Privateering — its history, law, and Usage.
The New York Evening Post gives the following history of privateering, a mode of warfare and retaliation which has so suddenly become apparent to the people of the North:Notwithstanding the justice of the opinion that ‘"the statesman who shall induce the nation to concur in one common judgment, to denounce and punish, as contrary to the law of nations, the rights of warfare on private property on the high seas, will be the greatest benefactor of mankind,"’ yet the right of a Government to issue letters of marque to private vessels, to enable them to capture those of an enemy, is as well established by the code of international law as any other vested in the State for its protection and defence.
The practice of depredating upon private property upon the sea is certainly of no very recent origin, and during the middle ages, when every petty Barron possessed the privilege of making predatory excursions by land, and the infidel powers covered the Mediterranean with their vessels, it is certain that these depredations were committed with but slight regard to right or justice. Maritime warfare at this period was conducted with such cruelty and barbarity as to render it little short of piracy. Indeed, the mariners of that day were characterized in the Consolato del Mare as a set of robbers, who were frequently united in a sort of copartnership to prey upon each other.
The first attempt to reduce the practice of warfare on the sea to those principles which could be recognized as equitable between different nations, is to be found in the Consolate del Mare, the first edition of which was published at Catalan in 1494. Giannoni, in his history of Naples, carries back the period of the compilation of this work to the years between 1,250 and 1,266; but Pardessus, with more certainty, fixes it at the concluding portion of the fourteenth century, and the locality the city of Barcelona, where the dialect in which it was written is still spoken. These are not, according to this writer, to be considered a set of laws promulgated by the authority of one or several Governments, but as a record of the customs in use among the nations bordering upon the Mediterranean. The knowledge displayed by its author of the Roman law, as well as of that of France, Spain and Italy, and the justice and equity of its decisions, caused it to be speedily adopted by the nations bordering upon this great sea, as supplementary to or superseding their own legal enactments.
Although this celebrated code contains an entire chapter upon the laws relating to the disposition of captures made by armed vessels, yet no mention is made of ‘"letters of marque,"’ from which it is inferred that the practice, as confined to sovereigns, did not exist at that period. The ordinance of Charles VI. of France, issued 7th December, 1400, is said to be the first which distinctly confines this right to the sovereign. From this, and other documents it is made probable that the practice of issuing letters of marque to private subjects in time of war dates from the 15th century, and that to the French is due the distinction of first sending out, in any considerable force, these ‘"militia of the seas."’
In 1570 the Prince of Orange issued letters of mark and reprisal to cruise against the vessels of Spain. A large fleet was sent to sea under these commissions, which committed great depredations, not only to the commerce of Spain and the Netherlands, but likewise on the vessels of neutral nations, not unfrequently including those of their own flag. Philip II. of Spain, De Thon informs us, prior to the declaration of war between England and Spain in 1586, seized and confiscated the goods of English merchants, which induced the English Government, by way of reprisals, to issue letters of marque against Spain and her allies, under which her cruisers spread themselves over the ocean, seizing, without distinction, the vessels of nearly every flag that came within their reach. These depredations became so flagrant that the sovereign, owing to the importunities of the merchants of various neutral countries who had been despoiled of their property, issued a decree imposing severe regulations upon and requiring each vessel to give security for the performance of their duty, and also prohibiting them from disposing of their prizes until they had been condemned by due process in the Court of the Admiralty.
From this period all maritime countries have given encouragement to the employment of privateers in the prosecution of their wars. The merchants, who in all countries appear to have been the greatest sufferers from the ambitious views of their rulers, offered in the rich cargoes with which their vessels were freighted the strongest temptations to the armed cruisers of the contending powers, and were consequently the first to be despoiled of their rightful property, too often without obtaining that redress which their Government was in duty bound to secure to them.
In more modern times the tendency of nations has been towards the discontinuance of this mode of warfare. The United States, from the foundation of the Government, has acted persistently on the principle that private property should be exempt from capture by armed vessels, and has lost no opportunity to impress upon the nations with which it was in diplomatic intercourse the importance of prohibiting this mode of warfare by treaty stipulations. As early as 1785, in concluding a treaty with Prussia, it was stipulated that ‘"all merchant and trading vessels employed in the exchange of the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to be obtained and more general, shall be allowed to pass free and unmolested; and neither of the contracting powers, shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce."’ This stipulation was not renewed in the treaty of 1797. The treaty of the United States with the Netherlands in 1782, France in 1788, England in 1795. Peru 1799, Prussia 1795, and Spain 1795, contain provisions prohibiting the subjects of either power from taking letters of marque against the other from any power with which it is at war, under the penalty of being treated, if taken, as pirates.
But notwithstanding these stipulations, the practice of the Government has always been to employ the services of privateers in the prosecution of its wars; and many of its most brilliant achievements in arms, more especially during the war of 1812, were performed by this branch of the public service — The bold and daring feats of Le Bon Homme Richard, the Saucy Jack, and the Neufchatel, are too familiar to the readers of the history of maritime wars to need more than a simple reference.
Within a short period a change appears to have taken place in the opinions of European nations concerning the employment of privateers. The treaty concluded at Paris, 30th March, 1856, aims at the entire abolition of this system. Our own Government, under the former Administration, declined to become a party to this treaty; but it is understood that the Secretary of State has recently notified those Governments which entered into the compact that the United States are willing to become parties to the treaty.
