owners of Privateers and of Ad mirals, Com Captains of short explanation, that of the responsibility of the owners of privateers for the acts of their captains and crew; but manders and before stating the law thereon, it is as well to contrast Public Ships. it with the rules affecting the liability of admirals of fleets, commanders of squadrons, and captains of public ships of war for wrongful captures and other such torts committed by them and their vessels. Now in respect to public ships the general rule is clear, that for wrongful acts the actual wrong-doer and he only is responsible; that is to say, the individual by whom the act is ordered is liable for the damages, and not his superior in command (assuming that he is not cognizant of, or has not concurred in it), for this simple reason, that he is presumed to be acting within the scope of his general orders'. Hence, if a captain of a public ship of war has made a wrongful capture, and neither the admiral of the station has been privy to it nor the commodore of the squadron has given orders for it, each of these persons is exempt from a suit, and the person liable to it, and against whom only it can be brought, is the commander of the capturing vessel. But where the commander of a squadron or the admiral of a fleet or station has been actually present at the time of the act complained of, or co-operated in it or given positive orders about it, each of these persons is liable to individuals for the wrongful acts, the trespasses of those under his command, unless the trespasses are unattended with a conversion to the use of the fleet or squadron, and so enure simply to the benefit of the individual captor3. But with regard to the liability of privateers for illegal acts the rule is different, for not only are their 1 The Mentor, I Rob. 181. "The Mentor, ut sup. and the Eleanor, 2 Wheaton (American Reports), p. 346. 3 General Halleck specifies a distinction between the doctrine in England and in the United States; viz. that in the United States the commander of the station or squadron is responsible for acts done under his permissive orders; whereas in England he is only responsible for actual orders. Halleck, On International Law, ch. xxx. § 30, p. 745. masters responsible but their owners also for the damages and costs thus occasioned, and that to the extent of the actual loss and injury, even if it exceed the amount of the bond usually given upon the taking out of the commission. shoek's doc point. Nor is this a doctrine of modern times. Many of the Bynkerolder writers on International Law have so laid it down, trine on this and in accordance with their views it has become fixed in the jurisprudence of Great Britain and the United States;] among others Bynkershoek 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, and the sureties are bound only to the amount of the sums for which they became bound. Of course the rule, like most other dogmatic principles, is liable to be modified by municipal regulations, but in the absence of such modifications, and where there is no positive local law on the subject, the general principle is that the liability is commensurate with the injury. The French law of prize French Law. was formerly identical with the rule laid down by Bynkershoek, but in the present day that is not the case, for the commercial code of France now 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 tort1. Statute Law. [On the other hand, in Great Britain and the United English States the stricter rule has always prevailed. In the former country it is true that in the three statutes on the subject of the limitation of the responsibility of shipowners which preceded the amending and consolidating 1 Code de Commerce, Art. 217. [Massé, Droit Commercial, T. 1. p. 144, § 168, and T. IV. p. 488, § 2655. See also Pistoye et Duverdy, Des Prises Maritimes. T. 1. p. 200.] American Law. Measure of damages statute, the Merchant Shipping Act of 1854', as well as in that statute, a limitation of responsibility for embezzlement and other wrongful acts to the amount of the vessel and freight has been established, but that is confined to particular specified offences and to ships in the merchant service. In those statutes, nothing is said about privateers in time of war, their owners therefore are not to be included within the benefit of the acts.] In the United States the rule that the liability is commensurate with the injury has been declared by the Supreme Court in the case of Del Col v. Arnold', and though that case has since been shaken as to other points, it has not been disturbed as to the one 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, that each individual owner is responsible for the entire damages and not rateably pro tanto, and that a part owner cannot escape from his common liability by pleading compensation pro tanto, or a release of the claimant For piratical to him. [Where however the torts complained of are piratical acts committed by the officers and crew of the privateer, there the civil liability of the owners is limited. to the security given by law, and the loss of their vessel. They are liable only for the conduct of the officers and crew while in the execution of the business of the cruise3, and therefore where a neutral vessel was plundered of her papers by a privateer in consequence of which she was acts. 1 7 Geo. II. c. 15, 26 Geo. III. c. 86, and 53 Geo. III. c. 159, repealed and amended by 17 & 18 Vict. c. 104, see Part IX. §§ 502-506. 