Actual War.—Its Effects.
[Sidenote: Objects of War.]
Vattel tells us
"The end of a just war is to avenge or prevent injury;
that is to say, to obtain justice by force, when not
obtainable by any other method; to compel an unjust
adversary to repair an injury already done, or to give us
securities against any wrong with which we are threatened by
him. As soon therefore as we have declared war, we have a
right to do against the enemy whatever we find necessary for
the attainment of that end, for the purpose of bringing him
to reason, and obtaining justice and security from him.
"The lawfulness of the end does not give us any thing
further than barely the means necessary for the attainment
of that end. Whatever we do beyond that, is reprobated by
the law of nature—is faulty and condemnable at the tribunal
of conscience. Hence it is that the right to such acts
varies according to circumstance. What is just and perfectly
innocent in one situation is not always so on other
occasions. Right goes hand in hand with necessity and the
exigency of the case, but never exceeds them."
Such are some of the arguments that Vattel puts forth with all the
strength of reason and eloquence, against all unnecessary cruelty, and
all mean and perfidious warfare.
There was no limit to the career of violence and destruction,
justified by some of the earlier writers; they considered a state of
war as a dissolution of all moral ties, and a licence for every
disorder and fierceness: even such authors as Bynkershoek and Wolff,
who lived in the most learned and not the least civilized nations of
Europe, and were the contemporaries of that galaxy of talent that
adorned the commencement of the eighteenth century, held that every
thing done against an enemy was lawful. He might be destroyed, though
unarmed, harmless, defenceless; fraud, even poison, might be used
against him. A foe was a criminal and an outlaw, who had forfeited his
rights, and whose life, liberty, and property, lay at the mercy of the
victor.
But such was not the public opinion or practice of enlightened Europe
at the time they wrote. Grotius had long before, even in opposition to
his own authorities, but influenced by religion and humanity,
mentioned that many things were not fit and commendable, though they
might be strictly lawful. He held that the Law of Nations prohibited
the use of poisoned arms, the employment of assassins, violence to
women or the dead, or making slaves of prisoners. Montesquieu followed
in the same humane spirit. He writes, that the civilians said,
"That the law of nations, to prevent prisoners being put to
death, has allowed them to be made slaves…. The reasons of
the civilians are all false. It is false, that killing in
war is lawful, unless in case of absolute necessity; but
when a man has made another his slave, he cannot be said to
be under a necessity of taking away his life, since he
actually did not take it away. War gives no other right over
prisoners than to disable them from doing any further harm,
by securing their persons. All nations concur in detesting
the murdering of prisoners in cold blood."[79]
Thus, it is now the established Law of Nations, that necessity is the
measure of violence in war, and humanity, its tempering spirit; or, as
it has been otherwise enunciated, the rights of war are to be measured
by the objects of the war.
Although we have a right to kill our enemies in war; it is only when
we find gentler methods insufficient to conquer their resistance and
bring them to terms, that we have a right to put them to death.[80]
Under the name of enemies are comprehended not only the first author
of the war, but also those who join him and support his cause.
[Sidenote: Cartel]
Out of these enlightened views of war has sprung the System of Cartels
for the exchange of prisoners. These exchanges are generally regulated
by special convention between the hostile states. Prisoners are
sometimes permitted to return home, upon condition not to serve again
during the war, or until duly exchanged. Officers are frequently
released upon their parole, on the same condition; and to carry more
effectually into operation the arrangements necessary for these
purposes, commissaries are permitted to reside in the respective
hostile states.
Subject to the principle of non-resistance, there are several classes
of persons that are generally considered exempt from the operations of
war, beyond the effects of unavoidable accident. "All the members of
the enemy's state," says Wheaton,
"may lawfully be treated as enemies, in a Public War; but it
does not follow that all are to be treated alike; though we
may lawfully destroy some of them, it does not follow that
we may lawfully destroy all; for the general rule derived
from the natural law is still the same, that no force
against an enemy is lawful, unless it is necessary to
accomplish the purposes of war. The custom of civilised
nations founded on this principle, has therefore exempted
the persons of the Sovran and his family, the members of the
Civil Government, women and children, cultivators of the
earth, artizans, labourers, merchants, men of science and
letters, and generally all other public or private persons
engaged in the ordinary civil pursuits of life, from the
direct effect of military operations, unless actually taken
in arms, or guilty of some misconduct in violation of the
usages of war, by which they forfeit their immunity."[81]
The same principle of moderation towards that which is non-resisting
limits and restrains the operations of war against the territory and
other property of the enemy. There is a marked difference in the
rights of war carried on by land and at sea, in modification of the
general right to seize on all the enemy's property, and to
appropriate that property to the captors.
[Sidenote: Objects of a Maritime War.]
The object of a Maritime War is the destruction of the enemy's
commerce and navigation, in order to weaken and destroy the
foundations of his naval power. The capture or destruction of
private property is necessary to that end, and is allowed in
maritime wars, by the practice and law of nations.
[Sidenote: Private Property on Land.]
But private property on land is exempt from confiscation, with the
exception of such as may become booty in special cases, when taken
from enemies in the field or in besieged towns, and of military
contributions levied upon the inhabitants of the hostile territory.
This exemption extends even to an absolute and unqualified conquest of
an enemy's country. In ancient times, both real and personal property
of the vanquished passed to the victors; but the last example of
confiscation and partition among the conquerors in Europe, was that of
England, by William of Normandy.
Unless in special cases, private property on land is not touched,
without making compensation; though contributions are sometimes levied
in lieu of a necessary confiscation, or for the expenses of
maintaining and affording protection. In other respects private rights
are unaffected by war.
[Sidenote: Government Property.]
The property, however, belonging to the Government of the vanquished
nation, passes to the victorious state, which also takes the place of
the former Sovereign, in respect to the eminent domain.[82]
[Sidenote: Limitations of the Right of making War.]
The right of making War, as we have shown in the first chapter of this
book, solely belongs to the Sovran power. Subjects cannot, therefore,
of themselves, take any step in the affair; nor are they allowed to
commit any act of hostility without orders from their Sovran.
