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ART. V. An Essay on Privateers, Captures, and particularly on Recaptures, according to the Laws, Treaties, and Usages of the Maritime Powers of Europe. By M. de Martens, Counsellor of State: to his Britannic Majesty the Elector of Hanover, Ordinary Professor of the Law of Nature and Nations, and Member of the Juridical Faculty in the University of Göttingen: to which is subjoined, A Discourse, in which the Rights and Duties of Neutral Powers are briefly stated. Translated from the French, with the 6s.

Notes. By Thomas Hartwell Horne. 8vo. PP. 260.

Boards. Brooke, &c. 1801.

MU UCH indiscriminate censure is often directed, by those who are more fond of talking than addicted to thinking, against the expence attending suits at law. Persons who allow the subject due consideration will perceive that the price of these remedies may be too low as well as too high; and that, if in the one case prudent men sometimes brook injustice and even suffer oppression rather than have recourse to law, so in the other case innumerable mischiefs would arise from extreme facility of litigation.-War may be considered as a suit,-a clumsy and an odious one, we admit : but it was once an allowed method for deciding private differences, though now grown obsolete in consequence of the prevalence of science and civilization. We fear that it would be visionary to hope that a similar fate awaits it, as employed to decide variances between states: certainly it is at present, and seems likely to continue for an indefinite time, a recognized and legitimate mode adopted for that purpose. In this view of the subject, then, it may be questioned whether, by attempting to divest it of many of its prejudicial and disgusting properties, while its grand mischiefs and bloody horrors must remain, we really act the part of enlightened and judicious philanthropists;-if, in consequence, wars shall last longer, if the aversion from them shall be weakened, and if nations shall more readily enter into them, we shall probably injure rather than benefit the cause of humanity. This consideration may perhaps diminish the effect which declamation on the hardships occasioned by the present system of war to private merchants, and to neutral nations, would otherwise produce upon our minds. It is not, however, within our province to follow up this discussion, and to apply it; and we must leave it to be pursued by others, if they chuse to embrace it.

In regard to the legality of privateering, the point of view in which the question presents itself to our minds is this; Is the political benefit, to the state which sanctions this predatory warfare, such as warrants the continuance of a practice which must excite and nourish passions that are destructive of morality, by stifling every good principle and

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every liberal sentiment? Leaving this matter also to be adju dicated by our readers, we must now attend to the work before us.

The well earned fame of Professor Martens will not be diminished by the present production; which contains a vast body of information, drawn from the most authentic sources, ably digested and arranged; and, if an indifferent translation can warrant conjecture, clearly expressed in the original. It is, indeed, a rare specimen of human patience and industry; by the side of which, how contemptible do hasty publications appear!-Though, however, we admire the ability which the author shews in his treatment of the points discussed, we do not agree with him in all the remarks that he has suggested. He is, as the title-page informs us, a subject and even a counsellor of his Britannic Majesty as Elector of Hanover: but he shews himself a more fit adviser of the Elector than of the King; he would gladly see the practice, concerning the laws and regulations of which he so ably treats, wholly discontinued as a part of warfare; and he is the advocate of all the pretensions lately made in favour of neutrals, which Great Britain, by firmness combined with good fortune, has successfully resisted.

The Professor carries us back to the origin of privateering; and he considers it as existing in the usage of making reprisals without permission from the sovereign; namely, as a branch of private war; a right then enjoyed by the subjects of many countries, but which now subsists only in the German empire. From this stage, he traces it through all the gradual restrictions which it has undergone, in consequence of treaties and the laws of particular states, to the present time. The first approaches to it occur in the history of the Hans Towns; and next the Vitalian Brothers, by the authority of the crown of Sweden, begin with something resembling it, but end in piracy. The author also considers it as it has been practised by the Dutch and English Freebooters of the sixteenth, and the Buccaneers of the seventeenth, centuries; and as carried on at this day by the maritime governments.--The first restraint on the subject's power of making reprisals was imposed about the year 1400; France setting the example, in which she was soon afterward followed by most of the Christian states.

We are tempted to quote the following brief but masterly passage, not as bearing very much on the subject before us, but as an admirable specimen of what has been called the spirit of history:

Till the sixteenth century, the politics of commerce entered but little into the greater part of the wars of the great monarchies of Europe. But the discovery of the new world, and of the passage to

the

the Indies, had begun to fix the eyes of sovereigns on the importance of commerce; the example of the Low Countries which had revolted against Spain, shewed them the resources it procures; and since, in England, hatred against that republic brought to light the celebrated act of navigation iu r652, since nearly at the same period France ranked herself among the maritime and colonial powers, almost all wars at sea have breathed the jealousy of commerce, and the weaken ing of that of the enemy has become at the same time both the prin cipal motive, and one of the most effectual means, of the wars which have desolated the earth; the more the necessities of war were multiplied, the greater extent commerce acquired, the more important it appeared to prevent that of friendly nations from affording, under the mask of neutrality, any reinforcement to the enemy, and even from acquiring, during the course of the war, a preponderance capable of bearing it away after the re-establishment of peace.'

It was in the course of the contest between Spain and the United Provinces of the Low Countries, then in a state of insurrection, that legislation was more particularly applied to this subject: During the continuance of that long war, (says the author,) we find powers more occupied in fixing better the rights and obligations of privateers, both by treaties and laws, either with respect to the securities to be given previously to obtaining letters of marque, or with respect to their conduct towards neutral powers, and to the judicial forms to be ob served in order to judge their prizes.'