2 3 Dallas, 333. Wheaton, On Captures, p. 45. 3 I Wheaton's Reports, 259. 1 Paine's Reports, 116, to the same point. (American Reports). 4 The Karasan, 5 Rob. 291. The Anna Maria, 2 Wheaton (American), p. 327. The reader will find a large collection of authorities, American, Continental, and English, cited in confirmation of the doctrine above stated in Halleck's International Law, ch. xxx. § 31, p. 746. 5 Dias v. Privateer Revenge, 3 Washington Circuit Reports (American), P. 262. seized by another belligerent and proceeded against as prize, but made a compromise with her captors and paid a ransom and costs, it was held that the owners were not liable for these items (there being no privity to the compromise), nor for any other injurious consequences flowing from the compromise'.] missions to Vattel, though admitting that an individual may Foreign comwith a safe conscience serve his country by fitting out cruise. privateers, 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 country2. doctrine [In the United States ample provision has been made American on this subject by decisions of the courts, by treaty, and by municipal regulations], and the principles thereby adhered to may be considered as in affirmance of international law, and as prescribing specific punishment for acts which were before unlawful. [The courts there have always been ready to discourage captures made in violation of neutrality, or partaking of a piratical character. Thus it has been held that in the case of the capture of a vessel of a country at peace with the United States by another fitted out in their ports, and commanded by one of their citizens, the district courts may inquire into the facts and decree restitution, and that if a privateer duly commissioned by a belligerent collude with such a vessel to carry her prizes and share with her their proceeds, this collusion is a fraud on the law of nations, and the claim of the belligerent must be rejected. It has also been established that if a capture be made by a privateer illegally equipped in a neutral country, the prize courts of such neutral country have 1 Dias v. Privateer Revenge, ut supra. N.B. The New York scheme (noticed in a preceding page) 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. 2 Bk. III. ch. xv. § 229. 3 Talbot v. Janson, 3 Dallas, 133. La Conception, 6 Wheaton, 235. and Treaty regulations. power, and it is their duty to restore the captured property, if brought within their jurisdiction, to the owner1. By the various treaties with England, France, the Netherlands, Prussia, Spain, and Sweden, between the years 1778 and 18282, it was provided that if any citizen or subject of either of the contracting parties should take a commission, or letters of marque, for privateering against the other from any power with whom that other might be at war, the person so offending should be treated as a pirate; and the same provision was introduced into the more recent treaties of 1825 with Columbia, and of 1849 and 1851 with Guatemala and Peru. The treaties with England and France of 1778 and 1794 respectively, having been suffered to expire without the renewal of the above principle by any subsequent act, so far as this branch of privateering regulations between those countries and the United States is concerned, the matter rests now not on special treaty enactments, but upon those ordinary neutrality obligations which international law upholds, and which are enforced by the municipal law by special orders of the respective States. By two acts of Congress passed June 14, 1797, and April 24, 1818, the subject was also provided for. The title of the former was "an act to prevent citizens of the United States from privateering against nations in amity with, or against citizens of the United States"." This, however, was repealed, and to a large extent reenacted by the later Act, the 3rd section of which prohibits the fitting out by any person within the United States, of any ship or vessel to cruise or commit hostilities. against the subjects, citizens, or property, of any foreign 1 The Brig Alerta v. Blas Moran, 9 Cranch, 359. 2 United States Statutes at large, Vol. VIII. 3 Statutes at large, Vol. I. p. 520. Ibid. Vol. III. pp. 448-450. These two Acts with the corresponding English Statutes will be noticed at length in another chapter. |