§ 359a. Booty and

prize.

reign.

Property of the enemy taken on land is usually called booty, while that captured on the high seas has acquired the name of prize (f). There is a very important distinction between them as regards the mode in which the captor acquires a title to the captured property. As stated in the text, booty belongs to the captor as soon as he has acquired a firm possession of it. No adjudication of any court is necessary to establish his title (g). On the other hand, a title to prize is acquired, as a general rule, only after the property has been condemned by a competent court (h). By the modern usage of nations neither the twenty-four hours' possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration (i). Ships and their cargoes are not invariably prize. Thus during the American civil war a ship captured in a river by a detached naval force in boats was held not to be maritime prize, or to be condemned as such (k).

§ 359 b. The primary title to all property taken in war, whether on land or at Prize and sea, is in the sovereign (1). The law of England on this point has been booty bethus laid down by Lord Brougham -"That prize is clearly and dislong primarily to tinctly the property of the Crown, that the sovereign in this country, the sovethe 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 incontestable that the Crown possesses this property pleno jure absolutely and wholly without control; that it may deal with it entirely at its pleasure, may keep it for its own use, may abandon or restore it to the enemy, or, finally, may distribute it in whole or in part among the persons instrumental in its capture, making that distribution according to whatever scheme, and under whatever regulations and conditions it sees fit. It is equally clear, and it follows from the two former propositions, 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; whether, even in that case, the same paramount and transcendent power of the Crown might not enure to the effect of preserving to His Majesty the right of modifying, or altogether revoking, the grant, is a question which has never yet arisen, and which, when it does arise, will be found never to have been determined in the negative. But this, at all events, is clear, that when the Crown, by an act of grace and bounty, parts, for certain purposes, and subject to certain modifications, with the property in prize, it by that act plainly signifies its intention that the prize shall continue

(f) [Genoa and its Dependencies, 2 Dods. Ad. 446.]

(g) [Lamar v. Browne, 2 Otto, 195.]

(h) [Opinions of Att.-Gen. (U. S.) vol. iii. p. 379. Field, International Code, § 896. Goss v. Withers, 2 Burrows, 693.]

(i) [Kent, vol. i. p. 103 (12th ed.) Tudor, Leading Cases on Maritime Law, pp. 819-821. Calvo, ii. § 1236.]

(k) [The Cotton Plant, 10 Wallace, 577.]

(7) [Phillimore, vol. iii. § cxxx. Calvo, ii. § 1237. Halleck, ch. xxx. § 3.]

subject to the power of the Crown, and as it was before the act was done.

"This doctrine has been frequently recognized in cases where the question has arisen subsequently to the capture, and before condemnation; but the same principle was afterwards extended in the case of the Elsebe (m), at the cockpit, in which, after final adjudication in the Court below, but pending an appeal, the Crown thought proper, for reasons of State and public policy, to restore the prize at the expense of the captors. In other words, it was then determined, and that too upon a solemn and most able argument, and by a judge the most learned and eminent of his time, the present Lord Stowell, that when the Crown saw fit to restore the capture, the captors, who had run the risk and suffered the loss, who had, moreover, borne the charge of bringing the prize into port, and the further costs of proceeding in the Admiralty to adjudication, and had even undergone additional expenses in contesting their claim upon appeal, were altogether without a remedy. 'It is admitted,' says Lord Stowell-in language which it would be vain to praise or to attempt to imitate 'it is admitted on the part of the captors, whose interests have been argued with great force (and not the less effective, surely, for the extreme decorum with which that force has been tempered) that their claim rests wholly on the Order of Council, the Proclamation, and the Prize Act. It is not, as it cannot be, 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 the 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 reipublicæ'" (n).

On the completion of a capture it is the duty of the captor to bring § 359c. his prize, as soon as his other duties permit it, before a competent Duties of court (0). Since the property in a prize is in abeyance until a competent captors. court has pronounced upon the capture, it is the interest of all parties to obtain a judicial decree as soon as possible. As the custody of the prize remains with the captor, it therefore lies upon him to bring it before the Court. But if prevented by imperious circumstances from bringing it to his own country, he may be excused for taking it to a foreign port, or for selling it, provided he afterwards reasonably subjects its proceeds to the Court (p). By unreasonable delay in bringing in the prize for

(m) [5 C. Rob. 173.]

