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Prize courts should be strictly impartial and keep full records.

§ 197. Judges of prize courts should remember that, though appointed by the sovereign by whose officers the capture was made, their duties are those of arbiters of international issues, as to which their minds should be kept clear of the influence of national interest. Aside from this prejudice, the natural tendency of judges to extend their jurisdiction tempts prize judges to add new links to the chain of precedents by which the rights of belligerents, as distinguished from those of neutrals, are maintained. Such temptations should be rigorously repelled. It should be considered that the costs and delays, in a practice moulded by belligerents in their conflicts with neutrals, are so ruinous that it in most cases would have been better for the neutral had his goods been captured and appropriated without condemnation, than that they should be condemned and then appropriated. And it should be chiefly kept in mind that it is agreed by all civilized nations that it is the duty of a prize judge to follow, not the policy which may seem for the moment best for his country, but the

of July 17, 1862, in reference to the United States is referred to as the court U. S. Navy. of the third instance, and at the same

5. Act regulating prize procedure, time as the court of the last resort. March 3, 1863. Mr. Seward, in his letter to Lord

6. Act regulating prize procedure Lyons, of Dec. 26, 1861, agreeing to and distribution, 1864.

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the surrender of Messrs. Mason and Slidell, accepts as binding the following passage from a letter of Mr. Madison, when secretary of state, to Mr. Monroe, minister in England: "Whenever property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power."

See this strongly set forth by Holtzendorff, ut supra, 1255, citing Deane on Neutrals, 1852; Katchinowski, Prize Law, 1866; Barboux, Jurisprudence du conseil des prizes, 1868.

law which such civilized nations have adopted as a system by which they are all to be bound.'-A judgment of a prize court sustaining the validity of a capture must contain or be accompanied by a statement of the grounds on which it is founded.2

XI. PIRACY AND PRIVATEERING.

§200. Piracy is agreed on all sides to be an offence by the law of nations, though as to what piracy is all states resort to their own particular law to determine. It is generally understood, however, that the term covers all robbery, or attempts at robbery, or other

1 Mr. Wheaton, after noticing Lord Stowell's claim to absolute superiority from national prejudice, argues that it was impossible for that eminent judge to divest himself of principles necessary to the development of a great maritime nation such as England. (Wheat. Hist. 711.) On the other hand, Chancellor Kent (1 Com. 8) declares that "there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts."

As an instance of undue extension of jurisdiction in the United States, see the Springbok case, elsewhere criticized. Infra, § 233.

Field's Code Int. Law, § 898, citing Treaty between France and Peru, March 9, 1861, Art. xxv., 8 De Clercq, 201. It has been ruled that the sentence of a prize court condemning a vessel is not conclusive as to any matter of fact which was the ground of condemnation, unless that matter of fact be clearly and certainly stated in the judgment as a ground of condemnation. Ibid.; Hobbs v. Henning, 17 C. B. N. S. 791; 11 Jurist, N. S. 223; Christie r. Secretan, 8 T. R. 192; Bolton v. Gladstone, 5 East, 155. And

Piracy an the law of

offence by

nations.

such sentence is not evidence of mere inferences of fact that may be drawn from it, when such facts could and should be distinctly stated. Fisher v. Ogle, 1 Camp. 418.

That the courts of a neutral nation have no jurisdiction to decide a prize question as between belligerents, see McDonough v. Dannery, 3 Dal. 188; Findlay r. The William, 1 Pet. Ad. 12; Moxon v. The Fanny, 2 Pet. Ad.

309. That the jurisdiction of the capturing power is exclusive, see The Estrella, 4 Wheat. 298; though a neutral power to whose ports a prize is brought may inquire whether its own neutrality has been violated by the captor (The Estrella, 4 Wheat. 298; The Gran Para, 7 Wheat. 471). But prize courts have no jurisdiction of captures on land by land forces (U. S. v. Bales of Cotton, 25 Law Rep. 451); nor even when the capture is made by naval officers on shore (Six Hundred and Eighty Pieces of Merchandise, 2 Sprague, 233; Alexander's Cotton, 2 Wall. 404); otherwise, it is said, as to goods taken by officers of a public vessel from a warehouse on the shore of a captured port (103 Casks of Rice, Blatch. P. C. 211); and so of goods thrown overboard by the enemy at sea (The Victory, 2 Sprague, 226).

forcible plunder, by marauders on the high seas, animo furandi, and all murders by the same; accessories, as well as principals, being comprehended within the definition.' To piracy the doctrine of asportation applies, and if property seized in port be carried away on the high seas, animo furandi, this is piracy. The questions of the right to compel a vessel to hoist her flag, and that of the right of search, are elsewhere distinctively considered. The right of a man-of-war to compel a ship, over whom any suspicion hangs, to hoist her flag, and, in case of such suspicion continuing and appearing to be well grounded, to search the ship's papers, has been held to be a necessary consequence of the right to seize pirates. But this, as has been seen, is an extra-legal prerogative to be exercised at the risk of the ship making the search.1

1 See more fully, Whart. Crim. Law, 8th ed., §§ 1860 et seq.; and as to jurisdiction, Whart. Conf. of L., §§ 815, 842; infra, § 350. As to piracy, under the Federal constitution, see infra, § 452.

