Whenever a vessel or cargo is adjudged good prize by the court it is
publicly sold and the proceeds are decreed to the captors as prize
money, unless they are non-commissioned or forfeit it by failure to
observe the regulations imposed upon them for the conduct and safe
keeping of the prize.[1] In England the proceeds of all vessels and
cargoes, whether of a purely mercantile or of a military character
are divided as prize money, though the government reserves the right
of preemption on naval and victualling stores.[2] The rules which
govern the prize court in adjudging a captured vessel good prize or
not are beyond the scope of this paper. In general all enemy vessels
are condemned, and neutral vessels are condemned for breach of
blockade, carriage of contraband or unneutral service. These matters
are at present largely covered by the Hague conventions of 1907 and
the Declaration of London of 1909.[3] However as previously noted the
crown reserves the right to free any vessel even though its capture
was perfectly legal and it was of a class that would ordinarily be
adjudged good prize.[4]
In the distribution of prize money there must be decided, first,
what vessels are to share in the prize; second, what proportion each
vessel is to get, and third, what proportion of the vessels share
each officer and man on board is to receive.
The second and third points are settled by the prize proclamation
which decrees division among the officers and men of all the
vessels sharing according to the grade they occupy. There is no
division among the vessels but all men entitled to share are grouped
together in eleven grades, each one of which receives a fixed
proportion of the prize money. This portion is then divided equally
among all the men of that grade, no matter on what vessel they
served. Thus a sailor on a vessel constructively assisting receives
exactly the same share as a sailor of the same grade on the vessel
making the actual capture.[5]
Where some of the vessels are allies the division is usually
regulated by treaty. The provisions of Great Britain's treaties with
France of 1854 and 1860 have already been noted.[6] In these cases
division was to be made between the vessels of the allies according
to the number of men on board irrespective of rank. Of course, for
the share decreed to her own vessels, England employed her own rules
of division. Where there is no treaty or some of the vessels are
privateers the division among the vessels is decreed by the court, an
effort being made to apportion it according to the relative strength
of the vessels. To determine this the number of men, guns or both on
the various vessels are considered. Thus Mansfield said,
"The law of nations does not determine but if one might guess at it,
it must be in the ratio of the strength of the respective captors,
to know which the number of guns, weight of metal, number of men and
strength of each fleet must be stated."[7]
The court must decide the first question proposed, namely what
vessels were either actual or joint captors and as such entitled to
share. In defining these terms the court has said:
"All prize belongs absolutely to the crown which for the last 150
years has been in the habit of granting it to the takers who are of
two classes, actual captors and joint or constructive captors. Joint
captors are those who have assisted or are taken to have assisted the
actual captors by conveying encouragement to them or intimidation to
the enemy."[8] It is in general considered that this encouragement or
intimidation is given by all vessels in sight but this is not always
true. Thus:
"For it is perfectly clear that being in sight of all cases is not
sufficient. What is the real and true criteria?---- There must be
some actual, constructive endeavor as well as a general intention."[9]
But in the case of king's ships all in sight generally share.
"They are under a constant obligation to attack the enemy whenever
seen. A neglect of duty is not to be presumed and therefore from the
mere circumstance of being in sight a presumption is sufficiently
raised that they are there animo capiendi."[10] This rule holds
irrespective of the character of the vessel making the actual capture.
With privateers the case is different:
"For they are not under obligation to fight. It must be shown in
their case that they were constructively assisting. The being in
sight is not sufficient with respect to them to raise a presumption
of cooperation in capture.--There must be the animus capiendi
demonstrated by some overt act, by some variation of conduct which
would not have taken place but with reference to that particular
object and if the intention of acting against the enemy had not been
effectually entertained."[11] As privateering has been abolished this
rule is now purely theoretical.
These rules are subject to exceptions however as for instance in the
case of captures made in the night or after a joint chase. In such
cases ships of the navy definitely associated share though not in
sight. Thus:
"A fleet so associated is considered as one body unless detached by
orders or entirely separated by accident and what is done by one
continuing to compose in fact a part of the fleet, enures to the
benefit of all."[12]
A vessel shares in the captures of its tenders.