(n) [Alexander v. The Duke of Wellington, 2 Russell & Mylne, 54. Lord Stowell's remarks are to be found in The Elsebe, 5 C. Rob. 581.]

(0) [Phillimore, vol. iii. § 341.]

(p) [Halleck, ch. xxx. § 5.

The Peacock, 4 C. Rob. 192.]

§ 359 d. Destruction

of prizes at

sea.

Destruction

Russian steamers.

adjudication, or by other misconduct, the captor may forfeit all his right of prize, and in this case the prize is condemned to the State, if the capture was originally lawful(q). If the capture was made entirely without probable cause, the captor is liable for costs, and for the damages resulting from the illegal seizure, and the latter are decreed to the injured owner (r).

"Sometimes," says Chancellor Kent, "circumstances will not permit property captured at sea to be sent into port; and the captor in such cases may destroy it, or permit the original owner to ransom it " (s). If the vessel belong to the enemy, and the captor has no means of retaining possession of her, or of bringing her into port, he is then justified in destroying her, but it is his duty to preserve her papers and as much of the cargo as he can secure. The Confederate cruisers burnt many of their prizes at sea during the civil war, as their own ports were all blockaded by the Federal fleets; and though this was not a proceeding to be approved of, it was not a violation of international law (t). At the conclusion of the war the Federal government wished to proceed against Captain Semmes of The Alabama for burning and destroying ships and cargoes belonging to American citizens. They could not indict him for high treason as he had been treated as a prisoner of war. But no proceedings were actually taken. Mr. Bolles, the law officer to whom the case was referred, gave it as his opinion that Captain Semmes had done no more than the United States had themselves done to England in the war of 1812-14. During that war orders had been given that no prize should be manned or preserved unless circumstances should render her safe arrival morally certain. No prizes were to be ransomed, and almost all were to be destroyed. Mr. Bolles also pointed out that it might be the policy of the Union to pursue a similar course in some future war, and therefore he deemed it improper to prosecute a person who had, under orders, simply followed an example previously set by the government (u).

During the recent war with Turkey, Russia was alleged to have made of Turkish a practice of sending out fast steamers from Odessa, which, while they vessels by avoided the Turkish cruisers, captured Turkish merchantmen, burnt them on the spot, and then set the crews adrift in boats. If this was true, it was an undeniable violation of international law. It was, moreover, an act of wanton and unnecessary cruelty to burn the ships and then expose the lives of their crews in open boats, and it was an act which could only influence the war by exasperating the other side, and inducing it to retaliate by similar measures (x).

§ 359 e. Destruction

If the prize is a neutral ship, no circumstances will justify her destruc(q) [The Bothnea, 2 Gallison, 78; The Triton, 4 C. Rob. 78. Phillimore, vol. iii. § 381. Miller v. The Resolution, 2 Dallas, 1.]

(r) [Halleck, ch. xxx. § 29. Phillimore, vol. iii. § 452. Del Col v. Arnold, 3 Dallas, 333. The Anna Maria, 2 Wheaton, 327.] (s) [Kent, by Abdy, p. 276.]

(t) [Montague Bernard, Neutrality of England during Civil War, p. 419. Lushington, Manual of Naval Prize Law, § 101.]

(u) [Atlantic Monthly, July, 1866, p. 89. Parl. papers, 1873 (No. 2), p. 92.]

(x) [See Parl. Papers. Turkey (No. 1), 1878, p. 313; and the Times, 15th Dec. 1877.]

cargo.

tion before condemnation. The only proper reparation to the neutral of neutral is to pay him the full value of the property destroyed (y). Neutral ship or cargoes are not always equally privileged. In 1870 the Desaix, a French cruiser, captured two German vessels, the Ludwig and the Norwaerts, and burnt them on the day of capture. Part of the cargo of these vessels belonged to neutral owners (British subjects), and was therefore under the express protection of the third article of the Declaration of Paris. The owners claimed compensation for the destruction of their goods, but the Conseil d'Etat, in a judgment delivered by the President of the French Republic, held that though the Declaration of Paris exempts the goods of a neutral on board an enemy's ship from confiscation, and entitles the owner to their proceeds in case of a sale, yet it gives him no claim to compensation for any damage resulting from the lawful capture of the ship, or from any subsequent and justifiable proceedings of the captors. As the destruction of the two vessels was held to have been necessary under the circumstances, no compensation was awarded to the owners of the neutral cargo (z).

