general, they being issued by the government of one State against all the subjects of another upon an open rupture between them. Letters of marque are always joined to letters of reprisal, when it is for the reparation of a private injury; but when the hurt of an enemy is solely intended, as it is in time of war, letters of marque are generally granted alone, without letters of reprisal, and these constitute the commission of the privateer.2

A subject cannot for his own benefit make a reprisal without a commission; and if he should do so, the ship he might capture would be a droit of admiralty and belong to the sovereign or his grantee. Letters of reprisal are ordinary and extraordinary; the ordinary are either within or without the realm, and are always granted by the law of England to English merchants who have suffered in their persons or effects by aliens abroad, and cannot upon suit, or the sovereign demanding justice from abroad, obtain redress; in such case the injured person proving that he has prosecuted the offenders in legal course, and has had justice delayed or denied him, shall have a writ, out of Chancery, to arrest the merchant

1 Extract from letters of reprisal:- Now know ye that for a full restitution to be made to him for his ships, goods, and merchandises of which the said A. B. was so despoiled as aforesaid, with all such costs and charges as he shall be at for the recovery of the same, we, by the advice of our Privy Council, have thought fit and by these presents do grant license and authorise under our great seal of England our said subject, A. B., his executors, administrators, and assigns for and on behalf of himself to equip, victual, furnish, and set to sea from time to time such and so many ships and pinnaces as he shall think fit . . . and with the ships and pinnaces by force of arms to set upon, take, and apprehend any of the ships, goods, moneys, and merchandises of the kingdom of or any of the subjects inhabiting within any of its dominions or territories, wheresoever the same shall be found, and not in any port or harbour in England or Ireland, unless it be the ships and goods of the parties who did the wrong. And the said ships and goods, moneys and merchandises being so taken and brought into some port of our realms and dominions, an inventory thereof shall be taken by authority of our Court of Admiralty . . . and upon proof. . . they shall be judged lawful prize of the said A. B., his executors, administrators, and assigns, to retain and keep in his or their possessions and to make sale and dispose thereof in open market or however else to his and every of their best advantage and benefit in as ample manner as at any time heretofore hath been accustomed by way of reprisal.'

2 See 10 Hen. VI., c. 3; 14 Hen. VI., c. 7; and 33 Geo. III., c. 66, SS. 14 and 20.

strangers of the offending nation, or their goods, here in England. This writ is granted to the oppressed subject as a matter of right, not of favour, by the Lord Chancellor Ordinary reprisals cannot be revoked.

Extraordinary reprisals are granted by any Secretary of State, but are only during the good pleasure of the sovereign, and are for the purpose of weakening the enemy in time of war. They may be revoked at any time.

It is lawful for every subject to seize upon the goods or ships of the enemy after war has been proclaimed, but such goods or ships are droits of Admiralty. All civilised nations, therefore, are accustomed to grant commissions to individuals authorising them in a special manner to attack and despoil the enemy. This is the case with officers in the army or navy, who take pay, and are under orders, and are liable to punishment for disobedience. Others receive no pay, but go to war at their own charges, providing ships and provisions, to attack or despoil the enemy. This is the case with privateers, to whom, instead of pay, leave is granted to keep what they may take from the enemy, when the same has been adjudged lawful prize.1

Kent, speaking of the hostilities of private subjects on the high seas, says: 'Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly com

1 Extract from letters of marque for a privateer :-'Whereas we have declared war against the kingdom of and whereas our commissioners for executing the office of our High Admiral have thought A. B. fitly qualified, who has equipped, furnished, and victualled a ship called the "Rose," of the burthen of tons, whereof he is commander; and whereas the said A. B. has given sufficient bail, with sureties, to us in our said High Court of Admiralty, according to the effect and form set down in our instructions, a copy whereof is given to the said captain : Know ye therefore that we do by these presents grant commission to and do license the said A. B. to set forth in warlike manner the said ship called the "Rose," under his own command, and therewith by force of arms to apprehend, seize, and take the ships, vessels, and goods belonging to the kingdom of or the vessels and subjects of the King of

or others inhabiting within his country, territories, and dominions, and to bring the same to such ports as shall be most convenient, in order to have them legally adjudged in our said High Court of Admiralty of England. . . which being condemned it shall and may be lawful for the said A. B. to sell and dispose of such ships, vessels, and goods. . And we pray and desire all Kings, Princes, Potentates, States, and Republics being our friends and allies, and all others to whom it shall appertain, to give the said A. B. all aid, assistance, and succour in their ports.'

