Commentaries on American Law

forth (6) not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because the community of which he is a member is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation Professor Martens is not so strict. (c) While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retalia*94 tion as a sad extremity, and it is frequently threatened without being put in execution, and probably without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war. (a)

Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy.1 If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies; and the captures which they make in such a case

(b) Inst. b. 2, c. 9.

(a) Journals of Congress under the Confederation, ii. 245; vii. 9 and 147; viii. 10; British Orders in Canada, of October 27 and December 12, 1813, and President's Mes sage to Congress of December 7, 1813, and of October 28, 1814.

1 But it is said that the above view does not appear in the last edition of Martens's work, and that the whole subject is discussed in a different spirit. Abdy's

Kent, 245, citing Vergé's ed. 1858, t. ii. 1. viii. c. 2, §§ 252, 262.

1 Post, 96, n. 1.

are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of their sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the protection of the mitigated rules of modern warfare. (b)

It was the received opinion in ancient Rome, in the times of Cato and Cicero, (c) that one who was not regularly enrolled as a soldier could not lawfully kill an enemy. But the law of Solon, by which individuals were permitted to form associations for plunder, was afterwards introduced into the Roman law, and has been transmitted to us as part of their sys- * 95 tem. (a) During the lawless confusion of the feudal ages, the right of making reprisals was claimed and exercised without a public commission. It was not until the fifteenth century that commissions were made 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 license. There were ordinances in Germany, France, Spain, and England to that effect. (b) It is now the practice of maritime states to make use of the voluntary aid of individuals against their enemies as auxiliary to the public force; and Bynkershoek says that the Dutch formerly employed no vessels of war but such as were owned by private persons, and to whom the government allowed a proportion of the captured property, as well as indemnity from the public treasury. Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission. (c) Sir Matthew Hale held it to be depredation in a subject to attack the enemy's vessels, except in his own defence, without a commission. (d) The subject has been repeatedly

(b) Bynk. Q. J. Pub. b. 1, c. 20; Vattel, b. 3, c. 15, sec. 226; Journals of Congress, vii. 187; Martens, b. 8, c. 3, sec. 2.

(a) Dig. 47. 22. 4; Bynk. Q. J. Pub. b. 1, c. 18.

(b) Code des Prizes, i. 1; Martens on Privateers, 18; Robinson's Collectanea Maritima, 21.

(d) Harg. Law T. 245, 246, 247.

discussed in the Supreme Court of the United States, (e) and the doctrine of the law of nations is considered to be that private citizens cannot acquire a title to hostile property, unless seized under a commission, but they may still lawfully seize

hostile property in their own defence. If they depredate *96 upon the enemy without a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted to consider them as criminals, and, as respects the enemy, they violate no rights by capture.

Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous, and they would probably expose the party to the unchecked severity of the enemy; but they are not acts of piracy unless committed in time of peace. Vattel, indeed, says, (a) that private ships of war, without a regular commission, are not entitled to be treated like captures made in a formal war. The observation is rather loose, and the weight of authority undoubtedly is, that noncommissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates. They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favor of the government of the captor, as. droits of the admiralty. It is said, however, that in the United States the property is not strictly and technically condemned upon that principle, but jure reipublicæ; and it is the settled law of the United States that all captures made by non-commissioned captors are made for the government. (b)

(e) Brown v. United States, 8 Cranch, 132-135; The Nereide, 9 Cranch, 449; The Dos Hermanos, 2 Wheaton, 76, and 10 Wheaton, 306; The Amiable Isabella, 6 Wheaton, 1.

(a) B. 3, c. 15, sec. 226.

(b) Com. Dig. tit. Admiralty, E. 3; 2 Wood. Lect. 432; The Georgiana, 1 Dods.

1 This passage has been criticised as inconsistent with p. 94, and it has been thought that although captures at sea by persons without regular commissions are lawful with respect to the government of the captors, such acts might be punished as piracy by the opposing belligerents. Halleck, c. 16, § 10. But see Abdy's

Kent, 249 et seq. It is competent for any person to take possession of enemy's property coming within the hostile jurisdiction, unless it is protected by license, and to assist the sovereign to proceed against it to adjudication. The Johanna Emilie, Spinks, Prize C. 12, 14.

