tice, and to obstruct, as little as possible, the freedom and security of commercial intercourse among the nations. (a) 1

(a) 1 Emerigon, des Ass. 129-132, 457. Mably's Droit Public, c. 12, sec. 1. Edin. burgh Review, vol. viii. pp. 13-15. North American Review, N. S. vol. ii. p. 166. During the war between the United States and Great Britain, the legislature of New York went so far as to pass an act to encourage privateering associations, by authorizing any five or more persons, who should be desirous to form a company for the purpose of annoying the enemy, and their commerce, by means of private armed vessels, to sign and file a certificate, stating the name of the company and its stock, &c., and that they and their successors should thereupon be a body politic and corporate, with the ordinary corporate powers. Laws, N. Y. 38 Sess. c. 12, Oct. 21st, 1814.

1 See the Despatches addressed to the American Secretary of State, in 1854, by the Chargés d'Affaires of Denmark and of Sweden and Norway. (Ex. Doc. 1st Sess. 33d Cong. H. Doc. No. 103.) In the late Russian war these nations maintained the strictest neutrality; nor, indeed, did any of the European powers permit their subjects to accept letters of marque from the belligerent nations.

At the Congress of Paris, which put an end to the late Russian war, in April, 1856, the plenipotentiaries of Great Britain, Austria, France, Russia, Prussia, Sardinia, and Turkey, adopted the following solemn declaration:

1. Privateering is and remains abolished.

2. The neutral flag covers enemy's goods, with the exception of contraband of war.

3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag.

4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.

And it was agreed, that the powers, which should adopt this declaration, could not thereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which did not comprise all the four principles of the declaration.

The French government communicated this declaration to the government of the United States, in order to obtain its assent thereto. But the United States refused to adopt the declaration, unless the first principle of the declaration should be amended by adding thereto these words: " And that the private property of the subjects or citizens of a belligerent on the high seas, shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband." The United States government considered, that, if the first principle of the declaration were adopted without the proposed. amendment, the states which kept small naval forces would be at the mercy of those which would adopt the policy and have the means of keeping up large navies. See Despatch of Mr. Marcy to the Count de Sartiges, of July 28th, 1856.

The French Minister of Foreign Affairs, made a report to the Emperor of the French, that besides the states represented at the Congress of Paris, the following governments had declared their intention to adhere to the four principles of the declaration: Baden, Bavaria, Belgium, Brazil, Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic Confederation, Denmark, the Two Sicilies, Ecuador, the Roman States, Greece, Gautemala, Hayti, Hamburg, Hanover, the Two Hesses, Lubeck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, Holland, Peru, Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotha, Saxe-Meiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, and Wurtemberg. See the Report in the London Times for July 17,

Damages for illegal acts.

It has been a question, whether the owners and officers of private armed vessels were liable, in damages, for illegal conduct beyond the amount of the security given. Bynkershoek (a) has discussed this point quite at large, and he concludes that the owner, master, and sureties, are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, but that the sureties are responsible only to the amount of

the sums for which they become bound. This rule is liable *99 to the modifications of municipal regulations; and though

the French law of prize was formerly the same as the rule laid down by Bynkershoek, yet the new commercial code of France (b) exempts the owners of private armed vessels in time of war, from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in respect to embezzlements in the merchants' service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject, (and there is none with us,) the general principle is, that the liability is commensurate with the injury. This was the rule, as declared by the Supreme Court of the United States, in Del Col v. Arnold ; (c) and though that case has since been shaken as to other points, (d) it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure of damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not ratably pro tanto. (e)

(a) Q J. Pub. b. 1, c. 19.

(b) Code de Commerce, art. 217.

(c) 3 Dallas, 333.

(d) 1 Wheaton, 259. 1 Paine's Rep. 111, to the same point.

(e) The Karasan, 5 Rob. Rep. 291. The Anna Maria, 2 Wheaton, 327. But the owners of a privateer are not liable civilly beyond the security given by law, and the loss of a vessel, for piratical acts committed by the officers and crew of the privateer. They are only liable, by the maritime law, for the conduct of the officers and crew, while in the execution of the business of the cruise. Dias v. Privateer Revenge, 3 Wash.

