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diff --git a/old/50814-8.txt b/old/50814-8.txt deleted file mode 100644 index 85f0b58..0000000 --- a/old/50814-8.txt +++ /dev/null @@ -1,4662 +0,0 @@ -The Project Gutenberg EBook of Prize Money, by Philip Quincy Wright - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: Prize Money - -Author: Philip Quincy Wright - -Release Date: January 1, 2016 [EBook #50814] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK PRIZE MONEY *** - - - - -Produced by John Campbell and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - 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. - - More detail can be found at the end of the book. - - - - - PRIZE MONEY - - BY - PHILIP QUINCY WRIGHT - - A. B. Lombard College, 1912 - - - THESIS - - Submitted in Partial Fulfillment of the Requirements for the - Degree of - MASTER OF ARTS - IN POLITICAL SCIENCE - - IN - - THE GRADUATE SCHOOL - OF THE - UNIVERSITY OF ILLINOIS - - 1913 - - - - - UNIVERSITY OF ILLINOIS - - THE GRADUATE SCHOOL - - JUNE 5, 1913 - - - I HEREBY RECOMMEND THAT THE THESIS PREPARED UNDER MY SUPERVISION BY - - QUINCY WRIGHT - - ENTITLED PRIZE MONEY - - BE ACCEPTED AS FULFILLING THIS PART OF THE REQUIREMENTS FOR THE - DEGREE OF MASTER OF ARTS - - _James W. Garner._ - - In Charge of Major Work - - _James W. Garner._ - - Head of Department - - Recommendation concurred in: - - }Committee - } - }on - } - }Final Examination - - - - -_TABLE OF CONTENTS._ - - - _Introduction._ - - - _Chapter I. Among the Ancients._ - - Page - - Part 1. Greece 2 - - a. Land War--Principles, Causes, Effects. - - b. Maritime War--Prize Courts, Piracy, - Rhodian Laws. - - Part 2. Rome 10 - - a. Land War--Method of Division. - - b. Maritime War--A Land People, Piracy, - Principles, Causes, Effects, Ferocity - of War. - - - _Chapter II. During the Middle Ages._ - - Part 1. Maritime Codes 16 - - Early Codes, Consolato del Mare, Character - of its Rules, Effects, No Recognition - of States. - - Part 2. The New International Law 21 - - Machiavelli, Brunus, Victoria, Ayala, More, - Bodin, Gentilis, Grotius, Zouche, - Puffendorf, Summary. - - - _Chapter III. Great Britain, Historical Resumé._ - - Part 1. Earliest Times to 1340 30 - - a. Laws--Common Law Rule, Liberality to - Captors, Grant by Letters Patent, - Cinque Ports. - - b. Administration--Common Law Courts, Slight - Control. - - Part 2. 1340 to 1485 34 - - a. Laws--Distribution by Ordinance, - Privateers, Letters of Marque, Adjudication - of Prizes, Black Book of Admiralty. - - b. Administration--Establishment of - Admiralty, First Prize Court, - Conservator of Ports. - - c. Significance--Cause, Effect. - - Part 3. 1485 to 1603 43 - - a. Laws--Letters Patent, Admirals Tenth, - Prize Proclamations, Letters of Marque - from France. - - b. Administration--Aggressive Policy, Crowns - Control, Adjudication not the Rule, - Restraint of Privateers, Summary. - - c. Significance--Effect, Encouragement of - Privateers, Cheap War. - - Part 4. 1603 to 1688 50 - - a. Laws--Proclamations, Puritan Ordinances, - Prize Bounty, Piracy, Navigation Acts, - Spoil on Decks, Jure Coronae, Droits, - of Admiralty. - - b. Administration--Adjudication Required, - Admirals Jurisdiction, Cinque Ports, - Civil War, Puritanism, Restoration, - Trading Companies, Significance. - - - _Chapter IV. Great Britain, Recent Laws._ - - Part 1. 1688 to 1864 56 - - Grants by statute, Queen Anne's Statute, - Lord Loughborough's Opinion, Later Acts, - Acts of 1793, of 1812, of 1815, Ransom - Forbidden, Slave Trade, Crimean War. - - Part 2. 1864 to 1913 64 - - Permanent Statutes, Naval Agency and - Distribution Act, Naval Prize Act of - 1864, Naval Instructions, Duties of - captors, Sharers of Prize, Recapture. - - - _Chapter V. Great Britain, Recent Administration._ - - Part 1. Prize Courts 70 - - Lord High Admiral, Admiralty Courts, Admiralty - in Commission, Struggle with Common Law, - Jenkins, Mansfield, Stowell, - Vice Admiralty Courts, Commissioning - Prize Courts, High Court of - Justice, Appellate Authorities, - Lord High Admiral, Chancellor, - Delegates of Appeal, Judicial - Committee, of Privy Council, - International Prize Court for Appeals. - - Part 2. Theory of Distribution 78 - - a. Relation of State and Individual in War--War - by State Authority, Rousseau's - Theory, Grotian Theory, English - Practice. - - b. Reprisal--Private, Public, General - reprisal, Declaration of Paris. - - c. State Title to Prize--Original Title in - State, Phillimore, Holland, Brougham, - State can return prize without cause, - Stowell, The Elsebe. - - d. Adjudication of prizes--Jay Letter, - Competent Court. - - e. Method of Distribution--Benefits - received; bounty, salvage, prize money. - - Part 3. Prize Bounty 91 - - Headmoney, Conditions of Giving. - - Part 4. Prize Salvage 92 - - Pirates, Neutral vessels, Subjects Vessels, - Change of Title, Allies, Summary. - - Part 5. Prize Money 98 - - Division among Men, Among Allies, Vessels - Entitled to Share, Joint Captors, - Privateers, Associated Vessels, Tenders, - Boats, Transports, Joint Land and Naval - Captures, Non-commissioned Captors, - Forfeiture of Prize Money. - - - _Chapter VI. Great Britain, Significance of Present Law._ - - Part 1. Causes of Law 106 - - Imperial Power, Naval Supremacy, Commercial - Dependence, Governmental Control, to - encourage sea men. - - Part 2. Effects of Prize Money 109 - - a. On the Navy--When privateering legal, - since Declaration of Paris, does - not increase efficiency, commercial - war. - - b. On International Law--Neutral rights, - destruction of prizes, right to - capture private property at sea, - attitude of naval personnel, of - publicists, at Second Hague Conference. - - c. Conclusion--Little Effect for good or - evil, why it remains law, attitude - of England at the Second Hague - Conference, it should be abolished. - - - _Bibliography_ - - General 120 - - Ancient 127 - - Medieval 128 - - Great Britain 130 - - - - -INTRODUCTION. - - -The rules for disposing of the proceeds of prizes captured in war -is a question of municipal law. After a prize has been legally -condemned, international law has no direct concern with the ultimate -disposition which the captor state may choose to make of the -proceeds. Indirectly, however, the prize money laws of different -states may be of great interest to other states, for the character -of the internal regulations in this matter may determine the amount -of energy displayed by cruisers in making captures; the impartiality -of national prize tribunals, the number of prizes and the number of -condemnations made in a particular war; questions of vital interest -to both belligerent and neutral merchantmen plying their trade on the -high seas in time of war. - -It is the purpose of this paper to investigate the character of prize -money laws in force in various countries at different periods of -their history, the conditions which have given rise to such rules, -and the effect particular rules have had upon maritime captures in -time of war. - - - - -_CHAPTER I. AMONG THE ANCIENTS._ - -PART 1. GREECE. - - -a. Land War. - -The Greeks are possibly the earliest people who attained a sufficient -degree of civilization to have any definite laws of war, consequently -we shall first look to them for laws of prize distribution. In his -chapter on "the right of acquiring things captured in war",[1] -Grotius treats at length the condition of private property in war -among the ancients. His remarks are intended to refer to both land -and naval warfare though in fact all his instances are drawn from -land warfare. It is probable that the same theories applied in both -cases though on the high seas from the nature of the case, the state -would have much greater difficulty in enforcing any restrictions upon -the right of making captures and appropriating the profits therefrom -than on land. - -In regard to the Greek treatment of prize, Grotius says:[2] - -"After the battle of Plataea there was a severe edict that no -one should privately take any part of the booty.[3] Afterwards -when Athens was conquered the booty was made public property by -Lysander[4] and the Spartan officers who had to deal with the -measure were called prize sellers.[5] If we go to Asia the Trojans -were accustomed as Virgil teaches to draw prize lots as is done -in dividing common property.[6] In other cases the decision of the -matter was with the general and by this right Hector promises Dolon -the horses of Achilles when he stipulates for them,[7] by which you -may see that the right of prize treasure was not in the captor alone. -So when Cyrus was victor, the booty was taken to him,[8] and when -Alexander, to him."[9] - -In his work on International law among the ancients,[10] Phillipson -has presented similar instances of the distribution of booty. He adds -to the statement made by Grotius in regard to the battle of Plataea -that after making proclamation that no one should take the booty -"Pausanias ordered the helots to collect the treasure of which one -tithe was allotted to the Gods at Delphi, another to the Olympian -God, and a third to the God at the Isthmus, and the rest was divided -according to title and merit. An additional reward was also given -to those who particularly distinguished themselves, and a special -portion reserved for Pausanias."[11] and again, "In 426 B.C. when -Ambracia was reduced by the Acaranians with the help of the Athenians -under Demosthenes, a third part of the spoils was assigned to Athens, -three hundred panoplies to Demosthenes and the remainder divided by -the Acaranians among their cities."[12] - -Similar practices have been noted by Prof. Amos S. Hershey in a -recent article. He says "It was customary to divide the booty amongst -the victorious soldiery, i.e. after devoting one tenth of the spoil -to the Gods and a portion to the leaders and warriors who had -particularly distinguished themselves."[13] - -The Greeks also appear to have recognized the right of reprisal. -Thus in the Iliad, Nestor speaks of making reprisals on the Epeian -nation, in satisfaction for a prize won by his father Neleus at the -Elian games and for debts due to many private subjects of the Pylian -kingdom. The booty was equitably divided among the many creditors.[14] - -This testimony is based on the writings of Herodotus, Plutarch, -Xenophon, Homer, Virgil, Pliny and other classical writers. It -has little bearing on our present subject except in so far as it -indicates the recognition even at so early an age of the principle -that the title to captured property does not rest in the immediate -captor but that proceeds of prize shall be equitably divided by the -general or other officer. In the case of the battle of Plataea there -seems to be also a recognition of the principle that prizes of right -belong to the whole public, in other words to the state. - -These two principles, that prizes do not belong to the original -captor but should be divided, and that the state may appropriate -prizes seem to constitute the Greek theory on the subject. It is -unlikely that they were the subject of definite laws but recognition -was given to them if at all by command of the general on the occasion -of a particular war, as is indicated in the cases cited. - -The basis for this theory, apparently far ahead of its time may be -found in the well developed feeling of political obligation among the -Greeks. They appear to have recognized public war as a state affair, -consequently individual soldiers acted only in the capacity of agents -of the state in regular military operations.[15] Their captures -accrued not to themselves but to the state for whom they acted. - -Of the actual effect of such a prize law among the Greeks it is -difficult to make a statement. It might be supposed that the -incentive toward the capture of booty would be decreased by such a -rule yet so far as we can learn of Greek warfare there was no limit -to the atrocities committed either on persons or property.[16] The -Greek soldier felt justified in going to any extreme in acting for -his state.[17] - - -b. Maritime War. - -Grotius has nothing to say of prize laws in maritime warfare. -Phillipson believes that the Greeks made prize of enemy vessels and -also of neutral vessels for breach of blockade. He gives evidence -which indicates that theoretically, confiscable goods went to the -state, and that rudimentary prize courts were held. Thus he says: - -"In most Greek states there was something of the nature of a prize -court, to which appeals could be made by those who held they had been -contrary to the law of nations deprived of their property. In Athens, -the assembly of the people frequently took cognizance of such claims. -Thus two trierarchs were accused of appropriating the proceeds of -a cargo from Naucrates on the ground that if confiscable it ought to -have gone to the State. An assembly was therefore held and the people -voted for a hearing on the question."[18] But in general, law at sea -was very poorly enforced and neutral rights seldom respected. In fact -it seems likely that maritime war fell little short of piracy so far -as the capture of private property was concerned.[19] Thus Polycrates -of Samos wishing to establish his supremacy on the Aegean built up -a navy which swept the sea, robbing friend and foe alike,[20] and -so "at the commencement of the Peloponnesian war the Lacedaemonians -captured not only the trading vessels of their enemy the Athenians, -and also of their allies, but even those of neutral states and all -who were taken on board were treated as enemies and indiscriminately -slaughtered."[21] - -The Aegean sea was a nest of pirates and the profession was looked -upon not only as a legitimate means of emolument but was even -considered glorious.[22] They were frequently engaged in war as -mercenaries. Thus Psammilicha was reinforced by Carian and Ionian -pirates,[23] Euripidas and Aelotian employed pirates as mercenaries -in 218 B.C.[24] and Polyxenidas the commander of the fleet of -Antiocha entered into an alliance with Nicander, a pirate chief who -contributed five decked ships in 190 B.C.[25] In such cases of course -the state surrendered all right in controlling the distribution of -prize money or of itself sharing in the proceeds. - -The Rhodian sea laws[26] are said to have been effective in the third -century B.C. in temporarily freeing the sea of Pirates[27] and giving -opportunity for considerable commercial advancement. Unfortunately -these laws have been almost entirely lost so we do not know what -measures were taken for disposing of the captured pirate vessels or -other enemy goods that might be considered prize. - -It seems that the theory of the states control over prize applied in -naval as in land war but that in practice government authority at no -period of ancient Greek history extended very effectively over the -seas for any considerable length of time and that private property -was for the most part at the tender mercies of the pirates. - - -_NOTES._ - -Chapter I, Part 1. - -[1] Grotius, Hugo. De Jure Belli et Pacis. 