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In the IId chapter, which treats of the Rights of Privateers, with respect to Captures in general, we are told that

At present all the powers of Europe agree in these three points: 1. That whoever wishes to fit out a privateer must provide himself with letters of marque, or with a commission from one of the belligerent powers, for want of which he may be treated and punished as a pirate, as well by those against whom he commits violence, as also by his own sovereign.

2. That a lawful privateer has, in strictness, a right to demand his prize to be adjudged to him, inasmuch as it is lawfully made; but also,

3. That he can in no wise regard it as his property till it has been adjudged to him by a competent tribunal.'

A nation furnishing its quota to one belligerent, in consequence of a pre-existing treaty, is not considered as at war with the other: but, if it issues letters of marque, that is an act of hostility.

In pursuing the subject under discussion, the author considers letters of marque from the commencement of the speculation, goes on to the appointment of the captain and crew, and examines every part of the adventure, with the adjudication of the prize, and the conduct to be observed towards an enemy,

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towards neutrals, and towards allies. In the section discussing in what Places a Privateer may visit and seize Ships,' it is stated that 'it is considered as contrary to the laws of war, if the privateer make, or follow, prizes on the rivers belonging to the enemy, and in the inclosures usually marked out by buoys; so that in these cases he is refused the treatment of a lawful enemy, and is punished as a pirate.'-Privateers are, moreover, restrained from attacking the enemy within the maritime jurisdiction of a neutral state; and are not suffered, when in its ports, to set sail till a given time after the ships of the other belligerent. have weighed anchor. The treatment which they meet at such ports varies in different states; some governments decide on the capture, and, if condemned, allow the cargo to be unloaded and sold; while others permit them to put in only in cases of necessity, and to stay no longer than is requisite to enable them to pursue their voyage.

The doctrine, which Prof. Martens lays down in the case of Neutrals under convoy being met by a Privateer, is founded on recent treaties, not on the Roman law and antient usage. Great Britain, in its late treaty with Russia, has acceded to this doctrine, and we think that it was a reasonable compromise: there is a decency in it, and we trust that it will not be abused but we do not consider it as required by principle.

The author contends that the question What is and what is not contraband? should be decided by the existing treaties between the parties: but surely, if there be none, or if such as exist be silent on the matter in dispute, general principles must be adopted; and we conceive that, in a maritime war, these most clearly require the prohibition of naval stores.

In treating of those cases in which a privateer is Permitted to Seize the Ship, the following very impartial and just statement occurs; and as coming from authority, we hope that it will meet with due attention from continental readers;

Unfortunate experience shows but too well, to what degree the examinations of ships often approach chicane; on the other side, in order to judge impartially of the conduct of privateers, and of that of bellige rent powers, we must also recollect to what frauds the subjects of certain neutral powers had recourse during the late maritime wars, in order to deceive the vigilance of privateers; that the subjects of certain neutral powers made a trade of covering the property of hostile ships and cargoes by means of forged contracts of sale, being paid for their false oaths a certain sum per cent. Can we reasonably ask belligerent powers to become the dupe of these impostures?unfortunately, the innocent suffer for the guilty,'

On the subject of Ransom, we are told by Professor Martens that, in former times, it was common for merchantmen to

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ransom themselves, but that of late the practice has been discouraged by all governments, and by some absolutely prohibited. On the question of Costs and Damages, the author warmly contends for the allowance of full costs to neutrals, when the suit is lost by the captor; and he strongly inveighs against the practice of remitting them, in case the Court finds that the privateer had ground of suspicion.

In the IIId Chapter of his work, the Professor treats of the subject of Recaptures; which is considered as it is affected by the laws and ordinances of the particular maritime powers, and by the tre ties by which they are respectively bound to one another. He then applies the principles deduced from these two sources, to the cases which are likely to happen.

Almost all states have laws to regulate re-captures as between subjects: but it is here alleged

That the question, whether a recapture ought to be restored to a foreign proprietor, is scarcely mentioned in any law, that the number of formal conventions on the subject of recaptures is inconsiderable, and that the greatest part of them has been made only in case of a common war, or is inserted in treaties of alliance, together with which they have expired; and that, if there are any articles in treaties of commerce, which make any mention of it, they are few in number, but especially that they make scarcely any mention of all those cases which it must be of importance to determine.'

Much as we respect the ability and fidelity which this author shews in deducing from their proper sources the rules of the positive law of nations, as well as the method in which they are arranged, and the clearness with which they are expressed, we cannot avoid considering his attempts at theory as less happy than the other parts of his work. In opposition to Grotius, he contends that property captured at sea does not vest in the captor till the ratification of peace. The fallacy of this opinion, and the preference due to that which considers the property as complete when the ship enters intra presidia, it were easy to shew, if our limits would permit. It is true that the public law does not designate, in a very marked manner, the limits within which the proprietor shall have claims on the re-captor; and it may be also true that nothing is done by time, although every thing is done in time;' yet, according to all known laws, time bars claims. The Professor himself suggests considerations which, if he had pursued them, would have satisfied him of the superior expediency of the rules actually followed, over those which he would substitute.

We agree completely with M. de Martens in the medium which he preserves with regard to the Consolato del Mare; and

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