Michael J. Crawford
Naval History and Heritage Command

On 12 April 1961 President John F. Kennedy lodged with the secretary general of the United Nations the 1958 United Nations Convention on the High Seas, which the Senate had ratified. ¹ Unremarked at the time, the United States thereby reversed what had been a guiding principle of American foreign policy since the 1790s. Article 8 of the Convention on the High Seas defines a warship as “a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.” This is the definition the Second Hague Peace Conference in 1907 used in its seventh convention, on the conversion of merchant ships into warships, the intent of which was to reaffirm the abolition of privateering of the Declaration of Paris of 1856. ² The United States refused to relinquish privateering by acceding to either the Declaration of Paris or the Hague convention on the conversion of merchant ships into warships. The War of 1812 was the last time the United States commissioned privateers. ³ Despite allowing this power to lie dormant, the U.S. Congress approved participation in none of the international agreements that renounce privateering until 1961, when it did so by implication in ratifying the U.N. Convention on the High Seas. This was not because Congress had been reluctant to deny itself a power given to it by the Constitution, nor, at least since World War I, because it expected some day to exercise it again. ⁴ Rather, the United States did not sign because it insisted that such an agreement be tied to ending the practice of subjecting belligerent private property at sea to capture and because international agreements lacked that provision. Throughout the nineteenth century, American policy on privateering was tied to the resolve of the United States to end the discrepancy between warfare on land and warfare at sea in which private property, immune from seizure on land, was liable to capture at sea. ⁵ On 7 December 1941, U.S. policymakers abandoned their commitment to the principle of immunity of private property at sea, and having abandoned that, had no reason not to concede that privateering was no longer a legitimate mode of waging war.

This essay explains U.S. policy regarding privateering from the founding of the Republic to World War II by examining the origins and evolution of Americans’ moral, philosophical, and utilitarian ideas about the practice.

Article 1, section 8, paragraph 11 of the United States Constitution gives Congress the power “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Curiously, the Constitution empowers Congress to issue letters of marque and reprisal, which are authorizations of privateers, in the clause in which it confers the power to declare war and before it mentions raising armies and providing a navy. Privateers had played an important role in the War of Independence and the framers of the Constitution expected them to continue to do so in future wars. Despite the weight the framers gave to privateering as an arm of the nation’s war-fighting forces, Americans from the founding of the country onward held ambiguous attitudes regarding the practice.

American objections to privateering can be divided among four distinct although overlapping categories: morality/humanitarianism; public policy with regard to the value of commerce; the amelioration of warfare consistent with changes in the law of warfare on land; and pragmatism. Benjamin Franklin’s thoughts on privateering, which he sums up in a 1782 essay, reflect the antiprivateering views of many of the American republic’s Founding Fathers, and touch on all four categories of objections. Franklin begins his essay with the assertion that ending the prospect of booty that privateering offered would remove an incentive to war. He then calculates that as soon as the enemy begins to arm his merchantmen and protect them by convoys, privateering becomes unprofitable. Just as the mass of adventurers lose their investments in privateers, so the nation that authorizes privateers loses thereby, by the forfeiture of the labor of men gone off in privateers, the destruction of habits of industry brought on by privateersmen’s propensity for drunkenness and debauchery, and the increase of robbers and highwaymen as privateersmen turn to brigandage when peace puts an end to privateering. And finally, invoking the Enlightenment’s faith in free trade, Franklin rues the ruin of “many honest innocent Traders and their Families, whose Substance was employed in serving the common Interest of Mankind.” ⁶

We shall consider the evolution of each of these lines of argument from the Revolutionary era to the end of the nineteenth century before turning to the culminating episode in this history, the Second Hague Peace Conference, during which the U.S. delegation martialed a combination of these arguments in a grand but unsuccessful attempt to win international approval of the American proposal that privateering and maritime prize be abolished together.

 

The Moral/Humanitarian Argument

From the time of the American Revolution onward, American critics of privateering relied on arguments based on morality and humanitarianism. During the War of Independence, William Whipple, one of New Hampshire’s delegates to the Continental Congress, for instance, asserted that privateering should be abandoned because it promoted vice, dissipation, and avarice. ⁷ William Rotch, a leading operator of whaling ships in Nantucket, Massachusetts, opposed it from his Quaker, pacifist, point of view, underscoring privateering’s inhumane aspects. Judging it to be armed robbery, the Society of Friends made not only participation in privateering a disciplinary offense but also the purchasing of prize goods, which they condemned as the same as receiving stolen goods. Rotch lamented the economic hardship that New England privateering caused to unoffending civilians of Nova Scotia. He pleaded that “the cries of innocent parents & their tender Offspring, perhaps for the want of Bread . . . brought on by the Destruction from privateers, must be a very moving scene to a mind susseptible of but a small degree of Humanity.” ⁸

Whipple’s position that privateering debases morals and Rotch’s that it is inhumane and unchristian foreshadowed arguments employed by peace advocates in their campaign for congressional abandonment of the practice during and after the War of 1812. The War of 1812 renewed the debate in the United States over the merits and demerits of privateering, the debate now assuming a partisan character, with Republican supporters of “Madison’s War” portraying privateers as patriots who contributed to the war effort without cost to the taxpayer and Federalist critics of the war denouncing privateers as piratical ruffians preying indiscriminately on unoffending civilians for the sake of filthy lucre. ⁹

In the aftermath of that war in 1815, religiously motivated reformers, principally Unitarians, established non-denominational societies in New York, Massachusetts, and Ohio whose purpose was to cultivate the principles and spirit of peace. ¹⁰ The 16th U.S. Congress considered four petitions submitted during December 1819 and January 1820 by peace societies calling for the abolition of privateering. The peace societies in New England and its colonies of settlers in Ohio repeated the Federalist moral critique of privateering in their 1819 and 1820 petitions to Congress for abolishing the practice. ¹¹ These pleas emphasized the immorality of violence for private gain, the uncharitable character of depriving noncombatants of the fruits of their labor, and the deleterious effects of privateering on the moral sensibilities of its practitioners.

Two such petitions from Ohio objected to the taking of private property at sea as prizes of war because of the harm it did to innocent families uninvolved in the conflict when merchants whose vessels were captured lost their livelihoods. The petitioners believed that privateering was a barbaric form of warfare because it targeted the weak and those who should not be targets in warfare. ¹² A petition from the Plainfield (Massachusetts) Peace Society argues that privateers are schools of vice in which the nation’s youths are taught to commit “acts of injustice, depredation, and violence.” During the War of 1812, they point out, privateersmen

were commissioned to capture, rob, or destroy, the property of innocent merchants, and, in case of resistance, to maim or murder innocent seamen while pursuing their lawful occupations. In this way hundreds of merchants in the two countries were unjustly despoiled of their property, many of them ruined, and their families reduced to poverty, wretchedness, and despair. The number of seamen who lost their lives in consequence of these licensed depredations was doubtless very considerable.

 The petitioners found it unsurprising that young men would continue to practice in peacetime the trade to which they had been apprenticed in time of war and perpetrate piracies and highway robberies. ¹³ Members of the Massachusetts Peace Society, representing themselves as “inhabitants of the State of Massachusetts,” likewise presented privateering as a practice injurious to innocent victims and productive of moral depravity.

The habit of preying on the possessions of others, and of growing rich by a violent appropriation of their wealth, can hardly fail to engender, in those who are engaged in this pursuit, a rapacious and avaricious spirit, eager for riches, and little solicitous about the means by which they are acquired; negligent of others’ rights, and ready to raise a specious pretext for invading them. This spirit will continue when the war has ceased; and there is too much reason to fear, that those who have plundered under the sanction of the laws, may continue to plunder in defiance of their prohibitions.

