"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.
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.
