Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
There are chapters dealing with "cruizers" which give the municipal
usages concerning the distribution of prize between the owners,
officers and crew of vessels.[9]
"Thus among the Italians a third part of a captured ship goes to the
captain of the victorious ship, a third part to the merchants to whom
the cargo belonged, and a third part to the sailors".[10]
It thus appears that the Consolato distinctly recognized the reign
of law in prize matters. It respected neutral rights, it required
adjudication on prizes, it gave rules for the division of prize
money, respecting the claims of merchants, captain and crew to share
in the distribution.
The rules of the Consolato appeal to one decidedly as rules intended
to govern commercial enterprises. The policy of the merchants was
of defensive rather than offensive war so no stringent belligerent
rights were affirmed. Primarily intended for commerce, it is not
surprising that such a large amount of respect was paid to neutral
rights and such a large share of the prizes given to merchants. The
minute rules, seemingly forecasting every possible contingency also
speak of a strong desire to establish order, and firm law, both
conditions essential to commerce.
The Consolato was probably effective for its purpose. We know that
the merchant guilds and the maritime towns flourished, piracy
decreased, commerce prospered. The merchant sailors would not be
likely to be lured into making prizes for private gain when their
very object was the destruction of piracy. Also habits of commerce
and obedience to law would induce them to exhibit moderation in war
matters. The maritime laws and the supremacy of the commercial towns
was a great step toward legalizing maritime warfare and especially
toward ameliorating the condition of private property on the sea.
One of the peculiarities of the Consolato from a modern standpoint
is that it does not recognize the exclusive right of states to make
war. This is explained by the fact that territorial states had not
become sufficiently centralized to organize a definite maritime
jurisdiction. However, in the early part of the sixteenth century
the movement toward the individualizing of territorial states was
rapidly nearing completion and it is interesting to note that when
the movement was sufficiently advanced nearly all the states adopted
one of the old maritime codes into their laws, of course adding to it
the principle of state authorization for all reprisals or wars and
state jurisdiction over prize cases.[11]
_NOTES._
Chapter II, Part 1.
[1] Walker, History of the Law of Nations, p. 64.
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