Although sanctioned by laws, privateering is nonetheless unchristian.

 The voice of religion and humanity has gone forth distinctly, and leaves, without excuses, the man who prowls the ocean to plunder unoffending strangers, to prey upon the weak, to grow rich on the spoils of those who are following a useful and honorable trade, to shed blood for no other ends than private gain.

Christian civilization has advanced far enough, these petitioners reason, that privateering should go the way of other archaic practices of war that have been abolished. ¹⁴

In the War of Independence and the War of 1812, the United States used prize money, a reward for the capture of enemy ships and property at sea, whether warships or merchantmen, as an incentive for privateersmen as well as for naval personnel. In their antiprivateering petition of 1820, the Massachusetts Peace Society members acknowledged that logical consistency would require that private property on the seas be immune from seizure by public ships of war as well as from privateers, but they confined themselves, for the moment, to seeking the abolition of privateering, which they conceived as the greater evil. They did suggest, however, that denying prize money to naval personnel and restricting the distribution of proceeds of captures at sea to the public would benefit the cause of humanity and peace. ¹⁵ In 1856, in arguing that immunity of private property at sea should apply to captures made by naval vessels as well as to prizes of privateers, U.S. Secretary of State William Marcy pointed out that “if it be urged” against privateering, “that a participation in the prizes is calculated to stimulate cupidity, . . . the same passion is addressed by the distribution of prize-money among the officers and crew of ships of a regular navy.” ¹⁶

The U.S. government continued to offer prize money to naval personnel during wartime, through the Spanish-American War. In 1899, following the end of the war, however, Congress eliminated the practice, establishing a new naval pay system that, more or less, equalized pay between the army and the navy. Previously, navy pay had lagged behind the army’s, with Congress justifying the difference on the basis that soldiers did not have the opportunities for prize money enjoyed by sailors. With the elimination of prize money, that justification no longer applied. ¹⁷ Although the new law did not eliminate the practice of wartime commerce raiding, it did do away with the incentive of sailors’, including officers’, private gain, a motive deplored by American moralists, from the Quaker Richard Rotch, to the Rationalist Benjamin Franklin, to peace society activists, as corrosive of the sailor’s character. ¹⁸ The American delegation to the Second Hague Peace Conference in 1907, referring to the American abolition of prize money for captures of enemy merchantmen, would remark that it “has generally been regarded as a material incentive to such capture.” ¹⁹

 

The Argument from the Value of Free Trade

From the end of the Revolutionary War to the Second Hague Peace Conference, the official policy of the United States was to seek international concurrence with the principle that private property at sea would have the same immunity to seizure as had long been accorded to private property on land. During the era of the War of Independence, Americans based the policy on principles deriving from Enlightenment economic thought, namely, the rejection of mercantilism in favor of free trade.

The republican ideology embraced by intellectual leaders of the American revolutionary movement had been developed by philosophes of the seventeenth- and eighteenth-century Enlightenment. This ideology produced misgivings among America’s leaders about the propriety of making prize of war of private property captured at sea and the practice of privateering that rested on taking such prizes. In the thinking of many philosophes, republican government would solve society’s great evils, including that of war. Advocates of republicanism believed that wars resulted from the greed and ambition of monarchs and aristocrats and that eliminating kings and nobles and putting government in the hands of the people would eliminate the principal causes of war. The common man would not vote for war merely to gratify the nobility’s lust for conquest and dominion. In furtherance of the goal of universal peace, republics would deal with each other equitably and openly, including in matters of international commerce. In place of the mercantilist competition among empires to monopolize the world’s resources, competition that inevitably led to wars, republics would substitute a free trade conducive to the natural flow and rational redistribution of goods that improved living standards for everyone and thus promoted peaceful relations among nations. Only in republics, advocates believed, was it fully understood that commerce could benefit everyone. From this idea that free and open commerce could bring prosperity to all nations derived the notion that merchants, as historian Paul Gilje puts it, “did not serve any one nation; rather, they were citizens of the world and at the service of humanity.” ²⁰

This notion that merchants are at the service of humanity would have implications for U.S. policy regarding privateering and maritime prize law, for, American policymakers reasoned, if merchants do not exclusively serve one nation, their ships and goods should be immune from seizure in war unless involving contraband, that is, armaments and accoutrements intended to strengthen the enemy’s ability to make war. During the War of Independence, Benjamin Franklin, who as U.S. minister plenipotentiary to France was responsible for commissioning three privateers, ²¹ advocated the abolition of privateering on Enlightenment principles. “I wish,” he wrote in a letter in 1780,

for the Sake of Humanity, that the Law of Nations may be farther improved, by determining that even in time of War, all those kinds of People who are employed in procuring Subsistance for the Species, or in exchanging the Necessaries or Conveniences of Life, which is for the common Benefit of Mankind; such as Husbandmen on their Lands, Fishermen in their Barques, and Traders in unarmed Vessels, shall be permitted to prosecute their several innocent and useful Employments without Interruption or Molestation, and nothing taken from them, even when wanted by an Enemy, but in paying a fair Price for the same. ²²

The American commissioners, including Franklin, when negotiating the treaty with Great Britain that would end the War of Independence, proposed an article that incorporated Franklin’s wish and in words mirroring those in his letter into a draft treaty. The same proposed article additionally stipulated that in case of war between the two nations, neither would commission privateers to prey on the other’s commerce. The final treaty included none of these provisions. ²³

In 1784, as the United States, now recognized as independent, prepared to enter into commercial treaties with European trading partners, Thomas Jefferson, a member of the Confederation Congress, drafted a model treaty to be used by U.S. ministers to Europe. Among its provisions that embodied Enlightenment ideas of free trade was one stipulating that, in case of war between the parties to the treaty, unarmed merchant ships and their cargoes were to be immune to capture by either the national or the private warships of either belligerent. This provision follows the wording of the similar article in the American draft proposal for the treaty of peace with Great Britain, with only minor changes. ²⁴ The draft treaties grounded these provisions on the proposition that merchants serve the generality of mankind by producing prosperity. Just as scholars, farmers, artisans, manufacturers, and fishermen, whose occupations “are for the common subsistence and benefit of mankind,” were to be left unmolested by the armed forces of the enemy, and anything the enemy found necessary to take from them was to be paid for at a fair price, so too “all merchant and trading vessels employed in exchanging the products of different places and thereby rendering the necessaries, conveniences and comforts of human life more easy to be obtained and more general shall be allowed to pass free and unmolested.” Furthermore, “neither of the contracting powers shall grant or issue any commission to any private armed vessels empowering them to take or destroy such trading vessels or interrupt such commerce.” ²⁵ The Kingdom of Prussia alone accepted this provision, agreeing to incorporate the model treaty’s wording nearly verbatim into its 1785 Treaty of Amity and Commerce with the United States of America. ²⁶ Not until the United States and Italy incorporated the principle of the immunity of private property at sea in their treaty of 1871 would the United States succeed again in including such an article in an international agreement. ²⁷

The rejection of mercantilist thought, that countries were in competition for the world’s economic resources and should strive to monopolize seaborne commerce in their own merchantmen, and the substitution of the ideal of free trade, the conviction that the flow of goods and resources unimpeded by national restrictions improved the economic condition of all involved since the only exchanges that took place would be ones that benefitted both parties, was a momentous change in thinking that underlay the commitment of the United States’ founding fathers to end the taking of private property at sea as prize of war. They believed that as mercantilism provoked wars and free trade fostered peace, so merchants involved in international trade deserved protection when pursuing their peaceful pursuits. Emblematic of the connection between the belief in free trade and the founding of the American republic is the publication of Adam Smith’s Wealth of Nations, which gives mercantilism its name in order to reject it as unsound policy, in the same year the thirteen colonies declared themselves the independent United States of America.

