Nevertheless, a capture made by such vessel from an enemy is regarded a good prize, and condemned as a droit of admiralty. All agree that defensive hostilities on the high seas, as well as on land, without a commission or public authority, are not criminal acts, but acts fully authorized by the laws of war. (Kent, Com. on Am. Law, vol. 1, pp. 9496; Vattel, Droit des Gens, liv. 3, ch. 15, § 226; Bynkershoek, Quaest. Jur. Pub., lib. 1, caps. 18, 20; Martens, Precis du Droit des Gens, § 264; Manning, Law of Nations, pp. 114-153; Martens, Essai sur les Armateurs, ch. 1, §§ 5-7; Ward, Law of Nations, vol. 1, p. 295; Heffter, Droit International, § 124; Bello, Derecho Internacional, pt. 2, cap. 4, §§ 1, 2; Hautefeuille, Des Nations Neutres, tit. 3, ch. 2; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; Wheaton, Elem Int. Law, pt. 4, ch. 2, § 9; Robinson, Collecteanea, p. 21; Sparks, Dip. Correspondence, vol. 1, p. 443; Journals of Congress, vol. 7, p. 187; The Georgiana, 1 Dod. Rep., p. 397; The Dos Hermanos, 10 Wheaton Rep., p. 306; The Nereide, 9 Cranch. Rep., p. 449; The Amiable Isabella, 6 Wheaton Rep., p. 1; Brown v. The U. S., 8 Cranch. Rep., p. 132.)

§ 11. Since about the beginning of the fifteenth century, a public license or commission has been considered necessary in order to authorize private vessels to cruise against the enemy. In order to encourage privateering, it is usual to allow the owners of such vessels to appropriate to themselves a portion, at least, of the property they may capture; and, as a necessary precaution against abuse, such owners are required to give adequate security that they will conduct the cruise according to the laws and usages of war, and bring their prizes in for adjudication. But this depends upon the municipal regulations of each particular state, and the instructions of the particular government which issues the commission or license. All commercial states have deemed checks of this kind essential to their own character and safety, as well as for the protection of the rights of neutrals. But even with these precautions, privateering is usually accompanied by abuses and enormous excesses. The use of privateers, or private armed vessels under letters of marque and reprisal, has often been discussed by publicists and text-writers on international law, and has recently been made the subject of diplo

matic correspondence and negotiation between the United States and the principal European powers. The general opinion of text-writers is, that privateering, though contrary to national policy and the more enlightened spirit of the present age, is, nevertheless, allowable under the general rules of international law. It leads to the worst excesses and crimes, and has a most corrupting influence upon all who engage in it, but cannot be punished as a breach of the law of nations. The enlightened opinion of the world is most decidedly in favor of abolishing it, and recent events lead to the hope that all the commercial nations of both hemispheres will unite in no longer resorting, in time of war, to so barbarous a practice. Nevertheless, it being generally supposed that privateers furnish to the smaller maritime powers a powerful instrument of war against the military marine of an enemy, it is not easy to obtain their consent to its entire abolition. (Vattel, Droit des Gens, liv. 3, ch. 15, § 229; Kent, Com. on Am. Law, vol. 1, pp. 97, 98; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 10; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 19; Martens, Precis du Droit des Gens, § 289; Mably, Droit Public, ch. 12, § 1; Emerigon, Traité des Assurances, ch. 12, sec. 35; Edinburg Review, vol. 8, pp. 13–15; North American Review, N. S., vol. 2, p. 166; Polson, Law of Nations, sec. 6; Manning, Law of Nations, pp. 116, 117; Ortolan, Diplomatie de la Mer., tome 2, lib. 3, ch. 1; Pistoye et Duverdy, Traité des Prises, tit. 4, ch. 2, sec. 1; Heffter, Droit International, §124; De Cussy, Droit, Maritime, liv. 1, tit. 3, §§ 20, 21; Franklin's Works, vol. 2, pp. 13, 15, 447, et seq; Hautefeuille, Droit Maritime, liv. 1, tit. 2, § 29; Valin, Com. sur l'Ord., liv. 3, tit. 9; Encyclopædia Americana, verb. Privateering.)

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§ 12. The efforts, however, which Mr. Wheaton says "have been made by humane and enligthened individuals to suppress it (privateering,) as inconsistent with the liberal spirit of the age," have already produced their effects upon the conduct of belligerent nations, although they have not yet been able to change the law which tolerates it. During the war between the United States and Mexico, no letters of marque, it is believed, was issued by either party; Mexico offered commissions for privateers, but neutral states forbid their subjects to accept them. In the recent war between

