Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
Thomas More conceived of a liberal policy of disposing of prize,
in his Utopia. In speaking of the capture of cities he says, "If
they knowe that annye cytezeins counselled to yealde and rendre vp
the citie, to them they gyue parts of the condemned mens goods. They
resydewe they distribute and giue frelye amonge them, whose helpe
they had in the same warre. For none of themselfes taketh any portion
of the praye."[10]
Bodin clearly enunciated the sovereigns exclusive right over sea
captures. "Mais les droits de la mer n'appartienment qu'au Prince
Souverain."[11]
Gentilis the forerunner of Grotius expressed the limitations on the
power of the state. There was danger that in the rise of states to
independence the Machiavellian policy would be adopted, that states
would consider themselves bound by no law. Gentilis showed the
limitations that natural law impose upon states even in war. In his
view, property can not be wantonly destroyed, neutral property can
never be captured and neutral territory is always inviolable.[12]
In his epoch making work which appeared in 1625, Grotius correlates
the principles of those preceding him and in authoritative style
sets forth the new international law.[13] His chapters on prize
distribution may be briefly summarized as follows: The right of
reprisal is recognized but it is only allowable under authority
of the state. In the case of reprisals the property in goods
taken immediately accrues to the captor to the extent of the debt
or damages due and expenses, but any balance over this ought to
be restored. The prize should be adjudged in a court of the
state before distribution.[14] Goods captured at sea require firm
possession to give a title. In Roman law this is established when
the vessel is brought to port (intra praesidia), but modern practice
establishes the twenty four hour rule. Recaptures, before possession
is established, revert to the original owner by postliminium.[15]
Neutral property is never subject to capture not even in enemy ships.
Enemy property is good prize. If taken otherwise than in regular
public service, i.e. in private reprisals, or under special grant of
pillage, it becomes the property of the immediate captor though the
municipal law of the captors state may alter this condition. Goods
taken in public service accrue to the state which may distribute
the proceeds at will.[16] Instances are given of the distribution
laws in contemporary states. "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."[17] "With the Spaniards, if ships are sent out at
private expense, part of the prize goes to the king, part to the
high admiral,[18] and ships of war go altogether to the king."[19]
By the custom of France, the Admiral has a tenth,[20] and so with
the Hollanders but here a fifth part of the booty is taken by the
state.[21]
Public-domain text, read in full here on John Shaqi.
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