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ficial to particular persons, is far from being profitable to all who are engaged in it, or to the nation that authorizes it. In the beginning of a war, some rich ships, not upon their guard, are surprised and taken. This encourages the first adventurers to fit out more armed vessels, and many others do the same. But the enemy, at the same time, become more careful, arm their merchant ships better, and render them not so easy to be taken; they go also more under the protection of convoys. Thus, while the privateers to take them are multiplied, the vessels subject to be taken and the chances of profit are diminished, so that many cruises are made, wherein the expenses overgo the gains, and, as is the case in other lotteries, though some have good prizes, the mass of adventurers are losers—the whole expense of fitting out all privateers during a war, being much greater than the whole amount of goods taken. Then there is the national loss of all the labor of so many men, during the time they have been employed in robbing, who, besides spending what they get in riot, drunkenness and debauchery, lose their habits of industry, are rarely fit for any sober business after peace, and serve only to increase the number of highwaymen and housebreakers. Even the undertakers who have been fortunate, are, by sudden wealth, led into expensive living, the habits of which continue when the means of supporting it cease, and finally ruin them-—a just punishment for their having wantonly and unfeelingly ruined many honest, innocent traders and families, whose subsistence was obtained in serving the common interests of mankind."
Pursuant to the policy thus early announced, treaties have been made by the United States with many foreign powers, by which it has been agreed that if the subjects of either party take letters of marque from the enemies of the other, they shall be considered and punished as pirates—such is the treaty made with France in 1778; with the Netherlands in 1782; with Sweden in 1783; with Prussia in 1785, and again in 1789; with Great Britain in 1795; with Spain in 1795; with Central America in 1825; and with Colombia in 1824.
The learned compilers of the latest English work on the law of maritime warfare very candidly declare, and the justice of the observation is patent to all familiar with the diplomatic history of the United States: "The government of the United States has the merit of having been the first power in modern times, which has endeavored to put down this relic of the private wars which disgraced the middle ages."1
Some of the general principles established in the law of capture will be here stated, but will be more fully considered in that portion of this treatise devoted to the subject of prize jurisdiction and proceedings.
The commission of a privateer is always taken^TM^^ subject to the power which grants it. It may be privateers, vacated either by express revocation, with or without cause, by a cessation of hostilities between the nations which they affect, or by the misconduct of the grantees.2
1 Hazlitt & Roche's Manual of the Law of Maritime Warfare, 104. 1 The Mariamne, 5 Rob., 9; The Thomas Gibbons, 8 Cranch, 421. validity of The validity of a capture made by a privateer, is
capture not i i i r. i i . ,.
afiectod by not affected by the tact that the master is an alien S°^nemy: enemy, although the effect of that might be the condemnation to the government of what otherwise would have been his interest in the prize. The owners and crew are as much parties in a prize court as the captain, and his national character can in no manner affect their rights.1 Distinction be- There is a distinction between a privateer and a teei^and Viet- letter of marque in this, that the former are always tera of marque. eqUjpped for the so]e pUrp0se 0f war, while the latter may be a merchantman, uniting the purposes of commerce to those of capture. In popular language, however, all private vessels commissioned for hostile purposes, upon the enemy's property, are called letters of marque.
A ship furnished with letters of marque is deemed a ship of war. Lord Stowell says: "A ship furnished with a letter of marque is manifestly a ship of war, and is not otherwise to be considered because she acted also in a commercial capacity. The mercantile character being superadded, does not predominate over or take away the other."2 Registered As to the claims of British subjects, it has been
owner of pri- i
vuteer person held that the person whose name appears on the register of the privateer, must be regarded as the owner. Rule not ap- But foreigners are not affected by this limitation,
plicable to for- & . J ,
eigners. and may sustain a claim against any bona jiue owner whose name does not appear on the register.
In the case deciding this point,8 Lord Stowell says: "It appears that Mr. Parry was actively and
1 The Mary and Susan, 1 Wheat., 46.
* The Neustra Senora de los Dolores, 1 Dodson, 290.
directly concerned in the purchase and outfit of this vessel, and that the appointment of the master took place under his directions. There is a series of letters, too, which show that he continued afterward to bestow his time and attention in the management of this property, as property in which he was interested. Nothing, therefore, can be more clear than that he is to be considered as a proprietor, and that he would, in all justice, be entitled to the benefit which might be acquired in that character, and consequently that he must be responsible for all the loss that may be sustained. Mr. Parry, having con-' tributed his money in the purchase and outfit of the vessel, had a legal right to have his name inserted in the register, and he can have no right to plead his own laches in order to relieve himself from a claim."
It is well settled that the owners of a privateer Liability of are liable for any injury which, either through ig- Vateers.° P" norance or illegality, has been inflicted either by the officers or crew, in the execution of the business of their employment. But when that business is departed from, by a violation or excess of orders, and injuries result in consequence, the owner is not liable.
There must be a capture, as prize of war, as the Basis of liabasis of the owner's responsibility, except to theblUty' amount of the bond given on receipt of the commission and the forfeiture of the vessel. To this extent the owners are liable, even for a piratical seizure and spoliation.1
But where, in the performance of legitimate acts, Limitation of
'r 6 'liability.
1 Dial vs. The Revenge, 3 Washington, 262.
the master or crew commit acts of outrage in excess , of their authority, the owners are liable to the full value of the property injured or destroyed, though not to damages for the loss of a voyage; the principle being, to absolve the owners from liability to vindictive damage for trespasses committed by a crew.1
Although a captor, in the destruction of property which he has taken, acts under a sense of duty to his government, this does not make him any the less liable to the fullest extent, to the claimant. In such a case the captor must seek his indemnification from his government.2
Owners liable The owners of a privateer are liable m solido;
Morally!1"1 an(i a joint-owner cannot absolve himself by showing compensation to the extent of his proportionate interest.8
A sentence of condemnation by a prize court is absolutely essential, in all cases, to complete the transfer of title to maritime prizes from the original owners to the captors. So that, if a ship be taken by a privateer and not carried into port and condemned, the captors acquire no property in the prize, and can confer no property whatever upon a purchaser.4
Privateers not Privateers are not considered within the terms of T^te'property a capitulation, by the provisions of which private on^capituia- propei.ty generally is to be protected. The Bash, carrying sixteen guns, with tackle, bolts, <fec., was taken possession of, with two others, in the harbor
1 The Amiable Nancy, 1 Paine, 111.
1 The Acteon, 2 Dodson, 48.
* 5 Rob. 291.
4 15 Yin. Ab., 57.