3 Vols. Original and -English translation from the Latin by William Whewell. Cambridge, -England, lib. iii, c vi, p. 104. - -[2] Op. cit. iii, 123. - -[3] Heroditus, ix, 79, quoted in Grotius, op. cit. iii, 123. - -[4] Plutarch, Lysander, 442 a, quoted ibid. - -[5] Xenophon, de Lacedemonia Republica, c 13, n 11, quoted ibid. - -[6] Virgil, Aeneid, ix, 268, quoted ibid. - -[7] Homer, Iliad, v, 331, quoted ibid. - -[8] Euripides, Rhes. v, 182, quoted ibid. - -[9] Pliny, xxxiii, 3, quoted ibid. - -[10] Coleman Phillipson. The International Law and Custom of Ancient -Greece and Rome. 2 Vols. London, 1911. - -[11] Heroditus, ix, 80, 81, quoted in Phillipson, op. cit. ii, 237. - -[12] Thucidides, iii, 114; Heroditus, viii, 11, 123; Plutarch, -Alcibiades, 7; Plato, Synp. 220; quoted in Plato op. cit. ii, 237. - -[13] Hershey, Amos S. The History of International Relations During -Antiquity and the Middle Ages. American Journal of International Law, -1911, v. 915. - -[14] Homer, Iliad, lib ii, quoted in Blackstone, Commentaries, i, 259. - -[15] Fustel de Coulanges, The Ancient City, English Translation from -French by Willard Small, 10th Edition, Boston, 1901, p. 293. - -[16] Wheaton, History of the Law of Nations, New York, 1845, p. 5. -Walker, History of the Law of Nations, Cambridge, Eng., 1899, p. 41. - -[17] "To a king or commander nothing is unjust which is useful." -Thucydides, History, lib vi, quoted in Wheaton, History, p. 5; see -also Hershey, op. cit. American Journal of International Law, v. 915. - -[18] Phillipson, op. cit. ii, 381. - -[19] Walker, History, p. 41. Walker, Science of International Law, -Cambridge, England, 1893, p. 60. - -[20] G. W. Botsford, A History of Greece, New York, 1912, p. 75. - -[21] Thucydides, ii, 67, quoted in Phillipson, op. cit. ii, 382. - -[22] Homer, Iliad, i, 367; vi, 58; ix, 588, xxii. 64; Odyssey, xv, -385; 426; xvii, 425; quoted in Phillipson, op. cit. 370. - -[23] Heroditus, ii, 152, quoted in Phillipson, op. cit. ii, 371. - -[24] Polybius, iv, 68, quoted ibid. - -[25] Livy, xxxvii, 11, quoted ibid. - -[26] The so-called Rhodian laws of the middle ages, the earliest -manuscript of which apparently dates from 1478, have no connection -with the ancient sea laws of Rhodes. Of the latter only the law of -Jettison survives, see Robert D. Benedict, The Historical Position -of the Rhodian Law, Yale Law Journal, 1908-09, xviii, 223; Hershey, -op. cit. Amer. Jour. of International Law, 1911, v. 917; Walter -Ashburner, the Rhodian Sea Law, Oxford, 1909. - -[27] Hershey, op. cit. American Journal of International Law, 1911, -v. 915; Phillipson, op. cit. ii, 373. - - - - -PART 2. ROME. - - -a. Land War. - -From the Greek theories the Roman legal mind developed elaborate -rules for the apportionment of booty captured in land war. The Romans -clearly recognized that the prizes taken in public war belong to the -state. - -"Whatever is captured from the enemy, the law directs to be public -property: so that not only private persons are not the owners of -it, but even the general is not. The Questor takes it, sells it -and carries the money to the public account." says Dionysius of -Halicarnassus.[1] This might seem to imply that no individual could -enjoy a share of the proceeds but such does not seem to have been -the case. It simply means that the title to all captures vested in -the state which could if it saw fit transfer a share of the booty to -the captors or others. Grotius[2] gives definite rules employed by -the Romans in dividing the produce of such booty. His statements are -based on the writings of Livy and other Latin writers. - -In dividing booty money account was taken of the pay of the soldiers -and of special bravery.[3] Special reward was usually made to -the general.[4] Sometimes a portion was given to others who had -contributed to the expenses of the war.[5] Often a portion was -dedicated to the Gods[6] although this practice was much less common -among them than among the Greeks. It was considered a particularly -worthy act on the part of a general if he refused to accept any -share of the booty as was sometimes done by those seeking state -honors.[7] The whole system was closely circumscribed by law. A -penalty attached to the crime of peculation, the private secreting of -booty without submitting it to the public.[8] Roman orators dilated -at length on the infamy of peculation.[9] - -These rules applied only to soldiers of the regular army engaged -in regular war. In irregular warfare soldiers were often given the -privilege of committing indiscriminate pillage in which case the -booty belonged to the captor.[10] This practice however was greatly -deplored by many writers.[11] Captures made by allies not under the -immediate commands of Roman generals or by subjects carrying on war -without pay at their own risk accrued to the sole benefit of the -captors.[12] - - -b. Maritime War. - -As to captures at sea, the Jurisconsult Valneius Maecianus said, "I -am master of the earth, but the law is mistress of the sea."[13] -Grotius has nothing to say directly of maritime captures among the -Romans, though he implies that the same laws applied to them as to -land captures. A case of naval prize arose during the Punic war in -the capture of the Carthaginian woman, Saphonoba, from a vessel at -sea. The Roman general considered that all prize of war belonged to -the Roman people and was to be divided by the senate, so ordered -that she be sent to Rome. The lady settled the matter by taking -poison.[14] - -The Romans were a land people. They very much disliked naval -warfare,[15] consequently they never supported much of a fleet.[16] -True, on meeting a naval power like Carthage they created a very -effective navy on short notice[17] but whenever they could they -avoided naval warfare. Piracy was extremely prevalent on the -Mediterranean during Roman times. Often Roman generals made use of -pirate vessels both for transport and to harass the enemy.[18] In -these cases of course the state put up no claim to control prizes. -Later, pirates became so powerful that Rome saw the necessity of -crushing them. Servilius actively engaged in suppressing piracy and -he felt bound to render full account to Rome of all captures.[19] -Pompey finally crushed the pirates in the battle of Coracesum B.C. 67 -and completely drove them out of the Mediterranean.[20] The Romans -recognized the right of reprisal and according to Chancellor Kent -they required the carriage of a commission by vessels engaged in that -business.[21] - -Roman law, then, recognized that captures were the property of the -state, that apportionment should be governed by law, that in special -cases the state could waive all right in favor of the immediate -captors. - -Rome's policy was directed toward the securing of order through law. -Discipline and authority were the fundamental principles on which -her greatness was founded. Her military policy was to subordinate -individuals to the general good, to make each soldier a cog in the -wheel working in harmony with the whole. Individual freedom of -action was curtailed not in the interests of humanity but in the -interests of the efficiency of the general army. Her rules of prize -distribution are completely in harmony with these principles. No -private right of aggrandizement in war existed, all was controlled -by the state. The state was the combatant in war, the state bore -the losses and to the state accrued the gains. State authority -overshadowed every act of the individual.[22] - -In practical effects the Roman laws of prize money probably -accomplished the purpose for which they were intended, that is, -they lessened the chance for insubordination among the soldiers. -Under them soldiers remained at their post of duty instead of going -on journeys of pillage. It made war regular and public instead of -guerrilla and private. - -Humanitarian effects were slight or none at all. Though not impelled -by the hope of personal gain the Roman soldiers seem to have -captured, devastated and destroyed without compunction. Wheaton says -of Roman warfare, "Victory made even the sacred things of the enemy -profane, confiscated all his property, moveable and immoveable, -public and private, doomed him and his posterity to perpetual slavery -and dragged his kings and generals at the chariot wheels of the -conqueror thus depressing an enemy in his spirit and pride of mind, -the only consolation he has left when his strength and power are -annihilated."[23] - -Though Roman warfare was cruel, it was regulated by law. Roman -civilization recognized the supremacy of the state, the public -character of regular war, and of immediate interest to the present -subject, the exclusive control by the state of all military -captures. - - -_NOTES._ - -Chapter I, Part 2. - -[1] Antiquita Roma, vii, 63, quoted in Grotius, op. cit. iii, 124. - -[2] Grotius, op. cit. iii, 127. - -[3] Livy, xiv, 34, 40, 43, quoted in Grotius, op. cit. iii, 129. - -[4] Heroditus, ix, 80, quoted in Grotius, op. cit. iii, 130. - -[5] Dionysius of Halicarnassus, v, 47, quoted, in Grotius, op. cit. -iii, 134. - -[6] Livy, v, 23, quoted in Grotius, op. cit. iii, 135; Phillipson, -op. cit. ii, 238. - -[7] Apud Dionysius of Halicarnassus Excerpt, p. 714, quoted in -Grotius, op. cit. iii, 131. - -[8] Polybius, History, x, 16, quoted in Grotius, op. cit. iii, 138. - -[9] Cato, xi, 18; Cicero, Verres, iv, 41, quoted in Grotius, op. cit. -iii, 137, 138. - -[10] Livy, xliv, 45; xlv, 34, quoted in Grotius, op. cit. iii, 133. - -[11] Livy, v, 20, quoted in Grotius, op. cit. iii, 134. - -[12] Cald. Cons. 85, quoted in Grotius, op. cit. iii, 140. - -[13] Digest, xiv, 3, quoted in Charles Calvo, Le Droit International -Theorique et Pratique, 5th Edition, 6 Vols., Paris, 1896, i, 15. - -[14] Livy, xxx, 14; 11 Appian Pun. 28, quoted in W. E. Heitland, The -Roman Republic, 3 Vols., Cambridge, England, 1909, sec. 385. - -[15] Heitland, op. cit. secs. 246, 436; Phillipson, op. cit. ii, 369. - -[16] Heitland, op. cit. sec. 161. - -[17] Heitland, op. cit. sec. 245. - -[18] Heitland, op. cit. secs. 949, 960. - -[19] Cicero, Verres, i, 56, 57, quoted in Heitland, op. cit. sec. 965. - -[20] Heitland, op. cit. sec. 993. - -[21] Kent, Commentaries, Holmes, Editor, 12th Edition, 4 Vols., -Boston, 1893, i, 95. - -[22] de Coulanges, op. cit. 293. - -[23] Wheaton, History of the Law of Nations, p. 25. - - - - -_CHAPTER II. DURING THE MIDDLE AGES._ - -PART 1. MARITIME CODES. - - -"In the dark ages, between 476 and 800 A.D. International law reached -its nadir in the West".[1] Private war, on land and piracy at sea -were unrestrained. There were of course no laws providing for the -division of prize money. - -By the eleventh and twelfth centuries many cities of the -Mediterranean and North seas had become powerful commercially and -issued laws for determining maritime affairs. Such were the Amalfitan -Tables, the Judgments or Roles of Oleron, the Laws of Wisby, and -the Consolato del Mare originating in Barcelona.[2] As these laws -simply stated the universal customs of the sea it came about that -all maritime towns would adopt one of these codes.[3] Thus by the -fifteenth century the Consolato del Mare was recognized maritime law -in most of the commercial cities of the Mediterranean[4] while the -Judgments of Oleron were in a similar way recognized by the towns -of the North Sea.[5] These laws were intended primarily to regulate -the private relations of mariners, owners and merchants, but on -account of the necessity of protection from pirates many of them -also included laws of maritime war and prize. State organization -had not developed sufficiently to afford protection to merchants on -the sea, consequently the merchants themselves formed protective -organizations, furnished armed cruisers for making prizes and -established consulates for judging maritime cases and for enforcing -the definite codes of maritime law.[6] - -The Consolato Del Mare may be taken as an example of the maritime -codes. It probably originated in the thirteenth century. The earliest -known manuscripts are in the Catalonian language and apparently were -engrossed in the middle of the fourteenth century. The earliest -printed copy is dated 1494 and is also in the Catalonian language.[7] -The chapters on prize law, state the principles on which enemy -property may be captured. In general the principle is established -that enemy vessels and neutral goods are exempt. Originally the -armed merchantmen were in no way bound to any state so no commission -delegating state authority to make captures is mentioned. Apparently -the prizes had to be adjudicated at the consulates established by the -merchant leagues.[8] - -There are chapters dealing with "cruizers" which give the municipal -usages concerning the distribution of prize between the owners, -officers and crew of vessels.[9] - -"Thus among the Italians a third part of a captured ship goes to the -captain of the victorious ship, a third part to the merchants to whom -the cargo belonged, and a third part to the sailors".[10] - -It thus appears that the Consolato distinctly recognized the reign -of law in prize matters. It respected neutral rights, it required -adjudication on prizes, it gave rules for the division of prize -money, respecting the claims of merchants, captain and crew to share -in the distribution. - -The rules of the Consolato appeal to one decidedly as rules intended -to govern commercial enterprises. The policy of the merchants was -of defensive rather than offensive war so no stringent belligerent -rights were affirmed. Primarily intended for commerce, it is not -surprising that such a large amount of respect was paid to neutral -rights and such a large share of the prizes given to merchants. The -minute rules, seemingly forecasting every possible contingency also -speak of a strong desire to establish order, and firm law, both -conditions essential to commerce. - -The Consolato was probably effective for its purpose. We know that -the merchant guilds and the maritime towns flourished, piracy -decreased, commerce prospered. The merchant sailors would not be -likely to be lured into making prizes for private gain when their -very object was the destruction of piracy. Also habits of commerce -and obedience to law would induce them to exhibit moderation in war -matters. The maritime laws and the supremacy of the commercial towns -was a great step toward legalizing maritime warfare and especially -toward ameliorating the condition of private property on the sea. - -One of the peculiarities of the Consolato from a modern standpoint -is that it does not recognize the exclusive right of states to make -war. This is explained by the fact that territorial states had not -become sufficiently centralized to organize a definite maritime -jurisdiction. However, in the early part of the sixteenth century -the movement toward the individualizing of territorial states was -rapidly nearing completion and it is interesting to note that when -the movement was sufficiently advanced nearly all the states adopted -one of the old maritime codes into their laws, of course adding to it -the principle of state authorization for all reprisals or wars and -state jurisdiction over prize cases.