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positive law, it is in the discretion of the court, as well upon recaptures as in other cases. And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, the court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary services in rescuing the vessel in distress from the perils of the seas."*

sioned as vessels of war.

According to English law, where the captured vessel has been Prizes commisfitted out and employed as a vessel of war of the enemy, the title of the original owners is not revived by recapture, but she is decreed a lawful prize to the recaptors. The Prize Act of 1800, of the United States, provided for salvage, in such case, of onehalf the value of the vessel, where the recapture was made by a privateer, and of one-fourth if it was made by a vessel of war of the United States.†

"What constitutes a setting forth as a vessel of war has been determined by the British Courts of Prize, in cases arising under the clause in the Act of Parliament, which may serve for the interpretation of our own law, as the provisions are the same in both. Thus it has been settled that where a ship was originally armed for the slave trade, and after capture an additional number of men were put on board, but there was no commission of war and no additional arming, it was not a setting forth as a vessel of war under the act. But a commission of war is decisive if there be guns on board. And where the vessel, after the capture, has been fitted out as a privateer, it is conclusive against her, although when recaptured she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no further, but considered the title of the former owner forever extinguished. Where it appeared that the vessel had been engaged in the military service of the enemy, under the direction of his minister of the marine, it was held as a sufficient proof of a setting forth as a vessel of war. So where the vessel is armed and is employed in the public military service of the enemy by those who have competent authority to so employ it, although it be not regu

*Lawrence's Wheaton, p. 668.

† Ibid. p. 658. For a synopsis of the laws of different nations regulating salvage, see Wheaton, p. 658 et seq.

Sec. 20. Effects of a treaty of

tures.

larly commissioned. But the mere employment in the enemy's military service is not sufficient; but if there be a fair semblance of authority in the person directing the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with the authority as commander of a squadron.”*

"Since the jus postliminii does not, strictly speaking, operate peace on cap- after the peace; if the treaty of peace contains no express stipulation respecting captured property, it remains in the condition in which the treaty finds it, and is thus tacitly ceded to the actual possessor. The jus postliminiï is a right which belongs exclusively to a state of war; and therefore a transfer made to a neutral before the peace, even without a judicial sentence of condemnation, is valid, if there has been no recovery or recapture before the peace. The intervention of peace covers all defects of title, and vests a lawful possession in the neutral, in the same manner as it quiets the title of the hostile captor himself.

"A treaty of peace binds the contracting parties from the time of its signature. Hostilities are to cease between them from that time, unless some other period be provided in the treaty itself. But the treaty binds the subjects of the belligerent nations only from the time it is notified to them."†

Captures made after the conclusion of a treaty of peace, but in ignorance of it, must be restored. The captor may be held responsible for damages caused by the seizure, but, if he acted in good faith, his government will assume the liability.‡

"When the treaty of peace contains an express stipulation that hostilities are to cease in a given place at a given time, and a capture is made previous to the expiration of the period limited, but with a knowledge of the peace on the part of the captor, the capture is still invalid; for since constructive knowledge of the peace, after the periods limited, in the different parts of the world, renders the capture void, much more ought actual knowledge of the peace to produce that effect. It may, however, be questionable whether anything short of an official notification from his own government would be sufficient, in such ↑ Ibid. p. 884. + Ibid. p. 885.

*Lawrence's Wheaton, p. 663.

a case, to affect the captor with the legal consequences of actual knowledge."*

Where a prize taken before the time fixed for the cessation of hostilities, and in ignorance of the peace, had not been sent into port and condemned, but was recaptured after that time by a cruiser also in ignorance of the treaty, it was held that the original captor was lawfully entitled to the prize.†

"The restoration of peace puts an end, from the time limited, to all force; and then the general principle applies, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless the contrary be expressly stipulated. Peace gives a final and perfect title to captures without condemnation, and as it forbids all force, it destroys all hope of recovery, as much as if the captured vessel was carried infra præsidia and judicially condemned."‡

*Lawrence's Wheaton, p. 885.

† Ibid. p. 886.

Ibid.

Sec. 1. Defini

tions.

PART IX.

PRIVATEERING.

Any discussion of the subject of the employment of privateers by a belligerent is of interest, rather from its historic aspect than from any practical importance it is likely to assume in future wars; the United States, Spain and Mexico being at present the only civilized nations maintaining the right to make use of privateers when engaged in war. While the right is unquestionably sanctioned by international law, it is not likely that it will be again put in force by a belligerent, as the evils that are apt to grow out of the system may be far greater than any advantages that can accrue from it. In this chapter it is proposed to give certain definitions respecting privateering, and also an account of the efforts that have been made from time to time to abolish the system entirely.

"A private armed vessel or privateer is a vessel owned and officered by private persons, but acting under a commission from the State, usually called letters of marque. It answers to a company on land raised and commanded by private persons, but acting under rules from the supreme authority, rather than to one raised and acting without a 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 for the enemy. A private vessel levying war without such license, although not engaged in a piratical act, would fare badly in the enemy's hands.

"The right 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 even to privateers owned by aliens." ""*

Although the custom of issuing commissions to foreigners to cruise against an enemy has obtained at times, it was always

* Woolsey, Sec. 121.

condemned on the ground that the persons accepting such commissions were actuated solely by a desire for plunder, and is now prohibited even by those nations that still adhere to the right to employ privateers. And the municipal laws of nearly all nations forbid their subjects accepting such commissions from a belligerent.

"As subjects are not under an obligation of scrupulously weighing the justice of the war, which indeed they have not always an opportunity of being thoroughly acquainted with, and respecting which they are bound, in case of doubt, to rely upon the sovereign's judgment, they unquestionably may with a safe conscience serve their country by fitting out privateers, unless the war be evidently unjust. But, on the other hand, it is an infamous proceeding on the part of foreigners to take out commissions from a prince, in order to commit piratical depredations on a nation which is perfectly innocent with respect to them. The thirst for gold is their only inducement; nor can the commission they have received efface the infamy of their conduct, though it screens them from punishment."*

ity to employ privateers.

tions on pri

In the United States the authority to employ privateers is by Sec. 2. Authorthe Constitution conferred upon Congress, and it is exercised by the passage of an act empowering the President to issue letters of marque and general reprisals against the enemy. Certain necessary restrictions, varying with the municipal Sec. 3. Restriclaws of nations, have nearly always been placed on privateering. The laws of some States regulated the composition of the crews of privateers, and prohibited their cruising in the rivers or within the marine jurisdiction of the enemy; such laws, however, never formed a part of international law, nor even of general usage.†

"Before giving a privateering commission, it is usual for the government issuing it to require the lodgment of caution money or the execution of a bond, by way of security against illegal conduct on the part of the holder, and against a breach of the instructions which are issued for his guidance. The commission is revocable on proof of its misuse being produced, and by English law at least the owners of the vessel were liable in damages; it was also usual for the Lords of the Admiralty to institute proceedings in the Admiralty Court upon complaint of + Martens, Essay on Privateers, Chap. II, Sec. 18.

Vattel, p. 400.

vateers.

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