Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
"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 is at 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.
b. Reprisal.
2. The right of private reprisal can only be exercised under specific
commission from the state.
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