Privateer, an armed private vessel which bears the commission of a state to cruise against the commerce of its enemy. When one sovereign has duly declared war against another, all the subjects of the former are enemies of all the subjects of the latter. From this principle of the law of nations follows the unquestionable corollary, that no citizen of one of the belligerent states can complain of the hostile acts of any citizen of the other. Therefore, as far as absolute international rights are concerned, it makes no difference whether a depredation or capture by a subject of the enemy has been expressly sanctioned by his sovereign. The universal practice of nations, however, condemns all unauthorized hostilities; and a capture or other hostile act without the sanction of a competent sovereign power, although, strictly speaking, it would not be piracy, yet would be so much like it, or so irregular and odious, that it would unquestionably provoke the severest treatment at the hands of an enemy against those who engaged in it. Yet, though unauthorized capture of enemy property is no offence under the law of nations, it is an infraction of the public law of the captor's own state.
For the universal rule is that, except in self-defence, only those subjects may take part in hostilities who are thereto expressly or constructively authorized by their sovereign. But the sovereign may, if he will, avail himself of the private vessels of his subjects by commissioning them to seize the merchant ships of the enemy. These commissioned private ships or privateers are in naval warfare much the same as the volunteer corps are in the land service. In both cases the commissions proceeding from the sovereign make those who bear them the instruments and servants of the state. On the sea it is the letters of marque which give that interest in the prize which is the inducement to engage in the service. For, primarily, all prizes vest in the state, and it is the commission alone which, under the municipal regulations of each state, defines the proportion of the captured property and the other rewards which shall fall to the privateersman. (See Prize.) To guard against the excesses and abuses which are incident to privateering, it has been subjected to various restrictions. Some states have regulated the composition of the crews, and have forbidden all cruising in the rivers or along the coasts within the sea line of the enemy.
Generally commissions are granted on condition that the rights of neutrals shall be respected, and that belligerent rights shall in all cases be enforced according to the rules of war; that prizes shall be brought for adjudication before the proper tribunal; and that the whole conduct of the cruise shall be confined to the instructions of government. Bonds are taken for the due performance of these engagements, and owners and officers are subjected to penalties for the violation of them. - Privateering may be regarded in two aspects, or rather it may be said that there are two kinds of privateering, one of which is far more legitimate and defensible than the other. The former of these kinds is that in which the citizens of one of the states at war sail under their own flag against the enemy. They find employment in this way for the ships which during war must almost of necessity be withdrawn from trade; and they contribute very materially to the maritime strength of their state. The other and more odious form of privateering is that in which a neutral accepts a commission from one of two belligerents. Here the legitimacy of the practice is not so clear, at least so far as affects the neutral. He can certainly have no patriotic motive in accepting such a commission.
Such a motive is rare probably even when the privateer sails under the flag of his own country; but then the country does really derive some benefit from the service. In the case supposed, the neutral is a sort of legalized pirate, and so indeed he is regarded by those conventions and treaties which, in condemnation of this abuse of the international laws of war, almost all nations have entered into. Indeed, by such conventions and treaties, and by the municipal statutes by which nations forbid their subjects from equipping privateers or enlisting men for service in any foreign war, this species of privateering seems to be well nigh repressed. Not so the other. For nearly a century the expediency of its suppression had been at intervals elaborately discussed; yet in all that period but little advance had been made toward the settlement of the question. In 1856 the subject was revived at the congress which convened at Paris after the Crimean war, and the states there represented made mutual engagements to surrender the practice of privateering. The United States had early made an effort to abolish it.
In 1785, and while he was negotiating with Prussia the treaty which was afterward concluded, Dr. Franklin wrote: "The United States of America, though better situated than any European nation to make profit by privateering, are, so far as in them lies, endeavoring to abolish the practice, by offering in all their treaties with other powers an article engaging solemnly that in case of future war no privateer shall be commissioned on either side, and that unarmed merchant ships on both sides shall pursue their voyages unmolested." Dr. Franklin procured the insertion of both these propositions in the treaty with Prussia. In the subsequent treaty of 1799 with that power, however, all provisions of this character were omitted. In 1792 the legislative assembly of France proposed that nations should agree by mutual conventions to abolish privateering and the seizure of private property on the ocean. The proposal met but little favor, and these practices were perhaps never more extensively carried on than during the wars which followed the French revolution. Again in 1824 the subject was revived, when, on our part again, it was urged upon the attention of the English government.
But the plenipotentiaries, Messrs. Huskisson and Stratford Canning, declined to entertain the propositions of our minister, Mr. Rush, and he reported to government that in his opinion Great Britain was unwilling, under any circumstances, to accede to the abolition of private war upon the ocean. But a radical change in the sentiments of English publicists upon this question is indicated by the language of Lord Clarendon in 1854. In submitting to our ambassador, Mr. Buchanan, the declaration respecting neutrals which France and England afterward issued, the British minister advocated the abandonment of privateering, and expressed his condemnation of the practice as one which was "inconsistent with modern civilization." Mr. Buchanan replied, that under existing circumstances it did not seem possible for the United States to agree to a surrender of the practice, unless the naval powers of the world would go one step further and consent to the abolition of all war against private property upon the ocean, as was already agreed upon as to private property upon the land.
In answer to Mr. Buchanan's despatches, Secretary Marcy reminded the British government that the United States laws go as far as and even further than those of any other nation in prohibiting its subjects from entering into foreign privateer service; but he added that the country would not enter into any convention whereby it would preclude itself from resorting to its merchantmen in case of war. Finally the submission to our government of the declaration which was signed at Paris in 1856, by the plenipotentiaries of the chief states of Europe, called for a new consideration of the question. Besides provisions affecting the rights of neutrals, the convention contained an article which declared that privateering was abolished. The four points of the declaration were to be regarded as an entirety; they were to be binding only between those powers which assented to them; and the states that signed the convention undertook to invite the accession of those powers which were not represented at the congress. Most of the secondary states of Europe and America gave prompt adhesion to the articles of the declaration.
The answer of our government to the declaration was, through Mr. Marcy, that the United States would accept the whole of it "in case the clause abolishing privateering were amended by adding that the private property of the subject or citizen of a belligerent on the high seas should be exempted from seizure by public armed vessels of the other belligerent, except it be contraband of war." This was declined, and there the matter was suffered to rest until the breaking out of the civil war in the United States in 1861, when Secretary Seward on behalf of the government, in view of the resolution of the confederate government to issue letters of marque to privateers, offered to assent to the declaration of Paris without the Marcy amendment; but this was declined by the governments of England and France if coupled with the condition that it was to be made applicable to the case of the Confederate States.