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It has lately been declared, by distinguished TM*^70f fte peers in the British Parliament, that the system of United states privateering would have been abolished by all the to puTdown great powers, by the treaty of Paris, which succeed- P"^eiio^f ed the war with Russia, but for the objection of tl10 private
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the United states, through her representative then middle ages, at that court. 'This declaration, though perhaps, literally true, can scarcely be considered ingenuous, inasmuch as it was made without disclosing the fact, which could not have been unknown to those who made it—that the ground of objection of the representative of the United States was, that the proposed treaty prohibition did not go far enough to attain the purpose which the well-known policy of the United States government required. A brief review of the efforts which, in this behalf, have heretofore been made by that government, will sufficiently demonstrate this policy.
In the treaty of 1778,. between the United States and France, it was stipulated, "That no subject of the most Christian king shall apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the.said United States, or any of them, or against the property of any of the inhabitants of any of them, or against the people, subjects, or inhabitants of the United States, or any of them, from any prince or state with which the United States shall he at war; nor shall any citizen, subject, or inhabitant of the United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects of the most Christian king, or any of them, or the property of any of the inhabitants or any of them, from any prince or state with winch the United States shall be at war; nor shall any citizen, subject, or inhabitant of the said United States, or any of them, apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the subjects of the most Christian king, or any of them, or the property of any of them, from any prince or state with which the said king shall be at war; and if any person of either state shall take such commission or letters of marque, he shall be punished as a pirate. It shall not be lawful for any privateers, not belonging to the subjects of the most Christian king, nor citizens of the said United States, who have commission from any other prince or state at enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other way whatsoever to exchange their ships, merchandise, or any other lading, neither shall they he allowed to purchase victuals, except such as shall he necessary for their going to the next port of that prince or state from which they have commissions."
In the messasre of President Jefferson to Congress, in December, 1805, in referring to the acts of privateers off the American coast, he says: "Some of them are without commissions, some with illegal commissions, others with legal form, but committing piratical acts beyond the authority of their commissions;" and then he proceeds to apprise the Congress that he has equipped a force to capture all vessels of this description and "to bring the offenders in for trial as pirates."
In 1812, eight days after the declaration of war against Great Britain, the Congress of the United States passed a law, limiting and defining the rights of privateers, and endeavored, as far as practicable, to assimilate them to national vessels.
The first section confers upon the President the power to annul, at pleasure, all licenses or commissions which he might grant under the act of June, 1812.
The second section is as follows: "All persons applying for letters of marque and reprisal, pursuant to the act aforesaid, shall be required to state in writing the name, and description, and tonnage and force of the vessel, and the name and residence of the owner, the intended number of the crew, etc.;" and the third section provides for ample security to be given for the strict and due observance of the treaties and laws of the United States, and of the instructions given them for their conduct; and the remaining sections require the captures which may be made, to be brought into port for adjudication by the court of admiralty; prohibit their sailing without special instructions; compel the commanders to keep regular journals of all that occurs, daily, and transmit them to the government; and impose upon the commanders of public armed vessels the duty of examining these journals when meeting the privateer at sea, and to compel their commanders to obey their instructions, and all this under penalty of forfeiture of all intereat in any captures which they may make.
In 1846, during the war between Mexico and the United States, President Polk, in his message to Congress, in December of that year, held the following language:
"Information has been received at the department of state, that the Mexican government has sent to Havana blank commissions to privateers, and blank certificates of naturalization, signed 1))' 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 willing to purchase them, the whole proceeding can only be construed as an invitation to all freebooter 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 naturalization 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 sendee 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 citizen 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 he 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 imprisonment, 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,1 it was held that "captures made by vessels so illegally 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 expressed by her distinguished minister, Dr. Franklin, in his language to Mr. Oswald, the British comniis-' sioner, in negotiating the treaty of peace of 178">. 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 ancient piracy, though it may be accidentally bene
1 The Santissima Trinidad, 7 Wheat., 283.