Prizes and Privateers.

During the lawless confusion of the feudal ages, the right of making Reprisals was claimed and exercised, with out a Public Commission. It was not until the fifteenth century that Commissions were held necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without licence. There were ordinances in Germany, France, Spain, and England, to that effect.

Hostilities, without a Commission, are contrary to usage, and exceedingly irregular and dangerous, but they are not considered as acts of Piracy during the time of war. Noncommissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the Law of Nations, Pirates. But they have no interest in the prizes they take, and the property so seized is condemned to the Government as Droits of the Admiralty. The reward of this class of captors is left to the liberality of the Admiralty, and is often referred to the Admiralty Court.

The fruits of any forcible detention or occupancy, prior to hostilities, are vested in the crown; similarly, British property taken in course of trade forbidden by the laws of his country, is condemned to the Crown, and not to the individual captor.

To prevent the custom house or excise vessels, that may be commissioned with letters of marque, turning their attention from the smugglers to the more attractive adventure of privateering, all interest in their prizes is reserved to the crown,

Though all rights of prize belong originally to the Crown, yet it has been thought expedient to grant a portion of those rights to maintain the dignity of the Lord High Admiral. This grant, (whatever it conveys,) carries with it a total and perpetual alienation of the rights of the crown, and nothing short of an Act of Parliament can restore them; whereas the grant to private captors is nothing more than the mere temporary transfer of a beneficial interest. The rights of the Admiral, as distinguished from those of the Crown, are these; that when vessels come in, not under any motive arising out of the occasions of war, but from distress of weather, or want of provisions, or from ignorance of war, and are seized in port, they belong to the Lord High Admiral; but where the hand of violence has been exercised upon them, where the impression arises from acts connected with war, from revolt of their own crews, or from being forced or driven in by the Queen’s ships, they belong to the Crown.

This includes ships and goods already come into the ports, creeks, or roadsteads, of all the Queen’s dominions.

Persons fitting out Private Vessels under a Commission to cruise against the enemy, acquire the property of whatever Captures they may make, as a compensation for their disbursements, and for the risks they run; but they acquire it by grant from the Sovran who issues out the commission to them. The Sovran allows them either the whole, or a part of the capture; this entirely depends on the nature of the contract he has made with them.

This grant of prize is, in terms, a grant of the property of the Queen’s enemies, but it is not restricted to the property of the nations with whom we are at war. It is held in construction and practice to embrace all property liable to be condemned as prize, and which is not particularly reserved to the Crown, or the Admiralty.

It depends, also, on the municipal regulations of each particular power: and as a necessary precaution against abuse, the owners of Privateers are required by the ordinances of commercial states to give adequate security that they will conduct the cruize according to the laws and usages of war, and the instructions of the Government; and that they will respect the rights of neutrals, and bring their prizes in for adjudication.

The Commissions of Privateers do not extend to the capture of private property upon land; that is a right which is not even granted to Queen’s ships. The words of the 3rd Section of the Prize Act extend only to capture by any of Her Majesty’s ships,

“of any fortress upon the land, or any arms, ammunition, stores of war, goods, merchandize, and treasure, belonging to the state, or to any public trading company, of the enemies of the crown of Great Britain, upon the land.”

Thus the interests of the Queen’s cruizers are expressly limited with respect to the property in which the captors can acquire any interest of their own, the state still reserving to itself all private property, in order that no temptation may be held out for unauthorized expeditions against the subjects of the enemy on land. With regard to private vessels of war, the Lords of the Admiralty are empowered by the 9th Section, to issue Letters of Marque, to the Commanders of any such ships or vessels,

“for the attacking and taking any place or fortress upon the land, or any ship or vessel, arms, ammunition, stores of war, goods, or merchandize, belonging or possessed by any of Her Majesty’s enemies in any sea, creek, river, or haven.”

It was the purpose of the persons who brought in this bill, that Privateers should not be allowed to make depredations upon the coasts of the enemy for the purpose of plundering individuals, and for that reason they were restricted to fortified places and fortresses, and to property water-borne.

As Privateers sometimes sail in company with Queen’s vessels, and also in small squadrons, for the purpose of mutual assistance, the rights of the privateers vary. When a Privateer is sailing under the convoy of a Queen’s ship, she takes no share in any prize taken by the ship, or even by herself, unless she has received orders from the convoying royal ship to give chase, or has acted hostilely against the enemy, actually aiding and assisting in the capture.

When Privateers have sailed in company, it has often happened that not every vessel has been actually engaged in the capture of the prize, though they may have been rendering valuable assistance in a variety of forms, such as watching in the offing, guarding an open outlet of escape to the intended prize. In the disputes arising from these joint captures, Sir William Scott was the first to establish a settled intelligible system, on principles that might become in future easily applicable to the various cases that might arise.

