Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
any legal 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.
d. Adjudication of Prizes.
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 British opinion. 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 trial would be manifestly unjust, absurd and
impracticable."
Public-domain text, read in full here on John Shaqi.
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