[11] - - -_NOTES._ - -Chapter II, Part 1. - -[1] Walker, History of the Law of Nations, p. 64. - -[2] For brief discussion of many of the Maritime Codes see E. C. -Benedict, The American Admiralty, 4th Edition, Albany, 1910. The -so-called Rhodian Sea Laws are thought by Ashburner to date from the -seventh or eighth century A. D. Other writers place them later. The -earliest manuscript apparently dates from the fifteenth century. It -is well established that they have no connection with the ancient sea -laws of Rhodes but possibly they were authorized by the Byzantine -Caesars and undoubtedly they consist of laws recognized in the -Eastern Mediterranean in the middle ages. These laws relate only to -civil matters at sea and have no provisions dealing with prize but -in their general provisions they may have furnished a basis for the -maritime codes of a few centuries later, see Ashburner, The Rhodian -Sea Law, Oxford, 1909. - -[3] Twiss, Introduction to the "Black Book of the Admiralty", Rolls -Series, No. 55, iii, 80. - -[4] For discussion of the influence of the Consolato, see Twiss, -Consulate of the Sea, Encyclopedia Britannica, 11th Edition, vii, 23. -Ashburner takes a less favorable view of the Consolato. He considers -it a literary production giving the authors theory of sea law rather -than a correct statement of the law as it was. In his opinion more -confidence should be placed in the maritime statutes of the towns -such as the laws of Amalaric, St. Cuzala, Genoa, St. Ancon, Baracchi, -St. Caltaro, etc. than in the Consolato.--Ashburner, op. cit. p. 120. - -[5] For discussion of the Laws of Oleron, see Twiss, Sea Laws, -Encyclopedia Britannica, 11th Edition, xxiii, 535; Sir John Comyn, A -Digest of the Laws of England, 5 Vols., Dublin, 1785, i, 271; also -note post p. 42. - -[6] Wheaton, History of the Law of Nations, p. 62. - -[7] For discussion of origin and early manuscripts see Twiss, -Introduction to "The Black Book of the Admiralty", iii, 26 et seq. - -[8] For text of prize chapters of the Consolato, see English -translation by Dr. Robinson in his Collectanea Maritima, No. v; -quoted in Wheaton, History of the Law of Nations, p. 63; Original -and translation by Twiss, Black Book of the Admiralty, Rolls Series -No. 55, iii, 539; French translation by Pardessus, in his Collection -des Lois Maritimes Anterieures aux XVIII Siecle, ii, c 12, noted in -Wheaton, op. cit. p. 61, Walker, History of the Law of Nations, p. -116; See also note by Grotius, op. cit. iii, 9. - -[9] Twiss, Introduction to Black Book of the Admiralty, iii, 76. - -[10] Consolato Del Mare, c 285, quoted in Grotius op. cit. iii, 145. - -[11] Wheaton, History of the Law of Nations, p. 66. - - - - -PART 2. THE NEW INTERNATIONAL LAW. - - -During the sixteenth century the idea of the individuality of -territorial states reached material realization. A school of -international law writers arose who endeavored to determine -the relations which ought to exist between these states. A new -recognition was given to the state's exclusive authority over matters -of war and prize. The old Roman laws of JusGentium and JusNaturale -were combined with the observed practices of nations to build up -rules conformable to the new situation. - -Machiavelli writing in 1513[1] distinctly recognized the independence -of the territorial state.[2] He conceived of the Prince as being -under obligations to no superior, either human or divine.[3] He -recognized the state as the sole agency which could authorize war -and the capture of prize but recommended liberality in distributing -the produce of prize and booty as a policy calculated to encourage -loyalty and perseverance in the soldiers,[4] a theory well in harmony -with his idea of human nature, which considered man as actuated -solely by the hope of personal gain.[5] - -Conrad Brunus in 1548 also voiced the theory of state supremacy in -war. "The war making power resides in the supreme authority of the -state to whom it exclusively belongs to authorize hostilities against -other nations by a solemn declaration."[6] - -Francis de Victoria held that captured moveables become by the -law of nations property of the captors but pillage should be only -permitted when necessary for reducing the enemy.[7] - -Balthazar Ayala took an even more advanced stand. He pointed out -that according to the laws of Spain, lands, houses and ships of war -taken from the enemy become the property of the crown and as to other -articles the right of the captors to appropriate them as booty is -restrained by that of the state to regulate the division reserving -to itself a certain share and distributing the rest according to the -respective rank of the captors. In regard to naval captures he says: - -"But if it chance that in naval war the king supplies the ships and -their armament and also provides supplies and wages for the soldiers -and sailors the same contributions place the whole booty at the -disposal not of the general or admiral but of the king, nor will the -soldiers or sailors get any part thereof except such as is granted -to them by the king's liberality. In every other event however, -after the king's share has been set aside, the admiral can divide -the residue between the soldiers and sailors a seventh part of the -residue being due to himself".[8] Ayala had previously remarked that -by the Spanish law the king's share ranged from one fifth to one -half of the prize. In his theory goods must be brought within the -territory of the capturing state (intra praesidia) to give a good -title. If recaptured before this, by postliminium, they revert to the -original owner. Reprisals must be authorized by the sovereign.[9] - -Thomas More conceived of a liberal policy of disposing of prize, -in his Utopia. In speaking of the capture of cities he says, "If -they knowe that annye cytezeins counselled to yealde and rendre vp -the citie, to them they gyue parts of the condemned mens goods. They -resydewe they distribute and giue frelye amonge them, whose helpe -they had in the same warre. For none of themselfes taketh any portion -of the praye."[10] - -Bodin clearly enunciated the sovereigns exclusive right over sea -captures. "Mais les droits de la mer n'appartienment qu'au Prince -Souverain."[11] - -Gentilis the forerunner of Grotius expressed the limitations on the -power of the state. There was danger that in the rise of states to -independence the Machiavellian policy would be adopted, that states -would consider themselves bound by no law. Gentilis showed the -limitations that natural law impose upon states even in war. In his -view, property can not be wantonly destroyed, neutral property can -never be captured and neutral territory is always inviolable.[12] - -In his epoch making work which appeared in 1625, Grotius correlates -the principles of those preceding him and in authoritative style -sets forth the new international law.[13] His chapters on prize -distribution may be briefly summarized as follows: The right of -reprisal is recognized but it is only allowable under authority -of the state. In the case of reprisals the property in goods -taken immediately accrues to the captor to the extent of the debt -or damages due and expenses, but any balance over this ought to -be restored. The prize should be adjudged in a court of the -state before distribution.[14] Goods captured at sea require firm -possession to give a title. In Roman law this is established when -the vessel is brought to port (intra praesidia), but modern practice -establishes the twenty four hour rule. Recaptures, before possession -is established, revert to the original owner by postliminium.[15] -Neutral property is never subject to capture not even in enemy ships. -Enemy property is good prize. If taken otherwise than in regular -public service, i.e. in private reprisals, or under special grant of -pillage, it becomes the property of the immediate captor though the -municipal law of the captors state may alter this condition. Goods -taken in public service accrue to the state which may distribute -the proceeds at will.[16] Instances are given of the distribution -laws in contemporary states. "Among the Italians a third part of a -captured ship goes to the captain of the victorious ship, a third -part to the merchants to whom the cargo belonged and a third part -to the sailors."[17] "With the Spaniards, if ships are sent out at -private expense, part of the prize goes to the king, part to the -high admiral,[18] and ships of war go altogether to the king."[19] -By the custom of France, the Admiral has a tenth,[20] and so with -the Hollanders but here a fifth part of the booty is taken by the -state.[21] - -Zouche of Oxford University, England, in 1650 made a valuable -contribution to international law literature in his "Juris et -Judicii Fecialis sive Juris Inter gentes Explicatia", a book famed -as being the first to describe the science as jus inter gentes, -international law, rather than the former misleading name, jus -gentium, law of nations. He maintains that war can only be declared -by the supreme authority of the state. However if acts of aggression -are committed by individuals during war without authorization, -international law has no jurisdiction over the matter, though -municipal law may decree punishment.[22] As coming from England this -theory is interesting as it seems to forecast the later doctrine -of that country that unauthorized captures at sea are permissible -so far as the enemy is concerned though municipal law decrees the -whole product of such captures to the crown.[23] Zouche admits the -right of reprisal. By reprisal is understood the right assumed by a -subject to collect a foreign debt or to collect damages for injuries -received in a foreign country through the seizure of goods on the -high seas belonging to any subject of that state. Though the practice -seems hard to reconcile with justice, Zouche in common with most of -the international law writers holds that all the members of a state -are liable for the debts of one member so by strict international -law, reprisal is allowable but only under commission from the -sovereign.[24] - -Puffendorf writing in 1672 practically quotes the views of Grotius -in prize matters.[25] He maintains that individuals can not make -war, which is only a state affair, "Il est certain, que c'est au -souverain seul qu'appartient le droit de faire la guerre."[26] In -regard to captures he holds that the title to booty vests originally -in the sovereign but it is equitable for the sovereign to divide -the proceeds among those who have borne the heaviest burdens of war. -Recaptures revert to the original owner. The right of reprisals -is admitted but exception is taken to the view of Grotius that in -case of reprisals and all captures made by private undertaking the -proceeds belong immediately to the captor. Puffendorf asserts "Tout -le droit que les particuliers ant ici depend toujours originairement -de la volonte du souverain,"[27] thus emphasizing more strongly the -absolute title of the state to all captures. A careful reading of -Grotius seems to reveal that his idea was the same. He says that by -the practice of nations captures not made in regular war usually -accrue to the captor but this rule may be changed by municipal law -and "so a rule may be introduced by law that all things which are -taken from the enemy shall be public property,"[28] thus virtually -asserting Puffendorf's statement that the original title always vests -in the sovereign. - -In brief the laws of prize distribution enunciated by the great -founders of international law of the sixteenth and seventeenth -centuries appear to be as follows: - -1. The state is the only power which can prosecute war and make prize. - -2. The right of private reprisal can only be exercised under specific -commission from the state. - -3. The title to all prizes vests originally in the state. - -4. Distribution should be decreed only after adjudication of the -prize by a regular tribunal of the state. - -5. The method of distributing prize money is determined by municipal -law. - -Undoubtedly the practice of nations did not, in a great many cases -equal the lofty ideals of the publicists but at the same time their -principles were for the most part given theoretic recognition by the -sovereign authorities of states belonging to the family of nations -and as centralized authority gained in strength they became more and -more realized in practice. - - -_NOTES._ - -Chapter II, Part 2. - -[1] "The Prince" was written in 1513, first published 1532, -posthumously. - -[2] "Princes ought avoid as much as they are able to stand in -anothers discretion." Machiavelli, The Prince, English Translation -from Italian by Dacres, Tudor Translations, vol. 39, London, 1905, -c 21. - -[3] "And therefore it suffices to conceive this, that a Prince, -and especially a new Prince can not observe all those things for -which men are held good, he being often forced for the maintenance -of his state to do contrary to his faith, charity, humanity, and -religion."--The Prince, c 18, p. 323. "And therefore, a wise Prince -can not, nor ought not keep his faith given, when the observance -thereof turns to disadvantage and the occasions that made him promise -are past." The Prince, c 18, p. 322. - -[4] "The Prince" c 16, p. 315. - -[5] For Machiavelli's political theory see W. A. Dunning, A History -of Political Theories, 2 Vols, New York, 1902, i, 285 et seq. - -[6] De Legationibus, 1548, iii, 8, quoted in Wheaton, History of the -Law of Nations, p. 50. - -[7] Reflectiones Theologicae, 1557, vi, 52, quoted in Wheaton, op. -cit. p. 41; Walker, History of the Law of Nations, p. 229. - -[8] De Jure et Officiis Bellicis et Disciplina Militari, 1582, -Original and English translation from Latin by J. P. Bate, J. -Westlake, Editor, 2 Vols, Carnegie Institution of Washington, 1912, -ii, 38; taken from Spanish Ordinance, Book 14, tit. 26, par. 2. - -[9] Op. cit. Lib. i, c 4, 5, also see Wheaton, op. cit. p. 45 Walker, -op. cit. p. 248. - -[10] Utopia, 1516, English translation from Latin by Robynson, Arber, -Editor, English Reprint Series, vol. 2, London, 1869, p. 142, also -quoted in Walker, op. cit. p. 242. - -[11] De La Republique, 1577, Liv. i, c 10, p. 246, quoted in Walker, -op. cit. p. 262. - -[12] De Jure Belli, 1589, Holland Editor, Oxford, 1877, p. 250, see -also Walker, op. cit. p. 265. - -[13] De Jure Belli et Pacis, 1625, Edition Cited, see also summary by -Walker, op. cit. 313 et seq. - -[14] Op. cit. iii, 48. - -[15] Op. cit. iii. 111. - -[16] Op. cit. iii, 105. - -[17] Op. cit. iii, 145, taken from Consolato Del Mare, c 285. - -[18] Op. cit. iii, 145, taken from Leg. Hisp. xix, tit. xxvi, p. 2, 1. - -[19] Op. cit. iii, 144, taken from Leg. Hisp. iv, tit. xxvi, p. 2. - -[20] Op. cit. iii, 145, taken from Const. Gall. liv. xx, tit. 14, -art. 1. - -[21] Op. cit. iii, 145. - -[22] Juris et Judicii Fecialis sive Juris Inter Gentes Explicatio, -1650 original and English translation from Latin by J. L. Brierly, -T. E. Holland, Editor, 2 Vols., Carnegie Institution of Washington, -1911, ii. 112. - -[23] Post 81, 103. - -[24] Op. cit. ii, 115. - -[25] Le Droit de la Nature et des Gens, French translation by -Barbeyrac, 2 Vols., Leide, 1759, ii, liv. viii, c 6, s 8, p. 558 et -seq. - -[26] Op. cit. ii, 569. - -[27] Op. cit. ii, 570. - -[28] De Jure Belli et Pacis, Edition cited, ii, 122. - - - - -_CHAPTER III. GREAT BRITAIN, HISTORICAL RESUME._ - -PART 1. EARLIEST TIMES TO 1340. - - -a. Laws. - -The practice of Great Britain in prize distribution has always been -remarkable for its extreme liberality to the captors of prize. -Chancellor Kent has a note to the effect that by common law "goods -taken from an enemy belong to the captor."[1] His authority is a case -decided in King's Bench in 1697 which says, "And it was resolved by -whole court that though, if goods be taken from an enemy it vests -the property in the party taking them, by our (common) law, yet by -admiralty law, the property of a ship taken without letters of mart -vests in the king upon the taking, and this on the high seas."[2] The -same view is expressed by a modern writer, who says, "The root of the -prize system is found in the ancient doctrine that any person might -seize to his own use, goods belonging to an alien enemy and this -right extended to captures at sea."