Among their arguments for the abolition of privateering in 1819 and 1820, the New England and Ohio peace societies also appealed to the Enlightenment notion that merchants are citizens of the world. Referring to the anticommercial warfare provision of the 1785 Prussian treaty as well as to Franklin’s antiprivateering pronouncements, the petition from the Peace Society of Massachusetts developed the argument that seaborne commerce benefits all nations, as follows.

Commerce is in the interest of the world; it connects distant regions, multiplies and distributes the fruits of every climate, and makes every country a sharer in the natural, intellectual, and moral wealth of others. To facilitate commercial intercourse, and multiply the incitements to industry, should be the wish of all nations. Confine any considerable part of the world to the consumption of its own products within itself, and you diminish the resources of all the other parts. Every cause, therefore, which embarrasses and restricts commerce, operates unfavorably to the progress and welfare of the human race. ²⁸

By the middle of the nineteenth century, peace advocates, according to one historian of peace reform, would have “elevated free trade to a theological virtue,” one such advocate announcing that “free trade would ‘render international wars impossible’” and another considering it “‘the Commercial Harbinger of the Millennium.’” ²⁹ “That international commerce would destroy all motives for making war” remained a core belief of liberal thinking into the twentieth century. ³⁰

 

The Argument from Progress and the Amelioration of Warfare

In the last half of the eighteenth century, writers on international law introduced a new and more persuasive reason for ending the practice of maritime prize of private property: the replacement of the feudal kingdom by the sovereign state. The Peace of Westphalia that ended Europe’s Thirty Years War in 1648 made concrete the novel theory of the sovereign state, an entity in itself, separate from the monarch who ruled it and from the subjects of the monarch, tied to him by obligations of fealty. ³¹ Following the Peace of Westphalia, some political theorists began to conceive of war not as personal between rulers, and thus requiring enmity between every subject of the one and every subject of the other, but as a condition that existed between belligerent states, distinct from rulers and populace. From this premise, writers on international law derived the distinction between combatants and non-combatants, the former being the proper objects of violence, and the latter to be left unmolested in their property and peaceful pursuits. ³² Gradually European nations agreed that private property in wartime should be immune from confiscation and an enemy should pay for any private person’s belongings it took for the war effort. By the end of the eighteenth century, a number of theorists were calling for the extension of that principle to private property at sea. ³³

The United States of America, at the forefront of the new order in rejecting both mercantilism and feudal obligations, concomitantly led the movement to end the practice of maritime prize of private property. Republican France soon followed America’s lead. Implementing economic policies advocated by the philosophes and doing away with the last vestiges of feudalism in law, the French embraced the concept that wars were between states and not between the individual citizens of warring states, as well as the corollary that the property of private individuals should be immune from uncompensated confiscation, whether on land or at sea. In 1792, Thomas Jefferson, U.S. ambassador in Paris, responded favorably to overtures from the National Assembly of France regarding the abolition of warfare against seaborne commerce. Yet, because the British continued the practice of commerce raiding by both public and private warships during their wars with Republican and Napoleonic France, the French continued it as well, justifying themselves on the basis of retaliation. ³⁴

Although British political radicals and the Manchester school of economists endorsed the belief that the ending of private war on the seas would lead to universal peace, makers of British official policy rejected it, seeing such sentiments both as naively trusting in the benevolence of human nature and basely promoting the private interests of the merchant class. ³⁵ British legal theorists, upholders of the old order against the revolutionary movements in America and France, rejected as well the view that wars were between states, distinct from individuals, objecting to such an interpretation explicitly because they saw it as a ploy to exempt private property from maritime prize. Most Britons did not choose to forfeit the advantage in economic warfare their dominant navy gave them. ³⁶

The Massachusetts Peace Society petition of 1820 against privateering expanded on the notion that private property should have the same protections on water as it enjoyed on land, arguing,

It seems to be the design and scope of modern laws of war to exempt, as far as possible, from the effects of hostilities, all persons who bear no voluntary part in the contest. On the land, public possessions alone become a prize to the conqueror. The common consent of nations has attached deep disgrace to the plunder of an unresisting foe. On the sea, too, certain trades deemed necessary to human subsistence are privileged from capture. Why should not the same immunities be extended to all ships engaged in carrying on the commerce of nations, without agency in the war? ³⁷

The peace society petitioners, like most of their contemporaries, assumed that Christian civilization was progressively improving and as a part of that progress warfare was becoming more humane and was even on the way to extinction. The abolition of privateering and the immunity of innocent seaborne commerce from capture were, they believed, logical steps in that evolutionary process.

The rapid increase of privateering and piracy that accompanied the Latin American wars of independence in the late 1810s and early 1820s stimulated the antiprivateering movement because of the accompanying depredations on U.S. commerce and the unseemly and illegal participation of U.S. citizens in those sea roving adventures, involving them in piratical attacks on merchantmen of nations with which the United States was at peace. Besides petitions from peace societies calling for the legal end of privateering, Congress received others from citizens seeking restrictions on privateers. In 1819 “an American Citizen,” published An Appeal to the Government and Congress of the United States, Against the Depredations Committed by American Privateers, on the Commerce of Nations at Peace with Us. ³⁸ In 1820, a committee of Baltimore citizens called for measures to prevent involvement of American citizens in privateering and to limit the U.S. ports into which cruisers of Latin American governments could enter. ³⁹

By the 1820s, to Rationalism’s faith in the gradual progress of civilization and the Revolution’s trust in the pacific tendency of republics, American reformers had coupled a belief in the influence of Christianity on lessening the evils of war, and ultimately on the abolishing of war altogether. Fully embracing these sentiments, John Quincy Adams sought to promote the “empire of peace” by ending what he called “private war on the sea,” believing that were he to be successful, it would be his most valuable contribution to civilization.

In place of the Founding Fathers’ contention that merchants were benefactors of mankind in common, Adams substituted the notion that war was between states and not between individuals. As a result, “by the usages of modern war, the private property of an enemy is protected from seizure or confiscation” on land and by logical extension should be protected at sea. Asserting his liberal conviction that “the right of property is, in moral principle, . . . sacred,” Adams concluded, it is “unjust and impolitic that any private property of individuals should ever be destroyed or impaired by national authority for national quarrels.” ⁴⁰

In 1823, Adams, then President James Monroe’s secretary of state, judged that the appropriate conditions prevailed to make an attempt to persuade the governments of France, Russia, and the United Kingdom to engage to end both privateering and capture of merchant ships by public warships. Adams reasoned that, with the United Kingdom at peace, the British government would have an interest in protecting its commerce from depredations by the Latin American privateers. “From the time when the United States took their place among the nations of the earth,” the abolition of private war on the sea, Adams remarked, “has been one of their favorite objects,” referring to the Prussian treaty and the writings of Franklin as evidence. He also linked the proposal to the widely accepted practice of protecting private property ashore from wartime depredations, and, drawing a parallel between abolition of the slave trade and abolition of maritime prize, he endorsed the notion that under the influence of Christianity civilization was making progress toward ameliorating the lives of mankind. France and Russia were sympathetic to Adams’ proposal—at the commencement of the Franco-Spanish War of 1823, France had announced it would not commission privateers—but would not accede to it without the United Kingdom. For reasons mainly unassociated with the issue of maritime prize, the negotiations with the British failed. ⁴¹ As president, Adams continued to press the proposal, having his secretary of state, Henry Clay attempt to advance it, in the face of continued British opposition. ⁴²

 

The Pragmatic/Utilitarian Argument

During the War of Independence, Americans debated the wisdom of the Continental Congress’s decision to authorize privateering. Most of the arguments pivoted on the practical issue of whether the practice did more to advance or to hinder the war effort. ⁴³ The utilitarian value of privateering to America’s war-fighting prospects would continue to inform U.S. policy.