"I apprehend that the tender becomes as has been contended in law a
part of the ship to which she has been attached and that any capture
made by her enures to the benefit of the ship to which the tender is
an adjunct."[13] Tenders are usually non-commissioned vessels but as
they are considered agents of a commissioned vessel their captures
are good. The same is true of captures made by ships boats but no
constructive captures are allowed by boats of other vessels in sight.
Transport vessels do not participate as joint captors. A case
involving transports arose in 1799. The court said:
"It has not been shown that these ships set out in an originally
military character, or that any military character has been
subsequently impressed upon them by the nature and course of their
employment and therefore, however meritorious their services may
have been and however entitled they may be to the gratitude of
their country it will not entitle them to share in this valuable
capture."[14]
The division of captures made by joint naval and military expedition
are under the jurisdiction of prize courts. So far as possible the
same principles of division are employed in dividing proceeds among
soldiers of the army as in dividing prize money in the navy. In
regard to the conditions that permit a joint land expedition to share
the court said in 1799:
"Much more is necessary than a mere being to sight to entitle an army
to share jointly with the navy in the capture of an enemy's fleet". A
common interest is presumed with naval vessels in sight, not so with
the army. "The services must be such as were directly or materially
influencing the capture so that the capture could not have been made
without such assistance or at least not certainly and without great
hazard."[15] The prize act of 1864 now governs the division in joint
military and naval captures.[16]
Captures made by non-commissioned ships which now includes all
vessels not part of the royal navy go to the government.[17] Such
captures were originally one of the Droits of Admiralty[18] but since
the office of admiral has been in commission they enure to the crown.
Peculiarly enough, though all such forfeitures now go to the crown
the technical distinction of condemnation to the king, jure coronae
and condemnation to the king in his office of admiralty. Droits of
Admiralty is still maintained in the decrees of prize courts. By
statute[19] all such Droits of Admiralty and Jure Coronae are now
put into the consolidated fund of Great Britain. In practice it has
usually happened that the greater part of the proceeds of captures
made by non-commissioned captors is given to the captor as a special
reward.[20] For this it appears that England does not recognize an
international obligation to prevent captures by non-commissioned
vessels in time of war. It is hard to reconcile this attitude with
her adoption of the Declaration of Paris in 1856. She does not of
course issue letters of Marque or officially permit capture by any
vessels other than those of the royal navy. England has not been
engaged in any important naval war since the treaty of Paris so it
is impossible to say exactly what her practice in this regard would
be. Legally all rights in captures by non-commissioned captors enure
to the crown so if such vessels infringed on neutral rights England
would undoubtedly refuse to give them any reward, which would soon
have the effect of stopping such captures.
Definite rules are prescribed for the conduct of prizes, as for
instance, the cargoes must not be tampered with, the holds must
be closed, all necessary papers must be presented with the prize,
the prize must be brought in without delay and proceedings must be
commenced in the prize court without unreasonable delay.[21]
"It is to be observed that the captors have no right to convert
property till it has been brought to legal adjudication. They are not
even to break bulk."[22]
"The captor holds but an imperfect right; the property may turn out
to belong to others, and if the captor put it in an improper place
or keeps it with too little attention he must be liable to the
consequences if the goods are not kept with the same caution with
which a prudent person would keep his own property."[23]
Negligence on the part of the captors in caring for the prize or
infringement of national or international laws on the subject will
result in the forfeiture of all share of the prize[24] and indeed
as already observed[25] without any fault on the part of the captor
the crown may refuse the captors any share by returning the vessel
as a matter of policy. This almost always occurs at the close of a
war when it is usually provided by treaty that unadjudicated prizes
should be returned. The captor's rights in prize are purely at the
mercy of the crown. What he receives he receives by the crown's grace
and not by legal right.
_NOTES._
Chapter V, Part 5.
[1] See post p. 102 to 104.
[2] 27 and 28 Vict., c 25, s 38, 1864.
[3] See Higgins, The Hague Peace Conferences, for all international
conventions bearing on these points.
[4] See ante p. 82 et. seq.
[5] Statutory Rules and Orders, revised, 1903, tit. Navy, ix. 109.
[6] See ante p. 61 and 62.
[7] Duckworth vs. Tucker, 1809, 2 Taunt. 7, quoted in Atherley-Jones,
op. cit. p. 560.
[8] Banda and Kirwee Booty, 1866, 1 Law Rep. Adm. and Ecc. 109, see
also Phillimore, op. cit. iii, 222.
