The Laws Of War, Affecting Commerce And Shipping Part 5

Unless in special cases, private property on land is not touched, without making compensation; though contributions are sometimes levied in lieu of a necessary confiscation, or for the expenses of maintaining and affording protection. In other respects private rights are unaffected by war.

[Sidenote: Government Property.]

The property, however, belonging to the Government of the vanquished nation, pa.s.ses to the victorious state, which also takes the place of the former Sovereign, in respect to the eminent domain.[82]

[Sidenote: Limitations of the Right of making War.]

The right of making War, as we have shown in the first chapter of this book, solely belongs to the Sovran power. Subjects cannot, therefore, of themselves, take any step in the affair; nor are they allowed to commit any act of hostility without orders from their Sovran.

The Sovran's order which commands acts of hostility, is either general or particular. The declaration of war, which enjoins the subjects to attack the enemy's subjects, implies a general order. Generals, officers, soldiers, privateersmen, and partisans, being all.

commissioned by the Sovran, make war by virtue of a particular order.

In declarations of war, the ancient form is still retained,[83] by which subjects in general are ordered, not only to break off all intercourse with, but also to _attack_ the foe. Custom interprets this general order. It authorises, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subject to undertake any offensive expedition without a commission or particular order.[84]

SECTION II.

_Prizes and Privateers_.

[Sidenote: Privateer Commissions.]

During the lawless confusion of the feudal ages, the right of making Reprisals was claimed and exercised, with out a Public Commission. It was not until the fifteenth century that Commissions were held necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without licence. There were ordinances in Germany, France, Spain, and England, to that effect.[85]

[Sidenote: Non-Commissioned Captors.]

Hostilities, without a Commission, are contrary to usage, and exceedingly irregular and dangerous, but they are not considered as acts of Piracy during the time of war. Noncommissioned vessels of a belligerent nation may at all times capture hostile s.h.i.+ps, without being deemed, by the Law of Nations, Pirates. But they have no interest in the prizes they take, and the property so seized is condemned to the Government as _Droits of the Admiralty_. The reward of this cla.s.s of captors is left to the liberality of the Admiralty, and is often referred to the Admiralty Court.

[Sidenote: Right of Capture.]

The fruits of any forcible detention or occupancy, prior to hostilities, are vested in the crown; similarly, _British_ property taken in course of trade forbidden by the laws of his country, is condemned to the Crown, and not to the individual captor.[86]

To prevent the custom house or excise vessels, that may be commissioned with letters of marque, turning their attention from the smugglers to the more attractive adventure of privateering, all interest in their prizes is reserved to the crown,[87]

[Sidenote: Grants to the Admiralty.]

Though all rights of prize belong originally to the Crown, yet it has been thought expedient to grant a portion of those rights to maintain the dignity of the Lord High Admiral. This grant, (whatever it conveys,) carries with it a total and perpetual alienation of the rights of the crown, and nothing short of an Act of Parliament can restore them; whereas the grant to private captors is nothing more than the mere temporary transfer of a beneficial interest. The rights of the Admiral, as distinguished from those of the Crown, are these; that when vessels come in, not under any motive arising out of the occasions of war, but from distress of weather, or want of provisions, or from ignorance of war, and are seized in port, they belong to the Lord High Admiral; but where the hand of violence has been exercised upon them, where the impression arises from acts connected with war, from revolt of their own crews, or from being forced or driven in by the Queen's s.h.i.+ps, they belong to the Crown.

This includes s.h.i.+ps and goods already come into the ports, creeks, or roadsteads, of all the Queen's dominions.[88]

[Sidenote: Acquisition of Captures.]

Persons fitting out Private Vessels under a Commission to cruise against the enemy, acquire the property of whatever Captures they may make, as a compensation for their disburs.e.m.e.nts, and for the risks they run; but they acquire it by grant from the Sovran who issues out the commission to them. The Sovran allows them either the whole, or a part of the capture; this entirely depends on the nature of the contract he has made with them.[89]

This grant of prize is, in terms, a grant of the property of the Queen's enemies, but it is not restricted to the property of the nations with whom we are at war. It is held in construction and practice to embrace all property liable to be condemned as prize, and which is not particularly reserved to the Crown, or the Admiralty.[90]

It depends, also, on the munic.i.p.al regulations of each particular power: and as a necessary precaution against abuse, the owners of Privateers are required by the ordinances of commercial states to give adequate security that they will conduct the cruize according to the laws and usages of war, and the instructions of the Government; and that they will respect the rights of neutrals, and bring their prizes in for adjudication.

[Sidenote: Commissions of Privateers.]

The Commissions of Privateers do not extend to the capture of private property upon land; that is a right which is not even granted to Queen's s.h.i.+ps. The words of the 3rd Section of the Prize Act extend only to capture by any of Her Majesty's s.h.i.+ps,

"of any fortress upon the land, or any arms, ammunition, stores of war, goods, merchandize, and treasure, belonging to the state, or to any public trading company, of the enemies of the crown of Great Britain, upon the land."

Thus the interests of the Queen's cruizers are expressly limited with respect to the property in which the captors can acquire any interest of their own, the state still reserving to itself all private property, in order that no temptation may be held out for unauthorized expeditions against the subjects of the enemy on land. With regard to private vessels of war, the Lords of the Admiralty are empowered by the 9th Section, to issue Letters of Marque, to the _Commanders_ of any such s.h.i.+ps or vessels,

"for the attacking and taking any place or fortress upon the land, or any s.h.i.+p or vessel, arms, ammunition, stores of war, goods, or merchandize, belonging or possessed by any of Her Majesty's enemies in any sea, creek, river, or haven."