[3] - -A case in the reign of Edward III, 1343, bears out these opinions. -The king of Aragon complained of a case of piracy by Englishmen and -asked redress. Edward called his Chancellor and council and the -decision was given that the alleged piracy was a case of lawful prize -and that by the law maritime the goods belonged to the captor.[4] - -However, England very early recognized the contrary principle that -prize of war of right belongs to the state and private individuals -only acquire their title by grant of the crown or parliament. Thus -by a patent of 1242, Henry III granted half of all prizes taken by -them to masters and crews of king's ships and the same to the men of -Oleron and Bayonne in their own ships.[5] In 1295 a letter patent -provided that the whole of prizes taken by Bayonne ships should -be shared equally between the owners and men[6] and in the Scotch -expedition of 1319 Edward II also granted the whole of prizes to the -captors.[7] - -A close Roll of 1325 states that men of the Cinque Ports had granted -one fourth of all prizes to the king.[8] The Portsmen by a grant of -William the Conqueror[9] enjoyed special privileges in prize matters -and claimed to enjoy prizes of their own right. In early times their -forces comprised the greater part of England's naval strength so -this privilege was quite important. However, the kings seem to have -wished to regain some of the jurisdiction which they had granted away -and in the case mentioned Edward II tried to gain jurisdiction over -the whole of the prize. In 1326 the king's primal right seemed to be -recognized as superior to that of the Portsmen for a grant of that -date is made by the king, of all prizes to the portsmen.[10] - - -b. Administration. - -During this period no machinery for adjudication was established. -The only means through which the king could collect a share of prize -was through the common law courts and they proved in most cases -inadequate. The jealously guarded jurisdictions of the Cinque ports -also largely interfered with the king's perquisites in prize. Their -peculiar customs were held above the king's right. Thus in 1293 when -Edward I claimed a share of prizes captured by Portsmen they stated -that on the occasion in question they had hoisted a flag called the -"Baucon". This action meant a fight to the death in which case by -the universally recognized law of the sea all prizes captured by the -survivors belonged to them. Furthermore if the king endeavored to -interfere with them they would leave the country.[11] Such assertions -of independence probably prevented much state interference with prize -distribution at this period. - - -_NOTES._ - -Chapter III, Part 1. - -[1] Kent, Commentaries on International law, Abdy edition, Cambridge, -1866, p. 271. - -[2] King vs. Broom, 12 Mod. 135; 88 English Reports 1217. - -[3] H. E. Smith, Studies in Juridical Law, Chicago, 1902, p. 139. - -[4] R. G. Marsdon, introduction to select pleas of the Admiralty, -Seldon Series, vi. - -[5] Rymer, Foedera, 20 Vols., London, 1704-1735, i, 408. - -[6] Calendar of Patent Rolls, Ed. I, 1292-1301, m 16, p. 130. - -[7] R. G. Marsdon, Early Prize Jurisdiction in England, English -Historical Review, xxiv, 675. - -[8] Calendar of Close Rolls, Ed. II, 1323-1327, m 26, p. 412. - -[9] D. J. Medley, A Student's Manual of English Constitutional -History, Oxford, 1907, p. 485. - -[10] Rymer, op. cit. iv, 226. - -[11] Marsdon, English Historical Review, xxiv, 677. - - - - -PART 2. 1340-1485. - - -a. Laws. - -After the battle of Sluys in 1340 when Edward III became in fact -master of the seas, a title which kings of England had assumed -since the time of John, the king issued certain ordinances for the -distribution of prize.[1] A distinction was made between prizes taken -by ships in the king's pay and privateers. At that time there was no -navy owned by the state. In the former case the king is to receive -one fourth of the proceeds of all prizes, the owner of the vessel one -fourth and the remainder "shall belong to those who took them which -halfe ought to be shared equally between them". Out of the portion -going to the captors the admiral has two shares or as much as two -mariners from each ship, if he is present when the capture is made, -if absent he only receives one share. It is also provided that "ships -out of sight shall receive no share unless sailing toward and in -sight so as to help the takers if need be." The apparent purport of -this anomalous language being that joint captors must be of actual -constructive assistance to share. In the case of privateers the king -has no share of prizes. The whole amount goes to the captors except -the admirals perquisite which is the same as in the former case. It -is further provided that "whoever takes a ship ought to bring it -before the admiral, there to take and receive what the law and custom -of the sea requires", no plunder of the prize being permitted before -adjudication except on the decks.[2] - -By a patent of 1386 the king gives all his share to the admiral[3] -and in the following year the whole of prizes is granted to -privateers.[4] - -In 1406 a grant of Henry IV provides that ship owners shall have -prizes taken from the enemy but they must deliver up to the king -any prisoners they may take for whom a reasonable reward will be -given.[5] In the same year a letter from the admiral calls on all -mariners to enter the king's service and says that "whatever profits -and gains such persons shall make from the king's enemies on said -voyages they shall have and enjoy freely without impediment or -disturbance."[6] By statute of 1416[7] it was provided that letters -of Marque might be issued by the privy council to any one having -grievances against a foreign power. In such issues of letters -of Marque the profit of goods taken went to the captor to the -extent of the damages received. All goods in excess of that amount -were supposed to be returned but few cases of such return are on -record.[8] It was under authority of this act that letters of Marque -were issued in England until the final abolition of the practice in -the treaty of Paris of 1856. - -A treaty with Flanders of 1426 contains the provision that "no prizes -shall be divided at sea or in a foreign harbour but shall be brought -entire to a port of England and there it will be adjudged by the king -and council, the chancellor or the admiral whether the prize belonged -to friends or enemies and it will be disposed of in good and brief -manner."[9] Here we seem to have a distinct enunciation of the most -modern principles of prize law that no title to prize is legally -conferred until after adjudication by a competent organ of the state -making the capture. - -In 1442 an ordinance of Henry VI "for the safeguarding of the sea" -emphasizes these same principles. It declares that neutrals must not -be harmed in war and that award of prize must be made by a competent -tribunal before distribution of proceeds. The scheme to be used in -distributing the proceeds in case the vessel is found good prize is -as follows: One half goes to the master, quarter master, sailors and -soldiers. The remainder is to be divided into three parts, of which -two go to the owners and one to the chief and under captains. The -ordinance also contains rules for the conduct of privateers.[10] -In the same year a statute[11] permitted any one making capture of -an enemy vessel "to take the goods and merchandises and enjoy them -without any restitution thereof to be made in any wise, even though -the goods belonged to neutrals and they had no safe conduct from the -king of England." - -Shortly before this, the collection of sea laws known as the Black -book of the Admiralty was compiled for the use of the Lord High -Admiral. The book contains that ancient body of sea law, the Roles -of Oleron,[12] besides several later ordinances and inquests. -The principle portion dealing with prize distribution is part -"A" which consists of the ordinance of Edward III made after -the battle of Sluys, already mentioned.[13] It also contains "An -inquisition made at Queensborough in 1375" which is a statement by -a jury of the existing law at that time. It restates the earlier -ordinance of Edward III except that the king's share of prizes is -not mentioned.[14] The inquest also permits merchant ships to make -captures from the king's enemies, apparently without a special -commission and divide the proceeds two thirds to the owner and one -third to the mariners.[15] Captures by merchant vessels without -commission seem to have been quite common and were openly approved by -the king.[16] The fact that these ancient ordinances were collected -for authoritative use seems to indicate that they were recognized law -in the fifteenth century. - - -b. Administration. - -The period of the hundred years war, thus brought about definite -progress in prize money laws. Prize distribution became the subject -of definite ordinances. In Edward Third's ordinance most of the -principles of prize distribution mentioned by international law -writers of three centuries later were enunciated.[17] The issuance -of such an ordinance implied a recognition of the principle, "bello -parta cedunt reipublicae"[18] the original title to prize vests in -the state. Definite rules for distribution were declared and most -important of all, adjudication of prizes by a competent court was -demanded before distribution. The office of admiral was created by -Edward I in the year 1300 when Gervase Alvard was appointed Admiral -of the Cinque Ports. At first several admirals were appointed with -jurisdiction over different portions of the sea. In 1340 owing to -difficulties which he got into with neutral powers, who complained -of the depredations of English privateers, the court of admiralty -was created with prize jurisdiction in such cases. The first mention -of prize courts is in 1357.[19] Attempts were made by the common law -courts to retain their jurisdiction but it soon became recognized -that sea matters were properly under the control of the admiralty. -In 1360 one admiral was appointed for all the fleets in the person -of Sir John Beauchamp. The duties of the office were greatly -extended, in fact it claimed so wide a jurisdiction that in the reign -of Richard II two statutes[20] were passed greatly limiting the -Admiral's power. - -The office of admiral was of a two-fold character. He was not only -commander-in-chief of the navy and as such entitled to share in -prizes, but also he exercised the king's power of jurisdiction over -the sea and in this capacity presided over the courts of admiralty -and the prize courts. In the latter capacity the connection of the -admiral with the privy council was very close. He was himself a -member of the privy council and that body always exercised final -jurisdiction in prize cases if it saw fit. It should be understood -that no normal adjudication of all prizes was at this time required. -In the Black Book of the Admiralty the admiral was given vigorous -means of collecting his perquisites, "inquiry is to be made of -all ships, who have not paid the admiral his share, the names -of the captors, masters, owners and value of goods taken is to be -presented."[21] Thus it was only in special cases where the admiral -had heard of a capture and had not received a share or where some -party made a complaint, that a case was adjudicated. The great -majority of cases never came before the court and the captor had -undisturbed possession. - -The apparent insufficiency of the admiralty in prize cases brought -forth a new set of officers in 1414, the Conservators of the -Ports.[22] These officers had criminal and prize jurisdiction in -maritime cases but the plan seems to have been attended with small -success and soon fell into desuetude. - -Through this period the Cinque Ports maintained to some extent their -ancient privileges. The Warden of the Ports exercised the function -of admiral over mariners sailing from them. Nominally he was under -the authority of the Lord High Admiral but as a matter of fact he -exercised an almost independent jurisdiction until 1628. - -As noted the issue of letters of Marque by the privy council was -authorized by statute but the carriage of such letters by privateers -does not seem to have been universally required, especially in war. -Efforts were made to restrain privateering by law for the benefit of -neutrals. - - -c. Significance. - -What accounts for England's very early adoption in theory at least -of these advanced principles of maritime law? England's insular -position turned her people to the sea and commerce. The French wars -necessitated a continuous military and naval policy. It also brought -about internal unity and nationalism much earlier than in other -countries. Thus the state definitely organized and regulated the -navy. The great naval victories and the assumption by the king of the -title "master of the seas" increased the spirit of nationalism and -naval pride. There was however, a conflict between "the rights of the -king as sovereign lord of the sea entitled to demand for offence and -defence the service of all his subjects; the privileged corporations -of the sea port towns with their peculiar customs and great local -independence; and the private adventure of independent merchants and -mariners whose proceedings seem to be scarcely one degree removed -from piracy."[23] But as we have noted the king emerged from the -conflict victorious. The office of Lord High Admiral of all the seas -was created, the navy came to be considered a definite branch of -the royal administration. A royal navy was built up under Henry IV -and Henry V. The king affirmed his right to prize and his right of -jurisdiction over privateers and their captures. - -But along with England's aggressive naval policy was her dependence -upon commerce. Successful commerce necessitated strict recognition of -neutral rights and a rule of order at sea, embracing the destruction -of piracy and illegal privateering. Thus the king established the -admiralty as a prize court, made treaties binding himself to the -protection of neutral rights, demanded adjudication of all prizes, -and sought by ordinance to restrain illegal privateering. After the -reign of Henry V the commercial interests of England won the upper -hand, the royal navy was sold, the naval protection was placed in the -hands of commissioned merchant privateers and more strict enforcement -of neutral rights was sought. Thus the conflict between an aggressive -naval policy and the protection and encouragement of commerce brought -about a very early recognition in England of advanced principles of -prize capture and distribution. - -Through the latter half of the fifteenth century, England was too -distraught by internal struggles to pay much attention to naval -matters and no progress was made in prize money laws. - -It is impossible to tell specifically the effects of the prize money -laws in England at this early date. However, in so far as they formed -an important element in the general maritime laws, they undoubtedly -tended to create order at sea, to protect commerce and to increase -the king's jurisdiction over the sea forces. This coordination of -authority over sea war would tend to increase naval efficiency and -was an important element in making England a great sea power. - - -_NOTES._ - -Chapter III, Part 2. - -[1] Black Book of the Admiralty, Rolls Series, No. 55, i, 21. - -[2] Ibid. i, 31. - -[3] Cal. Pat. Ric. II, 1385-1389, pp. 216, 253. - -[4] Cal. Pat. Ric. II, 1385-1389, pp. 339, 342. - -[5] Rotuli Parliamentorum, 7 Vols., London, 1767-1777, iii, 570, art. -22. - -[6] Royal Commission of Historical Manuscripts, Reports, v, 501. - -[7] 4 Hen. V, c 7, 1416. - -[8] In a case of Reprisals against France, Cromwell returned the -excess over damages to the French ambassador, see Carnazza-Amari, -Traité de Droit International Public en Temps de Paix, French -translation from Italian by Montanari-Revest, 2 Vols., Paris, 1880, -ii, 599. Also in Phillimore, Commentaries on International Law, 3rd -Edition, 4 Vols., London, 1885, iii, 33. - -[9] Rymer, op. cit. x, 368. - -[10] Rot. Par. v, 59, art. 30; see also Acts of the Privy Council, -Sir Harris Nicolas, Editor, v, 128. - -[11] 20 Hen VI, c 1, 1442. - -[12] "The Laws of Oleron are the ancient usages, generally received -from Richard I, on his return from the Holy Land to Oleron, revised -and approved for matters marine and which all the people of the west -afterwards received for their affairs." Sir Leoline Jenkins, Life of, -by Wynne, i, 87, quoted in Comyn's Digest, i, 272; Marsdon doubts -whether Richard had anything to do with the origin of the Laws of -Oleron, Introduction to select pleas of the admiralty, Seldon Series, -vi; See also discussion by Twiss, Sea Laws, Encyclopedia Britannica, -11th Edition, xxiii, 535. - -[13] See ante p 34. - -[14] Black Book of the Admiralty, Rolls Series, No. 55, i, 145. - -[15] Ibid. i, 135. - -[16] Nicolas, Introduction to Acts of the Privy Council, v, 136. - -[17] See ante p 26. - -[18] Bynkershoek, Questiones Juris Publica, quoted in Phillimore, op. -cit. iii, 209. - -[19] Rymer, op. cit. vi, 15. - -[20] 13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392. - -[21] Black Book of the Admiralty, i, 151. - -[22] 2 Hen V, St. 1, c 6, 1414. - -[23] William Stubbs, The Constitutional History of England, 5th -Edition, 3 Vols., Oxford, 1903, ii, 289. - - - - -PART 3. 