He says

“the Act of Parliament (meaning the Prize Act), and the proclamation, give the benefit of prize to the takers, by which term, are naturally to be understood those who actually take possession, or those affording an actual contribution of endeavour to that event; either of these persons are naturally included under the name of takers, but the Courts of Law have gone further, and have extended the term ‘takers’ to those who, not having contributed actual service, are supposed to have rendered a constructive assistance, either by conveying encouragement to the captor, or intimidation to the enemy. It has been contended that where ships are associated in a common enterprize, that circumstance is sufficient to entitle them to share equally and alike in the prizes that are made; but many cases might be stated when ships so associated would not share. I must ever hold that the principle of mere common enterprise is not sufficient it is not sufficiently specific it must be more limited. What is the real and true criterion? She being in sight, or seeing the enemy’s fleet accidentally, a day or two before, will not be sufficient; it must be at the commencement of the engagement, either in the act of chasing, or in preparations for chase, or afterwards during its continuance. If a ship was detached in sight of the enemy, and under preparation for chase, I should have no hesitation in saying that she ought to share; but if she was sent away after the enemy had been descried, but before any preparations for chase, or any hostile movements had taken place, I think it would be otherwise; there must be some actual contribution of endeavour as well as a general intention."

Powerful efforts have been made by humane and enlightened individuals to suppress Privateering, as inconsistent with the liberal spirit of the age. In the language of Chancellor Kent,

“the object is not honour, or chivalric fame, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce.”

They are sometimes manned and officered by foreigners, having no permanent connection with the country, or interest in the cause. This was a complaint made by the United States in 1819, in relation to irregularities and atrocities committed by private armed vessels, sailing under the flag of Buenos Ayres. Under the best regulations the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity.

Its abolition has generally been attempted by treaty. In the treaty of Prussia and the United States, in 1785, stipulations against private armed vessels were included. In 1675, a similar agreement was made between Sweden and Holland, but the agreement was not performed. France, soon after the breaking out of the war with Austria, in 1792, passed a decree for the total suppression of privateering, but that was a transitory act, and was soon swept away in the tempest of the Revolution.

On these considerations naturally follows that of the classes of Privateers that can be considered Pirates.

A Privateer differs from a Pirate, in that first, the former is provided with a Commission, or with Letters of Marque from a Sovran, of which the Pirate is destitute. Secondly, the Privateer supposes a state of war (or at least that of reprisals); the Pirate plunders in the midst of peace, as well as in war. Thirdly, the Privateer is obliged to observe the rules and instructions that have been given him, and to attack by virtue of them only the enemy’s ships, or those neutral vessels which carry on an illicit commerce; the Pirate plunders indiscriminately the ships of all nations, without observing even the laws of war. But in this last point Privateers may become Pirates when they transgress the limits prescribed to them; and this is one of the reasons why we often see the former confounded with the latter.

Under these general definitions, we see that it is quite open to any citizen of the world to become a privateer under a foreign Sovran; and Martens goes on to say, that

“there is nothing that prevents the granting of Letters of Marque, even to the subjects of neutral or allied powers who are able to solicit them; but since it is contrary to neutrality to suffer subjects to contribute by this means to the reinforcement of one of the belligerent powers, and to the annoyance of the other, states generally prohibit their subjects from taking Letters of Marque from a power, without the permission of their Sovereigns, and many treaties oblige them also to prohibit their subjects from doing it, as well as to forbid every species of armaments on the enemy’s account, in their ports. However, the enemy is not justified in punishing them as pirates, when they have letters patent from one of the powers with whom it is at war, although their ship may be confiscated."

The laws of the United States have made ample provision on this subject, and they may be considered as an expression of the general wish of civilized nations; and they prescribed specific punishment for acts which were before unlawful.

American citizens are prohibited from being concerned, beyond the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruize against the subjects of friendly powers.

In the various treaties between the powers of Europe, in the two last centuries, and in the several treaties between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared, that no subject or citizen of either nation shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under penalty of being treated as an enemy.

The Title to Property taken in War may, upon general Title to principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property, the title is considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours.

Ships and goods captured at sea, are excepted from the operation of this rule. The right to all captures rests primarily in the Sovran, and no individual can have any interest in a prize, whether made by a crown or private armed vessel, but what he receives under the grant of the state.

When a prize is taken at sea, it must be brought with due care into some port, for adjudication by a competent court. The condemnation must be pronounced by a prize court of the Government of the captor, sitting either in the country of the captor, or of his ally. The prize court of an ally cannot condemn.

