a. Relation of state and individual.
In considering the present theory of prize money distribution in
England and Judicial opinion on the subject, the classification[1]
adopted in summarizing the conclusion of the Grotian school of
international law writers may be used.
1. The state is the only power that can prosecute war and take prize.
"War must be waged by public authority of the state and carried on
through the agency of those who have been duly commissioned for
that purpose by that authority" says Phillimore.[2] However this
theory appears to be subject to a good deal of modification in
practice as for instance in the British treatment of captures made
by non-commissioned vessels. England has never given recognition to
the theory introduced by Rousseau and prominent in French political
theory that war is a conflict between the armed forces of the state
only and not between private individuals.[3] This theory maintains
that the only participants in war should be the armed representatives
of the state, thus non-belligerent nationals of the enemy country
and their private property should be exempt from military attack.
It seeks to place non-belligerents in practically the same position
as neutrals. Carried to its logical conclusion it would lead to the
complete abolition of the right of capturing enemy private property
at sea, and if not carried to this extreme it is at any rate
incompatible with the grant of prize money to individuals for if war
is solely a state affair aggrandizement of the individual should not
be one of its objects.
This theory of war should be distinguished from the view of Grotius
and his contemporaries. The latter holds that war is a state affair
and can only be entered into by the state as such but the individual
is so closely bound to the state that if the state is enemy so also
is the individual that belongs to that state. In other words it
recognizes no clear distinction between enemy belligerents and enemy
non-belligerents. "Bellum omnum, contra omnes". Grotius however, did
recognize state non-belligerency or neutrality. This theory though
somewhat modified in practice has been the one adhered to by Great
Britain. She has recognized the complete international responsibility
of the state in war but when she has recognized non-belligerent
rights of enemy subjects it has only been as a concession in behalf
of humanity and contrary to her well established rights. Thus until
very recently she refused to allow subjects of enemy states any
status in her courts. She is today the firmest opponent of the
movement to abolish the practice of capturing enemy private property
at sea and though she asserts that prize of war belongs to the state,
in practice she still gives it all to the captors thus letting the
individual have a very real personal interest in the war. England
now, of course, recognizes the rights of enemy non-belligerents
required by various international agreements.
b. Reprisal.
2. The right of private reprisal can only be exercised under specific
commission from the state.
"And indeed, says Blackstone, this custom of reprisals seems dictated
by nature herself for which reason we find in the most ancient times
very notable instances of it. But here the necessity is obvious
of calling in the sovereign power to determine when reprisals may
be made; else every private sufferer would be a judge in his own
cause."[4]
In his work on international law Phillimore gives rules for reprisal
in time of peace,[5] saying that the sovereign alone can grant the
right of reprisal and only goods sufficient to satisfy the debt can
be taken, the rest must be returned. Matters of private reprisal
can not be adjudicated in prize courts, which are only called into
existence by regular war, but come under the jurisdiction of the
regular courts of admiralty.[6] The matter is now purely theoretic
in England since by the declaration of Paris of 1856 privateering
and consequently the right of private reprisal was abolished. No
commission for this purpose could now be issued and any one engaged
in it would be considered a pirate. Public reprisal is still used
as a method of coercion short of war and may be employed for the
collection of private debts or for obtaining satisfaction for torts
of the individual, though only vessels of the regular navy can take
part, according to the declaration of Paris.
The right of reprisal for private redress in time of peace or
special reprisal should be distinguished from the right of reprisal
during war or general reprisal, sometimes distinguished as the
right of Marque. Formerly vessels were commissioned by letters of
Marque and reprisal to prey on the general commerce of the enemy
to any extent and wherever found during war. This right was only
legal under special commission of the sovereign though England
seems to have taken a very lenient attitude in dealing with
non-commissioned captors even granting them a share of their prizes.