The law of privateering.
The title to property taken in war by means recognized as lawful is by the act transferred from the former owner to the captor. As to personal property, it is generally considered as lost to its former owner as soon as the enemy has acquired a firm possession; but in the case of ships and goods captured at sea the title cannot be changed from the former owner to the captor or State until it is so decreed by a prize court of competent jurisdiction, whose decision, so far as the original parties go, is final and irrevocable.If vessels thus commissioned act within the terms of the commission, they are held to be alone responsible to the State from which they receive their authority, and even if they commit acts of violence exceeding the warrant of their commission, if no piratical intention can be proved, they are still held amenable to, and punished only by, the State from which their commission was issued; but if acts are committed which by treaty stipulations or international law are deemed piratical, the vessel loses its national character, and becomes amenable to the tribunals competent to decide upon this heinous offence.
Sir. Leoline Jenkins, in his charge at the Admiralty Sessions, at the Old Bailey, in 1668, says:
‘ "A robbery, when 'tis committed on land, does imply three things: 1st. That there be a violent assault. 2d. That a man's goods be actually taken from his person or possession. 3d. That he who is despoiled be put in fear thereby. When this is done upon the sea; one or more persons enter on board a ship with force and arms, and those in the ship have their ship carried away by violence, or their goods taken away out of their possession, and are put in affright by the assault, this is piracy, and he that does so is a pirate or a robber within the statute."
"Nor will it be any defence to a man who takes away by force another's ships or goods at sea, that he hath a commission of war from some foreign prince, unless the person he takes from be a lawful enemy to that prince. 'Tis not only piracy when a man robs without any commission at all, but 'tis piracy when a man having a commission robs those which his commission warrants him not to fight or meddle-with; such, I mean, as are de Ligeansia vel micitia , and, also, de Ligeantia vel et micitia of that prince or State that hath given him his commission."
’ The same learned Judge, in another charge, leclares that pirates.
‘"Are in the eye of the law, hostes humani reneris, enemies not of one nation, or of one sort of people only, but of all mankind.--They are outlawed, as I may say, by the laws of all nations — that is, out of the protection of all Princes and of all laws whatsoever.--Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and root them out."’
Judge Story, in the case of the United States vs. Smith, says:
‘ "There is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determined nature, and whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, a mimo furandi, is piracy."
’ He, however, carefully guard against the idea that a mere excess of power in a lawfully commissioned ship is sufficient to constitute piracy, and in this respect follows the practice of the English courts, as laid down in the charge of Sir. L. Jenkins, who says that.
‘ "If a man do take such a commission and serve under it, then 'tis no robbery to assault, subdue, and despoil his lawful enemy, nor yet to seize and carry away a friend supposed to be an enemy, provided he do bring that friend, without pillaging or hurting him, to judgment in some port of that prince whose commission he bears."
’ A vessel that takes a commission from both belligerents guilty of piracy. Where, however, a vessel sails under two or more commissions granted by allies against a common enemy, the practice, although deemed irregular, does not carry with it the taint of piracy.
A vessel of a neutral State armed as a privateer, with a commission from a belligerent, where no treaty stipulations exist, although guilty of a gross infraction of the law of nations, is not chargeable with piracy. That was the rule held by the Court in the case of Gideon Henfield, tried for illegally enlisting in a French privateer, in the Circuit Court of the United States for the District of Pennsylvania, 1793.
Many States have entered into agreements, by treaty, to prevent their subjects from entering into such adventures, under heavy penalties; and others have covenanted that, in their municipal law, this act shall be treated as piracy. In the treaties entered into between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, and some of the South American States, it is declared ‘"that no subject or citizen of either nation shall accept a commission or letter of marque to assist any enemy in hostilities against the other, under pain of being treated as a pirate."’
A law was passed in 1794 by Congress, and revised and re-enacted in 1818, which declares it to be a misdemeanor for any person within the jurisdiction of the United States to augment the force of any armed vessel belonging to one foreign power at war with another and at peace with the United States.
This example was followed in the succeeding year (1819) by Great Britain, whereby the Foreign Enlistment act, 59 Geo. III., c. 69, provides against such enlistment under the penalty of the forfeiture of the ship or vessel, and the punishment by fine and imprisonment of the persons implicated.
By the marine ordinance of France, of August, 1861, French subjects were prohibited from entering foreign private armed service without permission to the king, under penalty of being treated as pirates.
Mexico, in her recent war with the United States, made great efforts to induce the citizens of other Governments to accept letters of marque against the commerce of the United States, but without avail.
The President, in his message to Congress in 1846, after stating the efforts made by Mexico to induce citizens of other nations to accept letters of marque, says:
‘ "It will be for the courts of justice to decide whether these Mexican letters of marque shall protect those who accept them, and commit robberies upon the high seas under their authority, from the pains and penalties of piracy."
’ The practice of nations has uniformly been to consider the line of demarcation between privateering and piracy as very slight, and the courts, in accordance with this view, have been careful in determining the legitimate character of the commissions under which the privateers claim to act. If they do not emanate from a source which is clothed with authority to grant them, or fail either as regards jurisdiction of completeness, the acts of violence committed under them become piracy, and, as such, the persons, offending are amenable to courts of justice.