From the Declaration of Independence in 1776 to the U.S. declaration of war in 1917, the contest between neutral and belligerent maritime rights was a major focus of U.S. foreign policy. In general, the United States government pressed for adoption of international rules that favored neutral traders. The United States sought a change in international law that would treat enemy goods in a neutral merchantman as neutral property and thus, with the exception of contraband, make such goods exempt from confiscation, the principle of “free ships make free goods” in which the flag covers the goods. The U.S. government held that a neutral’s goods in an enemy vessel were also to be treated as neutral, although the government was inconsistent in applying this rule in its international treaties. The United States favored limiting the nature of goods to be considered contraband, supplies intended for an enemy that a belligerent could legitimately confiscate from a neutral vessel, even at times promoting elimination of the notion of contraband entirely. Eliminating the right of belligerents to seize contraband would, in turn, limit the practice of warships visiting and searching neutral vessels to those merchantmen attempting to enter a blockaded port, thus resolving another contentious issue in American foreign relations. American officials rejected as conflicting with international law the British “Rule of 1756,” which held that neutral vessels engaged in trade that had been closed before the war, such as between a nation’s colonies and the mother country, were subject to confiscation. The United States asserted, to the contrary, that neutrals had the right to trade non-contraband goods between a belligerent’s ports. The U.S. government insisted that a blockade was legal only if it was publicly advertised as well as effective enough to present a merchantman attempting to enter a port realistic danger of capture. And the United States promoted the immunity of private property at sea. ⁴⁴

American promotion of the rights of neutrals to trade freely without fear of interference by warring parties in preference to the rights of belligerents to prevent trade goods from reaching their enemies was firmly rooted in American self-interest. U.S. policies were those of a nation with a large mercantile fleet—in the course of the wars of the French Revolution and Napoleon, the United States grew to become the world’s largest neutral trader—and a small navy. ⁴⁵ During the American Civil War, when the United States found itself in the situation of a nation employing a large navy engaged in denying the enemy supplies from abroad, American officials looked more favorably on belligerent maritime rights and temporarily modified some of the country’s traditional positions on international law. The same kinds of utilitarian considerations informed America’s policies regarding privateering’s elimination. When at the turn of the twentieth century Alfred Thayer Mahan argued for a change in American policy on maritime rights, he insisted, “the question is one of expediency, and what was expedient to our weakness of a century ago is not expedient to our strength today.” ⁴⁶

In 1785 the United States and the Kingdom of Prussia signed a commercial treaty that contained the idealistic provision in which each party bound itself, in case of war between them, not to commission privateers. By the time the treaty came up for renewal in 1797, American policymakers had second thoughts that led Secretary of State Timothy Pickering on utilitarian grounds to instruct the U.S. minister to Prussia, John Quincy Adams, to have that provision omitted: With a small navy but a large merchant marine, privateering was America’s chief means of distressing a maritime enemy. ⁴⁷ From this point on to the eve of the First World War, with the exception of the Civil War years, the United States government maintained a consistent position: The United States would give up its right of issuing letters of marque and reprisal to private ships of war provided other nations did so as well and gave belligerent private property the same immunities to capture at sea by public warships as it enjoyed on land from military forces.

The Crimean War and the Declaration of Paris at its conclusion in 1856 provided a context in which the United States explained more fully the pragmatic basis for this position. In 1853, when the French and British Empires joined together to fight against the Russian Empire in the Crimea, the two allies had to reconcile their conflicting practices with regard to maritime prizes. France gave up its traditional practice of confiscating neutral property in enemy ships and the United Kingdom broke precedent by agreeing to exempt enemy property in neutral ships from confiscation. As part of this process, the two allies announced they would forego privateering during the conflict. Influencing British policymakers in these decisions were the desires to accommodate neutral Sweden and Denmark, whose actions could seriously affect naval operations in the Baltic, and to conciliate the United States. By obliging American commitment to the doctrine that free ships make free goods, the British sought to avoid confrontations over British seizures of Russian cargoes in the holds of U.S. merchantmen. By assuring the Americans that their merchantmen would not be subject to boarding by privateers searching their cargoes for enemy and contraband goods, the British hoped to dissuade the United States from allowing Russian privateers to use U.S. ports as bases of operations or to recruit American sailors. ⁴⁸

In view of the British and French commitment to refrain from commissioning privateers during the war with Russia, the King of Prussia suggested that all countries renounce their right to use privateers in time of war. President Franklin Pierce discussed this suggestion in his 1854 State of the Union Address but rejected it. Pierce judged that the abolition of privateering naturally favored powers with large navies, making them less reliant on the combat capabilities of their merchant marine, and would put nations with modest navies, such as the United States, at a significant disadvantage in a time of war. Pierce’s contribution to the American position on privateering and the abolition of commercial warfare at sea was the elaboration of the strategic argument, explicating the nexus between the two issues. The United States, with many merchantmen and few naval vessels, would be at a disadvantage in a war with a nation having a large navy even if both were to forego licensing privateers: The enemy navy would much more readily capture America’s seaborne commerce than the U.S. Navy would capture the enemy’s. Believing large standing armies and navies burdensome to the taxpayer and dangerous to liberty, the United States was disinclined to enter into an international agreement that would require it to develop a large navy for its defense in case of war. Pierce also argued that, although the proposal was “professedly founded upon the principle that private property of unoffending noncombatants, though enemies, should be exempt from the ravages of war,” it was not equitable because it lacked protection for this property from capture by public naval ships. When this immunity could be guaranteed, the United States would gladly forfeit its right to offer letters of marque to potential privateers. ⁴⁹

Whereas Prussia took the occasion of the British and French decision to forego privateering during the Crimean War to advocate the permanent abolition of the practice, the United States sought advantage from the British and French agreement on rules of maritime prize that favored neutrals for the duration of the war to push an initiative that would embody those rules permanently into recognized international practice. Secretary of State William Marcy negotiated a treaty with Russia establishing those rules, and incorporated into the treaty a provision that would enable other countries to sign on to the agreement by a mere formal declaration of accession. ⁵⁰

In 1856, the Congress of Paris, setting the terms of the end of the Crimean War, included a declaration regarding maritime law in time of war. The first article of the Declaration of Paris reads simply, “Privateering is and remains abolished.” This article was tied to the other three, with the stipulation that a signatory country would have to accept the entire set of four articles. The other articles established the principles that, with the exception of contraband, free ships make free goods and neutral goods in enemy ships are not liable to capture, and that blockades, in order to be binding, must be effective. The seven governments participating in the congress—France, the United Kingdom, Russia, Prussia, Austria, Sardinia, and the Ottoman Empire—signed the declaration and invited other nations, including the United States, to do so as well. Forty-five nations ultimately did, but not the United States, even though the declaration enshrined several of the protections for neutral commerce the U.S. government had long sought. The Pierce administration responded to the invitation to accede to the declaration by objecting that it interfered with the American initiative to incorporate the “free ships make free goods rule” into a multilateral international agreement without the renunciation of privateering required by the Declaration of Paris, and by offering an amendment, named for Secretary of State William L. Marcy. The Marcy Amendment added to the Declaration’s antiprivateering proposition the provision, “and that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent except that it be contraband.” In other words, the United States wanted belligerent private property, not just neutral private property, exempt from capture. As reasons for insisting on this amendment, Marcy elaborated on the argument President Pierce had made in his 1854 State of the Union Address. ⁵¹

