Quincy Wright

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 [36] 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 [31] 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. ”

“ 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. ”

“ 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 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 [53a] 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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 ”

“ 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." ”

“ 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." ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 [94] 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." ”