Her attitude seems to have been that subjects by making captures
without commission offended against municipal law but not against
international law. Thus she was at liberty to deal with them as she
chose but the injured alien had no recourse under international law.
As a matter of fact if the non-commissioned captors had observed due
care in the conduct of the prize they were usually rewarded with
prize money on its condemnation.[7] The declaration of Paris which
abolished this practice was severely criticized by many English
writers on the ground that it robbed England of important belligerent
rights and some even doubted whether England was legally bound by it
on account of some diplomatic irregularities in signing it.[8] But
now there can be little doubt but that privateering is illegal in
England though volunteer fleets and subsidized steamship lines which
are used by all naval powers, come dangerously near to amounting to
the same thing.[9]
c. State Title to Prize.
The title to all prize vests originally in the state.
Phillimore says, "The maxim 'Bello Parta Cedunt Reipublicae,' is
recognized by all civilized states. In England all acquisitions of
war belong to the sovereign who represents the commonwealth. The
Sovereign is the fountain of booty and prize."[10] Holland makes a
similar statement: "Most systems of law hold that property taken
from an enemy vests primarily in the nation, 'Bello Parta Cedunt
Reipublicae'. A rule which is the foundation of the law of booty and
prize."[11] The same view has been expressed by the court as follows:
"That prize is clearly and distinctly the property of the crown
and the sovereign in this country, the executive government in all
countries in whom is vested the power of levying the forces of the
state and of making war and peace, is alone possessed of all property
in prize, is a principle not to be disputed.---- It is equally clear
that the title of a party claiming prize must needs in all cases be
the act of the crown, by which the royal pleasure to grant the prize
shall have been signified to the subject."[12] But this principle
is carried further and even after an express grant of prize money
has been made the crown still has exclusive control over prize. In
other words the grant of prize money creates no legal right which the
captor can maintain against the pleasure or whim of the crown. In the
case of "The Elsebe"[13] Sir William Scott said:
"It is admitted on the part of the captors that their claim rests
wholly on the order of council, the proclamation and the prize act.
It is not denied that independent of these instruments the whole
subject matter is in the hands of the crown as well in point of
interest as in point of authority. Prize is altogether a creature of
the crown. No man has or can have any interest, but what he takes
as the mere gift of the crown. Beyond the extent of that gift he
has nothing.---- This is the principle of law on the subject and
founded on the wisest reasons. The right of making war and peace
is exclusively in the crown. The acquisitions of war belong to
the crown and the disposal of these acquisitions may be of utmost
importance for the purposes both of war and peace. This is no
peculiar doctrine of our constitution, it is universally received
as a necessary principle of public jurisprudence by all writers on
the subject.---- Bello parta cedunt reipublicae---- It is not to be
supposed that the wise attribute of sovereignty is conferred without
reason; it is given for the purpose assigned that the power to whom
it belongs to decided peace or war may use it in the most beneficial
manner for the purposes of both. A general presumption arising from
these considerations is that the government does not mean to divest
itself of this universal attribute of sovereignty conferred for such
purposes unless it is so clearly and unequivocally expressed.----For
these reasons the crown has declared that till after adjudication
the captor has no interest which the court can properly notice for
any legal effect whatsoever." From considerations of public policy
the judge considers that the sacrifice of this inalienable right of
the crown would be apt to lead to constant international differences
or even war and concludes "I am of opinion that all principles of
law, all considerations of public policy, concur to support the
right of release prior to adjudication which I must pronounce to be
still inherent in the crown." As based on policy and international
law this decision was no doubt correct and necessary, but it seems
more doubtful whether from the standpoint of English law either a
court or the royal prerogative can divest a property right which has
been unequivocally granted by act of parliament, as appears to have
been done in the case of the act here in question.[14] However under
the present prize act the crowns rights are expressly reserved so
there could now be no question. It therefore appears that at present
England recognizes the absolute title of the crown to all prizes,
until after decree of distribution.
d. Adjudication of Prizes.