Some commentators in the United States questioned whether it was constitutional for the government to bind itself by treaty not to exercise a power enumerated in the U.S. Constitution, but on consideration it became clear at the time, “that this objection was untenable, nearly all our treaties having surrendered some right that ‘existed at the formation of the Constitution,’ in exchange for similar concessions on the part of other nations.” ⁵² The Supreme Court has upheld the constitutionality of treaty provisions committing the United States to refrain from exercising one or another constitutional power. Such a treaty would not remove any power from Congress, for any subsequent legislation authorizing privateering would be constitutional and take precedence over the treaty provision it violated. ⁵³

It appeared that most countries favored the amendment, with support coming from France, Prussia, the Netherlands, and Italy, among others. ⁵⁴ Resistance from Great Britain and a change of administration in the United States were partially responsible for the amendment’s failure. After taking office in March 1857, President James Buchanan suspended negotiations over the proposed amendment with Great Britain, objecting that the amendment did not protect the United States from commercial blockades, which would be exempt if within territorial waters rather than on the high seas. ⁵⁵

Four years later, following the secession of southern states and the formation of the Confederate States of America, the administration of Abraham Lincoln resumed international negotiations regarding the outlawing of privateering. In response to the Confederate government’s intention of pursuing privateering against the North—the Confederacy having announced it would not accept the Declaration of Paris’s renunciation of privateering—U.S. Secretary of State William Seward offered to accede to the Declaration of Paris, even without the attached Marcy amendment. Seward hoped that offering to make the United States a member of this pact would persuade the signatory members to confirm that the Confederate states were still part of the Union and prevent the Southerners from engaging in privateering against Northern commerce. France and Great Britain accepted the accession, with the latter adding the caveat that it “does not intend thereby to undertake any engagement which shall have any bearing, direct or indirect, on the internal differences now prevailing in the United States.” British Foreign Secretary Earl Russell later expanded on this exception, explaining that Great Britain did not view the Confederacy as a signatory of the declaration and that belligerent was therefore within its rights to pursue privateering. This was unacceptable to Seward and the United States backed out of the agreement. ⁵⁶

In The Influence of Sea Power upon History, published in 1890, American naval officer Alfred T. Mahan espoused a naval theory, quickly becoming the prevailing naval theory, that commerce raiding or guerre de course was never a decisive factor in combat between two modern navies. Although this theory would seem to favor ending the practice of maritime prize of private property, Mahan, himself, on the eve of the Second Hague Conference, argued against the United States’ giving up the right to the maritime capture of the private property of enemy subjects. He reasoned that, like contraband of war and goods captured in attempts to run in or out of a blockaded port, both of which categories of property could be private, merchandise carried by enemy merchantmen on the high seas contributed economically to the ability of the enemy to carry on the war and therefore lost any neutral character it might otherwise have: “Between the fact that property embarked in commercial venture is private in ownership, and the assumption that therefore it is not sustaining the enemy’s cause, is not really belligerent, there is a gap in the reasoning.” Mahan judged commerce cruising both permissible as a matter of right and desirable as a matter of practical policy: It diverted greater forces of the enemy to combat it than it required to practice. ⁵⁷ In a war plan he prepared in 1890, the same year as the publication of The Influence of Sea Power upon History, Mahan called for arming every American ship fast enough for the purpose and dispatching them to cruise against the enemy’s commerce, the objective being to induce the enemy to disperse his fleet and thereby provide an opportunity for the concentrated U.S. battle fleet to attack the enemy’s now diminished battle fleet. ⁵⁸ Even in The Influence of Sea Power upon History, as Bernard Semmel has pointed out, Mahan endorsed commercial war as a secondary strategy “for a considerable naval power,” a position he would reinforce in later studies of the Napoleonic wars, in which he judged destruction of French commerce “England’s primary, not secondary strategy.” In 1904, working to persuade President Theodore Roosevelt to endorse belligerent rights to conduct commercial warfare, Mahan argued that controlling commerce could be of “decisive importance.” ⁵⁹

Whereas at the Second Hague Conference the American delegation would argue that no modern war had been shortened by commerce cruising, citing Union victory over the Confederacy despite the success of a few southern cruisers in driving Union shipping from the seas, Mahan appealed to the experience of the Civil War to draw a contrary lesson. “To the downfall of the Confederacy,” Mahan reasoned, “no single cause conduced more than did the entire destruction of its commerce,” judging immaterial to the issue the fact that blockade rather than cruisers on the high seas bought about the destruction. Finally, Mahan pronounced commerce cruising a humane way of war, for it brought victory closer by weakening the enemy economically rather than by casualties in battle. “Depend upon it,” he concluded his argument, “the interest of humanity demands that war is not to be a mere question of champions, land or sea, but that the whole people should be made to feel, individually, that the war will find its way to them, in purse as well as sorrow.” Mahan’s vision rather than that of the American delegates to the Hague conference would be the more predictive of the character of warfare in the twentieth century. ⁶⁰

Writing in 1899, Captain Charles H. Stockton, the U.S. Navy’s foremost expert on international law at the time, shared Mahan’s view that the capture of the enemy’s seaborne commerce could have a profound influence on bringing about peace by diminishing the enemy’s ability to fight. ⁶¹ Eight years later, on the eve of the Second Hague Peace Conference, speaking before the first annual meeting of the American Society of International Law, now Rear Admiral Stockton addressed the question, “Would Immunity from Capture, during War, of Non-offending Private Property upon the High Seas Be in the Interest of Civilization?” ⁶² Although Stockton gave the ambiguous answer, “this depends upon whether the exercise of this war right makes for the prevention of war or not,” his discussion makes it clear that he believed that, on the contrary, the right of capture of private property during wartime itself was conducive to peace, especially if it could bring pressure on an enemy country’s food supply. Stockton pointed out that British strategists were coming to the conclusion that Britain had become so dependent on foreign imports to feed its people that if during a war it were ever to lose control of the seas it would be forced to make peace. In contrast, the food supply in the United States was relatively impervious to commerce raiding. Stockton argued that the practical circumstances of the United States and the United Kingdom had become reversed. The British merchant fleet was large and therefore vulnerable during wartime, whereas by the turn of the twentieth century, the American merchant fleet had dwindled and the U.S. Navy had burgeoned. While the British were rethinking their customary policy, strategists like Mahan and Stockton were rejecting the traditional American pragmatic argument on pragmatic grounds, since the strategic conditions from which the traditional position derived no longer prevailed. Strategists like Mahan and Stockton turned the pragmatic argument on its head, making the issue of maritime warfare a matter for debate rather than consensus in American councils.

Mahan and Stockton wrote during a period of intense economic rivalry between European states and their imperial expansion overseas. A social Darwinian belief that nations were in a struggle for survival, a struggle that required the mobilization of all of a nation’s resources, intensified the rivalry. Neo-mercantilist policies of protective tariffs and exclusive trading rights replaced the free trade practices of the nineteenth century. As a result of the war with Spain, the United States joined the community of nations having overseas empires requiring naval defense. A movement toward naval strategies compatible with mercantilist thought accompanied the rise of a neo-mercantilist world economy.

