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President on the 26th of April. The Spanish Government, by a royal decree of April 23, 1898, embodying the rules which it proposed to observe during the war, reserved the right to issue letters of marque. Of this reservation Spain afterwards took no advantage. The decree also declared that the Government would, for the purposes of cruis ing, organize a service of "auxiliary cruisers of the navy," composed of "ships of the Spanish mercantile navy" and "subject to the statutes and jurisdiction of the navy."

The United States organized an auxiliary force, under the command of officers of the Navy. The conditions under which this service was established are set forth in the case of The Rita, relating to the distribution of prize money among the officers and crew of the auxiliary cruiser Yale, formerly the steamer City of Paris of the International Navigation Company, commonly called the American Line.

The City of Paris was one of a class of steamers which were, under the provisions of the mail-subsidy act of March 3, 1891, subject to be taken by the United States as cruisers or transports upon the payment of their actual value. By a charter party and supplementary agreement entered into April 30, 1898, between the company and the Secretary of the Navy, possession of the ship was transferred to the Government, by which she was heavily armed and converted into an auxiliary cruiser. The charter party provided that the ship should be "manned, victualled, and supplied at the expense of the charterer." The charterer was also to pay all other expenses and at the termination of the charter, which was to be at the charterer's will, was to return the ship in good repair, less ordinary wear and tear. The supplementary agreement provided that the ship was "to be manned by her regular officers and crew, and in addition thereto was to take on board two naval officers, a marine officer, and a guard of thirty marines, and was to be victualled and supplied with two months' provisions, and about four thousand tons of coal; the actual cost to the owner of such additional equipment and services to be reimbursed by the charterer upon bills to be certified by the senior naval officer on board." There were also stipulations protecting the owner against all expenses and liability, and a provision that during the continuation of the supplementary agreement the steamship was to be "under the entire control of the senior naval officer on board." Under these agreements the Government of the United States placed on board the ship a captain and a lieutenant of the Navy and a marine guard of 25 enlisted men. There were also on board 269 other persons, not commissioned by or regularly enlisted in the service of the United States, but comprising the ship's company, both officers and men, who were doing duty on board and were borne on the books of the ship. On a question that arose as to the distribution of prize

money it was held that the Yale was neither a "vessel of the Navy" nor a privateer, but came within the statutory class of vessels "not of the Navy, but controlled by either executive department," and was, as an armed vessel in the service of the United States," "entitled," in the words of the statute, " to an award of prize money in the same manner as if such vessel belonged to the Navy."

The Rita, 89 Fed. Rep. 763,

By the act of March 3, 1899, for the reorganization of the United States
Navy and Marine Corps, all provisions of law authorizing the dis-
tribution among captors of prize money or providing for the payment
of bounty are repealed. (30 U. S. Stat. 1004, 1007.)

See, as to the "volunteer navy" organized by Prussia during the Franco-
German war. Hall, Int. Law (4th ed.), 547-550; and supra, p. 538.

2. BONDING AND RESPONSIBILITY.

§ 1216.

By the act of July 9, 1798, privateers were required to give security in $14,000, if the vessel carried more than one hundred and fifty men, and in half that sum if she carries less.

1 Stat. 578.

As to the administration of this provision, see Mr. Pickering, Sec. of State, to American ministers, Dec. 3, 1798, MS. Inst. U. States Ministers, V. 1; Mr. Pickering, Sec. of State, to Mr. Simons, collector at Charleston, S. C., March 30, 1799, 11 MS. Dom. Let. 275

"By the laws of most of the nations of Europe, the owners of privateers are required to give bond and security, in amount from $8,000 to $12,000, to comply with the regulations concerning their cruising, and to prevent them from committing illegal acts."

1 De Bow's Rev. 517, as quoted in Wharton's Int. Law Digest, III. 476.

The owners of a privateer are responsible for the conduct of their agents, the officers and crew, to all the world, to the full value of the property injured or destroyed.

Del Col r. Arnold (1796), 3 Dallas, 333.

A privateer's commission fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although the parties intended to use it as a cover for illegal purposes. If a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intend to violate, under its protection, the laws of their country. A collusive capture conveys no title to the captors. not because the commission is thereby made void, but because the captors thereby forfeit all title to the prize property.

The Experiment, 8 Wheat. 261.

As to the right to impugn the capture, where the capturing vessel is equipped in violation of the neutrality laws, see The Fanny, 9 Wheat. 658.

When there is an invasion of neutral rights by privateers commissioned by the United States, their commissions will be withdrawn.

Mr. Monroe, Sec. of State, to Mr. Rademaker, May 1, 1814, MS. Notes to
For. Legs. II. 8.

In March, 1828, a sum of money was paid by the Russian Government to the United States as indemnity to the Weymouth (Mass.) Importing Company on account of the ship Commerce, which was captured at sea in 1807 by a Russian privateer, in the Mediterranean. and carried into Corfu and there condemned by a Russian prize court.

Mr. Brent, chief clerk, to Messrs. Loud et al., July 3, 1829, 23 MS. Dom.
Let. 7

3. INSTRUCTIONS, 1812.

§ 1217.

