« PreviousContinue »
arms of England, it would place the British nation in the situation of being always liable to be involved in serious disputes with foreign governments, in matters with regard to which the British government of the day might have had no opportunity of being consulted, or of giving an opinion one way or the other. Although I entreat the house, upon grounds of public policy, not to ini pose at present, upon her majesty's government, the obligations sought to be thrown upon them, yet I would take this opportunity of warning foreign governments,'who are the debtors to British subjects, that the time may come, when this house will not sit patient under the wrongs and injuries inflicted upon the subjects of this country.
"I warn them that the time may come, when the British nation will not see with tranquillity the sum of £150,000,000 due to British subjects, and the interest, not paid—and I must warn them, that if they do not make proper efforts, adequately to fulfil their engagements, the government of this country, whatever men may be in office, may be compelled, by the voice of public opinion, and by the votes of Parliament, to depart from'that which has hitherto been the established practice of England, and to insist upon the payment of debts due to British subjects. That we have the means of enforcing the rights of British subjects, I am not prepared to dispute. It is not because we are afraid of these states, or all of them put together, that we have refrained from taking the steps to which my noble friend would urge us. England, I trust, will always have the means of obtaining justice for its subjects from any country on the face of the earth. But this is a question of expediency, :md not a question of power. Therefore let no foreign country, which has done wrong to British subjects, deceive itself by a false impression, either that the British nation or the British Parliament will ever remain patient under wrong, or that, if called, upon to enforce the rights of the people of England, the government of England will not have simple power and means at its command to obtain justice for them."
This principle is not only fully acknowledged, but in several instances it has been acted upon by by an nations, the government of the United States. In the year Acted upon by 1834/it was proposed by President Jackson, as a states, measure of redress against France, on behalf of citizens of the United States, having lawful claims against that nation; and again in 1847, the nonpayment of debts due to American citizens by the republic of Mexico was made the leading ground of the war which was carried on against that nation.
These general reprisals, for the redress of individual wrongs, are considered by publicists as a species of hostility, an imperfect war, and usually a prelude to open hostilities. They are experimental attempts to secure indemnity Avithout an open conflict of arms, which are successful or otherwise, according to the character of the matter in dispute, and the relative situation, character, strength, and spirit of the nations concerned.1
Reprisals made by one belligerent of the property Definition of of another, pursuant to general hostilities, are caPluiedenominated Captures.
1 1 Kent's Com., 69, 70.
By public and Captures are either made by the government
private armed i /• 1 • . m i xt
vessels. vessels-oi-war, or by privateers. 1 he law uj>on the subject of captures is alike applicable to those made by ships-of war and-by privateers. The final disposition of the proceeds of a lawful capture varies under varying circumstances, which will be considered hereafter. It is only necessary, in this connection, to review the subject as particularly applicable to letters of marque.
Privateers. A privateer is a vessel, the property of private individuals, fitted out and equipped at their expense, but specially commissioned, by what are denominated "letters of marque and reprisal," with the principal design of attacking and seizing the vessel.-' and property of the enemy; but also of preventing neutrals from carrying on an illicit trade with the enemy.
The right of making war, as we have seen, is a right appertaining exclusively to the sovereign power of the state; and this right necessarily carries with it, as an incident, that of directing and controlling all its operations. - Their author- Private citizens cannot, of themselves, and without and right"' commission from the supreme power, take any steps in relation to the perpetration of acts of hostility.
Persons fitting out ships to cruise against the enemy, acquire the property which they capture, either in whole or in part, according to the provisions of the contract made with them, as a compensation for the expenses which they incur and tlj^ hazards which they assume; and this property they acquire solely by virtue of the commissions from the sovereign power under which they sail.
Private citizens are under no legal obligation of scrupulously weighing the justice of a war, and indeed have not always the means or opportunity to enable them to do so ; they are, therefore, bound to rely upon the judgment of the supreme power of the nation, and may, doubtless, with a safe conscience, serve their country by fitting out privateers. u But," says Vattel, "it is an infamous proceeding on the part of foreigners, to take out commissions from a prince, in order to commit depredations on a nation innocent with respect to them. The thirst of gold is their only inducement, nor can the commission they have received efface the infamy of their conduct, though it screens them from punishment."1
Formerly, reprisals were considered lawful, when made by a private subject of a belligerent power, without a commission.
It was not until the fifteenth century that they Privateers were considered essential, and that private citizens missioned, were forbidden, without license, to fit out vessels to cruise against the enemy. It was about this time I that laws to this effect were passed by Germany, France, Spain, and England. It soon became, and until late years uniformly continued to be, the practice of maritime nations, to make use of the voluntary aid of individuals against their enemies, as auxiliary to the public force. Indeed, it is said by Bynkershoek, that the Dutch formerly employed no vessels>-of-war but such as were owned by private persons, and to whom the government allowed a portion of the captured property, as well as indemnity from the public treasury. It was held by Sir
Matthew Hale to be an unlawful depredation, n a .subject, io attack the enemy's vessels, except in his own defence, without a commission. Doctrine of The subject has undergone frequent discussion in
courts of Uni- " ...
ted states on the courts of Great Britain and in the Supreme t is subject, (jour£ Qf United States; and the doctrine of the law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under commission; but that they may, nevertheless, seize upon hostile property in their own defence. If they commit depredations upon the property of the enemy without a license, they act upon their own peril, and subject themselves to punishment by their own country; but the enemy are, notwithstanding, precluded from treating them as criminals; and as respects the enemy, they violate no rights of capture.1 character of The practice of cruising with private armed ves
pnvateering. * ° . .A . , ,
.-els under government commission, in other words, of privateering, which has been heretofore regarded as a legitimate mode of destruction of the enemy's commerce, by all maritime nations, has been, of late years, arraigned as subject to enormous abuses, as un encouragement of the spirit of lawless depredation, or piracy, and as inconsistent with the humane rules'which have been universally adopted in mitigation of the severities of modern warfare. Considered in Earnest endeavors have been made, by many the spirit of philanthropic and enlightened persons, to procure the age. ^ g^jj^ abrogation of the system, as in conflict with the liberal spirit of the age.
1 The Haase, 1 Rob., 286; The Rebecca, 1 Rob., 227; Tht Amor Parentum, 1 Rob., 30.3; The Twee Gessuster, 2 Rob., 284; The Afelomane, 5 Rob.. 41; The Joseph, 1 Gallis, 545.