1485-1603. - - -a. Laws. - -After the wars of the roses prize distribution was still occasionally -decreed by special letters patent. In his famous voyage of 1496 John -Cabot was by letter patent required to give one fifth of all prizes -to the king.[1] In 1512 the admiral guaranteed to turn over to the -king one half of "all manner of gaynes and wynnyngs of werre".[2] -This rule was repeated in 1521.[3] Frequently the charters of -vessels authorized them to take prizes. The charter party of the -ship "Cheritie" dated 1531 says: "and yff the sayd shyppe take any -pryse, purchase any flotson or lagen, hit shalbe devyded into III -equal parties, that ys to the sayd capmerchaunte the one parte and -to the owner the second parte and to the master and his companye the -therde parte."[4] Similarly the charter party of the "George", 1535, -provided that: "If any prize, purches, flotezon, or lagason or any -other casueltie happe to be taken by the saide ships in this her -present viage the saide merchaunt shall have his juste parte thereof -accordyng to the lawe of Oleron."[5] In the rule of 1544 mariners -carrying letters of marque were granted the whole of their prizes -without accounting to the admiral or warden of the ports for any.[6] -A similar proclamation was issued by Mary in her French wars of -1557.[7] With few exceptions however the admiral had a right to one -tenth of all prizes. - -Elizabeth increased this share to one third in the case of captures -made by the queen's ships but it remained one tenth in the case of -privateers. In 1585[8] Elizabeth issued a proclamation authorizing -the Lord High Admiral to issue letters of reprisal to all who showed -that they had suffered losses from Spain. Rules for distribution of -proceeds and for the conduct of privateers were included. Similar -proclamations have been issued by the sovereign of England at the -beginning of every subsequent war in which privateering was allowed. -The proclamation provided for the division of the proceeds, one third -to the owners, one third to the victualer, and one third to the -officers and crew. The captain also was entitled to the best piece -of ordnance and the master the best anchor and cable. Officers and -crew were especially granted the right of pillage on the decks.[9] In -1589 Elizabeth was in alliance with Henry IV of France. A remarkable -proclamation of this time authorized English subjects to take letters -of marque from the French king and provided that he should be -entitled to one fifth of the proceeds of all prizes.[10] - - -b. Administration. - -Thus during the Tudor period new developments of prize money law -were found. During the period and especially the latter part of -it, England's policy was one of extreme naval aggressiveness. -But instead of being restrained by the commercial necessities of -the previous epoch it was increased by the renaissance spirit of -adventure. England's national unity was established, the enthusiasm -of discovery, the experience of immemorial acquaintance with the -sea impelled her people into an unparalleled career of sea conquest. -Thus during the Elizabethan period it is not surprising to find a -retrogression in prize law. Belligerent rights were enforced at the -expense of neutrals. Naval warfare was almost exclusively in the -hands of privateers. The admiral still retained his right to a tenth -of prizes, the queen received a varying share, but the greater part -went to the privateers and at no time was there a definite rule of -distribution. While she publicly disavowed illegal depredations by -her privateers Elizabeth secretly encouraged them. - -The actual control of the crown over prize matters does not seem to -have been lost. Illegal depredation of privateers was not due to -inability of the administration to control them but to the definite -policy of the crown. The high court of admiralty was revived in -1524 after a period of dormancy during the civil wars and its -definite records date from that time. It exercised a constant prize -jurisdiction. In 1558 the case of Gonner vs. Pattyson[11] came before -it. Gonner obtained a decree granting him a vessel on the plea that -"he by right of war captured as lawful prize the said ship--belonging -to Scotchmen, foes and enemies of this famous realm of England--and -that the captors were and are by reason of the premises true owners -and proprietors thereof." In Matthews vs. Goyte,[12] 1565, the -sentence decreed division between joint captors. In 1577 a definite -effort was made to suppress piracy. A commission was appointed to -judge and summarily punish pirates with rather effective results. - -Regular adjudication of prize cases was not yet the rule. Cases were -only tried on complaint of one of the parties but in 1589 an order -in council directed that all prizes be brought in for adjudication -by the admiralty.[13] The privy council itself however exercised -jurisdiction in many cases. Thus in 1589 John Gilbert and Walter -Raleigh were given a commission to capture prizes on a certain voyage -and divide them among the crew. Apparently they appropriated the -prizes themselves. A complaint was made to the queen. The matter -was considered in the privy council with the result that Raleigh -and Gilbert were commanded to appear and tell how the money had -been disposed of and especially to answer for the part due the -queen.[14] And again: On the return of the fleet with prizes after -the destruction of the Spanish armada, in 1589, the privy council -gave orders directing the handling of the prizes. Instructions were -given to Sir Anthony Ashley to investigate the prizes and determine -the country of the ship, the amount and value of the cargo, etc. -In the same year on hearing that certain prizes had been sold and -distributed by the captain the queen was very angry and "tooke yt in -very ill parte that anie persons would adventure to receive or buy -anie of those goodes before aucthorytie or direction was given for -the sake of the same."[15] - -In the latter part of Elizabeth's reign vigorous efforts were made -to restrain privateers. In 1601 a new commission was appointed to -hear and arbitrate neutral claims. In 1602 by proclamation judges -of the admiralty were directed to institute proceedings against -any privateer sailing without commission or selling prizes before -adjudication.[16] In this year the ship "Fortune" was confiscated to -the admiralty for failing to bring in a prize for adjudication.[17] -This stand is most advanced and shows that progress was being made -toward a definite requirement of legal process before prizes could -be distributed. A case of similar nature had occurred in 1598. The -vessel "Grace of Padstow" without a letter of reprisal captured a -Danish prize. The prize was returned by the court on the grounds -that the captor had no commission.[18] This extreme enforcement of -the obligation of privateers to carry specific commissions has been -advocated by some international law writers.[19] However in cases of -actual war, prizes have never been returned but as in this instance -in cases of private reprisal the return of captures was occasionally -enforced. - -Thus while in the greater part of the Tudor period the laws of prize -distribution were not so clearly defined as formerly and great -freedom was allowed adventurers and privateers, at the same time the -actual control of distribution by the administration seems to have -been more strict than ever before. Especially was this true of the -latter part of the reign of Elizabeth. - - -c. Significance. - -The effect of the generous laws of distribution of this period -undoubtedly was to encourage adventure and privateering. The -voyages of the great sea captains of Elizabeth were fitted out -primarily for the sake of private gain from prizes. Preying on -Spanish Galleons not only satisfied the love of adventure of such -men as Hawkins, Drake and Raleigh but it also gave them wealth. So -long as their acts harmonized with the queen's policy she did not -care to inquire too closely into the strict legality of all their -seizures. This policy by which the queen not only made the navy -support itself but actually received income from it through her share -of prizes enabled Elizabeth to carry on her wars without any national -expense. Her reign is renowned for its economy and lack of taxation. -This doubtless added to its popularity and increased the sense of -nationalism in the English nation. During this period generous giving -of prize money was a valuable means of increasing the efficiency of -the navy and the national unity of England. The strict acts of the -latter part of Elizabeth's reign and their consistent enforcement -indicated genuine progress in the protection of neutral rights at sea -through governmental control. - - -_NOTES._ - -Chapter III, Part 3. - -[1] Political History of England, William Hunt and Reginald Poole, -Editors, 12 Vols., London, 1910, v, 106. - -[2] Rymer, Op. cit. xiii, 1326. - -[3] Henry VIII, Letters and Papers, Foreign and Domestic, Master of -the Rolls, Great Britain, Director, 1524-1526, p. 33. - -[4] Select Pleas of the Admiralty, Seldon Series, vi, 37. - -[5] Ibid, vi, 82. - -[6] Marsdon, English Historical Review, xxiv, 684. - -[7] Calendar of State Papers, Domestic, Mary, 1547-1580, p. 93. - -[8] G. W. Prothero, Select Statutes and Other Documents, 3rd Edition, -Oxford, 1906, p. 464. - -[9] Marsdon, English Historical Review, xxiv, 689, 697, also -Prothero, op. cit. p. 465. - -[10] Marsdon, English Historical Review, xxiv, 689, 697. - -[11] Select Pleas of the Admiralty, Seldon Series, xi, 107. - -[12] Ibid. xi, 130. - -[13] Ibid. xi, 17. - -[14] Acts of the Privy Council, 1588-1589, New Series, xvii, 283, 413. - -[15] Ibid. xvii, 357. - -[16] Marsdon, English Historical Review, xxiv, 696. - -[17] Select Pleas of the Admiralty, Seldon Series, xi, 204. - -[18] Marsdon, English Historical Review, xxiv, 696. - -[19] Vattel, The Law of Nations, English translation from French by -Joseph Chitty, Philadelphia, 1883, p. 285. - - - - -PART 4, 1603-1688. - - -a. Laws. - -Instructions to privateers similar to Elizabeth's proclamation -of 1585 were issued in 1625.[1] In instructions of 1628[2] the -king's tenth of prizes is referred to. During the civil war the two -contending parties each issued proclamations authorizing letters of -marque. In 1643 an ordinance of parliament provided that captures -made by privateers after adjudication in the admiralty court and -payment of tenths and customs should belong to the captors.[3] -Similar acts were passed in 1644 and 1645.[4] More extensive -provisions were made in an act of 1648.[5] Prize bounty of ten pounds -per gun for every enemy vessel destroyed was for the first time -granted in an act of this same year.[6] An elaborate parliamentary -enactment of 1649 provided for division of prize between the captors, -the state, the sick, wounded and the relatives of the slain. A man of -war captured by a state ship was divided, one half to the officers -and crew, and one half to the sick and wounded. If the enemy vessel -was destroyed a gun money or bounty of ten to twenty pounds for each -gun on the destroyed ship was distributed in the same manner. If the -vessel captured was a merchant ship, one third went to the captors, -one third to the state and one third to the sick and wounded. In -the case of a privateer making the capture, one third went to the -officers and crew, one third to the sick and wounded, one sixth -to the owner and one sixth to the state. Recaptures were to be -returned to the original owner on the payment of one eighth salvage. -The customary Admiral's one-tenth was to be paid into the state -treasury and used for the purchase of medals.[7] - -Piracy was extremely prevalent at that time. Adherents of Prince -Rupert plundered British vessels without scruple. A successful -effort to stop such depredations was made in 1650. The authorizing -act provided for division of the captured pirate vessels at the rate -of one half to the state, one third to the owner and one sixth to -the officers and crew.[8] In a declaration of 1652 the admiralty -forbade the old custom of pillage on deck, demanding that the prize -be brought in to port intact,[9] but the order seems to have proved -impossible of execution and after the Restoration the old custom was -revived. - -An ordinance of 1660 authorized the capture as prize of vessels -breaking the provisions of the navigation act and provided for -the division of such prizes, one half to the captors and one half -to the state.[10] The navigation act of 1663[11] provided for the -adjudication of such prizes in the vice admiralty courts of the -colonies. The division of the proceeds was to be one-third to the -colonial governor, one-third to the king and one-third to the captors. - -Shortly after the restoration of Charles II in 1661 an act was -passed by parliament for the regulation of the navy.[12] Among other -things it forbids spoil of prizes before adjudication but especially -permits pillage on the decks. In 1749 this act was amended and the -ancient practice of giving up the decks to plunder was finally -forbidden.