[9] The Vryheid, 2 C. Rob. 16, quoted in Atherley-Jones, op. cit. p.
544.
[10] La Flore, 5 C. Rob. 268, quoted, ibid. p. 546.
[11] Amitie, 6 C. Rob. 261, quoted, ibid. p. 546.
[12] Forsigheid, 3 C. Rob. 311, quoted, ibid. p. 546.
[13] The Carl, 2 Spinks 261, quoted, ibid. p. 550.
[14] The Cape of Good Hope, 2 C. Rob. 284, quoted, ibid. p. 556.
[15] The Dordrecht, 2 C. Rob. 55, quoted, ibid. p. 558.
[16] 27 and 28 Vict., c 25, s 34, 1864.
[17] "Any ship or goods taken as Prize by any of the officers and
crew of a ship other than a ship of war of Her Majesty shall, on
condemnation, belong to Her Majesty in Her office of Admiralty." 27
and 28 Vict., c 25, s 39, 1864.
[18] See ante p. 52.
[19] 27 and 28 Vict., c 24, s 17; 1 and 2 Vict., c 2, s 2; 1 Edw.
VII, c 4, s 1; 10 Edw. VII and 1 Geo. V, c 28, s 1.
[20] The Haase, 1 C. Rob. 286, quoted in Phillimore, op. cit. iii,
601.
[21] For statutory obligations see 27 and 28 Vict., c 25, s 37, for
rules of Hollands, Manual of Naval Prize Law, see ante, p. 66.
[22] L'Ecole, 6 C. Rob. 220, quoted in Atherley-Jones, op. cit. p.
524.
[23] Maria and Vrow Johanna, 4 C. Rob. 348, quoted ibid. p. 524.
[24] 27 and 28 Vict., c 25, s 37, 1864.
[25] See ante p. 82 et seq.
_CHAPTER VI. GREAT BRITAIN, SIGNIFICANCE OF PRESENT LAW._
PART 1. CAUSES OF LAW.
As has been indicated since the beginning of the eighteenth century
the principles of prize distribution in England have undergone but
little alteration. With the statutes of Anne parliamentary control of
prize matters became established and the method at that time adopted
of decreeing distribution by order in council authorized by act of
parliament has since been followed. The policy of giving all the
proceeds of prizes to the captors after legal adjudication before a
competent prize court has likewise been adhered to from that time.
By the reign of Anne, England was definitely established as an
imperial colonial power. Her Indian empire was founded, her American
colonies were flourishing, Marlborough's successful wars gave her
great European prestige. This necessitated the establishment of a
policy of naval supremacy, a policy which she has since maintained.
At the same time she realised her increasing dependence on commerce.
Numerous efforts were made to increase British trade at this time
through legislation. She understood that law must reign on the sea if
commerce was to prosper.[1] While she depended on her navy to protect
her trade routes, she recognized that she could not protect them
from the cruisers of all the world and so sought to respect neutral
rights. This necessity was realized slowly. During the eighteenth
century in pursuing her aggressive naval policy England several times
offended neutral powers as for instance by the rule of 1756 but in
the main neutral rights were respected and prizes were not taken or
distributed except with the strict sanction of law.
Thus as in former periods England's military policy has been
influenced by the two factors, commercial dependence and naval
aggressiveness. The interests of the former have compelled her to
respect neutral rights and maintain strict legality in all her
war-like measures. As reflected in her prize law it has brought about
powerful legal control of prize matters through prize courts of great
authority and unfailing justice. It has forced the crown to assert
its primal right to all prizes that it may restore them if policy
demands. It has put all prize law under the control of parliamentary
statutes, directing the policy of the law but has left the government
wide discretion in arranging the details to suit the exigencies of a
particular conflict.
The interests of the latter have impelled her to assert belligerent
rights to the utmost. England has always been the most reluctant of
all nations to abandon an established belligerent right at sea.[2]
Thus she still gives the whole of the proceeds of legally captured
prizes to the captors for the purpose of encouraging seamen, and
increasing the efficiency of the navy.
_NOTES._
Chapter VI, Part 1.