3. Privateering. In order to encourage privateering, it is usual to allow the owners of private armed vessels to appropriate to themselves the property, or a large portion of the property, they may capture; and to afford them and the crews other facilities and rewards for honorable and successful * 97 efforts. This depends upon the municipal regulations of each particular power; and, as a necessary precaution against abuse, the owners of privateers are required, by the ordinances of the commercial states, to give adequate security that they will conduct the cruise according to the laws and usages of war and the instructions of the government, and that they will regard the rights of neutrals, and bring their prizes in for adjudication. These checks are essential to the character and safety of maritime nations. (a) Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is, not fame or chivalric warfare, 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. (b) They are sometimes manned and officered by foreigners having no permanent connection with the country, or interest in its cause. This was a complaint made by the United States, in 1819, in relation to irregularities and acts of atrocity committed by private armed vessels sailing under the flag of Buenos Ayres. (c) 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. Efforts have

397; The Brig Joseph, 1 Gallison, 545; The Dos Hermanos, 10 Wheaton, 306; [The Siren, 13 Wall. 389. See Hall, Int. Law, pt. 3, c. 7, § 183.] The American Commissioners at the court of France, in 1778 (Benjamin Franklin, Arthur Lee, and John Adams), in a letter to the French government, laid down accurately and with precision the law in the text as to capture of enemy's property without a commission. Diplomatic Correspondence, by J. Sparks, i. 443.

(a) Bynk. Q. J. pub. b. 1, c. 19; Journals of Congress, 1776, ii. 102, 114; Acts of Congress of June 26, 1812, c. 107, and April 20, 1818, c. 83, sec. 10; President's instructions to private armed vessels, 2 Wheaton, App. p. 80; Danish instructions of March 10, 1810, Hall's L. J. iv. 263, and App. to 5 Wheaton, 91; Vattel, b. 3, c. 15, sec. 229; Martens, Summ. 289, 290, note; Ord. of Buenos Ayres, May, 1817, in App. to 4 Wheaton, 28; Digest of the Code of British Instructions, App. to 5 Wheaton, 129.

(b) Reports of the United States Secretary of State, March 2, 1794, and June 21, 1797.

*98 been made, from time to time, to abolish the practice. In the treaty of amity and commerce between Prussia and the United States, in 1785, it was stipulated that, in case of war, neither party should grant commissions to any private armed vessels to attack the commerce of the other. But the spirit and policy of maritime warfare will not permit such generous provisions to prevail. That provision was not renewed with the renewal of the treaty. A similar attempt to put an end to the practice was made in the agreement between Sweden and Holland, in 1675, but the agreement was not performed. The French legislature, 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 it was soon swept away in the tempest of the revolution. The efforts to stop the practice have been very feeble and fruitless, notwithstanding that enlightened and enlarged considerations of national policy have shown it to be for the general benefit of mankind to surrender the licentious practice, 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; Edinburgh Review, viii. 13-15; North American Review, N. s. ii. 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 annoy ing 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. 21, 1814.

1 At the Congress of Paris of April 16, 1856, a declaration was signed by the representatives of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, of which the first principle was that "Privateering is and remains abol

(x) The provision of the U. S. Constitution (Art. I, § 8) empowering Congress to grant letters of marque and reprisal, has been thought to deprive Congress of power to abrogate this constitutional prerogative by permanently joining in the Treaty of Paris or other like treaty. See 28 Am. L. Rev. 615; 24 id. 902; 19 Law Mag.

ished." (x) The United States refused to accede to this unless it should be amended by adding 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

& Rev. (4th Series), 35. A merchantman, armed for purely defensive purposes, though carrying a license, was subject to condemnation in the limited war with France, defined by the act of Congress of July 9, 1798. Cushing's Case, 22 Ct. Cl. 1; Hooper's Case, id. 408; see Gray's Case, 21 id. 340; Holbrook's Case, id. 434.

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