It appears desirable to allude to these instances, in order to anticipate a possible question as to the exclusion of such famous seamen from these pages.
There is also considerable confusion among authors as to the distinction between a pirate and a privateer, some of them being apparently under the impression that the terms are synonymous, while others, through imperfect knowledge of the details and ignorance of international law, have classed as pirates men who did not merit that opprobrious title, and, on the other hand, have placed the "buccaneers"—who were sheer pirates—in the same category as legitimate privateers.
For instance, Captain Woodes Rogers, of whom we shall have a good deal to say later on, is alluded to by one writer as "little more than a pious pirate," and by another simply as a pirate, bent upon "undisguised robbery"; whereas he was, in fact, more than once in serious conflict with his crew, upon the occasion of their demanding the capture and plunder of a ship which he was not entitled to seize—and, moreover, he had his own way.
There have been, no doubt, and with equal certainty there will be, incidents in warfare which afford very unpleasant reading, and in which the aggressors appear to have been unduly harsh and exacting, not to say cruel, towards defenceless or vanquished people; but that does not prove that they were not within their rights, and to impugn the conduct of an individual from a hastily and perhaps ignorantly adopted moral standpoint, at the expense of the legal aspect of the matter, must obviously involve the risk of gross injustice. War is a very terrible thing, and is full of terrible incidents which are quite inevitable, and the rough must be taken with the smooth—if you can find any smooth!
It is an axiom of international law that, when two nations are at war, every subject of each is at war with every subject of the other; and, in view of this fact, it appears extremely doubtful whether any merchant vessel is not at liberty to capture one of the other side, if she be strong enough. It is, in fact, laid down by Sir Travers Twiss, a high authority, that if a merchant vessel, attacked by one of the enemy's men-of-war, should be strong enough to turn the tables, she would be entitled to make a prize of her: an unlikely incident, of course.
It is unnecessary, however, to enter upon further discussion of this subject, which would involve us in very knotty problems, upon some of which the most accomplished authorities are still at variance, and which would afford very indifferent entertainment for the reader, who will now turn over the page and follow the fortunes of our privateers—which will be found by no means devoid of interest, in spite of strict adherence to the plain unvarnished truth.
[1] Sir Harris Nicolas, in his "History of the Royal Navy," interprets the Latin word marcare (or marchare) "to mark," and, in referring to this incident, says that Bernard was accorded the right of "marking the men and subjects of the King of Portugal," etc. It is curious that so diligent and accomplished a chronicler should have fallen into this error. The verb marcare, as he would have discovered by reference to the "Glossarium" of Du Cange, the learned French archæologist, was in fact a bit of "law Latin," coined for a purpose; that is, to express in one word the rights conceded by a letter of marque; it will not be found in any ordinary Latin dictionary. The grant of a licence to "mark" the subjects of some monarch, and their goods, is, indeed somewhat of an absurdity—clearly, the "marker" would first have to catch the men and their possessions!
[2] In an original letter formerly in the possession of the late Sir William Laird Clowes, quoted by him in "The Royal Navy."