The Sovran's order which commands acts of hostility, is either general
or particular. The declaration of war, which enjoins the subjects to
attack the enemy's subjects, implies a general order. Generals,
officers, soldiers, privateersmen, and partisans, being all.
commissioned by the Sovran, make war by virtue of a particular order.
In declarations of war, the ancient form is still retained,[83] by
which subjects in general are ordered, not only to break off all
intercourse with, but also to attack the foe. Custom interprets this
general order. It authorises, indeed, and even obliges every subject,
of whatever rank, to secure the persons and things belonging to the
enemy, when they fall into his hands; but it does not invite the
subject to undertake any offensive expedition without a commission or
particular order.[84]
Prizes and Privateers.
[Sidenote: Privateer Commissions.]
During the lawless confusion of the feudal ages, the right of making
Reprisals was claimed and exercised, with out a Public Commission. It
was not until the fifteenth century that Commissions were held
necessary, and were issued to private subjects in time of war, and
that subjects were forbidden to fit out vessels to cruise against
enemies without licence. There were ordinances in Germany, France,
Spain, and England, to that effect.[85]
[Sidenote: Non-Commissioned Captors.]
Hostilities, without a Commission, are contrary to usage, and
exceedingly irregular and dangerous, but they are not considered as
acts of Piracy during the time of war. Noncommissioned vessels of a
belligerent nation may at all times capture hostile ships, without
being deemed, by the Law of Nations, Pirates. But they have no
interest in the prizes they take, and the property so seized is
condemned to the Government as Droits of the Admiralty. The reward
of this class of captors is left to the liberality of the Admiralty,
and is often referred to the Admiralty Court.
[Sidenote: Right of Capture.]
The fruits of any forcible detention or occupancy, prior to
hostilities, are vested in the crown; similarly, British property
taken in course of trade forbidden by the laws of his country, is
condemned to the Crown, and not to the individual captor.[86]
To prevent the custom house or excise vessels, that may be
commissioned with letters of marque, turning their attention from the
smugglers to the more attractive adventure of privateering, all
interest in their prizes is reserved to the crown,[87]
[Sidenote: Grants to the Admiralty.]
Though all rights of prize belong originally to the Crown, yet it has
been thought expedient to grant a portion of those rights to maintain
the dignity of the Lord High Admiral. This grant, (whatever it
conveys,) carries with it a total and perpetual alienation of the
rights of the crown, and nothing short of an Act of Parliament can
restore them; whereas the grant to private captors is nothing more
than the mere temporary transfer of a beneficial interest. The rights
of the Admiral, as distinguished from those of the Crown, are these;
that when vessels come in, not under any motive arising out of the
occasions of war, but from distress of weather, or want of provisions,
or from ignorance of war, and are seized in port, they belong to the
Lord High Admiral; but where the hand of violence has been exercised
upon them, where the impression arises from acts connected with war,
from revolt of their own crews, or from being forced or driven in by
the Queen's ships, they belong to the Crown.
This includes ships and goods already come into the ports, creeks, or
roadsteads, of all the Queen's dominions.[88]
[Sidenote: Acquisition of Captures.]
Persons fitting out Private Vessels under a Commission to cruise
against the enemy, acquire the property of whatever Captures they may
make, as a compensation for their disbursements, and for the risks
they run; but they acquire it by grant from the Sovran who issues out
the commission to them. The Sovran allows them either the whole, or a
part of the capture; this entirely depends on the nature of the
contract he has made with them.[89]
This grant of prize is, in terms, a grant of the property of the
Queen's enemies, but it is not restricted to the property of the
nations with whom we are at war. It is held in construction and
practice to embrace all property liable to be condemned as prize, and
which is not particularly reserved to the Crown, or the Admiralty.[90]
It depends, also, on the municipal regulations of each particular
power: and as a necessary precaution against abuse, the owners of
Privateers are required by the ordinances of commercial states to give
adequate security that they will conduct the cruize according to the
laws and usages of war, and the instructions of the Government; and
that they will respect the rights of neutrals, and bring their prizes
in for adjudication.
[Sidenote: Commissions of Privateers.]
The Commissions of Privateers do not extend to the capture of private
property upon land; that is a right which is not even granted to
Queen's ships. The words of the 3rd Section of the Prize Act extend
only to capture by any of Her Majesty's ships,
"of any fortress upon the land, or any arms, ammunition,
stores of war, goods, merchandize, and treasure, belonging
to the state, or to any public trading company, of the
enemies of the crown of Great Britain, upon the land."
Thus the interests of the Queen's cruizers are expressly limited with
respect to the property in which the captors can acquire any interest
of their own, the state still reserving to itself all private
property, in order that no temptation may be held out for unauthorized
expeditions against the subjects of the enemy on land. With regard to
private vessels of war, the Lords of the Admiralty are empowered by
the 9th Section, to issue Letters of Marque, to the Commanders of
any such ships or vessels,
"for the attacking and taking any place or fortress upon the
land, or any ship or vessel, arms, ammunition, stores of
war, goods, or merchandize, belonging or possessed by any of
Her Majesty's enemies in any sea, creek, river, or haven."
It was the purpose of the persons who brought in this bill, that
Privateers should not be allowed to make depredations upon the coasts
of the enemy for the purpose of plundering individuals, and for that
reason they were restricted to fortified places and fortresses, and to
property water-borne.[91]
As Privateers sometimes sail in company with Queen's vessels, and also
in small squadrons, for the purpose of mutual assistance, the rights
of the privateers vary. When a Privateer is sailing under the convoy
of a Queen's ship, she takes no share in any prize taken by the ship,
or even by herself, unless she has received orders from the convoying
royal ship to give chase, or has acted hostilely against the enemy,
actually aiding and assisting in the capture.[92]
When Privateers have sailed in company, it has often happened that not
every vessel has been actually engaged in the capture of the prize,
though they may have been rendering valuable assistance in a variety
of forms, such as watching in the offing, guarding an open outlet of
escape to the intended prize. In the disputes arising from these joint
captures, Sir William Scott was the first to establish a settled
intelligible system, on principles that might become in future easily
applicable to the various cases that might arise.
[Sidenote: Constructive Captors.]
