R

the French armies in the field; a Spanish state-counsellor
living at the headquarters of the first corps gave intelli-
gence from that side, and a guitar-player of celebrity, named
Fuentes, repeatedly making his way to Madrid brought back
advice from thence.
With the exception of the state
spy at Victor's headquarters, who being a double traitor was
infamous, all the persons thus employed were very merito-
rious. The greater number, and the cleverest also, were
Spanish . . . who, disdaining rewards and disregarding
danger, acted from a pure spirit of patriotism, and are to
be lauded alike for their boldness, their talent and their
virtue." Considerations such as these should serve to miti-
gate the harsh judgments sometimes pronounced on spies
as a class, as if they were all alike. It is impossible to
arrive at any reasoned conclusions unless we distinguish, as
Napier does, between those who carry devotion and patriot-
ism to the point of risking their lives in cold blood and
without any of the excitement of combat, in order to obtain
within the enemy's lines information of the utmost impor-
tance to their country's cause, and those who betray the
secrets of their own side for the sake of a reward from its
foes. The first are heroes, the second are traitors; and it is
the height of injustice to visit both with the same condem-
nation. Military reasons demand that the right to execute
spies, if caught, should exist; but unless considerations of
safety imperatively demand the infliction of the last penalty,
a general should commute it into imprisonment. It should,
however, be clearly recognized that in many cases the exe-
cution, though necessary for the safety of those who inflict
it and the success of their cause, involves no more stigma
than a fatal wound upon the battle-field. Both Captain
Hale and Major André, for instance, were rightly executed
as spies; but, as their part in the deeds for which they
suffered had nothing dishonorable in it, they were not dis-
honored by their death.

1 Halleck, International Law (Baker's ed.), II., 32-34, and notes.

§ 223.

Hitherto we have dealt with agents employed in land warfare. It is now time to turn to nautical affairs and consider the case of

Privateers.

They may be defined as vessels owned and manned by private persons, but empowered by a commission from the state, called a Letter of Marque, to carry on hostili

The law declared the commission

Privateers.

ties at sea. to be revocable for bad conduct on the part of the privateer; and other means, such as the lodgment of security and liability to search by public vessels of the country whose flag she carried, were taken to secure that she did not violate the laws of war. But in spite of all precautions, privateers were always a most unsatisfactory force. When it was first

held about the beginning of the fifteenth century that some authorization from a belligerent was necessary before a private vessel could perform hostile acts, such authorizations were given to all who applied for them. Thus neutrals as well as subjects of the belligerents acquired a right to cruise against commerce; and, as privateers were allowed to keep for themselves all or nearly all the proceeds of the prizes they took, privateering became a lucrative trade for the lawless and adventurous spirits who abounded among sea-faring populations. The scandal grew so great as modern trade developed, that in the eighteenth century most of the states of Europe passed laws for the punishment of any of their subjects who took Letters of Marque authorizing depredations upon the commerce of any power with which they were at peace. In the United States similar provisions were placed upon the Statute Book by Congress in 1797 and 1816. These legislative acts have become general, and they have practically put a stop to privateering by neutral subjects. There have been only two instances in modern times of the offer by a belligerent to accept the assistance of neutral

privateers, and they are both connected with the American continent. The first took place in 1845, when Mexico, at the beginning of her war with the United States, proclaimed her willingness to give Letters of Marque to all who applied for them, and the second in 1861, when the Government of the Confederacy made a similar offer at the commencement of the Civil War in the American Union. But in neither case did a neutral subject seek the proffered authorization,1 though it appears from a despatch of Mr. Buchanan, dated June 13, 1847, that he was then under the impression that Spaniards had accepted Mexican commissions, for he declares that such persons will be treated as pirates according to the provisions of the treaty of 1795 between the United States and Spain.2

Laws and treaties such as those referred to above have put a stop to privateering of the most indefensible kind. There remains, however, the use as commerce destroyers of private vessels belonging to belligerent subjects and fitted out by them for purposes of private gain. During the latter half of the eighteenth century some attempts were made to get rid of this form of privateering along with the other. With regard to the advisability of its abolition, opinion was divided both in the Old World and in the New. Franklin succeeded in embodying in the treaty of 1785 between the United States and Prussia an article by which the contracting powers agreed not to make use of privateers of any kind if they should be at war with each other. But Jefferson held that they were a cheap and effective weapon of offence, and went so far as to say in a letter to Monroe of Jan. 1, 1815, "Let nothing be spared to encourage them." His views prevailed; and it has been as much the settled policy of the United States to object to the abolition of privateering as to

1 Dana, Note 173 to his edition of Wheaton's International Law.

2 Wharton, International Law of the United States, § 385; Treaties of the United States, p. 1010.

forward the exemption of private property from maritime capture. The latter would necessarily carry with it the former, but the former is possible without the latter. The object of American policy has been to secure that the two changes shall come together, if they come at all.1 In Europe, on the other hand, opinion steadily moved in the direction of disapproval of privateers, and a strong feeling grew up in favor of putting an end to them without waiting for further ameliorations of the law of capture at sea. They were freely used in the great struggle between England and Revolutionary and Imperialist France; but both Nelson and Codrington condemned them, and the latter did not hesitate to charge the privateers of both sides with letting each other alone and hoisting whatever colors were necessary to effect the capture of any merchantmen that came in their way. He declared that their proceedings were "nothing short of piracy."2 The spirit that animated these words became general, and at the commencement of the Crimean War in 1854 England and France notified their determination to rely upon public armed ships alone, and not to issue Letters of Marque to private individuals. They were induced to take this course partly by considerations of humanity and a desire to save neutral commerce as far as possible from the injuries inflicted on it by belligerents, and partly from fear lest Russia should be able to obtain the services of a strong fleet of American privateers. During the war both sides refrained from authorizing private vessels to cruise against commerce, and at its close the abolition of Privateering was decreed by the first article of the Declaration of Paris. We have already seen how the Government of the United States strove to couple with this act the further reform of exempting private property from belligerent seiz

1 Wharton, International Law of the United States, § 385. 2 Napier, Peninsula War, Vol. IV., Appendix, p. 497.

8 Twiss, Belligerent Right on the High Seas since the Declaration of Paris, pp. 10-12.

ure unless it were contraband of war.1 Its efforts were unsuccessful, and its assent was withheld from the Declaration; but it used no privateers in its fierce struggle with the seceding South, and none have been sent forth to prey on sea-borne trade in any of the wars which have taken place between civilized nations since 1856. It can hardly be doubted that no more will be heard of them in future wars. Enlightened opinion condemns them, and the interests of commerce are opposed to their continued existence. The powers which have declined to sign the Declaration of Paris may possibly have escaped the technical obligation to refrain from using them; but they are not likely to run counter to the general sense of the civilized world, and bring down upon themselves as belligerents the ill-will of all neutral powers who possess a maritime trade. And even if they were willing to take the risk, the cost of an effective cruiser is now so enormous that few private individuals would be able to meet it with all the additional risks of capture and loss as well.

§ 224.

Our last heading in connection with the agents of warfare is

A Volunteer Navy.

This is a new product of creative ingenuity, and it can best be explained by a brief account of the circumstances which first brought it before the world with a claim A Volunteer Navy. to be regarded as a naval force of undoubted legality. In July, 1870, at the beginning of the great war between France and Germany, Prussia endeavored to make up for the weakness of its state navy, by utilizing its merchant ships for warlike purposes under special conditions. The patriotism of seamen and ship owners was appealed to, and they were invited to place themselves and their vessels

1 See § 116.