"1. The tenor of your commission under the act of Congress, entitled, 'An act concerning letters of marque, prizes and prize goods," a copy of which is hereto annexed, will be kept constantly in your view. The high seas, referred to in your commission, you will understand generally, to refer to a low-water mark; but with the exception of the space within one league, or three miles, from the shore of countries at peace both with Great Britain and the United States. You may nevertheless execute your commission within that distance of the shore of a nation at war with Great Britain, and even on the waters within the jurisdiction of such nation, if permitted so to do. "2. You are to pay the strictest regard to the rights of neutral powers, and the usages of civilized nations; and in all your proceedings towards neutral vessels, you are to give them as little molestation or interruption as will consist with the right of ascertaining their neutral character, and of detaining and bringing them in for regular adjudication, in the proper cases. You are particularly to avoid even the appearance of using force or seduction, with a view to deprive such vessesls of their crews or of their passengers, other than persons in the military service of the enemy.

"3. Towards enemy vessels and their crews, you are to proceed, in exercising the rights of war, with all the justice and humanity which characterize the nation of which you are members.

"4. The master and one or more of the principal persons belonging to the captured vessels, are to be sent, as soon after the capture as

may be, to the judge or judges of the proper court in the United States, to be examined upon oath, touching the interest or property of the captured vessel and her lading; and at the same time, are to be delivered to the judge or judges all passes, charter-parties, bills of lading, invoices, letters and other documents, and writings found on board; the said papers to be proved by the affidavit of the commander of the capturing vessel, or some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement."

General Instructions of President Madison to Private Armed Vessels, 1812, 2 Wheat., App. 80-81.

By section 8 of the prize act of 1812 the President was authorized "to establish and order suitable instructions for the better governing and directing the conduct" of privateers commissioned thereunder. The President, by instructions of August 28, 1812, directed privateers not to interrupt vessels "belonging to citizens of the United States, coming from British ports to the United States laden with British merchandise, in consequence of the alleged repeal of the British order in council." Held, that these instructions came within the President's powers under the prize act. No opinion was expressed as to whether the President might have issued such instructions under his general powers as Commander in Chief of the Army.

The Thomas Gibbons (1814), 8 Cranch, 421.

Held, that the instructions of the President of August 28, 1812, forbidding the interruption of vessels coming from Great Britain in consequence of the repeal of the British orders in council, must have been known to the commanders of men-of-war or privateers, at or before the seizure, in order to invalidate captures made contrary to the letter and spirit of the instructions. The court, Johnson, J., based this decision on the ground that the instructions, unlike statutes, which have, immediately on their enactment, " a legal ubiquity," were applicable, as the word “instruction" itself denoted, only to individuals. The same operation as that of a statute might indeed be given by law to the President's instructions: but, in reality, the clause which vested the power in the President held out the idea of the necessity of notice. By capture the individual acquired an inchoate statutory right which could be defeated only by the act of the supreme legislative power of the Union, such as the suspension of the prize act by a treaty, between the time of capture and of judicial decision. But there was nothing in the objects of the law authorizing the President to issue his instructions, or in the instructions themselves, to support the idea that that which was lawfully

prize of war at the time of capture should cease to be so upon subsequent notice of the instructions.

The Mary and Susan (1816), 1 Wheat. 46, 57.

4. ASYLUM.

§ 1218.

Under the construction adopted by General Washington's adminis tration of the nineteenth article of the French-American treaty "privateers, only, of the enemies of France, were absolutely excluded from our ports, except as before, when compelled to enter through stress of weather, pursuant to the twenty-second article of the treaty; while the national ships of war of any other nation, were entitled to an asylum in our ports, excepting those which should have made prize of the people or property of France coming in with their prizes."

Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797, 1 Am. State
Papers, For. Rel. 559, 565.

It is not uncommon for neutral nations, while granting asylum in their ports to belligerent men-of-war, wholly to exclude privateers. Cushing, At. Gen., 1855, 7 Op. 122.

The neutrality proclamation issued by the Netherlands during the civil war in the United States excluded privateers, with or without prizes, from Dutch ports, save in case of distress.

Baron van Zuylen, Dutch min. of for. aff., to Mr. Pike, American min.. Sept. 17, 1861, Dip. Cor. 1861, 352; same to same, Oct. 29, 1861, id. 369.

The note of Baron van Zuylen of Sept. 17, 1861, controverts the statement of Mr. Seward that the Confederate cruiser Sumter was a “privateer," and points out that she was a ship-of-war commissioned by the government of the Confederate States.

5. LEGALITY AND POLICY.

§ 1219.

"The right to employ this kind of extraordinary naval force is unquestioned, nor is it at all against the usage of nations in times past to grant commissions even to privateers owned by aliens. The advantages of employing privateers are (1) that seamen thrown out of work by war can thus gain a livelihood and be of use to their country. (2) A nation which maintains no great navy is thus enabled to call into activity a temporary force, on brief notice, and at small cost.

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