He says
"the Act of Parliament (meaning the Prize Act), and the
proclamation, give the benefit of prize to the takers, by
which term, are naturally to be understood those who
actually take possession, or those affording an actual
contribution of endeavour to that event; either of these
persons are naturally included under the name of takers, but
the Courts of Law have gone further, and have extended the
term 'takers' to those who, not having contributed actual
service, are supposed to have rendered a constructive
assistance, either by conveying encouragement to the captor,
or intimidation to the enemy. * * * It has been contended
that where ships are associated in a common enterprize,
that circumstance is sufficient to entitle them to share
equally and alike in the prizes that are made; but many
cases might be stated when ships so associated would not
share. I must ever hold that the principle of mere common
enterprise is not sufficient—it is not sufficiently
specific—it must be more limited. What is the real and true
criterion? She being in sight, or seeing the enemy's fleet
accidentally, a day or two before, will not be sufficient;
it must be at the commencement of the engagement, either in
the act of chasing, or in preparations for chase, or
afterwards during its continuance. If a ship was detached in
sight of the enemy, and under preparation for chase, I
should have no hesitation in saying that she ought to share;
but if she was sent away after the enemy had been descried,
but before any preparations for chase, or any hostile
movements had taken place, I think it would be otherwise;
there must be some actual contribution of endeavour as well
as a general intention."[93]
[Sidenote: Efforts to suppress Privateering.]
Powerful efforts have been made by humane and enlightened individuals
to suppress Privateering, as inconsistent with the liberal spirit of
the age. In the language of Chancellor Kent,
"the object is not honour, or chivalric fame, but plunder
and profit. The discipline of the crews is not apt to be of
the highest order, and privateers are often guilty of
enormous excesses, and become the scourge of neutral
commerce."
They are sometimes manned and officered by foreigners, having no
permanent connection with the country, or interest in the cause. This
was a complaint made by the United States in 1819, in relation to
irregularities and atrocities committed by private armed vessels,
sailing under the flag of Buenos Ayres. Under the best regulations the
business tends strongly to blunt the sense of private right, and to
nourish a lawless and fierce spirit of rapacity.
Its abolition has generally been attempted by treaty. In the treaty of
Prussia and the United States, in 1785, stipulations against private
armed vessels were included. In 1675, a similar agreement was made
between Sweden and Holland, but the agreement was not performed.
France, soon after the breaking out of the war with Austria, in 1792,
passed a decree for the total suppression of privateering, but that
was a transitory act, and was soon swept away in the tempest of the
Revolution.
[Sidenote: Piratical Privateering.]
On these considerations naturally follows that of the classes of
Privateers that can be considered Pirates.
A Privateer differs from a Pirate, in that—first, the former is
provided with a Commission, or with Letters of Marque from a Sovran,
of which the Pirate is destitute. Secondly, the Privateer supposes a
state of war (or at least that of reprisals); the Pirate plunders in
the midst of peace, as well as in war. Thirdly, the Privateer is
obliged to observe the rules and instructions that have been given
him, and to attack by virtue of them only the enemy's ships, or those
neutral vessels which carry on an illicit commerce; the Pirate
plunders indiscriminately the ships of all nations, without observing
even the laws of war. But in this last point Privateers may become
Pirates when they transgress the limits prescribed to them; and this
is one of the reasons why we often see the former confounded with the
latter.[94]
Under these general definitions, we see that it is quite open to any
citizen of the world to become a privateer under a foreign Sovran; and
Martens goes on to say, that
"there is nothing that prevents the granting of Letters of
Marque, even to the subjects of neutral or allied powers who
are able to solicit them; but since it is contrary to
neutrality to suffer subjects to contribute by this means to
the reinforcement of one of the belligerent powers, and to
the annoyance of the other, states generally prohibit their
subjects from taking Letters of Marque from a power, without
the permission of their Sovereigns, and many treaties oblige
them also to prohibit their subjects from doing it, as well
as to forbid every species of armaments on the enemy's
account, in their ports. However, the enemy is not justified
in punishing them as pirates, when they have letters
patent from one of the powers with whom it is at war,
although their ship may be confiscated."[95]
The laws of the United States have made ample provision on this
subject, and they may be considered as an expression of the general
wish of civilized nations; and they prescribed specific punishment for
acts which were before unlawful.
American citizens are prohibited from being concerned, beyond the
limits of the United States, in fitting out or otherwise assisting any
private vessel of war, to cruize against the subjects of friendly
powers.[96]
In the various treaties between the powers of Europe, in the two last
centuries, and in the several treaties between the United States and
France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia,
Chili, &c., it is declared, that no subject or citizen of either
nation shall accept a commission or letter of marque, to assist an
enemy in hostilities against the other, under penalty of being treated
as an enemy.[97]
The Title to Property taken in War may, upon general Title to
principles, be considered as immediately divested from the original
owner, and transferred to the captor. As to personal property, the
title is considered as lost to the former proprietor, as soon as the
enemy has acquired a firm possession, which, as a general rule, is
considered as taking place after the lapse of twenty-four hours.[98]
Ships and goods captured at sea, are excepted from the operation of
this rule. The right to all captures rests primarily in the Sovran,
and no individual can have any interest in a prize, whether made by a
crown or private armed vessel, but what he receives under the grant of
the state.
When a prize is taken at sea, it must be brought with due care into
some port, for adjudication by a competent court. The condemnation
must be pronounced by a prize court of the Government of the captor,
sitting either in the country of the captor, or of his ally. The prize
court of an ally cannot condemn.[99]
[Sidenote: Proceedings Preliminary to Condemnation.]
The Proceedings Preliminary to Condemnation may be roughly described
as follows:—
The captor, immediately on bringing his prize into port, sends up
and delivers upon oath to the registry of the Court of Admiralty, all
papers found on board the prize. The preparatory examinations of the
captain and some of the crew of the captured ship are then taken,
upon a set of standing interrogatories, before the commissioners of
the port to which the prize is brought. These also are forwarded to
the registry of the Court of Admiralty. A written notice, called a
monition, is extracted by the captor from the registry, and served
upon the Royal Exchange, notifying the capture, and calling upon all
persons interested, to appear and show cause why the ship and goods
should not be condemned. At the expiration of twenty days, the
monition is returned into the registry, with a certificate of its
service; and if any claim has been given, the cause is then ready for
hearing, upon evidence arising out of the ship's papers and
preparatory examinations.