Vattel admits, (a) that an individual may, with a safe conscience, serve his country by fitting out privateers; but he holds it to be inexcusable and base to take a commission from a foreign prince, to prey upon the subjects of a state in amity with his native country. The laws of the United * States have made ample provision on this subject, and 100 they may be considered as in affirmance of the law of nations, and as prescribing specific punishment for acts which were before unlawful. (b) An Act of Congress prohibits citizens to accept, within the jurisdiction of the United States, a commission, or for any person not transiently within the United States, to consent to be retained or enlisted, to serve a foreign state in war, against a government in amity with us. It likewise prohibits American citizens from being concerned, without the limits of the United States, in fitting out, or otherwise assisting, any private vessel of war, to cruise against the subjects of friendly powers. (c) Similar prohibitions are contained in the laws of other countries; (d) and the French ordinance of the marine of 1681, treated such acts as piratical. opinion is, that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate; for, though the two powers may be allies, yet one of them may be in amity with a state with whom the other is at war. (e) In the various treaties between the powers of Europe in the last two 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

The better

Cir. Rep. 262. The New York scheme (see sup. p. 98, n. a,) of making privateering companies actual corporations or bodies politic, would seem to exempt the members from the personal responsibility ordinarily incident to the owners of privateers. (a) B. 3, c. 15, sec. 229.

(b) Talbot v. Janson, 3 Dallas, 133. Brig Alerta v. Blas Moran, 9 Cranch, 359. (c) Act of Congress of 20th April, 1818, c. 83.

(d) See the Austrian Ordinance of Neutrality of August 7, 1803, art. 2, 3. By the law of Plymouth Colony, in 1682, it was declared to be felony to commit hostilities on the high seas, under the flag of any foreign power, upon the subjects of another foreign power in amity with England. Bailie's Historical Memoir, vol. ii. part 4, 35. The same acts were declared to be felony by a law of the Colony of New York, in 1699. Smith's edition of the Laws of the Colony, vol. i. 25.

(e) Valin's Comm. tom. ii. 235, 236. Bynkershoek, b. 1, c. 17, and note by Duponceau to his translation, p. 129. Sir L. Jenkins's Works, 714. See post, pp. 188, 191.

either nation shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under pain of being treated as a pirate.

Prizes.

The right to all captures vests primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, * 101 but what he receives *under the grant of the state. This is a general principle of public jurisprudence, bello parta cedunt reipublicæ, and the distribution of the proceeds of prizes depends upon the regulations of each state; and unless the ocal laws have otherwise provided, the prizes vest in the sovereign. (a) But the general practice, under the laws and ordinances of the belligerent governments is, to distribute the proceeds of captured property, when duly passed upon, and condemned as prize, (and whether captured by public or private commissioned vessels,) among the captors, as a reward for bravery, and a stimulus to exertion. (b)

When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; though, strictly speaking, as between the belligerent parties, the title passes, and is vested when the capture is complete, and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects, (c) and the authors he refers to, maintain with great strength, as Lord Mansfield observes in Goss v. Withers, (d) that occupation, of itself, transferred the title to the captor, per solam occupationem dominium prædæ hostibus acquiri. The question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if

(a) Grotius, b. 3, c. 6. Vattel, b. 3, c. 9, sec. 164. The Elsebe, 5 Rob. Rep. 173. Home v. Earl Camden, 2 H. Blacks. Rep. 533. At common law, the goods taken from an enemy belong to the captor. Finch's Law, 28, 178. 12 Mod. Rep. 135.

1 Wils. Rep. 213. See infra, p. 357.

(b) Lord Loughborough, 1 H. Blacks. Rep. 189–191.

p. 7, note c, and p. 71.

(c) Tom. ii. p. 1155.

Wheaton's R. vol. ii. App.

(d) 2 Burr. Rep. 683.

neither of these events happen, the question as to the change of title is open to dispute, and many arbitrary lines have been drawn, partly from policy, to prevent too easy disposi

tions of the property to neutrals, and partly from equity, 102 to extend the jus postliminii in favor of the owner. Gro

tius, (a) and many other writers, and some marine ordinances, as those of Louis XIV. and of Congress during the American war, (b) made twenty-four hours' quiet possession by the enemy the test of title by capture. Bynkershoek (c) says that such a rule is repugnant to the laws and customs of Holland; and he insists, that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra præsidia, do most clearly change the property. But by the modern usage of nations, neither the twenty-four hours' possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of a neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor;1 and the purchaser must be able to show documentary evidence of that fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the

(a) B. 3, c. 6.

(b) Valin, lib. 3, tit. 9, art. 8. Journals of the Confederation Congress, March 27th, 1781, vol. vii. p. 59.

(c) Q. J. Pub. b. 1, c. 4 and 5. Martens's Summary, b. 8, c. 3, sec. 11, S. P.

1 By the first section of the third article of the constitution, a court can be erected only by Act of Congress. Therefore, a chaplain of the navy, commissioned by the President to exercise admiralty jurisdiction, was not invested with competent judicial authority to determine a question of prize. Jecker v. Montgomery, 13 How. U. S. 498.

Where a captor has exercised prudence and good faith, he will not be held guilty of misconduct in omitting to send home his prize for adjudication. Jecker v. Montgomery, 18 How. U. S. 110. Fay v. Montgomery, 1 Curtis, C. C. 266.