28 SEPTEMBER 1844, Page 13


"IN contradiction to the principles now recognized in Continental wars," say s MARTENS, "the right to seize and detain merchant- ships and their cargoes belonging to the enemy's subjects, to con- demn them as good prize, and adjudge them to the ships of war or privateers which captured them, is still rigorously enforced in mari- time wars, in which it is not so easy to impose contributions on private individuals. So tenacious of this right are most states, that they do not permit the captors, except in a few very particular oases, to hold their prizes to ransom."

The parties entitled to make prize of the ships and goods of the enemy's subjects are ships of war and privateers. Privateers are ships fitted out by private individuals as auxiliaries to the arma- ment of the state. The individuals or companies equipping pri- vateers must take out letters of marque, and give security that hey will not exceed their instructions. After these preliminaries, the enemy is held bound to recognize them as legitimate fighters, and their prizes become their property. Private individuals, unprovided with letters of marque, committing hostilities at sea, may be punished as pirates either by the enemy or their own sovereign, and acquire no right of property in their prizes.* The letter of marque is a relic of the rude ages of Europe, in

which the imperfect organization of governments and the vague notions which prevailed respecting the functions of government weakened public authority, and frequently imposed upon private individuals the necessity of taking at their own hands that redress -which in our times they are only entitled to receive through the instrumentality of the public authorities. In the middle ages, re- prisals by private individuals on the subjects or territory of a foreign state were of frequent occurrence. This practice being found to endanger the stability of peace, the right of making reprisals came to be restricted during the fourteenth century to individuals who had obtained letters of marque or of reprisals from their sovereign, authorizing them to redress their wrongs by the lex talionis. These letters might be and were frequently granted against the subjects of a peaceful or even an allied state : gradually the power of issuing them came to be restricted by treaties to times of war.-I-

The encouragement held out to privateers is comparatively a modern innovation. The old letter of marque was adopted as a convenient form of licence for those new and questionable allies of a legitimate government. During the eighteenth century, letters of marque continued to be not unfrequently taken out by wealthy mer- chants or companies for their trading-vessels, to authorize them to retaliate when an opportunity offered, for ships of their own cap- tured by the enemy, by snapping up some of his stray merchantmen. There was perhaps little to object to in this practice ; it kept alive a daring and hardy spirit in our seamen. But it is better to pre-

* MARTENS, Droit des Gens, Us'. viii. c. 4, § 289.

MARTENS, liv. viii. c. 2, § 260. vent theft than retaliate; and the growth of the practice of sailing under convoy has latterly superseded the use of letters of marque on this footing. In proportion as those in whom the employment of letters of marque, if an offence at all, was a venial offence, have relinquished the use of them, the sordid privateers have come to fill their place. They have not the apology of seeking an irregular redress ; for their only connexion with the sea is that of hired plunderers. The capture of the enemy's merchantmen is not an episodical adventure in their voyages—it is the sole purpose for which they go to sea—it is their trade. Government, for a portion of their spoil, sell them a licence to plunder.

In considering the question of privateering, therefore, the utility of licensing a restricted right of retaliation to private individuals may be entirely left out of the question. In a war, the only parties likely to be engaged in capturing and plundering the merchantmen of the enemy are government-ships and privateers by profession. Both are hired servants of the state, with this difference—that the government-ship is expected to attack, take, or destroy the fight- ing-vessels of the enemy, as well as the merchant-vessels of the enemy's subjects ; the privateer is only expected to attack, take, Or destroy the latter class of vessels. The man-of-war's men have regular pay, an allowance for every fighting-ship they capture from the enemy, (proportioned to the number and calibre of its guns,) and the proceeds of the merchant-vessels they take, after deducting a percentage for the government. Privateers have no pay ; they do not engage fighting-ships ; their booty (deducting, as in the case of the men-of-war, a percentage for government) is their only recom- pense, which is shared among the mariners and speculating capi- talists as they may have agreed among themselves. The parties engaged in privateering are more inevitably a demoralized class than the men-of-war's men ; but the encouragement held out to the latter to prey upon the merchantmen of the enemy has a ne- cessary tendency to lower them in this respect to the level of mere privateer's men.