§ 360. Re-captures and

As to ships and goods captured at sea, and afterwards recaptured, rules are adopted somewhat different from those which are applicable to other personal property. These rules salvage. depend upon the nature of the different classes of cases to which they are to be applied. Thus the recapture may be made either from a pirate; from a captor, clothed with a lawful commission, but not an enemy; or, lastly, from an

enemy.

Re-cap

1. In the first case, there can be no doubt the property § 361. ought to be restored to the original owner; for as pirates tures from have no lawful right to make captures, the property has not pirates. been divested. The owner has merely been deprived of his possession, to which he is restored by the recapture. For the service thus rendered to him, the recaptor is entitled to a remuneration in the nature of salvage (a).

Thus, by the Marine ordinance of Louis XIV., of 1681, liv. iii. tit. 9, des Prises, art 10, it is provided, that the ships and effects of the subjects or allies of France, retaken from pirates, and claimed within a year and a day after being reported at the Admiralty, shall be restored to the owner, upon payment

(y) [Twiss, International Law during War, § 167, p. 331. The Felicity, 2 Dods. Ad. 386.]

(z) [Dalloz, Jurisprudence Générale, 1872, Pt. III. p. 94.]

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9, § 17. Loccenius, de Jur. Marit. lib. ii. c. 2, No. 4. Brown's Civ. and Adm. Law, vol. ii. c. 3, p. 461. "Ea quæ piratæ nobis eripuerunt, non opus habent postliminio; quia jus gentium illis non concedit, ut jus dominii mutari possint." Dig. de Capt. et Postl. revers.

F F

§ 362. Opinions of Valin and

Pothier.

§ 363. Re-capture of neutral property.

of one third of the value of the vessel and goods, as salvage. And the same is the law of Great Britain, but there is no doubt that the municipal law of any particular State may ordain a different rule as to its own subjects. Thus the former usage of Holland and Venice gave the whole property to the retakers, on the principle of public utility; as does that of Spain, if the property has been in the possession of the pirates twenty-four hours (b).

Valin, in his commentary upon the above article of the French Ordinance, is of opinion that if the recapture be made by a foreigner, who is the subject of a State, the law of which gives to the recaptors the whole of the property, it could not be restored to the former owner: and he cites, in support of this opinion, a decree of the Parliament of Bordeaux, in favour of a Dutch subject, who had retaken a French vessel from pirates (c). To this interpretation Pothier objects that the laws of Holland having no power over Frenchmen and their property within the territory of France, the French subject could not thereby be deprived of the property in his vessel, which was not divested by the piratical capture according to the law of nations, and that it ought consequently to be restored to him upon payment of the salvage prescribed by the ordinance (d).

Under the term allies in this article are included neutrals; and Valin holds that the property of the subjects of friendly powers, retaken from pirates by French captors, ought not to be restored to them upon the payment of salvage, if the law of their own country gives it wholly to the retakers; otherwise there would be a defect of reciprocity, which would offend against that impartial justice due from one State to another (e).

2. If the property be retaken from a captor clothed with a lawful commission, but not an enemy, there would still be as little doubt that it must be restored to the original owner. For the act of taking being in itself a wrongful act, could not change the property, which must still remain in him.

If, however, the neutral vessel thus recaptured, were laden

(b) Grotius, par Barbeyrac, liv. 3, ch. 9, § xvi. No. 1, and note.

(c) Valin, Comm. sur l'Ord. liv. 3, tit. 9, art. 10.

(d) Pothier, Traité de Propriété, No. 101.

(e) Valin, Comm. sur l'Ord. liv. 3, tit. 9, art. 10.