Despite the strategic rethinking going on in the U.S. and Royal Navies, their countries’ delegates to the 1907 peace conference would maintain their customary positions. ⁶³

 

To the Second Hague Peace Conference

In 1899, the same year that the United States did away with maritime prize money, it sent delegates to an international peace conference at The Hague, the Netherlands, called by Russian Tsar Nicholas II to establish international agreements on arbitration of international disputes, laws of war, and war crimes. The major accomplishment of what came to be known as the First Hague Peace Conference was the establishment of the Permanent Court of Arbitration. The 1899 convention focused mainly on laws relating to warfare on land. In December 1898, shortly after the close of the Spanish-American War, President William McKinley reported to Congress that the time had arrived for the United States to propose to the international community the end of maritime war on private property, and, accordingly, the American delegation to the Hague Conference proposed the issue of the inviolability of private property in naval warfare, excepting only contraband and ships attempting to run blockades. Representatives of several of the great powers, however, balked at discussing the proposal in the absence of instructions from their governments. Instead, the conference closed with the anticipation that a subsequent conference would deal with laws relating to maritime warfare, including that of maritime prize of private property. ⁶⁴

Influenced by the general movement to codify the laws of war, as exemplified by the First Hague Conference, the United States Navy adopted “The United States Naval War Code of 1900,” drafted at the Naval War College by Charles H. Stockton, in emulation of the 1863 “Instructions for the Government of the Armies of the United States in the field,” known as the Lieber Code, after its author, Dr. Francis Lieber. The naval war code, containing “the laws and usages of war at sea,” included in its definition of the special objects of maritime war, “capture or destruction of the . . . maritime commerce” of the enemy and specified that “all merchant vessels of the enemy, except coast fishing vessels innocently employed, are subject to capture, unless exempt by treaty stipulations.” ⁶⁵ However, in a memorandum circulated with the preliminary draft of the code, Stockton observed that, in view of the policy of the United States to seek international agreement on the abolition of maritime commercial prize and of privateering with it, the articles relating to privateers and to the capture and destruction of private property at sea were to be omitted in any version of the code that might be presented to other countries as the basis of an international agreement. ⁶⁶ The Navy Department implemented the code by General Order Number 551 of 27 June 1900. In the summer of 1903, the staff of the Naval War College and senior active naval officers met there to discuss and make recommendations regarding the code. The conferees proposed a number of wording changes, but their major finding was that by adopting the code unilaterally the navy had bound itself to observe certain practices that put the United States at a disadvantage in a conflict with an enemy who had not subscribed to it. The Navy Department adopted their recommendation that the code be withdrawn and be used as the basis of negotiations for an international agreement. General Order Number 150 of 4 February 1904 accordingly withdrew the code. ⁶⁷

In the autumn of 1903 President Theodore Roosevelt initiated the movement for a second Hague Peace Conference. In a message to Congress in which he quoted McKinley’s message of 1898, Roosevelt advocated renewing the attempt to secure an international agreement making private property at sea immune from capture. He supported the measure not only “as a matter of humanity and morals” but also on the basis of changed circumstances of commerce: Any commercial ship and its cargo were now much more likely to be the property of citizens of many nations than in the past, thus multiplying the complications of prize adjudication. In addition, he appealed to the doctrine, which Mahan originally espoused but later modified, that commerce destroying “can never be more than a subsidiary factor in bringing to terms a resolute foe.” ⁶⁸ On 28 April 1904, in anticipation of a second Hague Conference and in response to Roosevelt’s message, Congress issued a declaration calling on the president to seek an international agreement incorporating into international law “the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction of belligerents.” ⁶⁹ After intense but ultimately unsuccessful lobbying by Mahan to reverse U.S. policy before the conference met, ⁷⁰ Secretary of State Elihu Root’s instructions, citing the congressional resolution, enjoined the American delegates to the Second Hague Peace Conference to “maintain the traditional policy of the United States regarding the immunity of private property of belligerents at sea.” Root reminded the delegates that the resolution was “an expression of the view taken by the United States during its entire history,” and that the country had refused to sign the Paris Declaration of 1856 ending privateering only because the declaration lacked such a provision. Root urged the delegates to press for agreement on this issue on moral grounds, stating,

The principle thus declared is of such permanent and universal importance that no balancing of the chances of probable loss or gain in the immediate future on the part of any nation should be permitted to outweigh the considerations of common benefit to civilization which call for the adoption of such an agreement. ⁷¹

Thus, it was because the United States government did not want to appear inconsistent by suddenly departing from its traditional position that it argued for immunity of private property at sea at the Second Hague conference principally on moral grounds and refused to accede to the abolition of privateering in the absence of that immunity. ⁷²

Tsar Nicholas II, the convener of the first Hague conference, agreed to convene the second. Postponed by the Russo-Japanese War, the meeting opened when representatives of forty-four countries gathered at The Hague on 15 June 1907. The delegates completed their work on 18 October, having produced a Final Act, or agreement, containing thirteen conventions with the purpose of prolonging peace among all nations.

The United States delegation of Joseph H. Choate, General Horace Porter, Uriah M. Rose, David Jayne Hill, Brigadier General George B. Davis, Rear Admiral Charles S. Sperry, and William I. Buchanon ⁷³ ratified ten of the conventions, adhered to one with reservations, and abstained from signing two others, conventions VI and VII, which were “The Status of Enemy Merchant Ships at the Outbreak of Hostilities” and “The Conversion of Merchant Ships into War-Ships.”

The sixth convention stated that it was desirable that merchant ships in an enemy’s port at the outbreak of hostilities “should be allowed to depart freely, either immediately, or after a reasonable number of days of grace.” As James Brown Scott, the American delegation’s technical delegate and expert in international law, explained, the delegation refrained from signing this convention because custom already dictated such safe passage and the convention established this freedom as desirable rather than mandatory. The convention thus “was restrictive rather than declaratory of existing international practice” and the delegation therefore would not ratify it. ⁷⁴

More relevant to the present inquiry is the delegation’s rationale for its refusal to ratify the seventh convention, which stated that any merchant vessel converted into a warship would have to be placed under the direct authority, immediate control, and responsibility of the state it represented, be commanded by a commissioned naval officer, with a crew under naval discipline, and that its change of character must be publicly announced in the belligerent country’s navy list. ⁷⁵ Essentially, this convention sought to extend the abolition of privateering enacted under the Declaration of Paris of 1856. Although nearly every other naval power ratified the 1907 convention, the United States abstained because the conference did not adopt a convention that would guarantee the immunity of private property on the seas to capture by national ships of war, which, in accordance with their instructions, was a high priority for the delegation. ⁷⁶ The American delegation acknowledged the constitutional question occasioned by the United States Constitution’s empowering Congress to “grant letters of marque and reprisal, and make rules concerning captures on land and water,” ⁷⁷ but, nevertheless advocated for adoption of their proposal with great force and enthusiasm.

