ish, none but the magistrates, who have refused to inflict punishment themselves, and the actual offenders, can justly be made to suffer. Lib. 3, cap. xiii. § 1. 5. That the right of recourse to the goods of the innocent is only subsidiary, and humanity requires that we should not make use of it as long as there is a hope of obtaining justice without it. Lib. 3, cap. xiii. § 4. 6. That we have no right to lay waste or destroy, unless with the design and reasonable hope of thereby promoting peace; and that if the same purpose can be otherwise effected, we have no longer this right.*

Now all these principles are violated by the practice of privateering; it assumes a right to kill, not for defending, but to obtain property; it has no regard to the injury done, but seizes whatever falls in its way, and that, not for the use of those who may have suffered from the depredations of the enemy, but for the profit of those concerned in the cruise; it has nothing to do with restitution, but takes with no other intent, than to enjoy a plenum dominium over the thing taken, be its value ever so great; it spares no class, much less the merchant, against whom all its attacks are directed; it regards all the enemy's subjects as game to be hunted, without any concern who may have been the authors of the war; it hears to no distinctions between innocent and guilty, debtors and sureties, primary or subsidiary rights; it understands nothing, but that as much wealth is to be gotten, as can be with impunity.

It would be easy to enlarge upon some of these topics, but the unexpected length of this article obliges us to abridge the argument. The distinction between those who bear arms, and those, who are engaged in peaceful occupations, and the principle, that the latter are to suffer no more of the evils of the war, than may be absolutely unavoidable, are now universally recognized. It is only in maritime warfare that they are not adopted in practice. The exemption, as it prevails in hostilities by land, comprehends all those, whose occupations are of a peaceful sort: quorum quæstus pacem amat, non bellum.' It extends, of course, to those, whose business it is to supply by a mutual interchange the wants of different countries. How it should happen, that the moment the merchant embarks his property upon the ocean; the moment

* Martens. Precis, &c. tom ii, p. 349.

6

he begins to exercise his trade in the very way, in which it yields most benefit to the world, he loses the protection of all laws, and meets the same treatment, as to his property, with the pirate, whose ship is loaded with the gains of violence and treachery, is indeed unaccountable upon any supposition consistent with fairness and equity. The canon,' says Grotius, in enumerating the exempted classes, adds also merchants; not merely those, who have a temporary residence in the enemy's country, but those who owe him perpetual allegiance, nam et horum vita ab armis aliena est. Many of the opinions we have quoted go to the entire neutrality of commerce; and this would be only extending to the sea the humane principles long since adopted on the land. The article already cited from our treaty with Prussia has been understood, as giving protection against public as well as private ships.* Many of the evils connected with privateering are equally to be feared from public captures; the effects upon the habits and morals of seamen will be nearly the same; the cruelty and injustice are the same. A French writer of the year 1744 has asked, would it not then be possible to revive the ancient custom of commercial truces, and to make war, without involving in it commerce and mercantile navigation ?' It may be objected, that the greater the sufferings connected with wars, the less ready will nations be to enter into them, and the sooner will they be disposed to return to a state of peace. But surely the experience of the world is against this. Wars were not less frequent, nor less obstinate, when it was thought lawful to enslave prisoners, to sack towns, and to put to the sword a garrison, which defended itself to the last extremity. The argument would justify every degree of cruelty, it would justify the poisoning of streams and the employment of assassins, it would introduce a law of war no better, than that of the Mohawks. But if to make prize of the property of the innocent is in itself opposed to equity and good conscience, it deserves a double reproach, when it is allowed to be done by privateers. Powers, in their nature oppressive, ought not to be committed to instruments so certain to make them more odious by abuse. A Russian treaty of 18010 Martens, Precis, &c. tom. ii. p. 352, note.

† Examen de l'Essai sur la Marine, p. 181.

Jus hoc mutand. per vim dominii odiosius est, quam ut produci debeat. Grotius, lib. iii. cap. 6, § 5.