missioned, and it is said not to be lawful to cruise without a regular commission. Sir Matthew Hale held it to be a depredation in a subject to attack the enemy's vessel, except in his own defence, without a commission. The subject has been repeatedly discussed in the Supreme Court of the United States, and the doctrine of the law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under a commission, but they may still lawfully seize hostile property in their own defence. If they depredate upon the enemy, without a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted to consider them as criminals, and as respects the enemy, they violate no rights by capture. Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous, and they would probably expose the party to the unchecked severity of the enemy; but they are not acts of piracy, unless committed in time of peace.'1 Vattel, indeed, says, that private ships of war, without a regular commission, are not entitled to be treated like captives made in a formal The observation is rather loose, and the weight of authority undoubtedly is, that non-commissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates, although they may be, by the law of a particular State. They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favour of the Government of the captor, as droits of the Admiralty. It is said, however, that in the United States, the property is not strictly and technically condemned upon that principle, but jure reipublicæ; and it is the settled law of the United States that all captures by non-commissioned captors are made for the Government. Wheaton, and some other modern writers, express similar views, but we know of no English or American decision which sustains them; the cases to which they refer consider the lawfulness of such captures with respect to the Government of the captors, but not with respect to the right of the opposing belligerent to punish the act as against him.

1 Kent, Comm. on Amer. Law, vol. i. pp. 94-96.

Privateers not used

in recent

wars

The doctrine is sustained in the dissenting opinion of Mr. Justice Story in the Nereide,' but it was neither involved in the case nor decided by the Court. The continental publicists generally do not admit the distinction attempted to be drawn by Kent. Hautefeuille is clearly wrong when he says: 'It is admitted by all nations that, in maritime wars, every individual who commits acts of hostility, without having received a regular commission from his sovereign, however regularly he may make war, is regarded and treated as guilty of piracy.' By the British naval regulations of 1787, 1826, and 1861, if any ship or vessel shall be taken, acting as a ship of war or privateer, without having a commission duly authorising her to do so, her crew shall be considered as pirates, and treated accordingly; but this is municipal, not international, law. A capture made by such vessel from an enemy is regarded as good prize, and condemned as a droit of Admiralty. All agree that defensive hostilities on the high seas, as well as on land, without a commission or public authority, are not criminal acts, but acts fully authorised by the laws of war.2

§ 26. Since about the beginning of the fifteenth century, a public license or commission has been considered necessary in order to authorise private vessels to cruise against the

1 The same where vessels, commissioned against one power, seize the property of another with whom war has subsequently broken out; and the same if the capture be made by a tender to a man-of-war, if it be without an authority or a commission, although it be manned by some of the man-of-war's crew (the 'Charlotte,' 5 Rob. Adm. R., 280). But contrà as to a ship's boats and authorised tenders (the 'Carl,' 2 Sp. Adm. R., 261). Non-commissioned persons have no right to any part of the capture they may have made, but the English prize courts often award a recompense, even the whole value of the prize, to the captors. Although in the United States there are in strictness no droits of Admiralty, a prize taken under the above circumstances is condemned to the Government, and if the capture has been made in self-defence, the captor on sending the prize into port for adjudication has a claim for salvage. Query whether in England by the Common Law the whole seizure should not go to the captors? See Murrough v. Comyns, 1 Wils., 213; Horne v. Lord Camden, 1 H. Bl., 476, and 2 ibid. 533.

2 Vattel, Droit des Gens, liv. iii. ch. xv. § 226; Martens, Essai sur les Armateurs, ch. i. §§ 5–7; Heffter, Droit International, § 124; Hautefeuille, Des Nations Neutres, tit. iii. ch. ii.; Massé, Droit Commercial, liv. ii. tit. i. ch. ii.; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 9; Robinson, Collectanea, p. 21; Sparks, Dip. Correspondence, vol. i. p. 443; Journals of Congress, vol. vii. p. 187; the Georgiana,' 1 Dod. Rep., p. 397; the Dos Hermanos,' 19 Wheaton Rep., p. 306; the 'Nereide,' 9 Cranch. Rep., p. 449; the Amiable Isabella,' 6 Wheaton Rep., p. i; Brown v. the U.S., 8 Cranch. Rep., p. 132.