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posals to rob, under his sanction, such citizens of the United States as might have property afloat, — was no better than the advertisement of any other private person; and the letters of marque and reprisal issued by him as President, and countersigned by R. Toombs as if he were a Secretary of State, are, as respects the United States, no better than so much waste paper, for the justification and protection of those who capture property under them. Such persons are amenable to the laws of the United States as pirates, under the act of Congress of 1790, Chapter, 9.
The eighth section of that statute provides that, “if any person or persons shall commit upon the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular State, murder or robbery, or any other offence which, if committed within the body of a county, would by the laws of the United States be punishable with death; . . . . . every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and, being thereof convicted, shall suffer death.” The ninth section enacts that, “if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea, under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged, and taken to be a pirate, felon, and robber, and on being thereof convicted shall suffer death.”
The insurgents are not absolved from responsibility under this statute by the fact that their offences were committed in the course of what in other aspects may have the character of war, nor by the fact that they have been taken prisoners in that war.
Martens admits the right of the conqueror to take the lives of prisoners in three cases: —
“1. When sparing their lives is inconsistent with his own safety;
2. in cases where he has the right to exercise the talio or to make reprisals ; 3. when the crime committed by those who fall into his hands justifies the taking of their lives." - Summary of the Law of Nations, Chap. 3, Sect. 4.
Vattel concedes a right to punish prisoners who have been personally guilty of some crime against the captor.
“ Prisoners may be secured, and, for this purpose, they may be put into confinement, and even fettered if there be reason to apprehend that they will rise upon their captors or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case he is at liberty to punish them; otherwise he should remember that they are men, and unfortunate." Book III. Chap. 8, Sect. 150.
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It is by no means clear that those who come under the condemnation of this statute of 1790 by acts of force and plunder on board the Confederate privateers, would not be liable to the same condemnation under the rules of public law; for although a pirate is generally described as hostis humani generis, because the buccaneer ordinarily makes war indiscriminately upon the vessels of all nations, yet if a band of sea-robbers should confine their depredations to the commerce of a single nation, it would seem that, as to that nation, their crime might well be regarded as piracy, even if other nations whose commerce was not assailed did not so regard it.
It may be asked wherein consists the material difference between persons who act under a privateer's commission, and capture property on the high seas, and those who wage war upon the land, and commit homicide, and burn, destroy, or capture property there. Why should the former when taken be held and treated as pirates, and the others when captured held and exchanged as prisoners of war? It is a sufficient answer to this to say, that the war of the privateer is mainly upon the property of private persons, by private parties, for their private emolument. If the privateer attack a public
vessel, it is the exception, and not the rule; she is not commissioned with that view. On the other hand, the war of the land forces is of a more public character, such as fighting battles offensive or defensive, assaults upon forts and batteries, and the like, and their interference with private property is usually incidental to those more direct and public operations. The object of the hostilities waged by privateers is mainly gain, by the plunder of commercial vessels; the injury done to the enemy being only incidental to that object. The object of the military operations upon land is ordinarily the public object of the war, whatever that may be, the injury done to private property being incidental to the measures taken for that purpose. If, then, the hostilities of the privateer are not regarded as war under lawful authority, they have the character of private acts, to wit, murder and robbery.
Letters of marque and reprisal were originally granted to merchants who had lost goods by capture, in order that they might indemnify themselves by capture of the property of subjects of the offending nation. They were, and may still be, used before a war, as a means of procuring justice for a wrong or injury sustained by a nation, its citizens or subjects; but a resort to this measure presupposes the existence of such wrong or injury.
“When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declare war (of which we shall treat in the following Book), there are various methods practised among nations, which remain to be treated of here. Among those methods of obtaining satisfaction has been reckoned what is called the law of retaliation, according to which we make another suffer precisely as much evil as he has done. . . . . .
“Let us say, then, that a nation may punish another which has done her an injury, as we have shown above (see Chap. IV. and VI. of this Book), if the latter refuses to give a just satisfaction; but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much
more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the ambassador of a barbarian who had treated your ambassador in that manner ? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles ; and we shall speak of them in their proper place.” – Vattel, Book II. Chap. XVIII. Sect. 339.
Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, — if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, - the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages, -- or keep it as a pledge till she has received ample satisfaction.” — Ibid., Sect. 342.
“ There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so; and these are precisely those cases in which nations may with justice take up
When the question which constitutes the ground of a dispute relates, not to an act of violence, or an injury received, but to a contested right, - after an ineffectual endeavor to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility, without a declaration of war, and would be contrary to public faith, as well as to the mutual duties of nations." Ibid., Sect. 354.
“ Reprisals by commission, or letters of marque and reprisal, granted to one or more injured subjects, in the name and by the authority of a sovereign, is another mode of redress for some specific injury, which is considered to be compatible with a state of peace, and permitted by the law of nations. The case arises when one nation has committed some direct and palpable injury to another, as by withholding a just debt, or by violence to person or property, and has refused to give any , satisfaction.' -1 Kent's Comm. 61.
The principle stated in these authorities relates to reprisals as a measure of redress before the existence of a war. But
when reprisals are resorted to in time of war, for the purpose of weakening the enemy by depriving his subjects or citizens of their property, the principle that there can be no lawful reprisals until an injury is sustained is equally applicable.
Wheaton enumerates, “among the various modes of terminating the differences between nations by forcible means short of actual war,” —
4. “By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury.”
He says: —
“Reprisals are also general or special. They are general when a state which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending state. Special reprisals are where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation.”
“Reprisals are to be granted only in case of a clear and open denial of justice.” — Elements of Int. Law, Part IV. Chap. I. Sect. 1, 2.
It is one of the singular features, however, of this controversy and warfare, and one of the strange perversions of all ordinary action, that the proposals by Mr. Jefferson Davis to issue “letters of marque and reprisal” were made before any article of property belonging to the Confederate States, or any one of them, or to any person claiming to be a citizen of any one of those States, had been interfered with ; or any person belonging to the Confederate States had been molested by the government of the United States, except in self-defence.” It is true that the United States in the war of 1812, by the same
* April 17, 1861.