Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
These rules applied only to soldiers of the regular army engaged
in regular war. In irregular warfare soldiers were often given the
privilege of committing indiscriminate pillage in which case the
booty belonged to the captor.[10] This practice however was greatly
deplored by many writers.[11] Captures made by allies not under the
immediate commands of Roman generals or by subjects carrying on war
without pay at their own risk accrued to the sole benefit of the
captors.[12]
b. Maritime War.
As to captures at sea, the Jurisconsult Valneius Maecianus said, "I
am master of the earth, but the law is mistress of the sea."[13]
Grotius has nothing to say directly of maritime captures among the
Romans, though he implies that the same laws applied to them as to
land captures. A case of naval prize arose during the Punic war in
the capture of the Carthaginian woman, Saphonoba, from a vessel at
sea. The Roman general considered that all prize of war belonged to
the Roman people and was to be divided by the senate, so ordered
that she be sent to Rome. The lady settled the matter by taking
poison.[14]
The Romans were a land people. They very much disliked naval
warfare,[15] consequently they never supported much of a fleet.[16]
True, on meeting a naval power like Carthage they created a very
effective navy on short notice[17] but whenever they could they
avoided naval warfare. Piracy was extremely prevalent on the
Mediterranean during Roman times. Often Roman generals made use of
pirate vessels both for transport and to harass the enemy.[18] In
these cases of course the state put up no claim to control prizes.
Later, pirates became so powerful that Rome saw the necessity of
crushing them. Servilius actively engaged in suppressing piracy and
he felt bound to render full account to Rome of all captures.[19]
Pompey finally crushed the pirates in the battle of Coracesum B.C. 67
and completely drove them out of the Mediterranean.[20] The Romans
recognized the right of reprisal and according to Chancellor Kent
they required the carriage of a commission by vessels engaged in that
business.[21]
Roman law, then, recognized that captures were the property of the
state, that apportionment should be governed by law, that in special
cases the state could waive all right in favor of the immediate
captors.
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