The neutral master or proprietor of the cargo takes measures as
follows:—Upon being brought into port, the master usually makes a
protest, which he forwards to London as instructions, (or with such
further directions as he thinks proper) either to the correspondent of
his owners, or to the consul of his nation, in order to claim the ship
or such parts of the cargo as belong to his owners, or with which he
was particularly entrusted; or the master himself goes to London to
take the necessary steps, as soon as he has undergone his examination.
The master, correspondent, or consul, applies to a proctor, who
prepares a claim supported by the affidavit of the claimant, stating
briefly to whom, as he believes, the ship and goods claimed belong;
and that no enemy has any right or interest therein; security must be
given to the amount of sixty pounds, to answer costs, if the case
should appear so grossly fraudulent on the part of the claimant as to
subject him to be condemned therein. If the captor has neglected in
the mean time to take the usual steps, (but which seldom happens, as
he is strictly enjoined both by his instructions and by the Prize Act
to proceed immediately to adjudication,) a process issues against him,
on the application of the claimant's proctor, to bring in the ship's
papers and preparatory examinations, and to proceed in the usual way.
As soon as the claim is given, copies of the ship's papers and
examinations are procured from the registry, and upon the return of
the monition the cause may be heard. It however seldom happens, owing
to the great pressure of business, (especially at the commencement of
war), that causes can possibly be prepared for hearing immediately on
the expiration of the time for the return of the monition; in that
case, each cause must necessarily take its regular turn. Correspondent
measures must be taken, by the neutral master, if carried within the
jurisdiction of a Vice-Admiralty Court, by giving a claim, supported
by his affidavit, and offering a security for costs, if the claim
should be pronounced grossly fraudulent.
If the claimant be dissatisfied with the sentence, his proctor enters
an appeal in the registry of the Court, where the sentence was given,
or before a notary public (which regularly should be entered within
fourteen days after the sentence); and he afterwards applies at the
registry of the Lords of Appeal in prize causes, which is held at the
same place as the registry of the High Court of Admiralty, for an
instrument called an inhibition, and which should be taken out within
three months, if the sentence be in the High Court of Admiralty; and
within nine months, if in a Vice-Admiralty Court; but may be taken out
at later periods if a reasonable cause can be alleged for the delay
which has intervened. This instrument directs the judge, whose
sentence is appealed from, to proceed no further in the cause; it
directs the registrar to transmit a copy of all proceedings of the
inferior courts; and it directs the party who has obtained the
sentence to appear before the superior tribunal to answer to the
appeal. On applying for the inhibition, security is given on the part
of the appellant to the amount of two hundred pounds, to answer costs,
in case it should appear to the Court of Appeal that the appeal is
vexatious. The inhibition is to be served upon the judge, the
registrar, and the adverse party, and his proctor, by shewing the
instrument under seal, and delivering a note of its contents. If the
party cannot be found, and his proctor will not accept the service,
the instrument is to be served, viis et modis; that is, by affixing
it to the door of the last place of residence, or by hanging it on the
pillars of the Royal Exchange. That part of the process above
described, which is to be executed abroad, may be performed by any
person to whom it is committed, and the formal part at home is
executed by the officer of the court. A certificate of the service is
endorsed on the back of the instrument, sworn before the surrogate of
the superior court, or before a notary public, if the service is
abroad.
If the cause be adjudged in the Vice-Admiralty Court, it is usual, on
entering the appeal there, to procure a copy of the proceedings, which
the appellant sends over to his correspondent in, England, who carries
it to a proctor, and the same steps are taken to procure and send the
inhibition as when the cause has been adjudged in the High Court of
Admiralty. But if a copy of the proceedings cannot be procured in due
time, an inhibition can be obtained, by sending over a copy of the
instrument of appeal, or by writing to the correspondent an account
only of the time and substance of the sentence.
Upon an appeal, fresh evidence may be introduced, if, upon hearing,
the Lords of Appeal should be of an opinion that the cause is of such
doubt, or that further proof ought to have been ordered by the court
below.
Further proof usually consists of affidavits made by the asserted
proprietors of the goods, in which they are sometimes joined with
their clerks, and others acquainted with the real transactions, and
with the real property of the goods claimed. In corroboration of these
affidavits, may be annexed the original correspondence, duplicates of
bills of lading, invoices, extracts from books, &c. These papers must
be proved by affidavits of persons who can speak of their
authenticity; and if copies or extracts, they should be collected and
certified by public notaries. The affidavits are sworn before
magistrates, or others competent to administer oaths in the country
where they are made, and authenticated by a certificate from the
British Consul.
The degree of proof required depends upon the degree of suspicion or
doubt that belongs to the case. In case of heavy suspicion and great
importance, the court may order what is called "plea and proof," that
is, instead of admitting affidavits and documents introduced by the
claimant only, each party is at liberty to allege, in regular
pleadings, such circumstance as may tend to acquit or condemn the
capture, and to examine witnesses in support of the allegation, to
whom the opposite party may administer interrogatories. The
depositions of the witnesses are taken in writing. If the witnesses
are to be examined abroad, a commission issues for that purpose; but
in no case is it necessary for them to come to England. These solemn
proceedings are seldom resorted to. Standing Commissions may be sent
to any neutral country for the general purpose of receiving
examinations of witnesses, in all cases where the court may find it
necessary, for the purposes of justice, to decree an enquiry to be
conducted in that manner.[100]
[Sidenote: Prize Jurisdiction.]
The Jurisdiction over Prizes is exercised by the Judge of the
Admiralty, exclusively of every other judicature of the kind, except
in cases of appeal.
This Jurisdiction in matter of Prize, (whether it is coeval with the
Court of Admiralty, or, which is much more probable, of a later
institution, beyond the time of memory,) though exercised by the same
person, is quite distinct in its nature.
