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Under the best regulations, the business tends to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity.”i The granting of letters of marque to private persons of either of the belligerent states was attended with grave evils, and, by the Declaration of Paris, 1856, “Privateering is, and remains, abolished.”2 This declaration was agreed to by the leading states of the world, with the exception of the United States, Spain, Mexico, Venezuela, and China. In the Spanish-American War of 1898 the United States formally announced that it would not resort to privateering 3 Spain, while maintaining her right to issue letters of marque, declared the intention to organize for the present (May 3, 1898) a service of “ auxiliary cruisers of the navy.” The importance of the subject of privateering is now largely historical, as it is doubtful whether any civilized state would resort to this method of carrying on maritime war.
§ 111. Voluntary and Auxiliary Navy The relations of private vessels to the state in time of war, which had been settled by the Declaration of Paris in 1856, was again made an issue by the act of Prussia in the Franco-German War. By a decree of July 24, 1870, the owners of vessels were invited to equip them for war and place them under the naval discipline. The officers and crews were to be furnished by the owners of the vessels, to wear naval uniform, to sail under the North-German flag, to take oath to the articles of war, and to receive certain premiums for
11 Kent Com., 97. 2 Appendix, p. 398.
capture or destruction of the enemy's ships. The French authorities complained to the British that this was privateering in disguise and a violation of the Declaration of Paris. The law officers of the crown declared that there was a “substantial difference" between such a volunteer navy and a system of privateering, and that the action of Prussia was not contrary to the Declaration of Paris. With this position some authorities agree, while others dissent. The weight of the act as a precedent is less on account of the fact that no ships of this navy ever put to sea. Similarly, the plan of Greece for a volunteer navy in 1897 was never put into operation.2
Russia, in view of possible hostilities with England in 1877-1878, accepted the offer of certain citizens to incorporate into the navy during the war vessels privately purchased and owned. Such vessels are still numbered in the “ volunteer fleet,” and though privately owned and managed are, since 1886, under the Admiralty. These vessels may easily be converted into cruisers, and are, so far as possible, favored with government service. There seems to be little question as to the propriety of such a relationship between the state and the vessels which may be used in war.
Still less open to objection is the plan adopted by Great Britain in 1887 and by the United States in 1892, by which these governments, through agreements with certain of their great steamship lines, could hire or purchase at a fixed price specified vessels for use in case of war. The construction of such vessels is subject to government approval, and certain subsidies are granted
1 Hall, p. 547, § 181. 2 R. D. I., IV., 695.
to these companies. In time of war both officers and men must belong to the public forces. The plans of Russia, Great Britain, and the United States have met with little criticism.1
§ 112. Capture and Ransom For more than one hundred years the capture of private property at sea has been regarded with disfavor both on the continent of Europe and in America.
The attitude of the United States is shown by the provision in the Treaty with Prussia of 1785, whereby merchant vessels of either state are to pass “ free and unmolested.”2 John Quincy Adams, in 1823, asked England, France, and Russia to exempt hostile private property from capture. The proposition was not accepted.3 The United States withheld its approval of the Declaration of Paris of 1856 because private property was not exempted from capture. The resolution in the United States House of Representatives of Mr. Gillett of Massachusetts, of April 25, 1898, exempting merchant ships from capture, failed to pass, the argument being advanced that Spain had shown a lack of reciprocity. States in practice have attempted to introduce the principle of exemption of private property from capture, as at the inception of the Franco-German War in 1870. The voice of the publicists seems to be strongly in favor of exemption. By international law private property cannot be said to be exempt, though the feeling in favor of exemption is growing.
1 See Act of May 10, 1892 ; 27 U. S. Sts. at Large, 27. 2 Treaties of U.S., pp. 905, 906. 83 Whart., § 342.
Article 11 of the Naval War Code of the United States provides that “ The personnel of a merchant vessel of an enemy captured as a prize can be held, at the discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available for the naval service of the enemy, or they may be released from detention or confinement.” 1
Passengers on such vessels should be treated with consideration and landed at a convenient port.
Capture is complete when the hope of recovery has ceased and surrender has taken place. It was long held that twenty-four hours of possession constituted valid capture. In earlier times the capture was complete when the property seized was brought within the firm possession of the captor, as within a camp, fortress, fleet, etc. This rule seems to be more equable, as the effective possession is a better ground than the lapse of time.
The evidence of intention to capture must be shown by some act, such as the placing of a prize crew or prize master on board a captured vessel, though the vessel has been held to be under the control of the captor, even when by reason of the weather no one has been placed on board.3
The captor should bring his prize into port for adjudication by the court. The title to the prize immediately vests in the state, and is to be disposed of only by state authority. However, an enemy's vessel may be destroyed when it is no longer seaworthy, when it impedes unduly the progress of the capturing force, when
1 Appendix, 403. 2 Ibid.
its recapture is threatened by the enemy, when the capturing force is unable to place a sufficient prize crew on board without impairing too much its own efficiency, and when a port of the capturing force to which the prize may be brought is too far away.1 The United States, in the War of 1812, directed its officers to destroy all the enemy's vessels captured, unless very valuable and near a port. This was necessary on account 'of the fewness of its forces.
Sometimes the original owner is allowed to ransom by repurchase property which has been captured. In such case the transaction is embodied in a “ransom bill,” by which the master agrees that the owner will pay to the captor a certain sum of money. A duplicate copy of this bill serves as a safe-conduct for the ransomed vessel so long as there is no departure from its terms in regard to the course to be sailed, the ports to be entered, the time of sailing, etc. The contract is not violated when the ransomed vessel is driven from her course by stress of weather or by circumstances beyond her control.
The captor takes from the captured vessel a hostage for the fulfillment of the ransom contract. Should the captor's vessel be taken with the hostage and ransom bill on board by a vessel of the enemy, the ransom bill is discharged. The captor may bring suit in the courts of the captured vessel's state usually, though in England the process is by action of the imprisoned hostage to recover his freedom. Some of the European states forbid the practice, others limit it, and others, like the United States, allow ransom.
See rules of the “Inst. of Int Law," 1882 ; “Annuaire," 1883, p. 221.