It was the purpose of the persons who brought in this bill, that Privateers should not be allowed to make depredations upon the coasts of the enemy for the purpose of plundering individuals, and for that reason they were restricted to fortified places and fortresses, and to property water-borne.[91]

As Privateers sometimes sail in company with Queen's vessels, and also in small squadrons, for the purpose of mutual a.s.sistance, the rights of the privateers vary. When a Privateer is sailing under the convoy of a Queen's s.h.i.+p, she takes no share in any prize taken by the s.h.i.+p, or even by herself, unless she has received orders from the convoying royal s.h.i.+p to give chase, or has acted hostilely against the enemy, actually aiding and a.s.sisting in the capture.[92]

When Privateers have sailed in company, it has often happened that not every vessel has been actually engaged in the capture of the prize, though they may have been rendering valuable a.s.sistance in a variety of forms, such as watching in the offing, guarding an open outlet of escape to the intended prize. In the disputes arising from these joint captures, Sir William Scott was the first to establish a settled intelligible system, on principles that might become in future easily applicable to the various cases that might arise.

[Sidenote: Constructive Captors.]

He says

"the Act of Parliament (meaning the Prize Act), and the proclamation, give the benefit of prize to the takers, by which term, are naturally to be understood those who _actually take possession_, or those affording an actual contribution of endeavour to that event; either of these persons are naturally included under the name of takers, but the Courts of Law have gone further, and have extended the term 'takers' to those who, not having contributed actual service, are supposed to have rendered a constructive a.s.sistance, either by conveying encouragement to the captor, or intimidation to the enemy. * * * It has been contended that where s.h.i.+ps are a.s.sociated in a _common enterprize_, that circ.u.mstance is sufficient to ent.i.tle them to share equally and alike in the prizes that are made; but many cases might be stated when s.h.i.+ps so a.s.sociated would _not_ share. I must ever hold that the principle of mere common enterprise is not sufficient--it is not sufficiently specific--it must be more limited. What is the real and true criterion? She being in sight, or seeing the enemy's fleet accidentally, a day or two before, will not be sufficient; it must be at the commencement of the engagement, either in the act of chasing, or in preparations for chase, or afterwards during its continuance. If a s.h.i.+p was detached in sight of the enemy, and under preparation for chase, I should have no hesitation in saying that she ought to share; but if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise; there must be _some actual contribution of endeavour as well as a general intention_."[93]

[Sidenote: Efforts to suppress Privateering.]

Powerful efforts have been made by humane and enlightened individuals to suppress Privateering, as inconsistent with the liberal spirit of the age. In the language of Chancellor Kent,

"the object is not honour, or chivalric fame, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce."

They are sometimes manned and officered by foreigners, having no permanent connection with the country, or interest in the cause. This was a complaint made by the United States in 1819, in relation to irregularities and atrocities committed by private armed vessels, sailing under the flag of Buenos Ayres. Under the best regulations the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity.

Its abolition has generally been attempted by treaty. In the treaty of Prussia and the United States, in 1785, stipulations against private armed vessels were included. In 1675, a similar agreement was made between Sweden and Holland, but the agreement was not performed.

France, soon after the breaking out of the war with Austria, in 1792, pa.s.sed a decree for the total suppression of privateering, but that was a transitory act, and was soon swept away in the tempest of the Revolution.

[Sidenote: Piratical Privateering.]

On these considerations naturally follows that of the cla.s.ses of Privateers that can be considered Pirates.

A Privateer differs from a Pirate, in that--first, the former is provided with a Commission, or with Letters of Marque from a Sovran, of which the Pirate is dest.i.tute. Secondly, the Privateer supposes a state of war (or at least that of reprisals); the Pirate plunders in the midst of peace, as well as in war. Thirdly, the Privateer is obliged to observe the rules and instructions that have been given him, and to attack by virtue of them only the enemy's s.h.i.+ps, or those neutral vessels which carry on an illicit commerce; the Pirate plunders indiscriminately the s.h.i.+ps of all nations, without observing even the laws of war. But in this last point Privateers may become Pirates when they transgress the limits prescribed to them; and this is one of the reasons why we often see the former confounded with the latter.[94]

Under these general definitions, we see that it is quite open to any citizen of the world to become a privateer under a foreign Sovran; and Martens goes on to say, that

"there is nothing that prevents the granting of Letters of Marque, even to the subjects of neutral or allied powers who are able to solicit them; but since it is contrary to neutrality to suffer subjects to contribute by this means to the reinforcement of one of the belligerent powers, and to the annoyance of the other, states generally prohibit their subjects from taking Letters of Marque from a power, without the permission of their Sovereigns, and many treaties oblige them also to prohibit their subjects from doing it, as well as to forbid every species of armaments on the enemy's account, in their ports. However, the enemy is not justified in _punis.h.i.+ng them as pirates_, when they have letters patent from one of the powers with whom it is at war, although their s.h.i.+p may be confiscated."[95]

The laws of the United States have made ample provision on this subject, and they may be considered as an expression of the general wish of civilized nations; and they prescribed specific punishment for acts which were before unlawful.

American citizens are prohibited from being concerned, beyond the limits of the United States, in fitting out or otherwise a.s.sisting any private vessel of war, to cruize against the subjects of friendly powers.[96]

In the various treaties between the powers of Europe, in the two last centuries, and in the several treaties between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared, that no subject or citizen of either nation shall accept a commission or letter of marque, to a.s.sist an enemy in hostilities against the other, under penalty of being treated as an enemy.[97]