The Judge of the Admiralty is appointed by a commission under the
great seal, which enumerates particularly, as well as generally, every
object of his jurisdiction, but not a word of prize.
To constitute that authority, in every war, a commission under the
great seal issues to the Lord High Admiral to will and require the
Court of Admiralty, and the Lieutenant and Judge of the said court,
his surrogate or surrogates, and they are thereby authorised and
required to proceed upon all and all manner of captures, seizures,
prizes, and reprisals, of all ships and goods that are or shall be
taken, and to hear and determine according to the Courts of Admiralty
and the Law of Nations.
A warrant issues to the judge accordingly.
The Court of Admiralty is called the Instance Court; the other the
Prize Court. The manner of proceeding is totally different. The whole
system of litigation and jurisprudence in the Prize Court is peculiar
to itself.
[Sidenote: Common Law Courts not always excluded]
A thing being done on the high seas does not exclude the jurisdiction
of the Courts of Common Law. For seizure, stopping, or taking a ship
upon the high seas, but not as prize, an action will lie; but for
taking as prize, no action will lie. The nature of the question, not
the locality, excludes.
The end of a Prize Court is to suspend the property till condemnation,
to punish every sort of misbehaviour in the captors; to restore
instantly (full sail) if upon the most summary examination there does
not appear a sufficient ground; to condemn finally, if the goods
really are prize, against everybody; giving every body a fair
opportunity of being heard. A captor may, and must force everybody
interested to defend; and every person interested may force him to
proceed to condemn without delay.[101]
[Sidenote: Prize Courts.]
Before the sixth of the reign of Queen Anne there were no laws made on
this subject. Previous to that time all prizes taken in war were of
right vested in the Crown, and questions concerning the property of
such prizes were not the subject of discussion in courts of law. But
in order to do justice to claimants, from the first year after the
Restoration of Charles the Second, special commissions were issued to
enable the Courts of Admiralty to condemn such captures as appeared to
be lawful prizes; to give relief where there was no colour for taking;
and generally to make satisfaction to parties injured. By the Act of
the 13 Car. II. c. 9, (now repealed) indeed, some regulations were
made concerning the treatment of ships taken, but no provisions
enacted respecting any security to be given on delivery; the sole
interest in the thing condemned being in the Crown; it was in public
custody, and the disposition of it a mere matter of prerogative; no
such provisions therefore were necessary.
But in the sixth year of Queen Anne, it was thought proper, for the
encouragement of seamen, to vest in them the prizes they should take;
and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were
passed.
The first of these acts only relates to proceedings in the Courts of
Admiralty in England, but contains no particular directions to them;
the practice of those courts being already settled.[102]
There is a long series of statutes, which follows the above, on the
subject of the Prize Courts. The following may be taken as a general
description of their operation.
The judge should proceed, according to their form, to sentence with
all possible expedition. If on the preparatory examination there
arises a doubt in the breast of the judge, whether the capture is
prize or not, and further proof appears to be necessary, the ship and
cargo is appraised by persons named on the part of the captor, and is
delivered up to the claimants, on their giving good and sufficient
security to pay to the captor the full value, according to the
appraisement, if the ship is adjudged lawful prize by the judge; by
this the claimant is entitled to the immediate possession of the
subject in dispute, which the captor cannot obtain but on the refusal
of the claimant to give security for the appraised value. After a
sentence of condemnation, the captor has a right to the possession;
the execution of the sentence is not suspended by an appeal, but the
party appellant gives good and sufficient security to restore the
cargo, or its full value, in case the sentence is reversed.[103]
[Sidenote: Where Prize Courts can be held.]
Having explained shortly the operation of the Prize Courts, it must be
observed, that the Prize Court of an Ally cannot condemn. Prize or no
prize is a question belonging exclusively to the courts of the country
of the captor. The reason is, that the Sovran has a right and is bound
to inspect the conduct of the captors, for he is answerable to other
states for the acts of the captor. The Prize Court of the captor may
sit in the country of a co-belligerent or an ally, because there is a
common interest between such on the subject, and both governments may
be presumed to authorize any measures conducing to give effect to
their arms, and to consider each others ports as mutually
subservient.[104]
It is not lawful for such a court to act in a neutral territory; and
it was at one time even doubted, where property had been carried into,
and was lying in a neutral port, whether the validity of the capture
could be determined even by a Court of Prize established in the
captor's country; because it was thought that the possession in reach
of the court was essential to the exercise of a jurisdiction in a
proceeding in rem. The principle was admitted by Sir Wm. Scott to be
correct, in the case of the Henrick and the Maria;[105] but he
considered that the English Admiralty had gone too far in supporting
condemnations in England, of prizes abroad in neutral ports, to permit
him to recall the vicious practice of the Court to acknowledged
principle.
[Sidenote: Judgments of Prize Courts conclusive.]
The jurisdiction of the Court of the capturing nation is conclusive
upon the question of property in the captured thing. Its sentence
settles all further dispute between claimants; and if that sentence is
manifestly unjust, or against the Law of Nations, the state is alone
responsible, and not the captors. An unjust sentence is a good ground
for issuing commissions of Reprisals. Numerous treaties between the
different powers of Europe, regulating the subject of Reprisals,
declare that they shall not be granted, unless in case of the denial
of justice. "An unjust sentence," says Wheaton, "must certainly be
considered as a denial of justice, unless the mere privilege of being
heard before condemnation is all that is included in the idea of
justice."[106]
Thus the sentence of a Prize Court, it is plain, is sufficient to
confirm the captor's title to captures at sea; but a different rule
applies to real property or immoveables.
Immoveable possessions, lands, towns, provinces, &c., become the
property of the enemy who makes himself master of them; but it is only
by the treaty of peace, or the entire subjugation and extinction of
the state to which those towns and provinces belonged, that the
acquisition is completed, and the property becomes stable and perfect.
Thus, a third party cannot safely purchase conquered land till the
Sovran from whom it has been taken has renounced it by a treaty of
peace, or has irretrievably lost his sovereignty.[107] Until such
confirmation, it continues liable to be divested by the jus
postliminii. The purchaser of any portion takes it, at the peril of
being evicted by the original Sovran owner, when he is restored to his
dominions.[108]
I now pass on to the more commercial question of Passports,
Safe-Conducts, and Licences to Trade.