[13] - -In ordinances issued before the Dutch war of 1664[14] and the French -war of 1666[15] all prizes were granted to the captors with the -sole reservation of the admiral's tenth. Prizes were also liable -to payment of customs duties. An order in council of the latter -date defined the rights of the king and admiral in prizes "bona -inimicorum"[16]. To the king by Jure Coronae belonged all prizes -driven into harbor by the king's ships, seized in port before war -broke out coming into port voluntarily or deserting from the enemy. -To the Lord High Admiral by Droits of admiralty belonged ships -captured at sea by non-commissioned captors, salvage due for ships -recaptured from the enemy, and ships forsaken by the crew unless in -the presence of the king's ships. In other cases the rule of the -ordinance held good, the admiral received only his tenth and the king -his customs duties the remainder going to the captors. - - -b. Administration. - -From this brief resumé of the legislation of the seventeenth century -it is evident that the laws, reached, during this period, a certain -definiteness and stability which they had before lacked. In 1628 the -office of Lord High Admiral was temporarily put in commission and -given a more systematic organization. From this time the prize cases -of the court are recorded on separate records and condemnation before -distribution of prizes was the rule. Sir Leoline Jenkins says "And -the Admiral may inquire if any defraud the king of his prizes, or -the admiral of his one tenth part or buy or receive prize goods or -break bulk before they are condemned as prize or there be a decree -for an appraisement or sale."[17] - -The prestige of the admiralty was increased through the fact that -the Warden of the Cinque Ports, Zouche, sold out his right to Lord -High Admiral Buckingham in 1624.[18] From this time the Courts of -admiralty were virtually supreme in maritime jurisdiction. Thus -Jenkins said, "The Admiralty has jurisdiction over offences, super -altum mare, punishable by laws of Oleron, laws of admiralty, or -laws or statutes of the realm."[19] The Cinque ports still retained -jurisdiction over certain matters. During the latter part of the -seventeenth century through the adverse pressure of the crown on the -side of its prize jurisdiction and of the common law courts on the -side of its instance jurisdiction the authority and prestige of the -admiralty court greatly declined. - -The civil wars of the middle Stuart period precluded a possibility -of prize-law development, rather it encouraged piracy and maintained -disorder. Parliamentarians and royalists authorized unrestrained -privateering against the opposition. During the Stuart exile, Prince -Rupert was at the head of an organized system of piracy. The Puritan -regime and the restoration period however witnessed a marked advance -in the legalizing of maritime methods. The Puritans stood for law -and popular control. They did much to crush piracy, required the -carriage of letters of marque by privateers and the first act of -parliament touching prize distribution appeared at this time. It is -to be noted however that while the government claimed prior rights -in prizes and demanded legal adjudication; in behalf of a forward -naval policy it displayed exceptional generosity to the captors, -in its rule of division of proceeds. Not only did all the prize go -to the captors but in addition bounty was granted in case of the -destruction or capture of armed vessels and medals were awarded for -specially meritorious acts. The extreme effort of the Puritans to -enforce legality at sea is evidenced by the effort to abolish the old -custom of pillage on deck and the great number of prize cases settled -in the court of admiralty at this period. During this time Zouche of -Oxford published his great work on international law and did much to -crystallize legal views on prize matters.[20] - -The restoration period carried out the same principles in general -except that with the restoration of the office of Lord High Admiral -the old Droits d'Admiralty were revived. In these periods the humane -policy of apportioning a share of the prizes to the sick, wounded -and heirs of the slain was instituted, a policy continued in the -later practice of maintaining a naval hospital at Greenwich with the -proceeds of forfeited shares of prize money.[21] In 1690 the whole -privy council was constituted a court of appeal in prize cases.[22] -Vice Admiralty courts with prize jurisdiction had been established -in the colonies.[23] The colonial governor was usually the Vice -Admiral of the colony. The great trading companies were usually -granted large rights of reprisal but adjudication was required in the -court of admiralty. In 1690 the king received the admiral's share of -one tenth in a case involving a prize of 100,000 pounds captured by -the East India Company from the great Mogul.[24] - -The legislation of the seventeenth century gave complete recognition -to the Grotian principles of prize distribution and in practice these -laws seem to have been applied regularly and consistently by well -established legal institutions. - - -_NOTES._ - -Chapter III, Part 4. - -[1] Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 476. - -[2] Cal. St. Pap. Dom. Car. I, 1625-1626, p. 142. - -[3] Marsdon, English Historical Review, xxv, 253. - -[4] Henry Scobell, A Collection of Acts and Ordinances, London, 1658, -1649, c 21, p. 9. - -[5] Ibid. c 21, p. 9. - -[6] Ibid. 1648, c 12, p. 4. - -[7] Ibid. 1648, c 15, p. 7. - -[8] Ibid. 1649, c 21, p. 9. - -[9] Marsdon, English Historical Review, xxvi, 40. - -[10] Ibid. xxvi, 41. - -[11] Acts of the Privy Council, Colonial, i, 302. - -[12] 15 Car. II, c 7, s 6, 1663; Provision was first made for -establishing Vice Admiralty courts in the patent to James, Duke of -York, Lord High Admiral, in 1662. Governor Windsor established a -court at Jamaica in this year, Cal. St. Pap. Col. America and West -Indies, 1661-1668, p. 112, s 379; Marsdon, English Historical -Review, xxvi, 53. - -[13] 13 Car. II, c 9, s 7, 1661. - -[14] Marsdon, English Historical Review, xxvi, 44. - -[15] Ibid. xxvi, 45. - -[16] Ibid. xxvi, 47, see also Phillimore, op. cit. iii, 600. - -[17] Sir Leoline Jenkins, Life of, by Wynne, i, 88, quoted in Comyn's -Digest, i, 271. - -[18] Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 304. - -[19] Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's -Digest, i, 272. - -[20] See Ante p. 24. - -[21] 54 Geo. III, c 93, s 72, 1814. - -[22] Marsdon, English Historical Review, xxvi, 53; Cal. St. Pap. Dom. -1690-1691, p. 92. - -[23] Ibid. xxvi, 53. - -[24] Ibid. xxvi, 55. - - - - -_CHAPTER IV. GREAT BRITAIN, RECENT LAWS._ - -PART 1. 1688-1864. - - -After the revolution of 1688 English methods of legislation became -in many cases crystallized into their present form. This was true of -prize money law. In 1692[1] the first statute granting prize money -to the captors was passed, for the purpose as the bill stated of -encouraging privateers in the pending war with France. - -In connection with instructions for privateers issued in 1693[2] -provision was made that prize ships taken by privateers should go to -the captors but the king was entitled to one-fifth of the goods on -board, the other four-fifths going to the captors. Prizes taken by -king's or hired ships went, one-third to the widows and children of -the slain, the sick and the wounded; one-third to the officers and -crew; and one-third to the king. Gun money of five pounds a gun was -granted for capturing or destroying a man of war in addition to the -prize money. Recaptured ships were to be returned after payment of -salvage of one-third to one-eighth according to the time the vessel -had been in the enemy's possession. - -With the outbreak of the war of the Spanish succession the statutory -method of providing for prize distribution was established. By a -statute of 1707[3] the sole property in all prizes was granted to -the officers and seamen of queen's ships and the officers, seamen -and owners of privateers, the capture being first adjudged good -prize in a court of admiralty. The act also provided for the payment -of head money or bounty to the amount of five pounds per man on -board every war ship or privateer of the enemy, sunk or destroyed. -The act was to continue only for that war. Orders in council issued -on authority of the act provided details for the conduct of prize -courts and the division of prize money and bounty among the captors. -In reference to this act and the previous history of prize money in -England, Lord Loughborough said in 1789,[4] "Before the sixth year -of the reign of Queen Anne there were no laws made on the subject. -Previous to that time all prizes taken in war were of right vested -in the crown and questions concerning the property of such prizes -were not the subject of discussion in courts of law. But in order to -do justice to claimants from the first year after the restoration -of Charles II, special commissions were issued to enable courts -of Admiralty to condemn such captures as appeared to be lawful -prizes,[5] to give relief where there was no color for the taking -and generally to make satisfaction to parties injured. But in the -sixth year of Queen Anne it was thought proper for the encouragement -of seamen to vest in them the prizes they should take and for that -purpose the statutes of 6 Anne c 13 and c 37 were passed." From the -foregoing discussion it appears that the learned judge failed to -note the statute 4-5 Wm. and Mary c 25 passed in 1692 not to mention -the commonwealth statutes of 1648 and 1649. It also seems clear that -admiralty courts exercised jurisdiction over prize matters long -before the restoration of Charles II. - -Queen Anne's act of 1707 is typical of those which have been passed -at the beginning of every subsequent war in English history until -the passage of the permanent prize act of 1864.[6] Since that time -the principle of giving the total proceeds of prize to the captors -has been adhered to although the principle that the initial title -to all captures vests in the crown has been maintained with equal -consistency. - -Another act of 1707[7] extended the act previously mentioned to -captures made in America and provided for prize jurisdiction in -colonial courts of vice admiralty. The outbreak of the war of the -Austrian succession brought forth the prize act of 1740.[8] This -added to Queen Anne's act the provision that vessels recaptured -should be restored to the original owners on the payment of one -eighth salvage. A new act was passed in 1744[9] which repeated -the former acts adding provisions in regard to privateers. It was -provided that captures by privateers should belong to the ship -exclusively and division between the owners and crew should be -regulated by special contract between them. The admiralty was -authorized to issue letters of Marque on receiving of satisfactory -bond of good behaviour from the owners. - -The act of 1756[10] repeated the provisions of the preceding act -with reference to the Seven Years war, as did the act of 1776[11] -with reference to the American Revolution and the acts of 1779,[12] -1780,[13] and 1781[14] passed on the outbreak of hostilities -with France, Spain and Holland, respectively. In the act passed -in 1793[15] to regulate prize matters in the French war a few -new provisions were added. Captures on land were put under the -jurisdiction of the admiralty and similar principles of division -authorized. Joint captures by land and naval forces were to be -divided by special orders in council. Recaptures were to be returned -on paying a salvage of one-eighth in case the capture was made by a -public vessel, and one-sixth if made by a privateer. The duration of -this act was extended by an act of 1797.[16] At the outbreak of war -with America a prize proclamation was issued, Oct. 26, 1812.[17] It -provided "That the net produce of all prizes taken, the right whereof -is inherent in His Majesty and his crown be given to the takers". -Rules were then given for the division among the officers and crew. -An act of 1813[18] authorized this proclamation and an act of the -following year[19] gave complete rules for prize distribution. Aside -from the matters covered in previous acts it provided that all prize -money shares not claimed or forfeited should go to the support of -the Greenwich naval hospital. An elaborate scheme for the division -of shares was included. By this scheme the proceeds of prizes taken -before 1808 were to be divided into five shares, besides the flag -shares, which were to be divided among five grades of seamen. Those -taken after 1808 were to be divided into eight shares and in the same -manner distributed among eight grades of seamen. The sizes of vessels -were evidently increasing rapidly, to necessitate this change in the -number of grades of mariners. - -In 1815 a very elaborate act[20] was called forth by the return of -Napoleon from Elba, entitled "an act for the encouragement of seamen -and the more effectual manning of his majesty's navy during the -present war." It provided that the flag officers, commanders and crew -should have sole right in all prizes taken by public armed vessels -declared lawful prize before courts of admiralty or vice admiralty -to be divided in proportions from time to time decreed by orders -in council. Hired armed vessels were subject to the same rules. -Captures made with aid of allies were to be divided equally with the -ally. Land captures made by the navy were also the sole property of -the captors after proper adjudication, but joint captures by land -and naval forces were to be subject to special order in council. -Desertion, forfeited shared of prize money. Recaptures were to be -returned to the original owner on the payment of one-eighth salvage -if the captor was a public vessel and one-sixth if a private vessel, -except that if the recaptured vessel had been fitted out by the enemy -as a war ship it should not be returned to the original owner but -should be declared good prize for the benefit of the captors. Head -money or bounty of five pounds per man on board every enemy ship at -the beginning of an engagement was to be paid all vessels capturing, -sinking or destroying a war ship or privateer of the enemy. Ransom of -captured vessels was forbidden except in case of necessity. All money -given as bounty or salvage was to be subject to the same rules of -division as prize money. Letters of Marque were to be granted on -proper security for good behavior and the privateers were to be sole -proprietors of all captures after proper adjudication. The force of -this act only extended to the pending war. - -During the middle of the nineteenth century England was engaged -in an active campaign to suppress the slave trade. As a result -proclamations were constantly issued decreeing the division of the -proceeds of vessels captured in this trade. The same rules were -followed as in the case of prizes of war, the whole of the captures -being given to the captor after adjudication. Such proclamations -were issued in 1834,[21] 1846,[22] 1849[23] and were authorized by a -statute passed in 1839[24] and amended in 1842.[25] - -In the Crimean war of 1854 England followed her old policy in -prize distribution.[26] The act of 1815 was practically reenacted. -In addition it was provided that for any breach of her majesty's -instructions or the law of nations the shares of prize money would -be forfeited to the crown. In this war Great Britain was in alliance -with France and an interesting treaty was entered into by the two -countries providing for the division of prizes between them.