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Judge Story, in U. S. v. Smith, 5 Wheat. 153, says, "Whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, amino furandi, is piracy." But we have to resort to the common law to determine what "robbery" is, and so, in a measure, to determine the meaning of "forcible depredations,' which, I suppose, would include partially executed attempts. In the Attorney-General v. Kwok-a-Sing, L. R. 5 P. C. 179, the offence was defined as "robbery within the jurisdiction of the admiralty." But Dr. Lushington, in the case of the Magellan Pirates, 1 Spink Ec. & Ad. 81, introduces a new term: "Piratical acts," he tells us,

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"marauders," which seems necessary to distinguish piracy from revolt.

Sir T. Twiss goes still further: "The maintenance of the peace of the sea is one of the objects of that common law (of nations), and all offences against the peace of the sea are offences against the law of nations, and of which all nations may take cognizance." Twiss, i. § 170. This is quoted without disapproval by Perels, § 12; but it cannot be sustained. If "maintenance of the peace of the sea" is to be interpreted in the same way as we would interpret "maintenance of the peace of the land," this would give to every ship the right to visit and arrest every other ship whose conduct is disorderly, which would be productive of endless conflicts and oppressions.

2 Magellan Pirates, 1 Spink Ecc. & Ad. 81, cited at large, Phill., op. cit., i. 500.

3 Supra, §§ 194 et seq.

4 Supra, § 194; see Perels, § 12; Renault, Revue de Droit Int. xii. 251; Orlotan, ii. 258; Gessner, 12th ed., 303. That probable cause is in such case an excuse for seizure, see The Palmyra, 12 Wheat. 1.

§ 201. A privateer is a vessel armed by private subjects of a belligerent state, sailing under permissive letters Privateers from the proper authorities of such state, authoriz- not pirates. ing it to attack vessels belonging to the other belli

gerent. Such vessels are not per se piratical, "Even if they exceed," says Sir R. Phillimore, "the limits of their commission and commit unwarrantable acts of violence, if no piratical intention can be proved against them, they are responsible to and punishable by the state alone from which their commission was issued. It would be difficult," he adds, “to maintain that the character of piracy has been stamped upon such a vessel by the decision of international law." Chancellor Kent speaks emphatically to the same effect, declaring that "the weight of authority undoubtedly is, that non-commissioned officers of a belligerent vessel may at all times capture hostile ships, without being deemed by the law of nations pirates." It is the settled law of the United States, he states, "that all captures made by non-commissioned captors are made for the government." By the principles of international law, the employment by a belligerent of a navy of privateers is as legitimate in marine warfare as is the employment of armed volunteers and partisans in land warfare; and a state when at war has as much a right to commission privateers at sea as it has to commission militia on land. It is true that privateers appropriate their booty to themselves, which is not the case with bodies of volunteers accepted as a part of a military force on land. But on the other hand, those manning ships of war are entitled to a large share of prize money; and privateers may, by their commissions, be placed under the same limitations as ships of war. And in any view, this argument against privateering would be met by putting priva

1 See Mr. W. B. Lawrence's summary in North American Review, July, 1878, p. 21; Whart. Crim. Law, 8th ed., § 1864.

Phill., op. cit., i. 503.

seph, 1 Gall. 545. On the other hand,
Mr. Field's proposed code, § 741,
would prohibit privateering.
6 See § 221.

6 See to this effect Ortolan, ii. 58;

Phill., op. cit., 504; and he cites to Perels, § 30. this effect, Ortolan, pp. 260-1.

Kent's Com., i. 96; citing The Dos Hermanos, 10 Wheat. 306; The Jo

Bluntschli, Seebeuterecht, 87, 88;
Caumont, p.
703; see Bluntschli,
Völk. Recht, 3d ed., pref. 46, § 669.

teers on the same footing as to prize money with ships of war. This difficulty being removed, and privateers being subjected to naval control, it is hard to see what greater objections exist to the commissioning of the commanders of privateers than to the issuing of commissions to particular officers to raise troops for local defence. In this way, in fact, as is remarked by Perels, an author of eminence already cited, the necessity of large navies is avoided, as a sovereign with a mercantile marine can readily, by issuing privateering commissions, so harass his enemy's commerce as to equalize the conflict with such enemy though possessing a far superior . naval force. The retention of resources which would punish an assailant is one of the best ways of preventing an assault. The United States government having elected, wisely or unwisely, not to maintain a large navy, can only keep its position on the high seas by holding in reserve the right to commission privateers when necessary. But it is the better view that the vessel of a neutral state cannot set up as a protection a commission for a belligerent; and it has been held in this country, that it is a breach of our neutrality system for the subject of a neutral state to contribute to fit out or man a foreign belligerent ship.3-At the peace

This is strongly put by Perels. 2 See Perels, § 34, p. 187; Wheaton, His. 2, 379.

3 Henfield's Case, Whart. St. Tr. 49; Guinet's Case, ib. 93; Villato's Case, ib. 185; Williams's Case, ib. 652.

In the president's message of December 4, 1854, the position is taken that the right to commission privateers is the only means by which vessels with comparatively small navies can be able to maintain themselves against great maritime powers.

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manded by private persons, but acting under rules from the supreme authority, rather than to one raised and acting without license, which would resemble a privateer without commission. The commission, on both elements, alone gives a right to the thing captured, and insures good treatment from the enemy." "The right," he adds, "to employ this kind of extraordinary naval force is unquestioned. Nor is it at all against the usage of nations in times past to grant commissions to privateers owned by aliens."

Mr. Jefferson, in a letter dated July 4, 1812, vindicating privateering, says; "Were the spoils less rigidly exacted by a seventy-four-gun ship than by a privateer of four guns; and were not all equally condemned? . . In

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