Licences.
[Sidenote: Passports and Safe Conducts]
Passports, and Safe-conducts, are a kind of privilege, insuring safety
to persons in passing and repassing, or to certain things during their
conveyance from one place to another. All Safe-conducts, like every
other act of Supreme Command, emanate from the Sovran authority, but
are constantly delegated to inferior officers, either by an express
commission, or by a natural consequence of the nature of their
functions. The person named in the Passport cannot transfer his
privilege to another. They generally promise security wherever the
grantor has authority and command, and are interpreted by the same
rules of liberality and good faith, with other acts of the Sovran
power.[109]
[Sidenote: Licences to Trade with the Enemy]
A Licence granted by a state to its own subjects, or to those or the
enemy, is a dispensation on its own side of the Laws of War, as far as
its terms can be fairly construed. The adverse party may justly
consider such licence as a ground of capture and confiscation per
se; but the Prize Courts of the state, under whose authority they are
issued, are bound to consider them as lawful relaxations of the
ordinary state of war. In the country which grants them, licences to
carry on a pacific commerce are rigidly interpreted, as being
exceptions to a general rule; though they are not to be construed with
pedantic accuracy, nor will every small deviation be held to vitiate
the fair effect of them.[111]
During the later period of the last century, and the earlier portion
of this, licences were considered as privileges granted to individuals
for their own benefit, and in which the nation at large was but
little, or remotely, interested. They were therefore held liable to
the same strict construction with other similar grants. Yet this rule
was never held in a narrow captious manner; and if the apparent
intention of Government was complied with, and there was no suspicion
of fraud, a sufficient liberality was allowed in the construction.
When the extraordinary mode of warfare established by the Emperor
Napoleon, (by an attempt at a general embargo) was carried on, new
expedients were required to counteract its evils, and licences to a
great extent were granted to relieve the stagnant trade of the
country; and this measure, so highly beneficial, and even necessary,
was facilitated by the adoption of a still more liberal mode of
construction, and which, no doubt, will again guide these cases.[112]
[Sidenote: Duties of Merchants using Licences]
In trading under a Licence, the merchant ought to follow the terms or
it as strictly as possible; but if he is acting bonâ fides, some
breaches of it will be permitted. Being high acts of Sovranty, they
are necessarily the creatures of that act of power, and must not be
carried further than the intention of the great authority that grants
them may be supposed to extend; not that they are to be construed with
pedantic accuracy, nor that any small deviation should be held to
vitiate the fair effect of them. An excess in the quantity of goods
permitted might not he considered noxious to any extent. A variation
in the quality or substance of the goods might be more significant,
because a liberty assumed of trading in one species of goods, under a
license to trade in another, might lead to very dangerous abuses. The
license must be looked to for the enumeration of goods that are to be
protected by it.[113]
The principles on which courts act in treating licences is thus
succinctly laid down by Sir William Scott.—
"I need not repeat what I have so often stated, the anxious
wish of this court to relieve, as much as possible, the
difficulties under which the commerce of the world now
labours (November 1812,) and to apply the most favourable
consideration to the construction of license cases. At the
same time it is to be remembered, that the court possesses
the mere power of interpretation; that it must confine
itself to a reasonable explanation of the terms made use of,
and cannot alter or dispense with conditions considered as
essential by the Government granting the license. If the
court assumes the power of extension by favourable
interpretation, it does so only where there is a total
absence of bad faith, and where unavoidable obstacles have
been thrown in the way of an exact compliance with the terms
prescribed. Where there has been a want of good faith, or a
departure from the terms, beyond the necessity thus imposed,
the court has not felt itself called upon to mitigate the
penalties incurred by such a deviation."[114]
[Sidenote: The Vessel.]
It is not an essential deviation from the licence, if ships of other
countries than those designated in the license are employed; provided
those other countries have the same political bearing towards this
kingdom as those mentioned in the licence. But it is not a matter of
indifference to substitute a ship belonging to a country at war, for a
neutral or native ship, at the will and pleasure of the holder of the
licence.[115]
Where an enemy's ship was represented to be neutral, and under that
disguise obtained a licence and was navigated, the ship and freight
were condemned; and the cargo would have been involved in the same
fate had it been shown that the owner of the cargo was privy to the
fraud.[116]
A licence to trade in neutral bottoms does not extend to British
ships.[117]
[Sidenote: The Cargo.]
The exportation of the produce and manufactures of this country is
undoubtedly of great importance; but in time of war, it may be a
matter of serious injury to the kingdom, if the commerce of the enemy
is to be carried on in security under the abuse of British licences.
The Courts of Admiralty and Prize, therefore, as far as lie in their
power, guard against the fraudulent application of licences.
The following are a few practical rules for the guidance of
merchants:—
1. Where the goods are enumerated in the licence, the best endeavour
ought to be made to follow that enumeration. It is not a fatal
departure from the licence to take on board non-enumerated articles,
if done so by mistake, or inadvertence; but an essential and
fraudulent departure from the conditions of the licence is a total
defeasance of it.[118]
2. When a licence is granted to one person, it cannot be made to
extend to the protection of all other persons who may be permitted by
that person to take advantage of it.[119]
3. Where A and B have obtained a licence to import, as for
themselves, or their agents, or the bearers of their bill of lading,
the only persons entitled to act under that licence, are A and B, as
importers, or their agents, or persons holding their bills of
lading, and claiming under bills of lading, which A and B, after
having conducted the importation from the enemy on their own account,
have transferred to them.[120]
4. Under a licence to import, the British merchant must not also be
the exporter. He is not permitted under such a licence to go to the
enemy's country, and there act as an enemy's merchant, carrying on the
export trade of that country.[121]
5. Sometimes, in describing the property in licences, the privilege is
extended to all property of a certain class, "to whomsoever the
property may appear to belong." In such cases no enquiry is ever made
as to the proprietary interest in the property; but if the words are
not introduced into the licence, it does not protect enemy's
property.[122]
[Sidenote: The Voyage.]
