cally called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, when war breaks out with another; the captures made from that other are condemned, not to the captors, but to the government.1

The practice of cruising with private armed vessels § 10. Pricommissioned by the State, has been hitherto sanctioned vateers. by the laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. This practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlightened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin, between the United States and Prussia, in 1785, by which it was stipulated that, in case of war, neither power should commission privateers to depredate upon the commerce of the other, furnishes an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty, in 1799; and it is much to be feared that, so long as maritime captures of private property are tolerated, this particular mode of injuring the enemy's commerce will continue to be practised, especially where it affords the means of countervailing the superiority of the public marine of an enemy.2 (a)

1 Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. Robinson's Adm. Rep. vol. iv. p. 72. The Abigail. Dodson's Adm. Rep. p. 397. The Georgiana. Sparks's Diplomatic Correspondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7.

2 Vattel, liv. iii. ch. 15, § 229. burgh Review, vol. viii. pp. 13–15.

Franklin's Works, vol. ii. pp. 447, 530. EdinNorth American Review, vol. ii. (N. S.) pp. 166-196. Wheaton's Hist. Law of Nations, p. 308.

(a) [A proposition made by the Legislative Assembly, in 1792, to abolish the taking of private property and of privateering, by mutual arrangement among nations, met with no success, and at no time was privateering carried on more extensively than during the wars of the French Revolution. "Le décret pro

clamait l'abolition, 10. de la prise des propriétés privées; 2o. de la course maritime, et invitation au pouvoir exécutif de négocier avec les puissances étrangères des traités sur ces bases nouvelles. Le succès ne répondit pas à cette entreprise.

§ 11. Ti

tle to pro

The title to property lawfully taken in war may,

perty cap- upon general principles, be considered as immediately divested from the original owner, and transferred to the

tured in

war.

La seule ville de Hambourg, très commerçante, il est vrai, mais entièrement dépourvue de marine militaire, adhéra à ce système philanthropique et philosophique." Hautefeuille, Droits des Nations Neutres, tom. i. p. 342.

France having, in her last war against Spain, declared that she would grant no commissions to privateers, and that neither the commerce of Spain herself, nor of neutral nations, should be molested by the naval force of France, except in the breach of a lawful blockade, President Monroe stated in his Annual Message, of 1823, to Congress, that instructions had been given to our ministers with France, Russia, and Great Britain, to propose to their respective governments the abolition, in all future hostilities, of private war on the sea. Annual Register, 1823, p. 185.*

This subject was fully brought to the notice of the British government during the negotiations, at London, in 1823-4, between the American minister, Mr. Rush, and the British plenipotentiaries, Messrs. Huskisson and Stratford Canning. Mr. Adams, Secretary of State, in his instructions of July 28, 1823, said:

"We press no disavowal on her, (England,) but we think the present time eminently auspicious for urging upon her, and upon others, an object which has long been dear to the hearts and ardent in the aspirations of the benevolent and the wise; an object essentially congenial to the true spirit of Christianity, and, therefore, peculiarly fitting for the support of nations intent, in the same spirit, upon the final and total suppression of the slave trade; and of sovereigns who have given public pledges to the world of their determination to administer imperial dominion upon the genuine precepts of Christianity.

"The object to which I allude is the abolition of private war upon the sea. "It has been remarked that, by the usages of modern war, the private property of an enemy is protected from seizure or confiscation, as such; and private war itself has been almost universally exploded upon the land. By an exception, the reason of which it is not easy to perceive, the private property of an enemy upon the sea has not so fully received the benefit of the same principle. Private war, banished by the tacit and general consent of Christian nations from their territories, has taken its last refuge upon the ocean, and there continues to disgrace and afflict them by a system of licensed robbery, bearing all the most atrocious characters of piracy. To a government intent, from motives of general benevolence and humanity, upon the final and total suppression of the slave trade, it cannot be unreasonable to claim her aid and coöperation to the abolition of private war upon the sea. From the time that the United States took their place among the nations of the earth, this has been one of their favorite objects. It is time,' said Dr. Franklin, (in a letter of 14th March, 1785,) 'it is high time, for the sake of humanity, that a stop were put to this enormity. The United States of America, though better situated than any European nation to

captor. This general principle is modified by the positive law of nations, in its application both to personal and real property.

make profit by privateering, are, as far as in them lies, endeavoring to abolish the practice by offering, in all their treaties with other powers, an article, engaging solemnly that, in case of future war, no privateer shall be commissioned on either side, and that unarmed merchant ships, on both sides, shall pursue their voyages unmolested. This will be a happy improvement of the law of nations. The humane and the just cannot but wish general success to the proposition.'

"It is well known that, in the same year in which this letter was written, a treaty between the United States and the King of Prussia was concluded, by the 23d article of which this principle was solemnly sanctioned, in the form of a national compact."

In rendering an account of this negotiation, at its close, Mr. Rush writes to the Secretary of State, August 12, 1824 :

"I next said to the British plenipotentiaries, that the question of abolishing privateering and the capture of private property at sea, whether by national ships or by privateers, was one that I considered as standing apart from those on which their decision had been given to me. Upon this question, therefore, I desired them to understand that I was ready to treat, as of one occupying ground wholly its own.

"They replied, that they were not prepared to adopt this course. All other questions of a maritime nature having been shut out from the negotiation, there would be, they said, manifest inconvenience in going into that of abolishing private war upon the ocean. They considered it a question belonging to the same class with maritime questions, and one which, besides being totally new, as between the two governments, contemplated a most extensive change in the principles and practice of maritime war, as hitherto sanctioned by all nations. Such was their answer.

