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CHAPTER VIII.

PRIVATEERS AND FOREIGN ENLISTMENT.

Of Privateers, or private Ships of War.

PRIVATEERS are vessels which have a commission which empowers them to appropriate to their own use whatever prize they make, after legal condemnation; and, in case we are at war with more potentates than one, they must have commissions for acting against each of them; otherwise, if a captain, carrying only one against the Spaniards, should in his course meet with and take a Frenchman, this prize is not good, but would be taken from him by any man of war he met.

In some of these adventures, the men on board go on the terms of no prize no pay; in this case, the produce of whatsoever is taken goes half to the ship, (for the owners,) and half to the men, divided among them according to the articles of agreement; but, when the men sail for wages, the captures appertain entirely to the owners, except a small part, which is commonly stipulated to be given the sailors, extra of their wages, in order to animate them in their behaviour; and both ways of arming are regulated by the articles entered into between the owners and mariners, of which a copy is hereto subjoined.

No privateers may attempt any thing against the law of nations, as to assault an enemy in a port or haven under the protection of any prince or republic, be he friend, ally, or neutral; for the peace of such place must be kept inviolable.-Molloy de Jur. Mar. p. 49.

To preserve the different treaties made with other states, security is required of responsible men (not concerned in the ship) to the value of 1500l. for all ships carrying less than 150 men, and 3000l. for every ship carrying more, that they will give full satisfaction for any damage or injury that they shall commit in their courses at sea, contrary to, and in breach of any of these treaties, and also under the penalties of forfeiting their commissions, and for which their ships are likewise made liable.

By several of our treaties* with European powers, (especially Spain, Holland, and Denmark,) it is recited that, "whereas the masters of merchant-ships, and likewise the mariners and passengers do sometimes suffer many cruelties and barbarous usage when they

A complete Collection of the Treaties subsisting between Great Britain and Foreign Powers has been published by Lewis Hertslet, Esq, Librarian of the Foreign Office, from authentic documents.-Butterworth, Fleet-street, 1827.

are brought under the power of ships, which take prizes in the time of war, the takers, in an inhuman manner, tormenting them, thereby to extort from them such confessions as they would have to be made; it is agreed that both his Majesty and the StatesGeneral shall, by the severest proclamations, forbid all such heinous and inhuman offences, and as many as they shall, by lawful proofs, find guilty of such acts, they shall take care that they be punished with due and just punishment, and which may be a terror to others; and shall command that all captains and officers of ships, who shall be proved to have committed such heinous practices, either themselves, or by instigating others to act the same, or by conniving while they were done, shall (besides other punishments to be inflicted proportionally to their offences) be forthwith deprived of their office, respectively. And every ship, brought up as a prize, whose mariners or passengers shall have suffered any torture, shall forthwith be dismissed and freed, with all her lading, from all farther proceedings and examinations against her, as well judicial as otherwise.”

It is a general stipulation too, in most of our treaties, that ships may sail to, and trade with, all kingdoms, countries, and estates, which shall be in peace, amity, or neutrality, with the princes whose flags they carry, and who are then at peace with the contracting parties, and are not to be molested, provided such ships are not bearers of contraband goods.

And, to avoid disputes about the understanding the term of contraband goods, they have been expressly determined to be only arms, pieces of ordnance, with all implements belonging to them, fire-balls, powders, matches, bullets, pikes, swords, lances, spears, halberts, guns, mortar-pieces, petards, bombs, grenades, fire-crancels, pitched-hoops, carriages, musket-rests, bandeliers, saltpetre, musket-shot, helmets, corslets, breastplates, coats of mail, and the like kind of armature; soldiers, horses, and all things necessary for the furniture of horses; holsters, belts, and all other warlike instruments whatever.

All other goods whatsoever are generally by such treaties permitted freely to be carried, except to places besieged; and therefore a privateer will have no right to put a hinderance thereto: but, if he make a prize of a ship loaden entirely with the above-mentioned contraband goods, both ship and loading will be condemned; and, if part be prohibited goods, and the other part not, the former only will become a prize, and the ship and the remainder be set free; and, in case the captain of the merchant-ship deliver to the captor that part of his cargo which is prohibited, the other shall receive it, without compelling the merchantman to go out of her course to any port he thinks fit, but shall forthwith dismiss her, and upon no account hinder her from freely prosecuting her intended voyage.

If such ships be attacked, in order to be examined, and refuse submitting thereto, they may be assaulted and entered by force. But, if any persons on board do not yield and surrender, those that resist may be slain.-Molloy de Jure Mar. p. 52. § 13. See Ditto on Reprisals, § 20. Ditto, § 14.

But, if any privateer wilfully commit any spoil, depredation, or any other injuries, either on the ships of friends or neuters, or on the ship or goods of their fellow subjects, they will be punished, in proportion to the crime, either with death or otherwise; and the vessels are subject to forfeiture.

Whether a ship taken be lawful prize, or not, shall be tried in the Admiralty.

If two ships with letter of marque accidentally meet with a prize at sea, though only one attack and take her, yet the other, being in sight, shall have an equal share of the prize, though he afforded no assistance in the capture; because his presence, however, struck a terror in the enemy, and made him yield; which perhaps he would not have done, had his conqueror been single: so that all ships that are in sight, though they cannot come up to assist in the engagement, are entitled by the common law to an equal distribution of the spoil. -Mich. 32 Eliz., Somers and Sir Richard Bulkley's case. Leonard 2, p. 182. And where there is a joint capture by several privateers, they are to share in proportion to the number of men in each.-Roberts v. Hartley, Doug. 311.