In the Voyage, also, the merchant must follow the licence. It is
vitiated by changing the place of shipment. Thus, where a licence was
to bring away a cargo from Bordeaux, and the party thought proper to
change the licence, and accommodate it to another port in France, it
was held by the English Admiralty that the licence was vitiated, and
the vessel and cargo were condemned.[123]
Enemies trading to the ports of this country must strictly comply with
the conditions under which that permission is granted. No voluntary
deviation from the course pointed out can on any account be
tolerated; except under the pressure of irresistible necessity. The
character of enemy revives, when such a trader so deviates from his
appointed course, even if there is no malâ fides, and he runs all
the perils of an enemy on an English coast.[124]
It is a violation of a licence to touch at an intermediate port under
a licence for a direct voyage to this country, the presumption being
that at the intermediate port the vessel might receive another
destination, or might actually deliver her cargo in that port.[125]
[Sidenote: Time.]
Of course when the period for which a licence has been granted has
expired, it no longer has any operation; yet in cases in which parties
have used due diligence, but have been prevented by accident from
carrying their intentions into effect within the time, it has been
holden that, though their licences have expired, they are entitled to
protection.[126]
A licence cannot be ante dated, and if granted subsequent to capture
it is no protection against condemnation. It is in its very nature
prospective, pointing to something which has not yet been done, and
cannot be done at all without such permission. Where the act has
already been done, and requires to be upheld, it must be by an express
confirmation of the act itself, as by an indemnity granted to the
party; but a licence necessarily looks to that which remains to be
done, and can extend its influence only to future operations.[127]
Note.—It has been before pointed out, that the Queen has, by her
prerogative, the power of granting licences. But the Navigation Laws
could not, of course, be dispensed with by the royal prerogative.
Various acts, therefore, were passed to alter or qualify them,
according to the new condition of things which was produced in time of
war. These acts expired with the several wars that suggested them; but
the almost total repeal of the celebrated Navigation Laws will render
the re-enactment of similar war measures almost unnecessary.
Ransom, Recaptures, and Salvage.
[Sidenote: Ransom.]
Sometimes circumstances will not permit property captured at sea to be
sent into port; and the captor, in such cases, may either destroy it,
or permit the original owner to redeem it.
It was formerly the general custom to redeem property from the hands
of the enemy by Ransom, and the contract is undoubtedly valid, when
municipal regulations do not intervene. It is now but little known in
the commercial law of England, for several statutes in the reign of
George the Third absolutely prohibited British subjects the privilege
of ransom of property captured at sea, unless in a case of extreme
necessity—to be judged of by the Court of Admiralty.[128]
These contracts are generally drawn up at sea, and by virtue of them,
the captain of the captor engages for the release and safe conduct of
the taken ship, in consideration of a sum of money, which the master
of the captured vessel, on behalf of himself and the owners of his
ship and cargo, engages to pay, and for the payment of which he
delivers a hostage as security. The contract is drawn up in two parts,
of which the captor has one, which is called the ransom bill; the
master of the captured vessel has the other, which operates as his
safe conduct.
By the French law this safe conduct only protects the vessel to its
own port, or its port of destination, if nearer that. In other
countries the pass allows the ship to continue its voyage; but
operates only to protect the vessel in the course prescribed, and
within the time limited by the contract. It protects only against
capture, unless by agreement it provides also against total loss by
perils of the seas.
During war, and while the character of alien enemy continues, no suit
will lie in the British Courts by the enemy, in proper person, on a
ransom bill, notwithstanding it is a contract arising out of the law
of war. The remedy to enforce payment of the ransom bill for the
benefit of the enemy captor, is by an action by the imprisoned
hostage, in the courts of his own country, for the recovery of his
freedom.
The hostage consists generally of one or two principal officers of the
captured prize, more generally one only.
As the ransom is in the nature of a pledge, the ransom cannot exceed
the value of the ship, so that the master cannot bind his owner for a
larger value; and on the same principle, the captor is bound to take
the vessel or its value if abandoned by the owner, or what it sells
for if the owner is insolvent. He is also bound to maintain the
hostage, and that is an item in the ransom bill. In estimating the
ransom and expenses of the hostage as a damage or loss, they are
regarded in the nature of general average, and the several persons
interested in the ship, freight, and cargo, must all contribute
towards them.[129]
[Sidenote: Recaptures.]
Although in strictness every prize legally made, may be adjudged to
the captor, yet there are cases where he ought to restore, wholly, or
in part, that which he may legally have taken from the enemy. This is
the case of recaptures.
According to the universal law of nations, the question whether the
recapture ought to be restored to the first proprietor, seems to
depend essentially on another, namely, whether the captor has become
full proprietor of the prize, to the total extinction of the rights
of the first proprietor. If we admit that he may have become so, there
would be no further perfect and external obligation on the recaptor
to restore property which has become that of the enemy; and on which
the first proprietor has lost all claim. There may be a thousand
reasons of equity why he should not enrich himself by the spoil of his
fellow citizens or friends; but then, that restitution would not be
according to the strict rule of natural law; if indeed all claim had
so passed away.
The captor has, without doubt, a right to take away the enemy's goods.
He may, without troubling himself with the proprietor's rights, detain
them, with intent to appropriate to himself, in the same manner, in
every respect, as he may seize res nullius in the time of peace; but
it does not follow from thence that the effect of these two actions is
the same, when applied to objects of so different a condition, or that
the right of war alone, without cession or renunciation, is a title
sufficient for a full property.
By the Laws of War the right and power of possession is in the
captor; the right of property remains in the proprietor. This right
of war, which is personal in the captor, not being capable of cession,
cannot bind a third person, who acquires the prize by recapture during
war; and nothing prohibits the original proprietor from prosecuting
his rights against him; accordingly, without making any distinction
between conquest, booty, or prize; the goods taken by the enemy,
however legal that capture might be, however certain the possession of
them might be, do not become his full property till the moment of
peace; and that during the whole course of the war it may be claimed
by the first proprietor from the hands of every third possessor. From
this it follows that every recapture, made at any period of the war
whatever, whether the capture may have been legal, or whether it may
have been illegal; whether the recapture be made by a Sovran, or by a
privateer; ought to be restored to the original owner on a just
repayment of the costs and damages of every recaptor, unless the
illegality of the recapture precludes the recaptor from the privilege
of demanding the indemnification.[130]
[Sidenote: Salvage.]
