The Prize Court § 25. In speaking of the constitution, authority, and English functions of the English prize court, and of the wisely formed and admirably developed code of Admiralty jurisdiction and rules of procedure, Sir Robert Phillimore remarks: 'It is not surprising that, in great maritime kingdoms, the jurisdiction of the Admiral's court should have thrown into the shade the tribunal of the general. But, that the latter should have left such faint traces of its origin and mode of procedure, and should so soon have fallen into desuetude, is a very remarkable fact in the history of jurisprudence.' Mr. Knapp, in a learned note to his report of the great case of the Army of the Deccan, argued before the Privy Council, in 1833, has shown the error of the dicta of Lord Mansfield, in Lindo v. Rodney, repeated in the foregoing extract from Wildman, that, there is no instance in history or law, ancient or modern, of any question ever having existed respecting booty taken in a continental land war, before any legal judicature in this kingdom.' It appears from this note of Mr. Knapp, that in very early times, in England, causes respecting booty were determined in the court of chivalry, before the constable and marshal.' English specting § 26. As no action can be maintained in an English court law re- of municipal law with respect to booty, and as courts of admiralty had no jurisdiction of the matter, the inquiry arises, what became of this jurisdiction when it ceased to be exercised by the court of the constable and marshal ? 2 All booty, as booty 1 Phillimore, On Int. Law, vol. iii. § 127; Lindo v. Rodney, Douglas Rep., p. 593; Army of the Deccan, 2 Knapp Rep., pp. 149-51; Oldis v. Donmille, Show. Parl. Cas., p. 58; Banda and Kirwee Booty, 1 Law R. (Adm.), 109; Sir James Scarlett, Attorney-General, 1 Knapp Rep., P. 357; Elphinstone v. Bedreechund, 1 Knapp Rep., pp. 360-1; the Buenos Aires,' Dod. Rep., p. 29; and see suprà, vol. i. p. 546. 2 Lord Hale says 'that there is no evidence on record of any Admiralty jurisdiction till the time of Edward III., and asks where the jurisdiction in matters maritime was exercised during all this intermission of Admiralty courts. He answers to this question, 'A very great part thereof, especially touching capture of ships and goods arrested and taken by way of reprisal, was transacted coram consilio regis and in Chancery' (Hargrave Manuscripts, No. 137, ff. 118-26). It is certain that original jurisdiction was exercised by the Privy Council in a case which arose out of the captures at Toulon by land and sea forces in 1793; a grant had been made to the navy, but the army concerned in the expedition presented a memorial to the king that the warrant might be recalled, and another issued granting them a share for their co-operation. This memorial was referred to a committee of the Privy Council, who heard the case argued before them by counsel for the army and navy, and finally advised the King not to recall his warrant. Similar jurisdiction was exercised by the Privy Council in the case of the captures at Seringapatam. before remarked, belongs to the Crown, and is captured under the authority of the Crown. The Crown must, therefore, ultimately decide upon the legality of the capture and the distribution of the booty. The mode in which it now exercises this jurisdiction is to refer the claims of those who petition for a share in the distribution to the Lords of the Treasury, who lay down the principles which are to govern the case, and a board of trustees are appointed under the royal sign-manual warrant to ascertain, collect, and distribute the booty according to the scheme which has been approved and sanctioned by the Crown.' By 3 and 4 Will. IV., c. 41 (1833), the Privy Council are authorised to hear or consider any matter referred to them by the Crown, and to advise thereon; and 3 and 4 Vict., c. 65 (1840), and 24 and 25 Vict., c. 10, extend the jurisdiction of the High Court of Admiralty to all matters and questions concerning booty of war, or the distribution thereof, which it shall please the Crown, by the advice of the Privy Council, to refer to the judgment of the said court, and in all matters so referred the court shall proceed as in the case of prize of war, and the judgment of the court shall be binding upon all parties concerned. It therefore appears that, although an English prize court, as such, has no jurisdiction of cases of booty, the High Court of Admiralty may decide such matters and questions concerning booty as shall be referred to it by the Crown with the advice of the Privy Council. 1 The 'Elsebe,' 5 Rob., 173; Nicholl v. Goodhall, 10 Ves., 156; Alexander v. Duke of Wellington, 2 Russ. and Mylne, 35. The warrant for distribution is a mere direction from the Crown, like the order from a customer to his banker ; it vests no property in the objects of the Crown's bounty until the money has been actually paid to them under it. No relaxation of ancient captures CHAPTER XXII ENEMY'S PROPERTY ON THE HIGH SEAS 1. Distinction between enemy's property on land and on the high seas- § I. WHILE the progress of civilisation has slowly but constantly tended to soften the extreme severity of the operations rules as to of war by land,' says Wheaton, 'it still remains unrelaxed in maritime respect to maritime warfare, in which the private property of the enemy, taken at sea or afloat in port, is indiscriminately liable to capture and confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering private property, when captured in cities taken by storm, as booty; and the well-known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas the object of maritime war is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power, which object can only be attained by the capture and confiscation of private property.' § 2. Several of the ablest Continental writers oppose this Attempts to modify distinction on principle. The Abbé Mably 2 advocated an it entire freedom of commercial intercourse in war, even between the subjects of the belligerent powers; and Emerigon, yielding to the arguments of the Abbé, expresses an earnest desire that the laws of war may be modified or changed accordingly. Others, again, think that the change should extend only to the adoption of the principle that private property on the high seas should be subject to the same rules in war as private property on land; without any modification of the law of war respecting the commercial intercourse of subjects of the belligerent powers. Napoleon I., in his 'Mémoires,' dictated at St. Helena, says: 'Il est à désirer qu'un temps vienne, où les mêmes idées libérales s'étendent sur la guerre de mer, et que les armées navales de deux puissances puissent se battre sans donner lieu à la confiscation des navires marchands, et sans faire constituer prisonniers de guerre de simples matelots de commerce.' The great advantages which England, by means of her naval superiority, has derived from the capture of private property upon the high seas, have tended very much to the maintenance of the rigour of the ancient rule of commercial warfare. The contrary theory has been advocated by the United States, who proposed to add to the first article of the 'Declaration concerning maritime law,' made by the Conference of Paris, April 16, 1856, the following words: 'and the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband.' This proposition, although favourably received, 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 7. Property captured on land by a naval force of the United States is not a 'maritime prize,' even though it may have been a proper subject of capture generally. Alexander's Cotton (2 Wall., 404), and see Act of March 3, 1863, 12 Stat. at L., 820; Act of July 2, 1864, 13 Stat. at L., 375. 2 Mably, Droit Public, ch. xii. p. 308; Napoleon, Mémoires, tome iii. cho vi This proposition can be well illustrated by assuming the accomplishment of the proposed change, the realisation of the ideal which the reformers have conceived; that is, contest between combatants alone, while all else in the State goes on as usual. A war is declared between VOL. II. G Difficul ties in its application was not adopted by the powers represented at that conference, Russia alone excepted. Mr. Fish made a similar suggestion to Baron Gerolt in 1870. Italy in 1865, Austria and Prussia in 1866, and Prussia, again, in 1870, showed themselves to be in favour of this doctrine; but there is no good reason why the right of capture of private property at sea should ever be abandoned. It may therefore be stated as the existing and established law of nations, that, when two powers are at war, they have a right to make prize of the ships, goods, and effects of each other upon the high seas; and that this right of capture includes not only government property, but also the private property of all citizens and subjects of the belligerent powers, and of their allies. Whatever bears the character of enemy's property (with a few exceptions to be hereafter noticed), if found upon the ocean, or afloat in port, is liable to capture as a lawful prize by the opposite belligerent.' § 3. War establishes very different relations between parties, from those which exist in the ordinary transactions two powerful maritime nations. It produces no direct change in the peaceful avocations of life; agriculture, manufactures, commerce, flourish as before. The people are not hindered in their productions and exchanges, and are thus enabled to respond to the demands of the Government, and to furnish all the material supplies necessary to sustain the struggle. It is true that producers are withdrawn from time to time from the orderly activities of life and are converted into military non-producers. But the vacancy thus made is not felt, because the articles which were before produced at home are now brought from abroad, by means of the free commerce which is thus quickened into extraordinary activity. Under these circumstances the war is reduced to a mere duel between hostile armies. The nation has only to furnish men, and the contest will be continued until one country has been swept of its able-bodied citizens. That nation will certainly be victorious which can bring forward and sacrifice the greatest number of soldiers. This is not an imaginary picture. The essential fact was shown to be true in the history of the Confederacy. Levy after levy was made, army after army took the field; but as soon as Sherman ravaged the sources of supply in Georgia and Carolina, the whole hostile array collapsed.-North American Review, No. 235, p. 405. Pistoye et Duverdy, Des Prises, tit. i. ch. i.; Hautefeuille, Des Nations Neutres, tit. vii. ch. i.; Wheaton, On Captures, App., p. 317; Polson, Law of Nations, § 6; Riquelme, Derecho Púb. Int., lib. i. tit. ii. caps. xii. xiii.; Martens, Précis du Droit des Gens, § 28; Ortolan, Diplomatie de la Mer, liv. iii. ch. ii.; Jouffroy, Droit Maritime, p. 57 et seq.; Pando, Derecho Púb. Int., p. 412; Wildman, Int. Law, vol. ii. p. 118 et seq.; Manning, Law of Nations, p. 136; Dalloz, Répertoire, verb. 'Prises Maritimes;' Azuni, Droit Maritime, tome ii. ch. iv.; Marcy, Letter to Count Sartiges, July 28, 1856; De Cussy, Précis Historique, ch. xii. ; Gardner, Institutes, ch. xv. |