bers of the crew, are entitled to participate, are questions which have received much consideration.33

(c) "When captors take a lawful prize, they have alternative duties to save it, if practicable; to destroy it, if it be impracticable to save it. The first duty insures prize money and other elements of the right existing; the second duty involves the sacrifice of prize money, and the pecuniary reward is in the form of bounty."

PRIVATEERS.

133. A private armed vessel, owned and officered by private persons, acting under a commission from the state, was called a "privateer."

The practice of commissioning private vessels for service in war seems to have prevailed in the beginning of the fifteenth century.

The term "privateer" seems to have been used in the time of Charles II of England to designate a private vessel employed by the admiralty to prey upon an enemy. Fifty years later, in the early eighteenth century, they were not much regarded, "because the manner of such warring is new and not very honorable; but the diligence of our enemies in this piratical way obliges us to be also diligent for the preservation of our commerce." 35

33 Dewey v. United States, 178 U. S. 510, 20 Sup. Ct. 981, 44 L. Ed. 1170; United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463.

British Royal Proclamation of August 3, 1886, allowed, with many possibilities of modification:

Flag officer or officers, one-thirtieth,

Captains or commanding officers, one-tenth of remainder.
Remainder of ship's company divided into eleven classes, members

of the lowest class, as signal boy, to receive one share and the high-
est class, as staff captain, to receive forty-five shares.

Prize Act U. S. 1864, § 10, provided that admiral should receive one-twentieth.

34 The Santo Domingo (D. C.) 119 Fed. 386; United States v. Taylor, 188 U. S. 283, 23 Sup. Ct. 412, 47 L. Ed. 477.

35 Sea Laws, p. 472.

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Sweden in 1675 made a treaty with the United Provinces mutually forbidding privateering. The United States made a similar treaty with Prussia in 1785. Article XXIII: "If war should arise between the two contracting parties, * neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce." On the renewal of the treaty in 1799 this clause was omitted. Franklin, who negotiated the treaty of 1785, strove earnestly for the abolition of privateering and for the exemption of private property from capture. There were many laws and treaties forbidding resort to privateering, but it did not disappear. In 1856 the Declaration of Paris provided: "Privateering is and remains abolished." The United States was willing to adhere to this Declaration, provided there was added a clause "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, unless it be contraband." This clause was not added. The United States, Spain, Mexico, and China were among the important states which did not adhere to the Declaration.36 The United States did, however, declare at the outbreak of the Spanish-American War in 1898 that the government would not resort to privateering.37 Spain declared on the 23d of April, 1898, that she retained her right to issue letters of marque, yet that she would "organize for the present a service of auxiliary cruisers of the navy, composed of ships of the Spanish mercantile navy, which will co-operate with the latter for the purposes of cruising, and which will be subject to the

36 Spain definitely adhered to the Declaration of Paris January 18, 1908, and Mexico on February 13, 1909.

37 "Whereas, by an act. of Congress approved April 25, 1898, it is declared that war exists and that war has existed since the 21st day of April, A. D. 1898, including said day, between the United States of America and the kingdom of Spain; and

"Whereas, it being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of this government will be not to resort to privateering, but to adhere to the rules of the Declaration of Paris."

Foreign Relations U. S. 1898, p. 772.

statutes and jurisdiction of the navy." Spain did not use privateers during the war. It may be said that at present there seems to be little tendency to return to privateering. The volunteer and auxiliary navy make it possible for a state to utilize its resources in an efficient and regulated manner.

VOLUNTEER, AUXILIARY, OR SUBSIDIZED VESSELS. 134. While privateering is abolished, the private vessels of a state have by various plans been brought into public service in time of war as volunteer, auxiliary, or subsidized vessels.38

As a general proposition it may be maintained that a state should be allowed to use its resources to protect itself in time of war and to preserve its existence. On land a militia is regarded as a perfectly legitimate aid to the regular army, and in extreme cases the levies en masse are recognized as legitimate hostile forces. It is not reasonable to suppose that the resources of the belligerent on the sea will not be summoned to aid in the preservation of state existence. These resources are liable to attack. They will, so far as possible, be called into service. Horses, wagons, railroads, cars, telegraphs, etc., are called into service on land; corresponding agencies will be called into service on the sea.