[27] -Prizes were to be adjudicated by the courts of the country of the -officer in superior command in the engagement. Joint captors in sight -were to share but adjudication was always to be by the country of the -ship making the actual capture. If vessels of one of the allies -were captured for illicit trade it was to be tried by the country -of the captured vessel. In case of vessels of the two countries -acting in conjunction or of vessels of the two countries giving -constructive assistance the net proceeds were to be divided to the -several vessels according to the number of men on board irrespective -of rank. Distribution was to be regulated by the municipal laws of -each country. The treaty also contained instruction for bringing in -prizes. A similar treaty was entered into by France and Great Britain -in their joint expedition against China in 1860.[28] - - -_NOTES._ - -Chapter IV, Part 1. - -[1] 4 and 5 William and Mary, c 25, 1692. - -[2] Marsdon, English Historical Review, xxvi, 51. - -[3] 6 Anne, c 13, 1707. - -[4] Brymer vs Atkins, 1 H. Blacks, 189; 126 Eng. Rep. 97; see also -Phillimer, op. cit. iii, 576. - -[5] 13 Car. II, c 9, 1661. - -[6] 27 and 28 Vict. c 25, 1864. - -[7] 6 Anne, c 37, 1707. - -[8] 13 Geo. II, c 4, 1740. - -[9] 17 Geo. II, c 34, 1744. - -[10] 29 Geo. II, c 34, 1756; 32 Geo. II, c 25, 1759. - -[11] 16 Geo. III, c 5, 1776. - -[12] 19 Geo. III, c 67, 1779. - -[13] 20 Geo. III, c 23, 1780. - -[14] 21 Geo. III, c 15, 1781. - -[15] 33 Geo. III, c 66, 1793. - -[16] 37 Geo. III, c 109, 1797. - -[17] State Papers, Foreign and Domestic, i, 1348. - -[18] 53 Geo. III, c 63, 1813. - -[19] 54 Geo. III, c 93, 1814. - -[20] 55 Geo. III, c 160, 1815. - -[21] State Papers, xx, 1214. - -[22] Ibid. xxxiv, 438. - -[23] Ibid. xxxix, 1252. - -[24] 2 and 3 Vict., c 73, 1839. - -[25] 5 and 6 Vict., c 91, 1842. - -[26] 17 Vict., c 18, 1854. - -[27] De Martens, Nouveau Recueil General de Traités, xv, 580. - -[28] Ibid. xx, 460. - - - - -PART 2. 1864-1913. - - -Prize distribution in Great Britain at present is authorized by two -permanent acts passed in 1864. The first of these acts known as -the "Naval agency and distribution act of 1864"[1] provides that -all salvage, bounty and prize money be distributed according to -proclamation or order in council and that the shares in which such -distribution shall occur be determined in the same manner. Pursuant -to this act a proclamation was issued August 3, 1886[2] providing -that the whole of prizes legally adjudicated be for the benefit of -officers and seamen making the capture and that the flag officers -receive one-thirtieth of the proceeds and the captain one-tenth. The -remainder is to be divided equally among eleven grades of officers -and seamen. This rule has been superseded by an Order in Council -of September 17, 1900[3] shortly after the outbreak of the South -African war. It provides that only ships within sight so as to cause -intimidation of the enemy are to share in prize money as joint -captors. All bounty, salvage and prize money received for any action -are to be in general divided in the same manner. The flag officer -is to receive one-thirtieth of the prize but no share of bounty, -unless actually present at the capture. The captain in actual command -receives one-tenth. The remainder is divided among eleven grades of -officers and men as before. - -The other act now in force regulating prize matter is the "Naval -Prize Act of 1864".[4] It provides for prize courts and prescribes -their procedure, these matters however have been amended by "the -prize courts act of 1894".[5] In joint captures by land and naval -forces prize courts have jurisdiction. In cases of the infraction of -municipal or international law all proceeds of the prize go to the -government, notwithstanding any grant that may have been made to the -captors. Ships taken as prize by any ship other than a regular ship -of war enure solely to the government. This provision effectually -abolishes privateering. Recaptured ships are to be returned to the -original owner if an English subject on payment of from one-eighth to -one-fourth salvage unless they have been fitted out by the enemy as -ships of war when they will be considered good prize. If prize bounty -is granted in any war by proclamation the officers and crew actually -present at the taking or destroying of any armed ship of the enemy -are entitled to bounty calculated at the rate of five pounds for each -person on board the enemy's ship at the beginning of the engagement. -The saving clause of the act states that "nothing in this act shall -give to the officers and crew of any of her majesty's ships of war -any right or claim in or to any ship or goods taken as prize or the -proceeds thereof, it being the intent of this act that such officers -and crews shall consent to take only such interest (if any) in the -proceeds of prizes as may be from time to time granted to them by the -crown." The principle that original title to all prize vests in the -crown is thus distinctly asserted. - -Perhaps the best exposition of the present rules for the conduct of -prizes and the distribution of the proceeds from them is contained in -the instructions to naval officers which have been authoritatively -issued in England, based on the statutes and orders mentioned. -Such a code was prepared by Mr. Godfrey Lushington in 1866[6] and -revised by Prof. T. E. Holland in 1888.[7] It contains the following -provisions[8] bearing on bounty, prize salvage and prize money. - -"247--When any ship or vessel shall be captured or detained her -hatches are to be securely fastened and sealed and her lading and -furniture and in general everything on board are to be carefully -secured from embezzlement. The officers placed in charge of her shall -prevent anything from being taken out of her until she has been tried -and sentence shall have been passed on her in a court of prize. - -"250--If any ship or vessel shall be taken acting as a ship of war -or privateer without having a commission duly authorizing her to do -so, a full report of all particulars is at once to be made to the -admiralty. - -"252--The ship to which a prize strikes her flag is the actual -captor. Other ships may be held by the prize court to share as joint -captors on the ground either of association or cooperation with the -actual captor. - -"253--If ships are associated or cooperating together a capture made -by one enures to the benefit of all. - -"255--Ships being in sight of the prize as also of the captor under -circumstances to cause intimidation to the prize and encouragement -to the captor are held to be cooperating with the actual captor. - -"259--In the case of captures made jointly by British and allied -ships of war the duties of the respective commanders are usually -regulated by treaty. - -"263--Upon adjudication the prize court will order the vessel and -cargo to be restored to their respective owners upon payment by them -of prize salvage. - -"266--The prize salvage which will be awarded to the recaptors for -the recapture of any British vessel before she has been carried into -an enemy's port is one-eighth part of the value of the prize or in -case the recapture has been made under circumstances of special -difficulty or danger a sum not exceeding one-fourth part of the value. - -"267--If however the vessel has before her recapture been set forth -or used by the enemy as a ship of war, then upon recapture the -original owner is not entitled to restitution, but both vessel and -cargo will be condemned as lawful prize to the recaptor. - -"269--It may happen that an enemy vessel which has been captured by a -British cruiser is afterwards lost to an enemy's cruiser and finally -recaptured by another British cruiser. The commander effecting such a -recapture should send in the vessel for adjudication and the original -captors are not entitled to restitution, but both vessel and cargo -would be condemned as lawful prize to the recaptors. - -"270--If a commander recapture from the enemy a neutral vessel which -would not have been liable to condemnation in the prize court of the -enemy he is not entitled to salvage and should without delay and -without taking ransom, set her free to prosecute her voyage. - -"271--If a commander recapture from the enemy an allied vessel -his duty is generally regulated by treaty. In default of treaty -regulations he will send her into a British port for adjudication -and the prize court will award salvage or not according as the prize -court of the ally would or would not have awarded salvage to an -allied ship for recapturing a British vessel." - - -_NOTES._ - -Chapter IV, Part 2. - -[1] 27 and 28 Vict., c 24, Chitty's Statutes, Lely, Editor, London, -1895, tit. Navy, viii, 1, Phillimore, op. cit. iii, 902. - -[2] State Papers, lxxvii, 1189. - -[3] Statutory Rules and Orders, Revised, London, 1904, tit. Navy, ix, -109. - -[4] 27 and 28 Vict., c 25, printed in L. Oppenheim, International -Law, London, 1906, ii, 541; Wheaton, International Law, Boyd, Editor, -3rd English Edition, London, 1889, p. 750; Phillimore, op. cit. iii, -908. - -[5] 57 and 58 Vict., c 59, 1894; Chitty's Statutes, tit. Admiralty, -i, 43. - -[6] Manual of Naval Prize Law, London, 1866. - -[7] Manual of Naval Prize Law, London, 1888. - -[8] Quoted in Atherley-Jones, Commerce in War, London, 1907, pp. -575-645. - - - - -_CHAPTER V. GREAT BRITAIN, RECENT ADMINISTRATION._ - -PART 1. PRIZE COURTS. - - -In regard to the actual administration of these laws of prize -distribution the decisions of prize courts in cases where the -questions of distribution have arisen furnish the most satisfactory -clue to the practice. - -It may be well to devote a short space to a consideration of -the organization of courts exercising prize jurisdiction.[1] As -previously noted, in early times the admiralty jurisdiction, both -administrative and judicial was placed in the charge of one man, the -Lord High Admiral of England. There were it is true certain favored -localities which claimed exemption from his jurisdiction. Such were -the Cinque Ports which exercised coordinate jurisdiction through -their Warden of the Cinque Ports. To this day the Cinque Ports retain -this privilege[2] in some matters, especially questions of civil -salvage but in prize matters, the Warden early lost his authority. - -As time went on the Office of Lord High Admiral began to lose its -character of a personal prerogative especially in the judicial -field. The admiralty courts came under the authority of the king. -They exercised instance and prize jurisdiction without distinction -but in the middle of the seventeenth century the court began to have -separate sittings for the two jurisdictions possibly because of the -conflict between the Droits of the Duke of York as Lord High Admiral -and of King Charles II.[3] - -The administrative duties of the office of Lord High Admiral were -also absorbed by the crown. Throughout the seventeenth century the -office of Admiral was frequently put in commission. That is, the Lord -High Admiral's jurisdiction was retaken by the king and commissioners -were appointed by him to exercise the duties of the office. By act -of 1690[4] express provision was made for thus disposing of the -office of admiralty and for the most part it has been in commission -since.[5] From this time, therefore, the organization of the -department of admiralty and of admiralty courts has been directly -under the control of the crown in parliament and acts providing for -the institution of prize courts and the distribution of prize money -have been passed by them generally before each war as previously -indicated.[6] - -The history of the admiralty courts of England has been the history -of a struggle between them and the common law courts, each seeking -to increase its jurisdiction at the expense of the other. Acts were -passed in the reign of Richard II[7] limiting the power of the -admiralty courts. Through the seventeenth and eighteenth centuries -their power underwent a constant decline, a fact greatly deplored by -Sir Leoline Jenkins one of the judges of the seventeenth century. -The common law courts even attempted to usurp their jurisdiction in -prize matters. In 1781 however the exclusive jurisdiction of the -admiralty in prize matters was recognized.[8] It was at this time -that Lord Mansfield as Lord Chief Justice of England was beginning -to correlate prize law by his famous decisions in appealed cases. -But it was to Sir William Scott, afterwards Lord Stowell, Judge of -the admiralty and prize court of England during the Napoleonic wars -that the fame of the English Prize Court is largely due. The English -Prize Court was at this time regarded almost as an international -authority, as is witnessed by the fact that the United States through -Ambassador Jay in 1794 requested of England an exposition of prize -court procedure for the use of the United States. The reply of Sir -William Scott and Sir J. Nicholl embodies nearly all the rules -adopted by the United States.[9] Of Lord Stowell's work it has been -said, "But his work as a judge of the Prize Court remains to this day -distinct and conspicuous and no changes of international law can ever -diminish his fame as the creator of a great body of English prize -law the only complete and judicially made code in existence among -European nations."[10] Through the nineteenth century the English -High Court of admiralty under such judges as Dr. Stephen Lushington, -Sir Robert Phillimore, and Sir Travers Twiss occupied a position of -increasing importance. Its jurisdiction was greatly increased by a -statute of 1840.[11] Among other things it was there given power to -adjudicate booty of war in the same manner as prize. Its jurisdiction -was further enlarged by acts of 1846,[12] 1854,[13] 1861,[14] and -1867.[15] By the Judicature acts of 1873[16] and 1875[17] the High -Court of Admiralty was incorporated into the High Court of Justice -as part of the Probate, Divorce and Admiralty division of that -court. The Supreme court of judicature act of 1891[18] defined the -prize jurisdiction of the High Court. - -Beginning with the establishment of a court in Jamaica in 1662[19] -Vice Admiralty courts have been established in most of the colonies -with jurisdiction similar to that of the courts of admiralty -of England. By act of 1832[20] governors of colonies were made -ex-officio vice admirals and the chief justices of the colonial -courts, judges of the courts of vice admiralty. This act was amended -in 1863[21] and in 1867.[22] By the Colonial courts of Admiralty act -of 1890[23] all courts of law in British possessions having unlimited -civil jurisdiction were created courts of admiralty with jurisdiction -equal to that of the Admiralty division of the High court of Justice. - -The custom has been to constitute admiralty and vice admiralty courts -into prize courts by special commission on the outbreak of war. It -has been questioned whether a special commission granting authority -to adjudicate prize matters to the admiralty courts is necessary. -Blackstone seems to consider the authority inherent. He says: - -"In case of prizes also in time of war, between our own nation and -another or between two other nations, which are taken at sea and -brought into our ports, the courts of admiralty have an undisturbed -and exclusive jurisdiction to determine the same according to the -laws of nations."[24] Phillimore expresses a similar view.[25] -However the general opinion seems to be that the prize and instance -jurisdiction of the admiralty courts are separated and the former is -granted only by commission from the crown in time of war.