The Proceedings Preliminary to Condemnation may be roughly described as follows:

The captor, immediately on bringing his prize into port, sends up and delivers upon oath to the registry of the Court of Admiralty, all papers found on board the prize. The preparatory examinations of the captain and some of the crew of the captured ship are then taken, upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought. These also are forwarded to the registry of the Court of Admiralty. A written notice, called a monition, is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested, to appear and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service; and if any claim has been given, the cause is then ready for hearing, upon evidence arising out of the ship’s papers and preparatory examinations.

The neutral master or proprietor of the cargo takes measures as follows: Upon being brought into port, the master usually makes a protest, which he forwards to London as instructions, (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship or such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself goes to London to take the necessary steps, as soon as he has undergone his examination.

The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by the affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong; and that no enemy has any right or interest therein; security must be given to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the mean time to take the usual steps, (but which seldom happens, as he is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication,) a process issues against him, on the application of the claimant’s proctor, to bring in the ship’s papers and preparatory examinations, and to proceed in the usual way.

As soon as the claim is given, copies of the ship’s papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It however seldom happens, owing to the great pressure of business, (especially at the commencement of war), that causes can possibly be prepared for hearing immediately on the expiration of the time for the return of the monition; in that case, each cause must necessarily take its regular turn. Correspondent measures must be taken, by the neutral master, if carried within the jurisdiction of a Vice-Admiralty Court, by giving a claim, supported by his affidavit, and offering a security for costs, if the claim should be pronounced grossly fraudulent.

If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the Court, where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence); and he afterwards applies at the registry of the Lords of Appeal in prize causes, which is held at the same place as the registry of the High Court of Admiralty, for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the High Court of Admiralty; and within nine months, if in a Vice-Admiralty Court; but may be taken out at later periods if a reasonable cause can be alleged for the delay which has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause; it directs the registrar to transmit a copy of all proceedings of the inferior courts; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for the inhibition, security is given on the part of the appellant to the amount of two hundred pounds, to answer costs, in case it should appear to the Court of Appeal that the appeal is vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party, and his proctor, by shewing the instrument under seal, and delivering a note of its contents. If the party cannot be found, and his proctor will not accept the service, the instrument is to be served, viis et modis; that is, by affixing it to the door of the last place of residence, or by hanging it on the pillars of the Royal Exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed on the back of the instrument, sworn before the surrogate of the superior court, or before a notary public, if the service is abroad.

If the cause be adjudged in the Vice-Admiralty Court, it is usual, on entering the appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in, England, who carries it to a proctor, and the same steps are taken to procure and send the inhibition as when the cause has been adjudged in the High Court of Admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition can be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.

Upon an appeal, fresh evidence may be introduced, if, upon hearing, the Lords of Appeal should be of an opinion that the cause is of such doubt, or that further proof ought to have been ordered by the court below.

Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined with their clerks, and others acquainted with the real transactions, and with the real property of the goods claimed. In corroboration of these affidavits, may be annexed the original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by affidavits of persons who can speak of their authenticity; and if copies or extracts, they should be collected and certified by public notaries. The affidavits are sworn before magistrates, or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British Consul.

The degree of proof required depends upon the degree of suspicion or doubt that belongs to the case. In case of heavy suspicion and great importance, the court may order what is called “plea and proof,” that is, instead of admitting affidavits and documents introduced by the claimant only, each party is at liberty to allege, in regular pleadings, such circumstance as may tend to acquit or condemn the capture, and to examine witnesses in support of the allegation, to whom the opposite party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are seldom resorted to. Standing Commissions may be sent to any neutral country for the general purpose of receiving examinations of witnesses, in all cases where the court may find it necessary, for the purposes of justice, to decree an enquiry to be conducted in that manner.

The Jurisdiction over Prizes is exercised by the Judge of the Admiralty, exclusively of every other judicature of the kind, except in cases of appeal.

This Jurisdiction in matter of Prize, (whether it is coeval with the Court of Admiralty, or, which is much more probable, of a later institution, beyond the time of memory,) though exercised by the same person, is quite distinct in its nature.

The Judge of the Admiralty is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of his jurisdiction, but not a word of prize.

To constitute that authority, in every war, a commission under the great seal issues to the Lord High Admiral to will and require the Court of Admiralty, and the Lieutenant and Judge of the said court, his surrogate or surrogates, and they are thereby authorised and required to proceed upon all and all manner of captures, seizures, prizes, and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the Courts of Admiralty and the Law of Nations.

A warrant issues to the judge accordingly.

The Court of Admiralty is called the Instance Court; the other the Prize Court. The manner of proceeding is totally different. The whole system of litigation and jurisprudence in the Prize Court is peculiar to itself.