The owners of German vessels were invited by Prussia, during the Franco-Prussian War of 1870, to fit them out for attack upon French ships of war, for which service large premiums were offered.39 The crews of these vessels were to be furnished by the owners of the vessels, but were to be under naval discipline. The officers were to be in the same uniform as the regular naval officers, and furnished with temporary commissions. The French government protested against this

38 There seems to be, however, no valid objection to the employment in war of vessels of the mercantile marine, provided that they shall have been duly incorporated into the belligerent navy, that their officers hold naval commissions, and that they are under naval orders and discipline. Report Royal Commission on Supply of Food and Raw Material in Time of War, 1905, vol. I, p. 22; The Panama, 176 U. S. 535, 20 Sup. Ct. 480, 44 L. Ed. 577.

89 Royal Prussian Decree, July 24, 1870.

volunteer navy as being a violation of the treaty of Paris, which abolished privateers; but the English government found that there were substantial differences between the proposed vessels and those against which the Declaration of Paris was directed.40

The objection to the continuance of privateering was largely due to the lack of government control over those engaged in the practice. This control is easily exercised over those aiding in military operations on land, because a representative of the government is usually at hand to direct the move

ments.

An equal degree of control may be exercised in the case of volunteer, auxiliary, and subsidized vessels maintained by a government, officered and manned by the paid servants of that government, and operated under its direction. The use of such vessels is a matter of great importance, and there seems to be no reasonable objection to their employment for any and all purposes of naval warfare, provided that the proper degree of government control is maintained.

Several states have volunteer, auxiliary, or subsidized vessels at the present time. The conditions under which these vessels are bound to the respective states vary, and the obligations resting on the vessels also vary.

Russia, fearing a possible conflict in consequence of the situation in the East in 1877-78, considering that her regular fleet would not be adequate and that her merchant marine did not possess vessels easily convertible into vessels suitable for warlike purposes, readily adopted the plan of incorporating into the naval force certain vessels purchased by a private association of patriotic citizens. These vessels were to be under the control of the naval authorities and to be officered by naval commanders. The captain and at least one other officer on each ship is a regular imperial commissioned officer. These vessels are equipped so as to be convertible at once into vessels for warlike use. In time of peace these vessels are principally engaged in public service, though they fly the merchant flag and are privately owned.

France has a direct arrangement with certain companies 406 British State Papers, 692.

whereby vessels are constructed on plans approved by the admiralty which make possible the conversion of these vessels into vessels for warlike use. The vessels are commanded by officers of the navy. At the opening of hostilities they may be incorporated in the war fleet.

Great Britain in 1887 concluded agreements with several important steamship companies. In return for an annual subsidy, these companies agree in time of war to turn over certain fast vessels at an appraised valuation and to build ships on plans approved by the admiralty. As the law officers of the British crown were consulted in regard to the legality of the plans of Prussia for a volunteer navy in 1870, it may be supposed that the agreement made in 1887 by the British government does not fail to meet the requirements of legality.

By the act of May 10, 1892, after provisions in regard to registration, tonnage, speed, ownership, etc., it is provided in section 4 as follows:

"That any steamship so registered under the provisions of this act may be taken and used by the United States as cruisers or transports upon payment to the owners of the fair actual value of the same at the time of the taking, and if there shall be a disagreement as to the fair actual value at the time of taking between the United States and the owners, then the same shall be determined by two impartial appraisers, one to be appointed by each of said parties, who, in case of disagreement, shall select a third, the award of any two of the three so chosen to be final and conclusive." 41

The question of commissioning and regulating the activities of volunteer vessels was raised and discussed in consequence of the action in 1904 of the Smolensk and the Peterburg of the Russian volunteer fleet.*

42

The Hague Conference of 1907 considered the question of the conversion of merchant ships into war ships and adopted a convention upon this subject:

41 27 Stat. 27 (U. S. Comp. St. 1901, p. 2806).

42 Int. Law Topics and Discussions, 1906, U. S. Naval War College, 105; Hershey, Int. Law and Diplomacy, Russo-Japanese War, 136; Lawrence, War and Neutrality in Far East (2d Ed.) 204; Smith & Sibley, Int. Law during Russo-Japanese War, 40.