[26] Thus -the naval prize act of 1864[27] provides that all admiralty and vice -admiralty courts may be commissioned to act as prize courts during -war under the jurisdiction of the high court of admiralty with appeal -in all cases to the queen in council. - -The Supreme Court of Judicature act of 1891[28] declared the high -court to be a prize court within the meaning of the prize court act -of 1864.[29] It therefore is a perpetual prize court and requires no -special commission.[30] Other admiralty and vice admiralty courts -exercise prize jurisdiction under provisions of the prize courts act -of 1894[31] which declares that commissions for the establishment -of prize courts may be issued at any time even during peace by -the office of admiralty to become effective on the issuance of a -proclamation declaring war. Laws of procedure may likewise be issued -at any time by order in council in accordance with the provisions of -the naval prize act of 1864.[32] - -In earliest times the Lord High Admiral of England and the Warden -of the Cinque Ports were the highest appellate authorities in prize -cases in their respective jurisdictions. Later, appeal apparently lay -to the king in chancery but by 1534[33] the custom was established -of appointing a special commission of appeals. This commission was -appointed by the crown and consisted generally of members of the -privy council. This condition prevailed until 1833[34] when the -"delegates of appeals" was abolished and it was provided that all -admiralty appeals whether instance or prize, should lie to the -judicial committee of the privy council. By act of 1832[35] it had -been provided that appeals from all vice admiralty courts lie to the -same body. The naval prize act of 1864[36] likewise provided for -appeal to the queen in council. - -After the incorporation of the high court of admiralty with the -High Court of Justice in 1873 it was provided in the appellate -jurisdiction act of 1876[37] that in its instance jurisdiction appeal -lie, as in the other courts, to the High Court of Appeal and then -to the House of Lords. Appeal in prize cases however was allowed to -remain to the privy council as prescribed by the act of 1864.[38] At -present, therefore, appeal from all prize courts of Great Britain lie -ultimately to the judicial committee of the privy council. - -In the Hague Conference of 1907 a convention[39] providing for an -international prize court composed of fifteen judges selected from -the leading countries to act as a court of final appeal in prize -cases for all nations was adopted. In 1909 the declaration of -London[40] signed by the leading maritime nations provided definite -rules for many unsettled points of maritime law. Shortly after the -meeting of this conference, autumn of 1910, a bill was proposed in -the House of Commons to reorganize the English prize procedure so -as to allow for appeal to the international court. The bill was -defeated.[41] The international prize court has not as yet been -organized. At present there is no provision in English law which -would permit of appeal to it in case it came into being. Although -her delegates signed the Convention at the Hague, England has never -officially ratified it and it is difficult to say whether in case of -a war Great Britain would feel bound by this convention. - - -_NOTES._ - -Chapter V, Part 1. - -[1] For history and discussion of admiralty and prize courts see -Marsdon, Introduction to select pleas of the Admiralty; Roscoe, -Growth of English Law; Carter, History of English Legal Institutions; -Ridges, Constitutional Laws of England; Benedict, The American -Admiralty; Encyclopedia Britannica, 11th Edition, titles, Admiral, -Lord High; Admiralty, Jurisdiction. - -[2] The local jurisdiction of all sea port corporations but the -Cinque Ports was abolished in 1835, 5 and 6 William IV, c 76. - -[3] W. G. F. Phillimore, Admiralty, High Court of, Encyclopedia -Britannica, 11th Edition, i, 206. - -[4] 2 William and Mary, St. 2, c 2, 1690. - -[5] The Lord High Admirals since 1690 have been, Prince George of -Denmark, husband of Queen Anne, 1702-1708; The Earl of Pembroke, -1708-1710; The Duke of Clarence, afterwards, William IV, 1827-1828. - -[6] See ante p. 56 et seq. - -[7] 13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392. - -[8] Le Caux vs Eden, 2 Doug. 595; 99 Eng. Rep. 375; Lindo vs Rodney, -2 Doug. 613; 99 Eng. Rep. 385. See also Phillimore, op. cit. iii, 213. - -[9] See post p. 84. - -[10] E. S. Roscoe, The Growth of English Law, London, 1911, p. 139. - -[11] 3 and 4 Vict., c 65, s 22, 1840. - -[12] 9 and 10 Vict., c 99, 1846. - -[13] 17 and 18 Vict., c 104, 1854. - -[14] 24 and 25 Vict., c 10, 1861. - -[15] 31 and 32 Vict., c 71, 1868. - -[16] 36 and 37 Vict., c 66, 1873. - -[17] 38 and 39 Vict., c 66, 1873. - -[18] 54 and 55 Vict., c 53, s 4, 1891. - -[19] Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s -379; Marsdon, English, Historical Review, xxvi, 53. - -[20] 2 and 3 William IV, c 51, 1832. - -[21] 26 and 27 Vict., c 24, 1863. - -[22] 30 and 31 Vict., c 45, 1867. - -[23] 53 and 54 Vict., c 27, 1890. - -[24] Blackstone, Commentaries, iii, 108. - -[25] Phillimore, op. cit. iii, 655; see also post p. 86. - -[26] Roscoe, op. cit. p. 125; Hannis Taylor, The Origin and Growth of -the English Constitution, 3rd Edition, 2 Vols., Boston, 1895, i, 550. - -[27] 27 and 28 Vict., c 25, ss 3, 4, 5, 6. - -[28] 54 and 55 Vict., c 53, s 4, 1891. - -[29] 27 and 28 Vict., c 25, 1864. - -[30] "This Jurisdiction is permanent and unlike that of the prize -courts in British possessions requires no commission from his -majesty, proclamation of war, or other executive act to bring it -into operation." The Earl of Halsbury, The Laws of England, London, -1907-1912, xxiii, 276. - -[31] 57 and 58 Vict., c 39, 1894. - -[32] 27 and 28 Vict., c 25, 1864. - -[33] 25 Hen. VIII, c 19, s 3, 4, 1534. - -[34] 2 and 3 William IV, c 92, 1833. - -[35] 2 and 3 William IV, c 52, 1833. - -[36] 27 and 28 Vict., c 25, 1864. - -[37] 39 and 40 Vict., c 59, 1876. - -[38] 27 and 28 Vict., c 25, 1864. - -[39] Convention Relative to the Creation of an International Prize -Court, Final Acts of the Second International Peace Conference, 1907, -No. 12, for text see A. Pearce Higgins, The Hague Peace Conferences; -Bentwich, The Declaration of London. - -[40] For discussion and text see Norman Bentwich, The Declaration of -London; A. Pearce Higgins, The Hague Peace Conferences. - -[41] Bentwich, The Declaration of London, p. 35; for text of -proposed bill, see ibid. p. 171. - - - - -PART 2. THEORY OF DISTRIBUTION. - - -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. - - - - -PART 3. PRIZE BOUNTY. - - -As previously noted the distribution of bounty is now regulated by -statute and proclamation. If awarded in any war it is given as head -money of five pounds per man on every enemy armed vessel sunk or -destroyed.[1] The sharers of bounty are much more limited than those -of prize money. Thus joint or constructive captors do not share -and the flag officer if not present has no claim.[2] Only those -who actually take part in the conflict share in bounty. Bounty is -apportioned among the officers and crew of those vessels sharing, in -the same way as prize money, with the exceptions noted above. - - -_NOTES._ - -Chapter V, Part 3. - -[1] 27 and 28 Vict., c 25, s 42. - -[2] Order in Council, Sept. 17, 1900, see Statutory rules and -Orders, Revised 1903, Vol. ix, tit. Navy, p. 112. - - - - -PART 4. PRIZE SALVAGE. - - -Whether or not military salvage is paid depends upon (1) the -character of the original captor, whether recognized belligerent -or pirate, (2) the character of the original owner of the vessel -whether neutral, subject, or ally, (3) the character of the title the -original captor has in the vessel. - -In regard to the first point it may be said that recaptures from -pirates or unrecognized belligerents should always be returned to the -original owner on the payment of salvage. Pirates can never acquire -any title in a capture, so the title of the original owner remains -good. We need therefore consider only recapture from recognized -belligerents. - -In the case of recapture of neutral vessels the original captor had -no title and could get none. A prize court of his own country would -have decreed restitution of the vessel to the original owner so the -recaptor has conferred no benefit by recapturing the vessel. He -therefore is entitled to no salvage. In cases, however where no legal -prize court exists in the country of the original captor the recaptor -does the original owner benefit so should be rewarded by salvage. -This situation was held to have existed in France in 1799 and in a -case[1] which came up at that time Sir William Scott speaking for the -British prize court said: - -"I know perfectly well that it is not the modern practice of the law -of nations to grant salvage on recapture of neutral vessels; and -upon this plain principle that the liberation of a clear neutral -from the hand of the enemy is no essential service rendered to him, -inasmuch as that same enemy would be compelled by the tribunals -of his own country, after he had carried the neutral into port to -release him with costs and damages for the injurious seizure and -detention." However in the case before the court the French courts -were held to be incompetent so salvage was awarded the captor. - -In recapture of vessels originally belonging to subjects, most -countries make distinctions in reference to the character of the -original captors title. However Great Britain has provided by statute -that recaptures shall always revert to the original owner when a -subject on payment of salvage with the one exception that in case the -vessel has been fitted out by the enemy as a ship of war it shall not -be returned but shall be declared good prize.[2] - -The final case remains of recaptures of vessels of an ally. Here -the question of the original captor's title enters in, for if the -original captor had good title, the vessel is enemy property and -should be condemned as good prize to the benefit of the recaptor; -but if the title of the original captor is incomplete the original -owner still has a certain title which must be respected. The question -therefore arises, when is the original captor's title complete? There -have been many rules on the subject. Thus Sir William Scott has said: - -"It can not be forgotten that by the ancient law of Europe the -perductio infra praesidia, infra locum tutum was a sufficient -conversion of the property, that by a later law a possession of -twenty-four hours was sufficient to divest the former owner. This is -laid down in the 287th article of the Consolato Del Mare in terms -not very intelligible in themselves but which are satisfactorily -explained by Grotius and by his commentator Barbeyrac in his notes -upon that article."[3] Sir Leoline Jenkins, in 1672 said: - -"In England we have not the letter of any law for our direction only -I could never find that the court of admiralty either before the -late troubles or since has in these cases adjudged the ships of one -subject good prize to another." He then refers to the Commonwealth -laws of 1649 and says, "Whether the usurpers intended this as a new -law or an affirmance of the ancient custom of England I will not take -upon me to determine, only I will say, condemnation upon the enemies -possession for twenty-four hours is a modern usage."[4] Later legal -adjudication and condemnation was clearly required before the title -of the captor state was complete. Thus Lord Mansfield said: - -"I have talked with Sir George Lee who has examined the books of the -court of admiralty and he informs me that they hold the property not -changed, so as to bar the owner in favor of a vendee or recaptor till -there had been a sentence of condemnation, and that in the reign -of Charles II, Sir Richard Floyd gave a solemn judgment upon the -property and decided restitution of a ship retaken by a privateer -after she had been fourteen weeks in the enemies possession because -she had not been condemned."[5] And again "That no property vest -in any goods taken at sea or on land by a ship or her crew, till a -sentence of condemnation as good and lawful prize."[6] These cases -referred to vessels owned by subjects rather than allies as they -occurred before the law granting especial restitution to citizens had -been passed but they serve to make it clear that English law regards -the title of the enemy captor complete and the title of the original -owner destroyed after legal condemnation in the enemy prize court -and not before. Vessels originally belonging to allies after such -condemnation will be considered good prize and the ally has no claim. -There is no question of salvage, instead the captor receives his -share of prize money. Recaptures before the enemy title is complete -revert to the ally on payment of salvage but if instances can be -given of British property retaken by them and condemned as prize, the -court of admiralty will determine the case according to their own -rule.[7] - -Thus the recaptor may receive no reward at all, may be entitled to -salvage or may be entitled to prize money. - -The first case occurs when a neutral vessel is recaptured from a -recognized belligerent. - -The second occurs when the recapture is made from a pirate, when the -original owner is a British subject, or when the original owner is -an ally and the vessel has not been condemned by the enemy's prize -court. - -The third case occurs when the vessel originally belonged to an ally -but has been legally condemned by the enemy prize court and in any -case of an ally's vessel where that country refuses to return British -vessels. - -To be entitled to salvage the recaptor must make an actual military -recapture. Constructive recaptures such as occupation of a vessel -abandoned by the enemy do not entitle to military salvage.[8] - -As already stated where salvage is allowed it consists of one-eighth -of the value of the vessel and cargo recaptured or in cases of -exceptional difficulty one-fourth to be governed by the discretion of -the court.[9] Salvage is apportioned among the officers and crew in -the same manner as prize money. - - -_NOTES._ - -Chapter V, Part 4. - -[1] The War Onsken, 2 C. Rob. 299, quoted in Atherley-Jones, op. cit. -p. 601. - -[2] 27 and 28 Vict., c 25, s 40, L'Actif, Edw. Adm. Rep. 184, quoted -in Atherley-Jones, op. cit. p. 608. - -[3] The Ceylon, 1 Dod. Adm. Rep. 105, quoted in Atherley-Jones, op. -cit. p. 607. - -[4] Sir Leoline Jenkins, Life of, by Wynne, ii, 770; quoted in -Atherley-Jones, op. cit. p. 619. - -[5] Lucas 79, quoted in Atherley-Jones, op. cit. p. 619. - -[6] Lindo vs. Rodney, 2 Doug. 612; 99 Eng. Rep. 385; see also -Atherley-Jones, op. cit. p. 619. - -[7] The Santa Cruz, 1 C. Rob. 497, quoted in Atherley-Jones, op. cit. -p. 622. - -[8] Phillimore, op. cit. iii, 638. - -[9] 27 and 28 Vict., c 25, s 40, 1864. - - - - -PART 5. PRIZE MONEY. - - -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. - - - - -_BIBLIOGRAPHY._ - - -_General._ - -Atherley-Jones, L. A. Commerce in War. London, 1907. - -Baker, Sir Shurston. First Steps in International Law. London, 1899. - -Bentwich, Norman. The Declaration of London. London, 1911. The Law of -Private Property in War. London, 1907. - -Bluntschli, J. C. 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Encyclopedia Britannica. 11th Edition, xxiii, 535. - - - - - 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. 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