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.
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.
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.
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.
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.