The costs and damages paid to the recaptor are termed Salvage. It was
the ancient law of this country, that a possession of twenty-four
hours was a sufficient conversion of the property, and unless it was
reclaimed before sundown, the owner was divested of his property.
Thus there was a complete obliteration of the rights of former owners.
This was the ancient law of England, and was in accordance with the
ancient law of Europe.
This rule has been receded from in this country, since the increase of
her commerce. During the time of the usurpation, when England was
becoming commercial, an alteration was effected by the ordinance of
1649, which directed a restitution, upon salvage, to British subjects;
and the same indulgent rule was continued afterwards, when this
country became still more commercial.
This country, as a commercial country, has thus departed from the old
law, and has made a new and peculiar law for itself, in favour of
merchant property recaptured, introducing a policy not then introduced
by other countries, and differing from its own ancient practice.
[Sidenote: Recaptures converted into Ships of War are not restored.]
There is one exception to this law. The Prize Act provides that if a
recaptured ship, originally taken by her Majesty's enemies, shall
appear to have been by them "set forth as a ship or vessel of war,"
the said ship or vessel shall not be restored to the former owners or
proprietors; but shall, in all cases, whether retaken by any of Her
Majesty's ships, or by any privateer, be adjudged lawful prize for the
benefit of the captors. When the former character of the vessel has
been once obliterated by her conversion into a ship of war, the title
of the former owner, and his claim to restitution, are extinguished,
and cannot be revived by any subsequent variation of the character of
the vessel.
Setting forth does not necessarily mean sending out of port with a
regular commission. It is sufficient if she has been used as part of
the national force of the enemy, by those in competent
authority.[131]
[Sidenote: Capture a material question in cases of Recapture.]
As it has been stated above, in cases of recapture, the material
question is, whether there was such a capture made by the enemy, as to
found a case of re-capture.
This is settled by the question whether the enemy have an effectual
possession; by this is not meant the complete and firm possession
obtained by condemnation in a Court of Prize, but that effectual
possession, that if not interrupted by recapture, would have enabled
the captor to exercise rights of war over her. For this purpose it is
not necessary that the possession should be long maintained. The
following are some examples of such effectual possession.
An English merchantman, separated from her convoy during a storm, was
brought to by an enemy's lugger, which came up and told the master to
stay by her till the storm was abated, when they would send a man on
board; a British frigate coming up afterwards chased the lugger and
took her, thus releasing the merchantman; the frigate was held
entitled to salvage.[132]
But when a small English vessel, armed with two swivels, forced a
privateer row-boat from Dunkirk to strike, but was not able to board
her, because the English vessel has only three men, and no arms but
the swivels,—the Frenchman being filled with a well armed crew; and
subsequently, the row-boat was forced to put into the port of Ostend,
then the port of an ally; this might not be a capture under the act,
so much as it was under the general maritime law.
A vessel brought out of port, and which was in the power, though not
in the actual occupation of the enemy, was thus rescued from
considerable peril, was held to be recaptured.[133]
Similarly, with a vessel abandoned by the enemy, having possession of
her, through the terror of an approaching force.[134]
There is no claim to Salvage where the property rescued was not in the
possession of the enemy, or so nearly as to be certainly and
inevitably under his grasp.
[Sidenote: Recapture of Property of Allies.]
England restores the Recaptured Property of her Allies, on the 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
their cases according to their own rule.[135]
[Sidenote: Recapture of Neutral Property.]
It is not the practice of modern nations to grant Salvage on the
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 to him; for the 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. This proceeds on the supposition, that those tribunals
would duly respect the law of nations; a presumption which, in the
wars of civilized states, each belligerent is bound to entertain in
their respective dealings with neutrals. But in the wild hostilities
declared and practised by France in the Revolutionary War, there was a
constant struggle between the governing powers of France and the
maritime courts, which should most outrage the rights of neutral
property; the liberation of neutral property out of their hands then
came to be deemed, not only by Lord Stowell, but by the neutrals
themselves, a substantial benefit; and salvage for such service was
not only awarded, but thankfully paid.[136]
[Sidenote: Jus Postliminii.]
The rule by which things taken by the enemy are restored to their
former owner, upon coming again under the power of the nation to which
they formerly belonged, is termed jus postliminii, or the right of
postliminy. Real property, which is easily identified, is more
completely within the right of postliminy than moveable property,
which is more transitory in its nature, and less easily recognized.
During war, the right of postliminy can only be claimed in the
tribunals of the belligerent powers, and not in the courts of
neutrals; for by a general law of nations, neutrals have no right to
enquire into any captures, except such as are an infringement of their
own neutrality.[137]
[Sidenote: Costs and Damages to Owners for invalid Seizures.]
It often happens that captains of ships of war and privateers make
seizures of native or neutral vessels, under the impression that such
vessels are occupied in illicit trade or other condemnatory acts. This
may arise from error, and in such cases the vessel is restored to the
owner by the prize court; but still there may be circumstances
justifying the seizure, though not condemnation; and if condemnation
is not granted, the owner sets up a claim for any damage that may have
occurred to his vessel.
And the rule is, that where the capture is not justifiable, a captor
is answerable for every damage.[138]
But if a seizure is justifiable, all that the law requires is that the
captor shall be held responsible for due diligence; it is not enough
that the captor should use as much caution as he would in his own
affairs, the law requires that there should be no deficiency of due
diligence.[139]
When property is confided by an owner to another person, the care that
the owner would take of his own property may be a reasonable criterion
of the care that he may expect his agent to take. But in the case of
capture, there is no confidence reposed, nor any voluntary election of
the person in whose care the property is left. It is a compulsory act
of justifiable force, but still of such force as removes from the
owner any responsibility for the imprudent conduct of the
prize-master. Hence, where the prize-master refused to take a pilot,
and the ship and cargo were lost, restitution in value was decreed.