[1] For English regard for commerce see Blackstone, I, 260; "Indeed
the law of England as a commercial country pays very particular
regard to foreign merchants in innumerable instances." He also quotes
Montesquieu, Esprit des Lois, XX, 13; "That the English have made the
protection of foreign merchants one of the articles of their national
liberty." See also navigation Acts of 1650, Scobell, 152, of 1651,
Scobell, 176, of 1660, 12 Car. II c 18.
[2] See discussion of the rule of 1756, and England's opposition
to the armed neutralities of 1780 and 1800 in Wheaton, History of
the Law of Nations. On her opposition to the immunity of enemy
property on neutral vessels, see Ward, Treatise on the Rights and
Duties of Neutrals, and Bowles, Maritime War. England is today the
strongest opponent of the movement to abolish the right to capture
enemy private property at sea, see Report of meeting of Institut of
International Law, Revue de Droit International, 1875, vii, 275, 329;
also official report of the Second Hague Conference.
PART 2. EFFECTS OF LAW.
a. The Navy
To discuss the effects of England's prize money law is a very
difficult task. However a few remarks may be made considering the
question with reference to its effect, first, on the English navy and
second, on international law.
It might be thought that the encouragement of mariners by the hope
of private gain would tend to increase the efficiency of the navy
and this is the avowed purpose of distribution in all the statutes
authorizing it. England has undoubtedly always had a very efficient
navy but she has almost always found it necessary to use the press
gang[1] to man her vessels in her important naval wars. The hope of
prize money has not been sufficient to furnish enough volunteers to
fill the navy.
In connection with privateering there can be no doubt but that the
generous giving of prizes has enabled England to make effective war
with little national expense. Elizabeth's wars cost her nothing,
rather they were a source of income. The same was true of the wars of
the eighteenth century. The hope of gain seemed always sufficient to
enlist private enterprise in privateering war. However privateering
is now abolished. Modern naval strategy demands a few men-of-war
rather than many cruisers. Captain Mahan[2] considers commercial war
as of comparatively small importance. An effective blow can only be
struck by conflict with the enemy's armed vessels. Any amount of
commerce destroying can not conclude the war in his opinion, though
he by no means takes the stand that commerce destroying should
be abolished. It would seem that the small share of prize which
might possibly be received by a sailor in a modern ship would be a
negligible factor in increasing naval efficiency. Rather it would be
a deterrent as it would attract vessels into commercial war instead
of into the more effective conflicts with the enemy's armed vessels.
With the abolition of privateering it would seem that the value of
prize money as a means of increasing the efficiency of the navy
departed.
b. International Law.
England's prize money laws can not be said to have imperiled neutral
rights. England has always insisted on the most extreme belligerent
rights but it can not be said that her courts often denied a neutral
right that was really established by international law. The prize
courts of Mansfield and Stowell have been considered models of
fairness throughout the world. Though the utmost privileges were
given to privateers and the sailors of the royal navy the even
handed justice of the prize courts fully protected neutral rights by
restoring illegal captures made with the hope of private gain. With a
people of less law abiding disposition and less used to submission to
law than the English this might not be true.
It might be supposed that the generosity toward the captors of prize
would be calculated to decrease the destruction of prizes at sea.
If the prize were destroyed of course the captor would obtain no
prize money. English publicists are inclined to admit the right of
destruction at sea. Thus Scott, Lushington and Holland say that
it should not be resorted to except in cases of extreme urgency
but on occasion it may be justifiable or even praiseworthy.[3]
Continental writers on the contrary are inclined to disallow entirely
the legality of the destruction of prizes. Bluntschli and Heffter
greatly deprecate the practice.[4] In spite of the apparent authority
for such action given by English publicists English cruisers have
very seldom destroyed prizes. This may be due partly to her prize
money law but probably to a greater extent to her widely scattered
territories which make it almost always possible to get a prize to an
English port. At present the destruction of neutral prizes is closely
circumscribed by the provisions of the Declaration of London[5] on
that point so it is not likely that the abolition of prize money
would bring about an increase in this practice.
