enemy. These commissions are otherwise known as pignoratio, clarigatio, and androlepsia. A privateer is sometimes called a caper, the only difference being that the latter is a smaller vessel. Its name is probably derived from its practice of hovering about capes. A privateer is generally deemed to be a private ship of war, but only of a temporary character; many, indeed, esteem it but one remove from a pirate. A privateer is less honourable than a merchant ship with letters of reprisal. In order to encourage privateering, it is usual to allow the owners of such vessels to appropriate to themselves a portion, at least, of the property they may capture; and, as a necessary precaution against abuse, such owners are required to give adequate security that they will conduct the cruise according to the laws and usages of war, and bring their prizes in for adjudication. But this depends upon the municipal regulations of each particular State, and the instructions of the particular Government which issues the commission or license. All commercial States have deemed checks of this

1 In the Act passed by the British Parliament during the American revolution, to authorise privateers against the Colonists, the words letters of permission were employed, not letters of marque, as the latter term applies to a foreign enemy only (Annual Regis., 1777, p. 53). With reference to the origin of letters of reprisal, it appears that if a foreign prince or State seized or spoiled the goods of subjects in England, the king made reprisals upon the goods of the other's subjects within the realm, or enabled the party to whom the wrong was done, by letters of marque and reprisal, the goods of other subjects of the same State mercare retinere et appropriare quousque restitutio facta sit. (See 2 Rol., 114, 175, l. 20, per Coke, I Rol., 175; 4 Com. Dig., 428.) But a subject of the king cannot take the goods of the subjects of a prince in amity with the king by force of letters of another sovereign or State (2 Ver., 592; 4 Com. Dig., 428). As to the grant of letters of marque, see introduction to Godolphin's Adm. Jur.

55 Geo. III., c. 160, which was enacted to expire with the last French war, contained provisions with reference to letters of marque. Security was always taken on the grant of letters of marque for the due observance of the conditions thereof, and this security became forfeited on their transgression (R. v. Ferguson, Edw., 84). Letters of marque may be vacated by the Court of Chancery (R. v. Carew, 3 Swan., 669; 1 Vern., 54). Cruelty, such as firing into a prize and killing a man after she has struck, has been held to forfeit letters of marque under the provisions of the above statute (the 'Marianne,' 5 Rob. Adm. R., 9), but this seems no more than a formal declaration of the ancient law of the Admiralty. Instructions for the commanders of vessels, having letters of marque and reprisal against the Ligurian and Roman Republics, were issued by the British Government, September 29, 1798, and enacted (inter alia) that these privateers should succour any British ship in distress, set on or taken by the enemy; should keep up a correspondence with the Admiralty; should not wear any jack, pennant, or other ensign usually borne by ships of war, but that they should, besides the colours usually borne by VOL. II.

I

kind essential to their own character and safety, as well as for the protection of the rights of neutrals. But even with these merchant ships, wear a red jack with the union jack described in the canton at the upper corner thereof; should not ransom or set at liberty any captured ship, or cargo, or any prisoners; and should find bail for good behaviour in the sum of 3,000l., or, if the vessel carried less than 150 men, 1,500l. A proclamation, given at St. James's, January 1, 1801, after ordering that no ships or vessels should wear any flags, jacks, pendants, or colours in imitation of those of the Government, and that those ships having letters of marque and reprisal should wear the merchant colours, with the red jack as above mentioned, but that no one else should presume to wear those distinctions, enjoins the Admiralty to punish all offenders against this proclamation. In pursuance of the 1st Article of Union between England and Scotland there was a similar proclamation. The United States Government, in 1812, issued the following instructions to commanders of American privateers: The high seas referred to in your commission you will understand generally to refer to low-water mark; but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and the United States. You may nevertheless execute your commission within that distance of the shore of a nation at war with Great Britain, and even on the waters within the jurisdiction of such nation, if permitted so to do. You are to pay the strictest regard to the rights of neutral Powers and the usages of civilised nations; and in all your proceedings towards neutral vessels you are to give them as little molestation or interruption as will consist with the right of ascertaining their neutral character, and of detaining and bringing them in for regular adjudication in the proper cases. You are particularly to avoid even the appearance of using force or seduction, with a view to deprive such vessels of their crew or of their passengers, other than persons in the military service of the enemy. Towards enemy's vessels and their crews you are to proceed, in exercising the rights of war, with all the justice and humanity which characterise the nation of which you are members. The master and one or more of the principal persons belonging to the captured vessels are to be sent, as soon after the capture as may be, to the judge, or judges, of the proper court in the United States, to be examined upon oath touching the interest or property of the captured vessel and her lading; and at the same time are to be delivered to the judge, or judges, all passes, charter parties, bills of lading, invoices, letters, and other documents and writings found on board; the said papers to be proved by affidavit of the commander of the capturing vessel, or some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement.'