"This answer was given in the terms that I state, and so entered upon the protocol. But it is proper for me to remark, that no sentiment dropped from the British plenipotentiaries authorizing the belief, that they would have concurred in the object, if we had proceeded to the consideration of it. My own opinion, unequivocally, is, that Great Britain is not prepared to accede, under any circumstances, to the proposition for abolishing private war upon the ocean." Cong. Doc. Senate, 18th Cong. 2d Session, Confidential, pp. 50, 100.

Looking at the relative condition of the two countries, in the event of a war— the immense navy of the one, while the other must ever necessarily depend, at sea, on the conversion of its mercantile marine into private vessels of war, as it does on land, on the enrollment of volunteers to meet any exigency which may arise it is, at this day, a source of equal astonishment that the United States ever made the proposition for the abolition of privateering, and that Great Britain declined it when made.

The treaties of the United States of 1778 with France, of 1794 with England, of 1782 with the Netherlands, of 1836 with Peru-Bolivia, of 1785 and 1799

As to personal property, or movables, the title is, in general, con sidered as lost to the former proprietor, as soon as the enemy has

with Prussia, of 1795 with Spain, of 1783 and 1816 with Sweden, all provided, that if any citizen or subject of either of the contracting parties took a commission, or letters of marque, for privateering against the other, from any power with whom the other was at war, he should be treated as a pirate; and in the treaties of 1827 and 1828, renewing those with Sweden and Prussia, which had expired, this provision was retained. U. S. Statutes at Large, vol. viii. pp. 24, 127, 44, 493, 94, 172, 144, 74, 240, 354, 384. The above-mentioned treaties with England and France have expired, without this provision being renewed in any subsequent treaty; and, therefore, any prohibition on this subject, which may exist in those countries, beyond the obligation of neutrality, required by the law of nations, must depend on the internal laws of the respective States.

During the war between the United States and Mexico, Mexico made great efforts to induce the subjects of the neutral States of Europe to take commissions for privateers. England and France prohibited their subjects from accepting the offers made to them; and almost all the ordinances of neutral States, during war, forbid their subjects from accepting letters of marque from the belligerents, but they are, in general, without any adequate sanction for their enforcement. Hautefeuille, Droits des Nations Neutres, tome iv. p. 252. The President of the United States announced, in his message of December, 1846, that he had, immediately after Congress recognized the existence of war with Mexico, called the attention, and, as he conceived, with effect, of the Spanish government, to the provision of the 14th article of our treaty with that power, of the 20th of October, 1795, which is among those above enumerated.

The President, at the same time, recommended to Congress to provide, by law, for the trial and punishment, as pirates, of Spanish subjects, who should be found guilty of privateering against the United States. Annual Register, 1846, p. 340.

In the present war, between Russia, on the one side, and Turkey, England, and France, on the other, the other powers of Europe have 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, commences by stating that the use of letters of marque, or any participation in the armament of a vessel, no matter under what flag, is strictly forbidden to the subjects of his Imperial Majesty. He who shall infringe this order, will not only be deprived of the protection of the Austrian government, but will be liable to be punished by another State, and will also be proceeded against in the criminal courts of Austria. The entry of foreign privateers into Austrian ports is forbidden. Paris Moniteur, June 9, 1854.

The Queen of Spain issued an order, May, 1854, prohibiting proprietors, masters, or captains of Spanish merchant ships, from taking letters of marque from any foreign power, or giving them aid, unless in the cause of humanity, in the case of a fire or shipwreck. Even the Hawaiian government have issued a proclamation, prohibiting their subjects from engaging, (either directly or indirectly,)

acquired a firm possession; which, as a general rule, is considered as taking place after the lapse of twenty-four hours, or after the

in privateering against the shipping or commerce of any of the belligerents, under the penalty of being treated and punished as pirates.

The King of Denmark, and the King of Sweden and Norway, have given notice to all friendly powers, that, during the existing contest, privateers will not be admitted into their ports, nor tolerated in the anchorage of their respective States. The Chargé d'Affaires of Denmark to the Secretary of State of the United States, January 20, 1854. The Chargé d'Affaires of Sweden to the same, January 28, 1854.

A great change would seem to have taken place in the public sentiment of Europe, especially of the British government, since 1824, on the subject of privateering. In communicating to the government of the United States the course which England and France purposed pursuing towards neutrals in the pending war, after stating, under the date of April 21, 1854, that their Majesties had, for the present, resolved not to authorize the issue of letters of marque, Mr. Crampton says: "Her Britannic Majesty's government entertains the confident hope, that the United States government will receive with satisfaction the announcement of the resolutions thus taken, in common by the two allied governments; and that it will, in the spirit of just reciprocity, give orders that no privateer under Russian colors shall be equipped, or victualled, or admitted with its prizes, in the ports of the United States; and also that the citizens of the United States shall rigorously abstain from taking part in armaments of this nature, or in any measure opposed to the duties of a strict neutrality."

The Count de Sartiges addressed the Secretary of State, on 28th of April, 1854, to the same effect, on the part of the French government.

Mr. Marcy, in returning an answer to the English and French ministers, and which was expressed in the same terms to each of them, on the day of the date of the last note, remarks, that 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.”

At an interview, in March, between Lord Clarendon and Mr. Buchanan, at which the former read the "declaration" in reference to neutrals, which had not yet been issued, he did not propose the conclusion of a treaty for the suppression of privateering, but he expressed a strong opinion against the practice, as inconsistent with modern civilization. He spoke in highly complimentary terms of the treaties of the United States with different nations, which stipulate that if one of the parties be neutral and the other belligerent, the subjects of the neutral accepting commissions, as privateers, to cruise against the other, from the opposing belligerent, shall be punished as pirates. Mr. Buchanan, in answer, stated that it did not seem to him possible, under existing circumstances, for the United States to agree to the suppression of privateering, unless the naval powers of the world would go one step further, and consent that war against