The movement toward the abolition of the right to capture enemy
private property at sea, historically advocated by the United States,
is coming into increasing favor in England, though England as a
nation always has been and still is the leading opponent of the
innovation.[6] As pointed out above, modern naval strategy deprecates
commercial war as also does humanitarianism. A considerable number
of English publicists are now advocating the abolition of this right
not only on behalf of humanity but also as a matter of wise military
policy for Great Britain. The increasing importance of unrestrained
commerce to the island has influenced many to believe that England
would gain more than she would lose by the abandonment of this
belligerent right.[7]
It may be useful to consider how much effect the institution of
prize money has upon England's attitude on this question. There is
no doubt but that sailors and officers of the navy like to get prize
money. There is the gambler's zest to money received in this way and
undoubtedly the personnel of the navy would offer all the resistance
in their power to the abolishment of prize money. A section in the
proposed prize act of 1910 illustrates this.
The act was offered in order to permit of the appeal of prize cases
to the international prize court provided for by the Hague conference
of 1907. The section in question[8] authorized the admiralty to give
prize money on estimated value even when the prize was liberated
by the court. The object of this section was evidently to insure
reward to the captors in case of a possible undue liberality on the
part of the international prize court, and would seem to imply a
certain lack of confidence in that court. This bill was lost with
little discussion. However, the provision indicates that the element
favoring prize money is ready to push its interests in legislation.
If the war right of capturing private enemy property at sea were
abandoned the chance of getting prize money would automatically
disappear except in the comparatively rare cases of contraband and
breach of blockade. Is the naval sentiment in favor of prize money
strong enough to keep England from falling in with other nations
in this movement toward abolishing the right of capture at sea?
It does not seem likely. The selfish, personal desires of a small
portion of the population can not be sufficient to sway the policy
of a great nation like England if broader considerations demand a
change. England's resistance to the movement for abolishing the right
to capture private property at sea can be traced to other causes.
John Stuart Mill once called the right to attack commerce "our chief
defensive weapon."[9] Phillimore, Twiss, Westlake, and Lorimer all
favored the retention of the right. It is idle to suppose that these
men had no stronger reason for their stand than that it permitted
seamen to get prize money. From the standpoint of military science
there has been in the past justification for the retention of this
right by England, and many sincerely believe that even now England
must retain it as a military defense.
In the vote on the American proposition for abolishing this right of
capture taken at the Second Hague conference[10] the prize money laws
of the different countries apparently had no effect on their vote.
Italy and Sweden who give prize money as well as the United States
and Germany who do not favored the resolution. On the other hand,
Japan who has never given prize money voted against the proposal
as also did Great Britain, France and Russia who have always given
it. It should be remembered that the United States advocated the
abolition of the right to capture private property at sea for a
century before she abolished prize money. Italy also has consistently
advocated that policy since 1870 though she still gives prize
money.[11] It does not seem that the local law of prize money has any
great effect on the countries attitude on the question of the right
to capture private property at sea.
As stated there is a growing movement in England in favor of
abandoning the right of capturing private property at sea. The
discussion has been entirely based on considerations of broad
national policy. The existence of prize money has not entered into
the matter. It does not seem likely that England's laws of prize
money have had or do now have any appreciable influence on her
attitude in this question.
c. Conclusion.
It seems that under present conditions the giving of prize money
in England has little effect either for good or evil. Since the
abolition of privateering it appears to have had little value in
increasing the efficiency of the navy or in decreasing the expense of
war. Neutral rights have not been imperiled by it for in England it
has not given rise to biased judgment on illegal captures. While it
may have decreased the destruction of prizes before adjudication it
does not appear likely that its abandonment would now have any effect
on this matter. Neither does it seem probable that it has had much
influence in determining England's stand on the question of the
right to capture private enemy property at sea.
In view of this inoffensive character of prize money in England it is
not surprising that it remains law. Sailors and naval officers want
to keep it. The institution is long established in custom by which
the English are proverbially bound. Unless a definite charge can be
brought against it, it does not seem likely that the present practice
will be abolished. England's stand at the Hague conference of 1907
seemed to indicate this attitude. On that occasion a proposition was
introduced by the French delegation to abolish prize money.[12] It
was offered as a substitute to the American plan of abolishing the
right to capture private property at sea. Great Britain opposed the
scheme. Sir Ernest Satow, the British delegate, said that England
could not agree to the proposition as the English parliament had
reasons for believing in their present custom of distribution. The
reasons, he did not give. He added that he considered the matter as
being one solely for internal settlement and not one of international
law.[13] We may therefore expect prize money to remain as an
institution of British policy, though its influence on international
law seems to be very slight.