But, if those to whom letters of marque are granted, should, instead, of taking the ship and goods appertaining to that nation against which the said letters are awarded, wilfully take or spoil the goods of another nation in amity, this would amount to a downright piracy, and the persons so offending would, for such act, forfeit their vessel, (and the penalties in which their securities are bound on taking out such letters,) notwithstanding their commission: but this must be understood where such capture is done in a piratical manner; for, if it be made upon a strong presumption, supported by many circumstances and appearances, that a capture is justifiable, as appearing to belong to him against whom the reprisals are granted, though, upon examination, it proved otherwise, and the suffering parties have their ship and goods restored, yet the captors are not liable to punishment, though sometimes they may be subject to damages. On the contrary, they are justified in endeavouring to recover their right, or distress the enemy, (for which the letters were granted them,) though in effecting it they may be deceived, as it is natural for the enemy to cover their property in the best manner they can. It would be impossible always to determine the affair at sea, therefore it is allowable to bring a dubious capture into port, in order to more nice and just scrutiny and inspection; otherwise the goods of an enemy would often escape. However, to guard against unlawful seizures, the government have wisely directed sufficient caution to be given (as before mentioned) for the due observance of the letters according to law, before they permit their issuing; and, when there is a breach committed, the penalties are inflicted.-Roll's Abridg. p. 530.—Moor. 776.

The following are such Articles of Agreement as have commonly been entered into by the Captains of Privateers and their Crews.

Articles agreed between Captain A. B., commander of the private ship of war, called the Terrible, (with twenty guns mounted, carrying nine-pound shot, twenty brass patereroes, four mortars, and some wall-pieces,) manned with two hundred men, now lying in Church-hole, (designed to cruise against the French and Spaniards,) on the one part, and the said ship's company on the other, witnesseth,

1. That the said captain A. B., for himself, and in behalf of the owners of the said ship Terrible, shall put on board her great guns, swivels, powder, shot, and all other warlike ammunition necessary for them; as also small arms, and provisions sufficient for the said ship's company for a six months' cruise at sea from their sail

ing from the Downs; in consideration of which, the owners, or their assigns, shall be reimbursed (out of the first prize or prizes taken by the said ship Terrible before any dividend is made thereof,) the whole charge of warlike stores, (great guns and small arms excepted,) victualling, advance-money, and the expenses the owners are at for surgeon's chest and a set of music; after which, one half of the net proceeds of such prize or prizes, as shall be taken, to be for the account of the owners, and at the disposition of the managers; and the other half of such net proceeds to be the net property of the ship's company; the captain's share of which to be six (in some eight) per cent., and the residue to be divided in the proportions mentioned in the eleventh article of these presents.

2. That, for preserving decorum on board the said private ship of war, no man is to quit or go out of her, on board of any other vessel or vessels, or on shore, without leave obtained of the commanding officer on board, under the penalty of such punishment as shall be esteemed proper by the captain and officers.

3. That it shall be entirely in the captain's power to cruise where he shall esteem most beneficial to the interest of the owners and ship's company.

(In some, it is to cruise where the managers, and, in others, where the owners, shall direct.)

4. That if any person be found a ringleader of mutiny, or causing a disturbance on board, refuse to obey the command of the captain and officers, behave with cowardice, or get drunk in time of action, he or they shall forfeit their share, to be divided amongst the ship's company, and be otherwise punished according to law

5. That all clothes, bedding, watches and rings in wear, buttons, buckles, and what else is deemed small plunder by custom, is to be divided amongst the ship's company, according to their several stations, the captain not to interfere with them, the cabin utensils in present use for the commander.

6. That if any person shall steal, or convert to his use, any part of the prize or prizes, or be found pilfering any money or goods, and be convicted thereof, he shall forfeit his share to the ship and company.

7. The captain has the power of taking out of any prize or prizes, whatever stores he may judge necessary for the ship Terrible, without paying for them; provided the prize is not disabled thereby.

8. That whosoever first spies a sail, which proves to be a prize, shall have seven pounds, (in some only one guinea, in others, five,) and the first man proved to board a prize before she strikes, shall have a gratuity of ten pounds (in some ten, and in others fifteen guineas) for his bravery, to be deducted out of the gross sum of the prize.

9. That, if any private man shall lose a leg, arm, or eyes, in the time of action, or in the ship's service, he shall, besides the advantage of Greenwich-hospital, have a gratuity of £25, and in proportion to the officers, exclusive of shares; (in others only £20 to a private man, £50 to the captain, £40 to the first lieutenant, and £30 to each of the other lieutenants, master, and surgeon ;) the said sum to be deducted out of the gross sum of the prize; and, in case of mortality under cure, the said gratuity and shares to be made good to their assigns.

10. That, for the further encouragement of the said private ship of war's company, it is agreed that the chief officers shall have six guineas, the petty officers and able seamen five guineas, able-bodied landmen three guineas, and boys one guinea, advanced to them in the Hope, (in some, the officers and seamen have only five guineas, and the landmen two.)

11. That the half of the net proceeds of all prizes taken by the ship Terrible, which is appropriated to the ship's company, be divided amongst them in the manner following, after the captain's six or eight per cent. (as shall be agreed) is taken

thereout as above.

When the captain has not the above-mentioned six or eight per cent., but divides with the ship's company, he commonly has twelve shares, as follows, viz.

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