CHAPTER V. GREAT BRITAIN, RECENT ADMINISTRATION.

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 ofKing 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 thatLord 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 aspart 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 generalopinion 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. Thiscondition 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]Theinternational 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.

Chapter V, Part 1.

[1]For history and discussion of admiralty and prize courts see Marsdon, Introduction to select pleas of the Admiralty; Roscoe, Growth of English Law; Carter, History of English Legal Institutions; Ridges, Constitutional Laws of England; Benedict, The American Admiralty; Encyclopedia Britannica, 11th Edition, titles, Admiral, Lord High; Admiralty, Jurisdiction.

[2]The local jurisdiction of all sea port corporations but the Cinque Ports was abolished in 1835, 5 and 6 William IV, c 76.

[3]W. G. F. Phillimore, Admiralty, High Court of, Encyclopedia Britannica, 11th Edition, i, 206.

[4]2 William and Mary, St. 2, c 2, 1690.

[5]The Lord High Admirals since 1690 have been, Prince George of Denmark, husband of Queen Anne, 1702-1708; The Earl of Pembroke, 1708-1710; The Duke of Clarence, afterwards, William IV, 1827-1828.

[6]See antep. 56 et seq.

[7]13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392.

[8]Le Caux vs Eden, 2 Doug. 595; 99 Eng. Rep. 375; Lindo vs Rodney, 2 Doug. 613; 99 Eng. Rep. 385. See also Phillimore, op. cit. iii, 213.

[9]See postp. 84.

[10]E. S. Roscoe, The Growth of English Law, London, 1911, p. 139.

[11]3 and 4 Vict., c 65, s 22, 1840.

[12]9 and 10 Vict., c 99, 1846.

[13]17 and 18 Vict., c 104, 1854.

[14]24 and 25 Vict., c 10, 1861.

[15]31 and 32 Vict., c 71, 1868.

[16]36 and 37 Vict., c 66, 1873.

[17]38 and 39 Vict., c 66, 1873.

[18]54 and 55 Vict., c 53, s 4, 1891.

[19]Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s 379; Marsdon, English, Historical Review, xxvi, 53.

[20]2 and 3 William IV, c 51, 1832.

[21]26 and 27 Vict., c 24, 1863.

[22]30 and 31 Vict., c 45, 1867.

[23]53 and 54 Vict., c 27, 1890.

[24]Blackstone, Commentaries, iii, 108.

[25]Phillimore, op. cit. iii, 655; see also postp. 86.

[26]Roscoe, op. cit. p. 125; Hannis Taylor, The Origin and Growth of the English Constitution, 3rd Edition, 2 Vols., Boston, 1895, i, 550.

[27]27 and 28 Vict., c 25, ss 3, 4, 5, 6.

[28]54 and 55 Vict., c 53, s 4, 1891.

[29]27 and 28 Vict., c 25, 1864.

[30]"This Jurisdiction is permanent and unlike that of the prize courts in British possessions requires no commission from his majesty, proclamation of war, or other executive act to bring it into operation." The Earl of Halsbury, The Laws of England, London, 1907-1912, xxiii, 276.

[31]57 and 58 Vict., c 39, 1894.

[32]27 and 28 Vict., c 25, 1864.

[33]25 Hen. VIII, c 19, s 3, 4, 1534.

[34]2 and 3 William IV, c 92, 1833.

[35]2 and 3 William IV, c 52, 1833.

[36]27 and 28 Vict., c 25, 1864.

[37]39 and 40 Vict., c 59, 1876.

[38]27 and 28 Vict., c 25, 1864.

[39]Convention Relative to the Creation of an International Prize Court, Final Acts of the Second International Peace Conference, 1907, No. 12, for text see A. Pearce Higgins, The Hague Peace Conferences; Bentwich, The Declaration of London.

[40]For discussion and text see Norman Bentwich, The Declaration of London; A. Pearce Higgins, The Hague Peace Conferences.

[41]Bentwich, The Declaration of London, p. 35; for text of proposed bill, see ibid. p. 171.

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 isat 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.

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]

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 anylegal 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.

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 Britishopinion. 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 trialwould 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.

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 theinstructions 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. Formerlymoney 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]

Chapter V, Part 2.

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