See, on instructions to privateers of the United States, the Mary and Susan,' I Wheat., 46.

In 1814, during the war between the United States and Great Britain, the Legislature of New York passed an Act, to constitute every association of five or more persons embarking in the trade of privateering a body politic and corporate, with corporate powers, on their complying with certain formalities.

Return of letters of marque and reprisal issued by the Admiralty of Great Britain in the following years :-Against the French Republic, from May 1803 to May 1804, 680 vessels, 27,960 men; ditto, Batavian Republic, from June 1803 to June 1804, 670 vessels, 28,758 men; ditto, Spain, from January 1805 to January 1806, 540 vessels, 25,718 men. Those taken out against France and Batavia were nearly for the same

precautions, privateering is usually accompanied by abuses and enormous excesses. The general opinion of text-writers is, that privateering, though contrary to national policy and the more enlightened spirit of the present age, is, nevertheless, allowable under the general rules of international law. It leads to the worst excesses and crimes, and has a most corrupting influence upon all who engage in it, but cannot be punished as a breach of the law of nations. The enlightened opinion of the world is most decidedly in favour of abolishing it, and recent events lead to the hope that all the commercial nations of both hemispheres will unite in no longer resorting, ships; of those against Spain, about a fourth are contained in the other

two.

The following proclamations were issued by the British Government, on the seizure of some English vessels and goods by the French, without declaration of war by that nation. Proclamation issued February 4, 1793 :- Whereas his Majesty has received intelligence that some ships belonging to his Majesty's subjects have been and are detained in the French ports it is hereby ordered that no ships or vessels belonging to any of his Majesty's subjects be permitted to enter and clear out for any of the ports of France. . . . and that a general embargo or stop be made of all French ships or vessels whatsoever now within or which hereafter shall come into any of the ports, harbours, or roads within the kingdom of Great Britain, together with all persons and effects on board the said ships and vessels, but that the utmost care be taken for the preservation of all and every part of the cargoes on board any of the said ships, so that no damage or embezzlement whatever be sustained. And the Right Honourable the Commissioners of his Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports are to give the necessary directions herein as to them may respectively appertain.'

Proclamation issued February 11, 1793 :-'Whereas divers injurious proceedings. . . . and several unjust seizures have been there made of the ships and goods of his Majesty's subjects, contrary to the law of nations and to the faith of treaties, and whereas the said acts of unprovoked hostility have been followed by an open declaration of war against his Majesty and his ally the Republick of the United Provinces. his Majesty is pleased to order that general reprisals be granted against the ships, goods, and subjects of France, so that as well his Majesty's fleet and ships, as also all other ships and vessels that shall be commissioned by letters of marque or general reprisals or otherwise by his Majesty's Commissioners for executing the office of Lord High Admiral of Great Britain shall and may lawfully seize all ships, vessels, and goods belonging to France, or to any persons being subjects of France or inhabiting within any of the territories of France, and bring the same to judgment in any of the Courts of Admiralty within his Majesty's dominions; and to that end his Majesty's Advocate-General, with the Advocate of the Admiralty, are forthwith to prepare the draught of a commission . . . . to issue forth and grant letters of marque and reprisal to any of his Majesty's subjects or others, whom the said Commissioners shall deem fitly qualified in that behalf, and . . . . also another draught of instructions for such ships as shall be commissionated for the purposes aforementioned.'

in time of war, to so barbarous a practice. Nevertheless, it being generally supposed that privateers furnish to the smaller maritime powers a powerful instrument of war against the military marine of an enemy, it is not easy to obtain their consent to its entire abolition. The efforts, however, which Wheaton says 'have been made by humane and enlightened individuals to suppress privateering, as inconsistent with the liberal spirit of the age,' have already produced their effects upon the conduct of belligerent nations, although they have not yet been able to change the law which tolerates it. During the war between the United States and Mexico, no letters of marque, it is believed, were issued by either party; Mexico offered commissions for privateers, but neutral States forbade their subjects to accept them. In the war of 1854 between Russia and Turkey,