Distribution should be decreed only after adjudication of the prize
by a competent tribunal of the state. Benedict has said "Before
property captured can be properly disposed of it must be condemned
as prize in a regular judicial proceeding in which all parties
interested may be heard."[15]
The letter[16] of Sir J. Nicholl and Sir William Scott to United
States Ambassador Jay authoritatively states British opinion. The
portion given was quoted by the authors from a report made by a
commission to the king in 1753.
"Before the ship or goods can be disposed of by the captors there
must be a regular judicial proceeding, wherein both parties may be
heard, and condemnation thereupon as prize in a court of admiralty,
judging by the law of nations and treaties.
"The proper and regular court for these condemnations is the court of
that state to whom the captor belongs.
"If the sentence of the court of admiralty is thought to be
erroneous, there is in every country a superior court of review
consisting of the most considerable persons to which the parties who
think themselves aggrieved may appeal, and the superior court judges
by the same rule which governs the court of admiralty, viz. the law
of nations, and the treaties subsisting with that neutral power whose
subject is a party before them.
"If no appeal is offered it is an acknowledgement of the justice of
the sentence by the parties themselves and conclusive.
"In this method all captures at sea were tried during the last war
by Great Britain, France, and Spain and submitted to by the neutral
powers. In this method by courts of admiralty acting according to
the law of nations and particular treaties all captures at sea
have immemorially been judged of in every country in Europe. Any
other method of trial would be manifestly unjust, absurd and
impracticable."
In regard to the competency of courts this subject is now dealt with
by statute. It has been judicially stated that no British subject
can maintain an action in a municipal court against the captors for
prize. The court of admiralty is the proper tribunal and it exercises
prize jurisdiction only under special commission from the crown.[17]
In 1801 a case arose in which a vessel was condemned as prize and the
proceeds distributed by decree of the vice admiralty court of Santa
Domingo.[18] It appeared that the court had no commission to act as a
prize court. On retrial the British prize court said:
"But the court having no authority those proceedings are nill and of
no legal effect whatsoever." In spite of this decision Phillimore
expresses the opinion that in the absence of a special commission the
regular courts of admiralty could legally exercise prize jurisdiction
according to ancient custom.[19] Under the present law there can be
no question as to what courts are commissioned. It therefore appears
to be established that English jurisprudence demands a judicial
adjudication by a duly commissioned court before distribution of
prize money.
e. Method of Distribution.
The method of distributing prize money is determined by municipal law.
The statutory regulations and orders in council decreeing the method
of distribution in England together with the instructions to naval
commanders have already been noted.[20] A brief consideration of
their judicial interpretation may throw some additional light on the
actual method of determining the shares of prize received by the
captors.
Benefit may be received by the captors or destroyers of vessels in
three ways. 1. As prize bounty. A special reward is often given for
destroying or capturing enemy vessels. Usually it is given only for
destroying armed vessels of the enemy though in some cases, bounty
has also been given for the destruction of merchantmen. It is a sum
of money given from the treasury of the government irrespective of
the value of the prize captured. In distributing it an effort is
made to determine the strength of the opposing vessel, thus it is
given either as gun money, a fixed amount for each gun on the enemy
vessel or as head money, a fixed amount for each man on the enemy
vessel at the beginning of the engagement. 2. As military salvage.
A reward is usually given for the recapture and return of vessels
belonging to citizens of their own or allied countries. This reward
is of a similar nature to the salvage which is ordinarily paid for
the recovery of shipwrecked vessels in time of peace. The amount paid
is usually a certain proportion of the total value of the recaptured
prize. 3. As prize money. This is the portion of the actual proceeds
of the prize captured given to the captors. The amount of benefit in
this case would of course depend on the value of the prize captured,
and if the prize is destroyed there obviously is no prize money.
