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“ Information has been received at the depart. ment of state, that the Mexican government has sent to Havana blank commissions to privateers, and blank certificates of naturalization, signed by General Salas, the present head of the Mexican government. There is also reason to apprehend that similar documents have been transmitted to other parts of the world. As the preliminaries required by the practice of civilized nations for commissioning privateers and regulating their conduct, have not been observed, and as these commissions are in blank, to be filled up with the names of citizens and subjects of all nations who may be will. ing to purchase them, the whole proceeding can only be construed as an invitation to all freebooters to cruise against American commerce.
“It will be for our courts of justice to decide whether, under such circumstances, these Mexican letters of marque and reprisal shall protect those who accept them, and commit robberies upon the high seas under their authority, from the pains and penalties of piracy. If the certificate of naturali zation thus granted, be intended to shield Spanish subjects from the guilt and punishment of pirates, under our treaty with Spain, they will certainly prove unavailing.”
The laws of the United States, prohibiting the enlistment of American citizens in the service of foreign powers, under severe penalties, are more rigorous than those of any other nation; and the act of April 20th, 1818, among other things, provides that it shall be a misdemeanor for "any citi. zen of the United States to fit out and arm or to increase or augment the force of any armed vessel,
with intent that such vessel shall be employed in the service of any foreign power at war with another power with whom we are at peace-or be concerned in fitting out any vessel to cruise or commit hostilities against a nation at peace with us." These laws expressly punish by fine and imprison. ment, any citizen of the United States, found on board of letters of marque, cruising against the commerce of a neutral power, or who shall leave the American jurisdiction with the intent of being so employed.
In the case decided in the Supreme Court of the United States, already cited in another connection, it was held that “captures made by vessels so il. legally fitted out, whether a public or a private armed ship, are tortious—and the original owner is entitled to restitution when brought within our jurisdiction."
But the early policy and disposition of the United States government was fully and eloquently ex. pressed by her distinguished minister, Dr. Franklin, in his language to Mr. Oswald, the British commis sioner, in negotiating the treaty of peace of 1783, at the Court of St. James.
"It is,” said he, "for the interest of humanity in general, that the occasions of war and the inducements to it should be diminished. If rapine is abolished, one of the encouragements of war is taken away, and peace, therefore, more likely to continue and be lasting. The practice of robbing merchants on the high seas, a remnant of the an. cient piracy, though it may be accidentally bene.
1 The Santissima Trinidad, 7 Wheat., 283.
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 over. go the gains, and, as is the case in other lotteries, though some have good prizes, the mass of adven. turers 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 un. dertakers 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 in. terests 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 de. clare, 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 Revocation of
commission of subject to the power which grants it. It may be privateers. vacated either by express revocation, with or with. out cause, by a cessation of hostilities between the nations which they affect, or by the misconduct of the grantees.
Hazlitt & Roche's Manual of the Law of Maritime Warfare, 104. * 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 affected by not affected by the fact that the master is an alien captor being alien enemy enemy, although the effect of that might be the
condemnation to the government of what other. wise 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 charac
ter can in no manner affect their rights. , Distinction be- There is a distinction between a privateer and a tween privateers and let- letter of marque in this, that the former are always ters of marque.
equipped for the sole purpose of 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 let. ters 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 pre
dominate over or take away the other." Registered Ant
As to the claims of British subjects, it has been owner of privateer person held that the person whose name appears on the regisliable.
ter of the privateer, must be regarded as the owner. Rule not ap- But foreigners are not affected by this limitation, plicable to foreigners. and may sustain a claim against any bona fide
owner whose name does not appear on the register.
In the case deciding this point, 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.