On theoretical grounds the practice seems to have little basis for
existing. It is not in harmony with the modern view of war which
seeks so far as possible to eliminate the element of personal gain
and to limit the operations of war to strictly state agencies.
It encourages war on commerce. Its use savors of privateering.
It offers a constant temptation for infringing neutral rights by
making illegal captures. With the abolition of privateering and the
present views of naval strategy its usefulness as an encouragement
for seamen and a means of increasing the efficiency of the navy have
departed. It accentuates the gambler's chance which is contrary to
all modern ethics. Sailors, the same as soldiers, should receive
fixed pay for their services, and not be compelled to rely for their
salaries, in part at least, upon the uncertain chance of prize
money. Bentwich says of prize money: "The present custom of dividing
among the captors the proceeds of sale after adjudication of a prize
court preserves in maritime war that taint of belligerent greed and
of interested attack upon private property which is against the
spirit of modern warfare and which has been declared illegal in land
operations."[14]
Though prize money as given in England was an institution of great
international importance in the balmy days of privateering especially
during the reign of Elizabeth when it was largely responsible for
the romantic careers of England's empire builders, for the wholesale
capture of Spanish galleons and for England's naval supremacy, it
does not seem to have been of any particular importance to any one
outside of the naval service of Great Britain since the abolition of
privateering. Practically it is valueless. Theoretically it is bad.
It should be abolished.
_NOTES._
Chapter VI, Part 2.
[1] Common Law fully admits the legality of pressing sailors into
service, see Blackstone, I, 419.
[2] Influence of Sea Power upon History, pp. 132-138; Lord
Palmerstone also deprecated the value of commercial war, Political
Science Quarterly, 1905, xx, 711.
[3] Atherley-Jones, op. cit. 529, 534.
[4] Atherley-Jones, op. cit. 530.
[5] The Declaration of London, Chap. iv. The Declaration of London
however is not officially ratified by Great Britain, see Bentwich,
The Declaration of London.
[6] England's delegates, Messrs. Twiss, Westlake, Lorimer, and
Bernard gave the only dissenting votes to the proposition favoring
the abolition of the right to capture private property at sea,
Institute of International Law at its meeting at the Hague in 1875,
see Revue de Droit International, 1875, vii, 288. England also
opposed the proposition at the Second Hague Conference, in 1907, see
Second Hague Conference, Acts and Documents, iii, 832.
[7] Among English Publicists favoring the abolition of the right
to capture private property at sea may be mentioned Lawrence, Hall
and Maine. The question came before the house of commons by motion
of Sir John Lubbock, March 22, 1878, but was negatived without
division. (See Phillimore, op. cit. iii, 361.) Lord Palmerstone once
said, "Question Statesmen, none will tell you that the depredations
of privateers have ever decided the success or final result of a
war." (See Political Science Quarterly, 1905, xx, 711) and in a
speech of 1856 he hoped for the abolition of the right to capture
private property at sea. (See Speech by Rufus Choate, Second Hague
Conference, Acts and Documents, iii, 770.) Among English publicists
on the opposite side are Phillimore, Westlake, T.C. Bowles, Twiss,
Lorimer, Sir Shurston Baker, and Norman Bentwich. John Stuart Mill
in a letter to the Times, March 11, 1871 spoke of abandonment of the
right to capture private property, as "the abandonment of our chief
defensive weapon--the right to attack an enemy in his commerce."
(See Phillimore, op. cit. 361.) However, in a speech in 1867 he had
apparently countenanced the reform, (See Speech of Rufus Choate,
Second Hague Conference Acts and Documents, iii, 770.)
[8] Section 21 of the proposed act. For text of this act see
Bentwich, The Declaration of London, 174.
[9] Political Science Quarterly, 1905, xx, 711, see also note 7 above.
[10] The full result of the vote was as follows: Aye--Germany,
United States, Austria-Hungary, Belgium, Brazil, Bulgaria, China,
Cuba, Denmark, Equador, Greece, Hayti, Italy, Norway, Netherlands,
Persia, Roumania, Siam, Sweden, Switzerland and Turkey,--21;
Nay--Columbia, Spain, France, Great Britain, Japan, Mexico,
Montenegro, Panama, Portugal, Russia, Salvador--11; Not Voting,
Chile.