In an extended address to the conference on 28 June 1907 in favor of the so-called “favorite doctrine” of the United States, the “Immunity from Capture of Private Unoffending Property of the Enemy upon the High Seas,” Joseph H. Choate rehearsed the history of the United States’ efforts to secure international agreement with its position and employed the full gamut of rationales Americans had used in its favor from the Revolutionary Era to the time of the conference. He pointed out that the protection of private property on land was a well-established rule of war and therefore it should be extended to the seas. He argued that it was inhumane and counterproductive to peace efforts to allow innocent civilians to become targets for belligerent warships. Furthermore, limiting the theater of naval engagements by excluding private commercial ships would make war less destructive and terrible for all parties involved. He contended that, as international commerce was a unity that advanced the world’s economy, striking at one part of it, even if the enemy’s, impaired the whole, including that of both belligerents. Choate appealed also to the belief that wars should be limited to a contest between the armed forces and public property of states, and that every effort should be made to restrict its effects on private persons and their property to military necessity. To these traditional rationales, Choate introduced additional ones, for instance, one that advocates of the 1856 Declaration of Paris used to support the abolition of privateering: The specialization of warship construction and weaponry made the conversion of merchantmen into ships of war impractical. Lastly, Choate argued that commerce cruising was of little practical value to a warring state because “none of the great navies now existing could afford to employ any of their great and costly ships of war or cruisers in the paltry pursuit of merchantmen scattered over the seas.” Modern navies concentrated on building battleships, which they kept together in order to oppose the united fleet of an enemy. ⁷⁸ Even though the last-mentioned of Choate’s arguments in favor of ending maritime prize of private property reflects the prevailing naval theory of the time, espoused by Alfred T. Mahan, that commerce raiding was never a decisive factor in war, we have seen that Mahan, himself, argued against the United States’ giving up the right to the maritime capture of the private property of enemy subjects.

Although Choate spoke with what one reporter called “an eloquence and a dialectical force difficult to surpass,” the American proposition failed to be adopted. Of the forty-four nations represented, the proposition received twenty-one yeas, including those of Germany, Austro-Hungary and Italy, eleven nays, including those of France, Japan, Russia, and the United Kingdom, and one abstention, with eleven states not responding. This vote indicated that there was neither a chance of unanimous support nor sufficient agreement for a general accord. ⁷⁹ Nevertheless, Choate viewed it as a step in the right direction in case further conferences were convened to discuss the issue. In an address to the New York State Bar on 24 January 1908, Choate reflected on the progress and said, “We do not stand any more where we did at the beginning of the conference, nobody assenting to it but ourselves, but twenty-two nations of greater or less importance pledged to the proposition which makes so strongly for peace.” ⁸⁰

The conference planned to reconvene in 1915, but the outbreak of World War I precluded any such meeting. After the war, the conference’s role was largely replaced by the League of Nations, of which the United States was not a member, despite its instrumental role in its formation.

 

From The Hague to the Present

In 1897, Francis R. Stark, fellow in international law at Columbia University, published The Abolition of Privateering and the Declaration of Paris, an extended polemic in favor of abolishing privateering. In the work, Stark expressed his absolute faith that, eventually, and probably sooner than later, “the right of capture of private property on the high seas in time of war . . . once universally recognized . . . will not be recognized at all.” ⁸¹ Stark assumed that the institution of private property’s immunity to capture at sea would be the death blow to privateering. Events would prove Stark mistaken. In falsely prophesying victory of the immunity principle for private property at sea, Stark foresaw neither the transformations warfare would undergo in the twentieth century nor the influence those transformations would have on the treatment of private property, on land as well as at sea. New technologies, only in early stages of development at the time of the Second Hague Conference, soon altered the character of warfare: The automobile torpedo ⁸² and the submarine made seaborne commerce more vulnerable to attack as the airplane similarly rendered factories on land. Germany employed U-boats against seaborne commerce in attempts to bring the United Kingdom to economic collapse in both world wars, and the United States waged submarine commercial warfare to break the Empire of Japan in the latter war. With the outcome of World War II pivoting essentially on a contest of production capacity between the Allies and the Axis, the Allies sent sortie after sortie of bombers to destroy Axis factories. The atomic bomb made no distinction between public and private—property or lives. These changes turned private property into objects of hostile action and enlarged the numbers of warfare’s civilian victims.

Convention Number Seven of the Second Hague Peace Conference made privateering generally recognized as contrary to accepted international practice, without an immunity provision for private property. Despite the refusal of the United States to accede to the convention, after 1907 privateering ceased to be a matter of international concern or discussion. But proposals to institute immunity did not yet disappear from international discourse. Only with World War II and the American decision to pursue unrestricted submarine warfare against Japan would the United States drop its project to end war on seaborne commerce.

At the Second Hague Peace Conference, participating nations had determined to create an international prize court that could exercise appellate, and in some cases original, jurisdiction in maritime prize cases. The court was to apply either rules agreed to by treaty between the countries whose citizens were party to the case, accepted international law, or, where agreement on the laws of war did not exist, general principles of justice and equity. In order to give such a court a more definite code of international law on which to base its judgments, representatives of the world’s leading naval powers met at the London Naval Conference of 1908-1909 to settle differences among them in interpretation of prize law. The conference focused exclusively on matters affecting relations between neutrals and belligerents, specifically rules governing blockades, the definition of contraband, what constituted un-neutral service, what circumstances justified destruction of neutral prizes, where and when transfer of a vessel to a neutral flag was legitimate, whether the enemy character of a vessel depended on the citizenship or the residence of the owner, whether a neutral merchantman under naval convoy should be exempt from visit and search, and when resistance to visit and search made a neutral vessel liable to seizure and condemnation. Even though the conference produced a compromise agreement that balanced the rights of neutrals and belligerents, none of the powers would formally ratify the Declaration of London and an international prize court never sat, much less apply the new rules in a prize case. Presenting the argument in favor of British ratification, Norman Bentwich, “sometime Whewell International Law Scholar of Cambridge University and of Lincoln’s Inn, Barrister-at-Law, and author of The Law of Private Property in War,” pointed out that the conference was able to disregard issues associated with privateering, since the Hague convention on conversion of merchantmen had established rules that “sufficiently distinguish the character of converted merchantmen from that of the privateers of a century ago.” Instead, the London conference debated, and left unsettled, whether the conversion could take place at sea or must be effected within the territorial waters of the nation making the conversion. Bentwich pointed out, further, that the Declaration “does not affect in any way the rights of belligerents against enemy property at sea. The right of capture of private property at sea . . . is the most clearly and uniformly established international practice.” The London deliberations treated both the matter of privateering and the question of immunity of private property at sea as settled. ⁸³

The matter of privateering may have been buried, but that of immunity was not yet dead. British Radicals and pacifists continued to press for immunity of private property to maritime prize as the surest guarantor of peace. Early in World War I, while the United States was still neutral, the administration of Woodrow Wilson demanded that the British not merely adopt the rules governing commercial warfare agreed to in the Declaration of London, but also institute the principle of immunity, leaving all merchantmen, enemy as well as neutral, unmolested. In preparation for peace negotiations in 1918, Wilson’s Fourteen Points included a call for “freedom of the seas” that included immunity within its wide embrace: “Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war.” ⁸⁴ Although Wilson, more concerned about other matters, did not raise the issue of immunity during the peace negotiations at the Versailles, a decade later Wilson’s confidant Col. E. M. House published a call for adoption of immunity. ⁸⁵

It was America’s World War II contest with Japan that put an end to America’s traditional view of freedom of the seas. As historian Joel Ira Holwitt writes, the order to conduct unrestricted submarine warfare against Japan, targeting “all Japanese shipping, from fishing trawlers to freighters to tankers,” issued at precisely 5:52 pm, Eastern Standard Time, on 7 December 1941, was “a major and dramatic change to the American attitude toward freedom of the seas.” This change “ushered in a new a more pragmatic conceptualization that classified merchant sailors as combatants and their cargoes as legitimate military targets.” Another historian, Janet M. Manson, may not exaggerate when she characterizes the decision to engage in unrestricted submarine warfare as one that “no other foreign policy reversal in U.S. history quite matches in magnitude.” ⁸⁶

