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._