A thing being done on the high seas does not exclude the jurisdiction of the Courts of Common Law. For seizure, stopping, or taking a ship upon the high seas, but not as prize, an action will lie; but for taking as prize, no action will lie. The nature of the question, not the locality, excludes.

The end of a Prize Court is to suspend the property till condemnation, to punish every sort of misbehaviour in the captors; to restore instantly (full sail) if upon the most summary examination there does not appear a sufficient ground; to condemn finally, if the goods really are prize, against everybody; giving every body a fair opportunity of being heard. A captor may, and must force everybody interested to defend; and every person interested may force him to proceed to condemn without delay.

Before the sixth of the reign of Queen Anne there were no laws made on this subject. Previous to that time all prizes taken in war were of right vested in the Crown, and questions concerning the property of such prizes were not the subject of discussion in courts of law. But in order to do justice to claimants, from the first year after the Restoration of Charles the Second, special commissions were issued to enable the Courts of Admiralty to condemn such captures as appeared to be lawful prizes; to give relief where there was no colour for taking; and generally to make satisfaction to parties injured. By the Act of the 13 Car. II. , (now repealed) indeed, some regulations were made concerning the treatment of ships taken, but no provisions enacted respecting any security to be given on delivery; the sole interest in the thing condemned being in the Crown; it was in public custody, and the disposition of it a mere matter of prerogative; no such provisions therefore were necessary.

But in the sixth year of Queen Anne, it was thought proper, for the encouragement of seamen, to vest in them the prizes they should take; and for that purpose the statutes, 6 Anne, c 13 and c 37, were passed.

The first of these acts only relates to proceedings in the Courts of Admiralty in England, but contains no particular directions to them; the practice of those courts being already settled.

There is a long series of statutes, which follows the above, on the subject of the Prize Courts. The following may be taken as a general description of their operation.

The judge should proceed, according to their form, to sentence with all possible expedition. If on the preparatory examination there arises a doubt in the breast of the judge, whether the capture is prize or not, and further proof appears to be necessary, the ship and cargo is appraised by persons named on the part of the captor, and is delivered up to the claimants, on their giving good and sufficient security to pay to the captor the full value, according to the appraisement, if the ship is adjudged lawful prize by the judge; by this the claimant is entitled to the immediate possession of the subject in dispute, which the captor cannot obtain but on the refusal of the claimant to give security for the appraised value. After a sentence of condemnation, the captor has a right to the possession; the execution of the sentence is not suspended by an appeal, but the party appellant gives good and sufficient security to restore the cargo, or its full value, in case the sentence is reversed.

Having explained shortly the operation of the Prize Courts, it must be observed, that the Prize Court of an Ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason is, that the Sovran has a right and is bound to inspect the conduct of the captors, for he is answerable to other states for the acts of the captor. The Prize Court of the captor may sit in the country of a co-belligerent or an ally, because there is a common interest between such on the subject, and both governments may be presumed to authorize any measures conducing to give effect to their arms, and to consider each others ports as mutually subservient.

It is not lawful for such a court to act in a neutral territory; and it was at one time even doubted, where property had been carried into, and was lying in a neutral port, whether the validity of the capture could be determined even by a Court of Prize established in the captor’s country; because it was thought that the possession in reach of the court was essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted by Sir Wm. Scott to be correct, in the case of the Henrick and the Maria; but he considered that the English Admiralty had gone too far in supporting condemnations in England, of prizes abroad in neutral ports, to permit him to recall the vicious practice of the Court to acknowledged principle.

The jurisdiction of the Court of the capturing nation is conclusive upon the question of property in the captured thing. Its sentence settles all further dispute between claimants; and if that sentence is manifestly unjust, or against the Law of Nations, the state is alone responsible, and not the captors. An unjust sentence is a good ground for issuing commissions of Reprisals. Numerous treaties between the different powers of Europe, regulating the subject of Reprisals, declare that they shall not be granted, unless in case of the denial of justice. “An unjust sentence,” says Wheaton, “must certainly be considered as a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice."

Thus the sentence of a Prize Court, it is plain, is sufficient to confirm the captor’s title to captures at sea; but a different rule applies to real property or immoveables.

Immoveable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire subjugation and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect. Thus, a third party cannot safely purchase conquered land till the Sovran from whom it has been taken has renounced it by a treaty of peace, or has irretrievably lost his sovereignty. Until such confirmation, it continues liable to be divested by the jus postliminii. The purchaser of any portion takes it, at the peril of being evicted by the original Sovran owner, when he is restored to his dominions.

I now pass on to the more commercial question of Passports, Safe-Conducts, and Licences to Trade.