PRIVATEER is an armed vessel belonging to a private owner, the subject of a belligerent power, commissioned by the sovereign of that power. The commission is either a commission of war or of marque and reprisals in time of peace. It was marque in this sense which was granted to aggrieved subjects of the realm of England as early as the statute 4 Hen. V. c. 7. The term “letters of marque,” however, is now generally applied less strictly to the commission under which a privateer sails in time of war. The acceptance of a commission from a belligerent power by a neutral, though not piracy by the law of nations, has frequently been made so by treaty. Acceptance of such a commission by a British subject is forbidden by the Foreign Enlistment Act, 1870. A vessel with a commission from each of two powers at war with one another is a pirate by the law of nations. Privateers stand in a position between that of a public ship of war and a merchant vessel. They are not entitled to the full rights which the comity of nations extends to public ships of war; e.g., by the municipal regulations of most nations they may not carry the flag of a public ship of war. A...
capture made by a privateer may either become the property of the captor or, following the general rule of international law, the property of the state (see Prize). In Great Britain, in order to encourage privateering, the prize taken by a privateer was formerly divided between the owners and the captors, and the rights of the crown were specially excluded in numerous Prize Acts. But now, by the Naval Prize Act, 1864, a prize made by a privateer belongs to the crown in its office of admiralty. By the United States Prize Act of 1864, the whole proceeds of a prize made by a privateer go, unless it is otherwise provided in her commission, to the captors. The sum awarded is divided, in the absence of agreement, equally between the owners and the ship’s company.
Privateering is now a matter of much less importance than it formerly was, owing to the terms of Art 1 of the Declaration of Paris, April 16, 1856, “Privateering is and remains abolished.” The Declaration binds only the powers who are signatories or who afterwards assented, and those only when engaged in war with one another. The United States, Mexico, Uruguay, and Spain have not acceded to it, and thus it would not hold in case of a war between the United States and any other power, whether the latter were bound by the Declaration or not. By the constitution of the United States, Congress has power to grant letters of marque and reprisal. Congress, by an Act of March 3, 1863, authorized the issue of letters of marque by the president, but they were never in fact issued either by the United States or Confederate Government.
In the Franco-Prussian War of 1870, Prussia, in spite of the Declaration of Paris, took a course very little removed from privateering in the creation of a volunteer fleet.
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