Formerly money might also be received as ransom, that is a prize
would be released by the captors on the giving of a ransom bill which
obligated the master of the prize to continue to a certain port, to
refrain from future voyages during the war, and to pay a fixed sum
of money as ransom. Thus ransom would partake of the nature of prize
money and be divided in the same way. The practice was abolished in
England in 1782 by statute[21] but seems to have been allowed later
in special cases[22] though each succeeding prize statute repeated
the prohibition. It is now illegal unless specially authorized by
Order in Council under the naval prize act of 1864.[23]
_NOTES._
Chapter V, Part 2.
[1] See ante, p. 26.
[2] Op. cit. iii, 77; see also Blackstone, op. cit. i, 257.
[3] On the relation of the individual to the state see Westlake,
Principles of International Law, Cambridge, England, 1894, p. 258;
Rousseau, The Social Contract, English translation from French, by
Tozer, London, 1909, p. 106. The theory associated with the name of
Rousseau appears to have been first enunciated by Giustino Gentili in
1690, see C. M. Ferrante, Private Property in Maritime War, Political
Science Quarterly, 1895, xx, 708.
[4] Blackstone, op. cit. i, 259.
[5] Phillimore, op. cit. iii.
[6] By the terms of the Giudon de la Mer; the ordinance of Louis XIV,
1681; the treaty of Utrecht, 1713; the treaty of Versailles, 1786;
the right of reprisal was to be granted only to those who could prove
damages done and when the offending state had refused legal redress.
Prizes judged were to be judged in the same way as prize of war and
any surplus in excess of the amount claimed was to be returned,
Carnazza-Amari, op. cit. ii, 596, compare with English statute of
1416, ante p. 35, and note.
[7] Phillimore, op. cit. iii, 601.
[8] On English opposition to the declaration of Paris see Phillimore,
op. cit. iii, 360; T. G. Bowles, Maritime Warfare, London 1878;
Robert Ward, Treatise of the Relative Rights and Duties of
Belligerent and Neutral Powers in Maritime Affairs, 1801, reprinted
with notes on the Declaration of Paris by Lord Stanley of Alderley,
London, 1875.
[9] Sir Thomas Barclay, Privateers, Encyclopedia Britannica, 11th
Edition, xxii, 370.
[10] Phillimore, op. cit. iii, 209.
[11] T. E. Holland, Jurisprudence, 11th Edition, London, 1910, p. 212.
[12] Lord Chancellor Brougham in Alexander vs Duke of Wellington,
2 Russel and Mylne 54, 1831; quoted in Phillimore, op. cit. iii,
209; Walker, The Science of International Law, p. 320; Wheaton,
International Law, p. 490.
[13] 5 C. Rob. 173, 1804, quoted in Atherley-Jones, op. cit. p. 524,
Wheaton, International Law, p. 490.
[14] 37 Geo. III, c 109, 1797.
[15] E. C. Benedict, The American Admiralty, 4th Edition, Albany,
1910. p. 420.
[16] For full text of letter see, Phillimore, op. cit. iii, 666;
Wharton, Digest of the International Law of the United States, 2nd
Edition, Washington, 1887, iii, sec. 330; Moore, International Law
Digest, Washington, 1906, vii, 603.
[17] Le Caux vs Eden, 2 Doug. 595, 99 Eng. Rep. 375; see also
Phillimore, op. cit. iii, 213. As to necessity of a commission to
establish a prize court see ante p.
[18] Huldah, 3 C. Rob. 235, quoted in Atherley-Jones, op. cit. p. 521.
[19] Phillimore, op. cit. iii, 655.
[20] See ante p. 73.
[21] 22 Geo. iii, c 25, s 1, 2, 1782.
[22] The Ships taken at Genoa, 4 C. Rob. 403; The Hoop, 1 C. Rob.
169, quoted in Phillimore, iii, 644.
[23] 27 and 28 Vict., c 25, s 45, 1864; also Holland, Manual of
Naval Prize Law, sec. 273.