The Experiment, 8 Wheat. 261. As to the right to impugn the capture, where the capturing vessel is equipped in violation of the neutrality laws, see The Fanny, 9 Wheat. 658. When there is an invasion of neutral rights by privateers commissioned by the United States, their commissions will be withdrawn. Mr. Monroe, Sec. of State, to Mr. Rademaker, May 1, 1814, MS. Notes to In March, 1828, a sum of money was paid by the Russian Government to the United States as indemnity to the Weymouth (Mass.) Importing Company on account of the ship Commerce, which was captured at sea in 1807 by a Russian privateer, in the Mediterranean, and carried into Corfu and there condemned by a Russian prize court. Mr. Brent, chief clerk, to Messrs. Loud et al., July 3, 1829, 23 MS. Dom. 3. INSTRUCTIONS, 1812. § 1217. "1. The tenor of your commission under the act of Congress, entitled, 'An act concerning letters of marque, prizes and prize goods,' a copy of which is hereto annexed, will be kept constantly in your view. The high seas, referred to in your commission, you will understand generally, to refer to a low-water mark; but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and the United States. You may nevertheless execute your commission within that distance. of the shore of a nation at war with Great Britain, and even on the waters within the jurisdiction of such nation, if permitted so to do. "2. You are to pay the strictest regard to the rights of neutral powers, and the usages of civilized nations; and in all your proceedings towards neutral vessels, you are to give them as little molestation or interruption as will consist with the right of ascertaining their neutral character, and of detaining and bringing them in for regular adjudication, in the proper cases. You are particularly to avoid even the appearance of using force or seduction, with a view to deprive such vessesls of their crews or of their passengers, other than persons in the military service of the enemy. "3. Towards enemy vessels and their crews, you are to proceed, in exercising the rights of war, with all the justice and humanity which characterize the nation of which you are members. "4. The master and one or more of the principal persons belonging to the captured vessels, are to be sent, as soon after the capture as may be, to the judge or judges of the proper court in the United States, to be examined upon oath, touching the interest or property of the captured vessel and her lading; and at the same time, are to be delivered to the judge or judges all passes, charter-parties, bills of lading, invoices, letters and other documents, and writings found on board; the said papers to be proved by the affidavit of the commander of the capturing vessel, or some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement." General Instructions of President Madison to Private Armed Vessels, 1812, 2 Wheat., App. 80-81. By section 8 of the prize act of 1812 the President was authorized "to establish and order suitable instructions for the better governing and directing the conduct" of privateers commissioned thereunder. The President, by instructions of August 28, 1812, directed privateers not to interrupt vessels "belonging to citizens of the United States, coming from British ports to the United States laden with British merchandise, in consequence of the alleged repeal of the British orders in council." Held, that these instructions came within the President's powers under the prize act. No opinion was expressed as to whether the President might have issued such instructions under his general powers as Commander in Chief of the Army. The Thomas Gibbons (1814), 8 Cranch, 421. Held, that the instructions of the President of August 28, 1812, forbidding the interruption of vessels coming from Great Britain in consequence of the repeal of the British orders in council, must have been known to the commanders of men-of-war or privateers, at or before the seizure, in order to invalidate captures made contrary to the letter and spirit of the instructions. The court, Johnson, J., based this decision on the ground that the instructions, unlike statutes, which have, immediately on their enactment," a legal ubiquity." were applicable, as the word "instruction" itself denoted, only to individuals. The same operation as that of a statute might indeed be given by law to the President's instructions; but, in reality, the clause which vested the power in the President held out the idea of the necessity of notice. By capture the individual acquired an inchoate statutory right which could be defeated only by the act of the supreme legislative power of the Union, such as the suspension of the prize act by a treaty, between the time of capture and of judicial decision. But there was nothing in the objects of the law authorizing the President to issue his instructions, or in the instructions themselves, to support the idea that that which was lawfully prize of war at the time of capture should cease to be so upon subsequent notice of the instructions. The Mary and Susan (1816), 1 Wheat. 46, 57. 4. ASYLUM. § 1218. Under the construction adopted by General Washington's administration of the nineteenth article of the French-American treaty "privateers, only, of the enemies of France, were absolutely excluded from our ports, except as before, when compelled to enter through stress of weather, pursuant to the twenty-second article of the treaty; while the national ships of war of any other nation, were entitled to an asylum in our ports, excepting those which should have made. prize of the people or property of France coming in with their prizes." Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797, 1 Am. State It is not uncommon for neutral nations, while granting asylum in their ports to belligerent men-of-war, wholly to exclude privateers. Cushing, At. Gen., 1855, 7 Op. 122. The neutrality proclamation issued by the Netherlands during the civil war in the United States excluded privateers, with or without prizes, from Dutch ports, save in case of distress. Baron van Zuylen, Dutch min. of for. aff., to Mr. Pike, American min., Sept. 17, 1861, Dip. Cor. 1861, 352; same to same, Oct. 29, 1861, id. 369. The note of Baron van Zuylen of Sept. 17, 1861, controverts the statement of Mr. Seward that the Confederate cruiser Sumter was a "privateer," and points out that she was a ship-of-war commissioned. by the government of the Confederate States. 