§ Convention with Great Britain, June 17, 1801, art. 4.

prohibits to privateers the right of searching ships sailing under convoy. This cures some part of the evil, and it shows the light, in which privateers are viewed. But the same reason should induce the entire suppression of them.

In all that we have hitherto said, we have gone upon the supposition, that there is a just cause of war. But in every war one party or the other must be fighting in support of an unjust cause. Terrible indeed is the guilt of the subject, who, with no other end than private gain, attacks, kills, and robs the enemy, if in doing this he is at the same time abetting injustice and fraud. Grotius holds to complete restitution every general and soldier, who in an unjust war has assisted in the work of destruction. Lib. iii. cap. 10, § 3, &c. Who, then, in any war, can feel so assured, that his country is in no respect chargeable with injustice or rashness, as to be willing, for the sake of plunder, to incur the hazard of so great a guilt? What government can be excused in encouraging its subjects to put their integrity to so perilous a trial? And if there is guilt in fighting for a cause, which we know to be unjust, is there not also guilt in plundering in one, which we are not sure is just ?

;

We had something to say of the effects of privateering upon the morals of the community, and more especially of seamen ; of the taste which it gives for violence and bloodshed; of its breaking down the barriers, by which property is defended of its tendency to annihilate the distinction of mine and thine. But these consequences are too obvious, and have been proved by too recent experience, to need that we should labour to enforce them. They spring up in our path; they meet our eyes, wherever we go; the land and the sea send forth their reports of murders and piracies and daring robberies, as if the outcasts of society had become emulous of glory, and resolved to hide the disgrace in the magnitude and boldness of their crimes.

It is the laudable purpose of the writer of the Appeal, to call the attention of the proper authorities in the United States to the numberless depredations committed upon the ocean by ships fitted out in our own ports, and sometimes, it is to be feared, by our own citizens. He has diligently collected the statements of writers on the laws of nations, and the provisions of the British and French laws in relation to piracies, and the accepting of commissions from foreign powers; and

he has reviewed our own laws for preventing armaments against nations at peace with us, pointed out their insufficiency, and endeavoured to awaken attention to the importance of new restraints and prohibitions, and a more vigilant and thorough execution of those already existing. For all this he deserves the thanks of the public. Whatever may be thought of cruising against the enemies of our own country, there are few, we trust, who will not agree with Vattel, that for strangers it is a shameful trade, to take commissions from a foreign government, for cruising against a nation perfectly innocent in regard to them. The thirst of gold is their only motive, and the commission they receive, however it may screen from punishment, cannot wipe off their infamy.'* It is agreed by all nations, that a cruiser furnished with commissions from two different sovereigns, is to be treated as a pirate. Much of the reasoning in support of this principle would extend equally to the acceptance of any commission from a foreign belligerent against a nation at peace with us.†

The Memorial, of which we have also spoken, contains a concise and impressive view of the character and consequences of the practice of privateering. It was our intention to avail ourselves of one or two extracts from it, but we have already exceeded our limits.

It may be expected, that we should say something of the practicability of the measure proposed. We must, however, content ourselves with remarking, that there cannot be reaşon to despair of what all commercial nations must feel it to be their interest by mutual stipulations to effect. The United States, as a great commercial people, disposed by habit and interest to peace, have every inducement, however great may be their local advantages for carrying on a predatory warfare, to enter into such an arrangement. Great Britain can expect no benefit from the continuance of the practice of privateering. Holland, France, and Spain have too much interest in the revival of their fallen commerce not to acquiesce cheerfully in a proposal, which takes away one of its greatest vexations. Russia, Sweden, and Denmark are friends to the freedom of commerce, and it is a remarkable and encourag

Vattel, liv. 3, ch. 15, § 229.

† See, as to double commissions, D'Abreu, part 2, p. 2. Bonnemant's translation.