Russia, on the one side, and Turkey, France, England, and Sardinia, on the other, the allied powers resolved to issue no letters of marque, and the other states of Europe strictly prohibited their subjects from any participation, by accepting letters of marque, or otherwise, in aiding the belligerents. An Austrian decree of May 25th, 1854, prohibits the subjects of his Imperial Majesty from using letters of marque, or any participation in the armament of a vessel, no matter under what flag, and if they infringe that order, they will not only be deprived of the protection of the Austrian government, and liable to be punished by another state, but will also be proceeded against in the criminal courts of Austria. The entry of foreign privateers, into Austrian courts, is forbidden. An almost simultaneous order, issued by the Queen of Spain, prohibited proprietors, masters, or captains of Spanish vessels, from taking letters of marque from any foreign power, or giving them aid, unless in the cause of humanity, in the case of fire or shipwreck. Denmark, and Sweden, and Norway, gave notice to all friendly powers that, during the existing contest, privateers would not be admitted into their ports, nor tolerated in the anchorage of their respective states. Other governments issued similar orders with respect to their own subjects engaging (either directly or indirectly,) in privateering against the shipping or commerce of any of the belligerents, and the secretary of state of the United States, in reply to the notes of the English and French ministers, communicating the resolutions of the two allied powers not to authorize privateering, said, "the laws of this country impose severe restrictions, not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking part in any foreign war." (Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 10, note; Hautefeuille, Des Nations Neutres, tit. 3, ch. 2; Cong. Doc., 33d Cong., 1st. Sess., H. Rep. Ex. Doc. No. 103; Manning, Law of Nations, pp. 116-117; Ortolan, Diplomatie de la Mer., tome 2, ch. 3; Martens, Precis du Droit des Gens, § 289; Pistoye, et Duverdy, Traité des Prises, tit. 4, ch. 2; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; De Cussy, Droit Maritime, liv. 1, tit. 3, § 20.)

§ 13. On the 16th of April, 1856, at the Conference of Paris, the plenipotentiaries of Great Britain, France, Austria, Russia, Prussia, Sardinia, and Turkey, adopted a "declaration concerning maritime law," containing the following principles, which were made indivisible: "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 an 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 coasts of the enemy."

This declaration was not to be "binding, except between those powers which have acceded to, or shall accede to it;" but it was also agreed, by the plenipotentiaries, that the powers which had, or should agree to it, "cannot hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not, at the same time, rest on the four principles which are the objects of the said declaration." (Protoculs, Nos. 23 and 24, Congress of Paris, 1856; President's Message, Aug. 12th, 1856; Phillimore, On Int. Law, vol. 3, app., p. 850; Ortolan, Diplomatie de la Mer, tome 2, app., special, pp. 516-518; Hautefeuille, Des Nations Neutres, tit. 3, ch. 2; Heffter, Droit International, appendice 3; De Cussy, Droit Maritime, liv. 1, tit. 2, § 20.)

§ 14. This declaration of the six powers of the Paris conference was communicated to other states, and it was stated, in the memorandum of the French minister of foreign affairs to the Emperor, dated June 12th, 1858, that the following powers had signified their full adhesion to all the four principles, viz: Baden, Bavaria, Belgium, Bremen, Brazil, the Duchy of Brunswick, Chile, the Argentine Confederation, the Germanic Confederation, Denmark, the Two Sicilies, Ecuador, the Roman States, Greece, Guatemala, Hayti, Hamburg, Hanover, the Two Hesses, Lubeck, MecklenburgStrelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, the Netherlands, Peru, Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotha, Saxe-Meiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, Wurtemburg. The executive government of Uruguay also gave its full assent to all the

four principles, subject to the ratification of the legislature. Spain and Mexico adopted the last three as their own, but, on account of the first article, declined acceding to the entire declaration. The United States adopted the second, third and fourth propositions, independently of the first, offering, however, to adopt that also, with the following amendment, or additional clause: "And 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 proposition, thus extended, has been accepted by Russia, and some other states have signified their approbation of it. There is reason to hope that all the maritime nations of Europe will eventually adopt the extension. But if they should not, the United States will stand almost alone in their adhesion to, and advocacy of, privateering a practice condemned by their earliest statesmen and best writers on public law, and now abandoned by its former advocates and supporters in Europe. The abstract right, under the law of nations, to use privateers, cannot be questioned; and it must also be observed that the advantage to be derived from the use of private armed vessels, in case of war, would be much greater to the United States than to any European power; moreover, that these European states, now most active in advocating the abolition of privateering, were its strongest supporters when it was most conducive to their own power. Unfortunately, nations, like individuals, are more influenced by immediate self-interest, than by the progress of civilization, the ultimate peace of the world, and the happiness of the human race. (Marcy, Letter to Count Surtiges, July 28th, 1856; President's Message, Aug. 12th, 1856; The Paris Moniteur, July 14th, 1858; Heffter, Droit International, § 124; Lawrence, Visitation and Search, p. 195; Hautefeuille, Des Nations Neutres, tit. 3, ch. 2; De Cussy, Precis Historique, ch. 12.)

§ 15. It being established that a belligerent has a right to commission and use private armed vessels in carrying on the war, it remains to inquire by whose authority such commissions may be issued, and who may use them. The right to issue letters of marque is inherent in the government of every independent state, and is a part of its war-making