5. LEGALITY AND POLICY. $1219. "The right to employ this kind of extraordinary naval force is unquestioned, nor is it at all against the usage of nations in times past to grant commissions even to privateers owned by aliens. The advantages of employing privateers are (1) that seamen thrown out of work by war can thus gain a livelihood and be of use to their country. (2) A nation which maintains no great navy is thus enabled to call into activity a temporary force, on brief notice, and at small cost. Thus an inferior state, with a large commercial marine, can approach on the sea nearer to an equality with a larger rival, having a powerful · fleet at its disposal. And as aggressions are likely to come from large powers, privateering may be a means, and perhaps the only effectual means, of obtaining justice to which a small commercial state can resort. “On the other hand, the system of privateering is attended with very great evils. (1) The motive is plunder. It is nearly impossible that the feeling of honor and regard for professional reputation should act upon the privateersman's mind. And when his occupation on the sea is ended, he returns with something of the spirit of a robber to infest society. Add to this that it is by no means certain that the motive of plunder or booty can be long endured in the international law of Christian nations. (2) The control over such crews is slight, while they need great control. They are made up of bold, lawless men, and are where no superior authority can watch or direct them. The responsibility at the best can only be remote. The officers will not be apt to be men of the same training with the commanders of public ships, and can not govern their crews as easily as the masters of commercial vessels can govern theirs. (3) The evils are heightened when privateers are employed in the execution of belligerent rights against neutrals, where a high degree of character and forbearance in the commanding officer is of especial importance. Hence many have felt it to be desirable that privateering should be placed under the ban of international law, and the feeling is on the increase, in our age of humanity, that the system ought to come to an end." Woolsey, Int. Law, §§ 127, 128. As to privateers in the American Revolution, see 2 John Adams's Works, As to policy and lawfulness, see 9 John Adams's Works, 607; 13 Hunt's For Mr. Sumner's views against privateering, see 7 Summer's Works, In acknowledging the receipt of a note of the French minister of Oct. 9, 1792," proposing a stipulation for the abolition of the practice of privateering in times of war." Jefferson said: "The benevolence of this proposition is worthy of the nation from which it comes, and our sentiments on it have been declared in the treaty to which you are pleased to refer, as well as in some others which have been proposed." Writing, however, to Monroe, before the signing of the treaty of Ghent was known, he said: "Privateers will find their own men and money. Let nothing be spared to encourage them. They are the dagger which strikes at the heart of the enemy, their commerce." Mr. Jefferson, Sec. of State, to M. Ternant, French min., Oct. 16, 1792, 4 MS. Am. Let. 417; Mr. Jefferson to Mr. Monroe, Jan. 1, 1815, 6 For Mr. Jefferson's message of Jan. 31, 1805, see 2 Am. State Papers, For. 66 Gallatin, in a speech Feb. 10, 1797, advocated privateering as our only mode of warfare against European nations at sea." (Annals of Congress, 4 Cong. 2 sess. 2128-2130; Adams's Gallatin, 170.) Mr. Jefferson, in a paper dated July 4, 1812, vindicating privateering, says: "What is war? It is simply a contest between nations, of trying which can do the other the most harm. Who carries on the war? Armies are formed and navies manned by individuals. How is a battle gained? By the death of individuals. What produces peace? The distress of individuals. What difference to the sufferer is it that his property is taken by a national or private-armed vessel? Did our merchants, who have lost nine hundred and seventeen vessels by British captures, feel any gratification that the most of them were taken by His Majesty's men-of-war? Were the spoils less rigidly exacted by a seventy-four-gun ship than by a privateer of four guns; and were not all equally condemned? War, whether on land or sea, is constituted of acts of violence on the persons and property of individuals; and excess of violence is the grand cause that brings about a peace. One man fights for wages paid him by the government, or a patriotic zeal for the defense of his country; another, duly authorized, and giving the proper pledges for his good conduct, undertakes to pay himself at the expense of the foe, and serves his country as effectually as the former, and government drawing all its supplies from the people, is, in reality, as much affected by the losses of the one as the other, the efficacy of its measures depending upon the energies and resources of the whole. In the United States, every possible encouragement should be given to privateering in time of. war with a commercial nation. We have tens of thousands of seamen that without it would be destitute of the means of support, and useless to their country. Our national ships are too few in number to give employment to a twentieth part of them, or retaliate the acts of the enemy. But by licensing private armed vessels, the whole naval force of the nation is truly brought to bear on the foe, and while the contest lasts, that it may have the speedier termination, let every individual contribute his mite, in the best way he can, to distress and harass the enemy and compel him to peace." Coggeshall's Hist. Am. Privateers, introduction, xliii. "We have been worsted in most of our naval encounters, and baffled in most of our enterprises by land. With a naval force on their coast |