[11] For attitude of United States and other countries on this
question see speech by Andrew D. White, at the first Hague
Conference, (Holls, The Peace Conference at the Hague) and speech
by Rufus Choate at the Second Hague Conference, (Second Hague
Conference, Acts and Documents, iii, 770.)
[12] The French proposition was as follows: "Considering that, as
the law of nations still positively admits the legality of the
right of capture, applied to private enemy property at sea, it is
eminently desirable that, until a binding agreement is established
between states on the subject of suppression, the exercise of it be
subordinated to certain modifications.
"Considering, that it is necessary to the above point that,
conforming to the modern conception of war that it ought to be
directed against states and not against individuals, the right
of capturing private property apply only as a means of coercion
practiced by a state against a state;
"That in view of these ideas all the individual benefit to the profit
of agents of the state which exercises the right of capture ought to
be excluded and that the loss suffered by individuals from the taking
of prize ought to be finally borne by the state to which they belong;
"The French delegation has the honor of proposing to the fourth
commission that it express the wish that states which exercise the
right of capture appropriate the portion of prizes given to the crews
of the capturing vessels and promulgate the necessary measures,
so that the loss, caused by the exercise of the right of capture,
will not rest entirely upon the individuals from whom the wealth
may have been captured."--This "Voeu" known as annexe 16 of the
fourth commission appears in French text in Second Hague Conference
Acts and Documents, iii, 1148; English translation in Westlake,
International Law, ii, 313. For discussion of the measure see Second
Hague Conference, Acts and Documents, iii, 792, 809, 842, 845, 906,
909. Before a vote was taken the two portions of the motion were
separated. The final result as given on page 909 of the volume cited
was as follows:
On Abolition of prize money; Aye--Germany, Austria-Hungary, Chile,
China, France, Greece, Italy, Japan, Montenegro, Norway, Holland,
Persia, Russia, Servia, Sweden, Turkey, 16. Nay--United States,
Argentina, Cuba, Mexico, 4. Not Voting--Belgium, Brazil, Denmark,
Dominican Republic, Equador, Spain, Great Britain, Hayti, Panama,
Paraguay, Portugal, Salvador, Siam, Switzerland, 14.
On State insurance against private loss; Aye--Austria-Hungary,
France, Great Britain, Montenegro, Holland, Russia, Servia, 7.
Nay--Germany, United States, Argentina, Chile, China, Cuba,
Italy, Japan, Mexico, Norway, Persia, Sweden, Turkey, 13. Not
Voting--Belgium, Brazil, Denmark, Dominican Republic, Equador,
Spain, Greece, Hayti, Panama, Paraguay, Portugal, Salvador, Siam,
Switzerland, 14.
Although the United States has abolished prize money, her delegates
voted against the proposition on this occasion on the grounds that
it was a matter for internal regulation, and that they did not wish
to take the emphasis from the broader project of total abolition of
the right to capture private property which they advocated. Though
England abstained from voting, her delegate expressed opposition to
the "Voeu" in debate.
[13] Second Hague Conferences, iii, 906.
[14] Bentwich, The Law of Private Property in War, p. 72.
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TRANSCRIBER'S NOTE
Underlined text is denoted by _underscores_. There is no 'bold' or
'italic' text.
Obvious typographical errors and punctuation errors have been
corrected after careful comparison with other occurrences within
the text and consultation of external sources.
For consistency, instances of 'op. cit,' and 'op. cit.,' have been
replaced by 'op. cit.' and instances of 'ibid,' and 'ibid.,' have
been replaced by 'ibid.'
The original text is a typed manuscript for a graduate thesis paper,
using one side of the paper. There is a second 'Page 53' which has
been renumbered in the html version of the etext as '53a', and a
second 'Page 73' renumbered as '73a'. There is no 'Page 125'.
Except for those changes noted below, all misspellings in the text,
and inconsistent or archaic usage, have been retained. For example:
Hayti; Equador; one-tenth, one tenth; unneutral.
All instances of 'Brittanica' have been replaced by 'Britannica'.
Table of Contents, 'Crimmean' replaced by 'Crimean'.
Table of Contents, 'personel' replaced by 'personnel'.
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Pg 4, 'Herodutus' replaced by 'Herodotus'.
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