The cause of demoralization in both cases is the encouragement of plundering practices by governments. In land-wars, the plunder or destruction of private property has become the exceptional case. It is tolerated only,* first, when private property cannot be spared without embarrassing military operations ; second, when property required to carry on the war can only be kept from the enemy by destroying it; third, when property cannot be left to the chance of falling into the enemy's hands without reinforcing him ; fourth, when it is necessary to waste a country in order to force the enemy out of it or retard his pursuit ; fifth, in retaliation. In all other cases the rights of private property are respected : regulated contributions in goods or money, exacted under the penalty of military execution, are substituted for irregular and unbounded pillage. The conquering force steps for the time into the position of the native government : it is despotic, but with all its despotism it never interferes with private rights except to promote a political end, and even then it proceeds according to fixed and known rules. The consequence of this arrangement is, that, in the first place, the army escapes the demoralization engendered by plundering habits; and in the second, the war is less embittered—assumes more the character of a regulated political struggle than a disrup- tion of all the bonds of society and resolution into anarchy.

Why is not the same law of war adopted at sea as on shore ? Nothing is gained by the universal confiscation of private property found at sea: if any two nations at the end of a long war balance the accounts of what each has lost to privateers, they will be found nearly equal. The government percentage on prizes taken is a poor return for the national impoverishment by prizes lost. The war is embittered and prolonged by privateering : so long as private property is respected, the private citizen supports his government when at war from national pride, or a belief that the war is a just one. The plundered and broken merchant and mariner become privateers for want of better employment, or sense of private wrong, and go to swell the numbers of the trading war-faction. The licence to plunder converts the regular navy, and still more the privateers, into buccaneering squadrons.

All nations have an equal interest in putting an end to the in- discriminate confiscation of private property found at sea. Not only would the morale of their navies be better preserved, wars rendered leas productive of personal hatreds, and less noxious to the private citizen ; the relinquishment of the practice of plunder- ing all merchant-vessels would put an cud to some controversies which have more than once caused or prolonged a war. For ex- ample, the question whether "free flag makes free goods" could never arise after the plunder of private merchantmen had been discontinued.

The idea of abrogating the system of maritime plunder during war is not new to governments. In 1675, the discontinuance of letters of marque in the event of a war between Sweden and Holland was an article in a treaty concluded between those two Powers. In the war of 1767, Russia abstained from issuing letters of marque, though it had recourse to them in 1770. In 1785, Prussia and the United States of North America pledged themselves not to interrupt commerce by their men-of-war, and not to issue letters of marque against each other's subjects on any occasion of their going to war ; though the article was silently withdrawn on re- newing the treaty in 1799.* These and all similar attempts to sup- press privateering failed, because two or three states could not with- out disadvantage to themselves abandon a practice in which all the rest of the world persisted. But their experiments may be turned to

* MARTENS, Hy. viii. C. 4, § 279. * MARTENS, vol. ii. pp. 199 and 216--the notes. (Edition of Paris, 1831.) account : Holland, Sweden, Russia, Prussia, France, and the United States, have all in turn proclaimed the expediency of placing pri- vate property at sea in the time of war on the same secure footing as private property on shore. It is to be hoped that peace is not to be interrupted ; but there are feverish symptoms abroad, which admit of the opening of negotiations tending to regulate and hu- manize war, without awaking suspicion. Could not the British Cabinet avail itself of this opportunity ? If it succeed, henceforth the sea—the highway free to all nations—will be a neutral territory, on which the private citizen is secure from hostile attacks while en- gaged in the pursuit of peaceful industry. Should it fail, then, in the event of a war, will Britain be warranted to use her unques- tionable naval ascendancy to crush for ever the hateful practice of private spoliation.