Here is a paradox: Modern conditions of international relations and warfare rendered privateering inappropriate as a means of carrying on war at the same time these new conditions rendered obsolete the version of “freedom of the seas” that vindicated the notion of immunity of private property, which, if adopted, would have rendered privateering useless. Modern conditions removed one justification for ending privateering, the immunity principle, while leaving others and creating new ones. Writing in the midst of World War II, the British writer William Arnold-Forster accurately foresaw, “that, when the world has had experience of two World Wars, the doctrine of immunity of private property, so long regarded as a promising and radical reform, will be recognized as affording no solution to the real problem called ‘Freedom of the Seas.’” ⁸⁷ The immunity principle, the notion that an enemy’s private property at sea should be immune from capture in wartime, rested on three assumptions grounded in the conditions of international relations and the character of warfare as they existed in the middle of the eighteenth century: (1) War could be restricted to combatants, while non-combatants could carry on their daily activities more or less unaffected by the movements of armies and warships; (2) the only property valid as a target of hostile action was public, what belonged to the hostile state; and (3) war was a lawful instrument of national policy, an essentially amoral activity of sovereign states with which non-belligerent nations had no business interfering. Before the eighteenth century had run its course, the French nation’s levée en masse, signaling the coming of peoples’ wars in place of warfare between armies of professional soldiers without broad participation of the populace, undermined the first of these assumptions. The second assumption collapsed with the total wars of the twentieth century, in which governments pursued victory by mobilizing their nations’ entire economies in support of the war effort, turning privately-owned assets, such as factories and railroads, as well as raw materials and food stuffs and the ships transporting them, into national war-making assets that were legitimate objects of hostile action. And finally, first the development of ideas of mandatory international arbitration of disputes between nations at the turn of the twentieth century, and then the institution of collective security agreements enforced by supranational authoritative bodies, the League of Nations and the United Nations, in the aftermaths of the First and Second World Wars, undercut the sovereign right of the post-Westphalian state to declare and wage war. Through the course of the twentieth century, war came more and more to be seen as an unlawful instrument of national policy and the immoral aggressor-state as the proper subject of collective isolation and punishment by the international community of peace-loving nations. This new understanding of international relations is the basis on which “the old-style freedom, involving the active defense of neutral rights during private wars,” ⁸⁸ has been displaced by a collective-security version of freedom of the seas in which a system of international covenants backed up by international sanctions against offending states keeps the seas free for international commerce.

The traditional American rationale for retaining the right to commission privateers evaporated on U.S. entry into World War II when the United States abandoned its commitment to the sanctity of private property at sea. Comparison of the U.S. Navy’s Naval War Code of 1900 with the 1955 U.S. Navy publication The Law of Naval Warfare measures the dramatic change that took place in naval concerns about privateering by the middle of the twentieth century. In paragraph 2 of Article 9, the 1900 code recognizes, by implication, the legitimacy of privateers:

Art. 9. In addition to the armed forces duly constituted for land warfare, the following are recognized as armed forces of the State.

(1) The officers and men of the Navy, Naval Reserve, Naval Militia, and their auxiliaries.

(2) The officers and men of all other armed vessels cruising under lawful authority. ⁸⁹

In stark contrast, the 1955 Law of Naval Warfare, intended to aid “the naval officer in making and understanding operational decisions dictated by the necessity for adherence to international law and in recognizing the violations of international law,” incorporates the provisions of the Hague Convention on the Conversion of Merchant Ships into Warships that define the term “warships” in such a way as to exclude privateers:

The term “warships” includes all vessels commissioned as a part of the naval forces of a State and authorized to display the appropriate flag or pennant as evidence thereof. Such vessels must in addition be commanded by a member of the military forces of a State and must be manned by a crew subject to military discipline. ⁹⁰

The contents of the 1955 volume in the U.S. Naval War College’s International Law Studies series, The Law of War and Neutrality at Sea, by Robert W. Tucker, confirms the suspicion that the U.S. naval personnel who incorporated the Hague’s definition of a warship into the 1955 Law of Naval Warfare were oblivious of, or at least blissfully unconcerned with, the traditional U.S. policy on privateering. The Naval War College volume serves in effect as a commentary on the 1955 Law of Naval Warfare, which it incorporates as its appendix. In discussing the issue of what constitutes a warship, Tucker treats the 1907 Hague convention on the conversion of merchant ships as well as the 1856 Declaration of Paris outlawing privateering as if they were established international law, without any indication that the United States had refused to accede to either. He limits his discussion of privateering to the question of whether the Hague convention actually revalidated privateering, which he concludes it did not. ⁹¹

Tucker’s main concern in writing the 1955 Naval War College volume was to explore the relationship between modern belligerent practices and the traditional law of naval warfare. He concludes that modern practices are in accord with the principles behind the traditional law. The standard international law texts, Grotius, Vattel, and others, were written during an era in which merchant vessels did not pose a serious threat to warships, and therefore the accepted practice was to require a belligerent warship, before firing on an enemy merchantman, to identify itself and give the enemy merchant ship a chance to surrender. At the beginning of the twentieth century, the vulnerability of submarines to sinking by armed merchantmen altered this calculus: It is unreasonable to expect warships to expose themselves to the probability of their own destruction. Tucker argues that it was both the arming of merchantmen against vulnerable submarines and changes in the way nations at war employed merchantmen, making them in effect part of the military forces, that rendered them, like an enemy warship, subject to unannounced sinking in accordance with traditional international law. He writes, “It is difficult to avoid the conclusion that the immunity granted merchant vessels by the traditional law can be observed only under the conditions that merchant vessels do not present—in terms of their armament—a serious threat to enemy warships and that they are in no way integrated into the military effort of a belligerent. If either, or both, of these conditions do not obtain, and they were not satisfied even in World War I, warships—whether submarines or surface vessels—cannot be expected to refrain from attacking enemy merchant vessels.” ⁹²

The U.S. Navy’s use of the 1907 Hague convention’s privateer-excluding definition in its September 1955 publication preceded by three years the United States’ signing, 15 September 1958, and by nearly six years U.S. ratification of, the United Nations Convention on the High Seas, which employs the wording of the Hague Convention on the Conversion of Merchant Ships into Warships to define what constitutes a legitimate warship. ⁹³ In the drafting of the Convention on the High Seas in Geneva, the definition of a warship was never a matter of controversy, and the U.S. delegation specifically endorsed the definition as “good and entirely acceptable.” At no point in the negotiations did anyone suggest that a private vessel could be a warship. ⁹⁴

Thus, in the mid-1950s, first by practice and then by treaty, the U.S. government and its navy accepted the prevailing international view that privateering is illegitimate. This is not to say that the United States finally adopted the definition of a warship that had long been the international standard because it no longer had a rationale for retaining privateering, but rather it is to say simply that the rationale no longer impeded acceptance of the definition that excluded the practice of privateering. A measure of how little serious thought U.S. naval strategists gave to privateering in the mid-twentieth century is the fact that, whereas between 1901 and 1936 “privateers” and “privateering” appear in the indexes of sixteen of the thirty-six volumes of the Naval War College’s International Law series, these terms disappear from the indexes for the next thirty years, reappearing only in the volume for 1966 in relation to the Declaration of Paris in the context of a historical survey of neutrality laws. ⁹⁵ After World War II, privateering had fallen so far out of national consciousness that it elicited no comment when the U.S. Senate and the president ratified a treaty that in effect accepted privateering’s illegality.

(Return to the January 2015 Issue Table of Contents)

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