Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
Zouche of Oxford University, England, in 1650 made a valuable
contribution to international law literature in his "Juris et
Judicii Fecialis sive Juris Inter gentes Explicatia", a book famed
as being the first to describe the science as jus inter gentes,
international law, rather than the former misleading name, jus
gentium, law of nations. He maintains that war can only be declared
by the supreme authority of the state. However if acts of aggression
are committed by individuals during war without authorization,
international law has no jurisdiction over the matter, though
municipal law may decree punishment.[22] As coming from England this
theory is interesting as it seems to forecast the later doctrine
of that country that unauthorized captures at sea are permissible
so far as the enemy is concerned though municipal law decrees the
whole product of such captures to the crown.[23] Zouche admits the
right of reprisal. By reprisal is understood the right assumed by a
subject to collect a foreign debt or to collect damages for injuries
received in a foreign country through the seizure of goods on the
high seas belonging to any subject of that state. Though the practice
seems hard to reconcile with justice, Zouche in common with most of
the international law writers holds that all the members of a state
are liable for the debts of one member so by strict international
law, reprisal is allowable but only under commission from the
sovereign.[24]
Puffendorf writing in 1672 practically quotes the views of Grotius
in prize matters.[25] He maintains that individuals can not make
war, which is only a state affair, "Il est certain, que c'est au
souverain seul qu'appartient le droit de faire la guerre."[26] In
regard to captures he holds that the title to booty vests originally
in the sovereign but it is equitable for the sovereign to divide
the proceeds among those who have borne the heaviest burdens of war.
Recaptures revert to the original owner. The right of reprisals
is admitted but exception is taken to the view of Grotius that in
case of reprisals and all captures made by private undertaking the
proceeds belong immediately to the captor. Puffendorf asserts "Tout
le droit que les particuliers ant ici depend toujours originairement
de la volonte du souverain,"[27] thus emphasizing more strongly the
absolute title of the state to all captures. A careful reading of
Grotius seems to reveal that his idea was the same. He says that by
the practice of nations captures not made in regular war usually
accrue to the captor but this rule may be changed by municipal law
and "so a rule may be introduced by law that all things which are
taken from the enemy shall be public property,"[28] thus virtually
asserting Puffendorf's statement that the original title always vests
in the sovereign.
In brief the laws of prize distribution enunciated by the great
founders of international law of the sixteenth and seventeenth
centuries appear to be as follows:
Public-domain text, read in full here on John Shaqi.
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