1 Emerigon, Traité des Assur., ch. xii. sec. 35; Edinburgh Review, vol. viii. pp. 13-15; N. American Review, N.S., vol. ii. p. 166; Ortolan, Diplom. de la Mer, tome ii. lib. iii. ch. i. ; Pistoye et Duverdy, Traité des Prises, tit. iv. ch. ii. sec. 1; Franklin's Works, vol. ii. pp. 13, 15, 447 et seq.; Hautefeuille, Droit Maritime, liv. i. tit. ii. § 29; Valin, Com. sur Ord., liv. iii. tit. ix.; Encyc. Americana, verb. 'Privateering.'

Lord Nelson, writing to the Minister Plenipotentiary at the Court of Sardinia in 1804, says: "With respect to the history about the French privateers from Ancona, and the conduct of the English privateers at Fiumesino, I believe you are correct, but our enemies never adhere to it. They go in and out of the Spanish and Sicilian ports at all times night and day-in short, to examine all vessels passing. But all privateers are very incorrect, and I sincerely wish there were no such vessels allowed. They are only one degree removed from pirates; but I believe an English armed vessel never yet trusted its cause to any court but an English court of Admiralty. However, I have no power over them. But certainly if the custom of the government of Fiumesino has invariably been not to allow any corsair to sail out of the port until the 24 hours after the sailing of a neutral, then our privateer ought to have been forced to conform. But I dare say the French go in and out of Ancona as they please, and if so, the Court of Rome has no great cause of complaint. I can only again repeat that over privateers I have no control.'

Sir John Barrow, writing in 1838, says: There is, however, another and more serious drain of seamen, in time of war, by which they are protected from the impress, and abstracted from the naval service; this is the privateer system, which is carried on to an enormous extent. The great number of letters of marque and reprisal, granted to ships armed and manned, more for the sake of getting to an early market and avoiding convoy than fighting the enemy, occasion a heavy drawback from the entry of men in ships of war.' (Barrow, Life of Lord Anson, p. 466.)

In the case of the 'Jonge Vrow Wilhelmina' (not reported) Sir W. Scott, on March 7, 1801, finding that an English privateer had entrapped an innocent neutral master of a vessel, into confessing that he was engaged in a contraband trade, said he feared such practices were too prevalent, and that it was a species of conduct disgraceful to the British flag.

France, England, and Sardinia, the allied powers resolved to issue no letters of marque, and the other States of Europe strictly prohibited their subjects from any participation, by accepting letters of marque, or otherwise, in aiding the belligerents. An Austrian decree of May 25, 1854, prohibits the subjects of his Imperial Majesty from using letters of marque, or any participation in the armament of a vessel, no matter under what flag, and if they infringe that order they will not only be deprived of the protection of the Austrian Government, and liable to be punished by another State, but will also be proceeded against in the criminal courts of Austria. The entry of foreign privateers into Austrian ports is forbidden. An almost simultaneous order, issued by the Queen of Spain, prohibited proprietors, masters, or captains of Spanish vessels from taking letters of marque from any foreign power, or giving them aid, unless in the cause of humanity, in the case of fire or shipwreck. Denmark and Sweden and Norway gave notice to all friendly powers that, during the existing contest, privateers would not be admitted into their ports, nor tolerated in the anchorage of their respective States. Other Governments issued similar orders with respect to their own subjects engaging (either directly or indirectly) in privateering against the shipping or commerce of any of the belligerents, and the Secretary of State of the United States, in reply to the notes of the English and French ministers, communicating the resolutions of the two allied powers not to authorise privateering, said: 'The laws of this country impose severe restrictions, not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking part in any foreign war.'1

§ 27. On April 16, 1856, at the Conference of Paris, the Declaration of the plenipotentiaries of Great Britain, France, Austria, Russia, ConferPrussia, Sardinia, and Turkey adopted a 'declaration con- ence of cerning maritime law,' containing the following principles, 1856 which were made indivisible: I. Privateering is and remains abolished. 2. The neutral flag covers enemy's goods, with

1 Wheaton, Elem. Int. Law, pt. ii. ch. ii. § 10, note; Cong. Doc., 33 Cong., 1 Sess., H. Rep., Ex. Doc., No. 103; Martens, Précis du Droit des Gens,

289.

Paris,