12

couraging merchant vessels from resisting the attacks of enemy-cruisers; and accordingly a Statute was soon afterwards passed, under which a merchant ship which had been attacked by and had captured an enemy's cruiser, was declared to be entitled to the same share as a private man-of-war. On the other

hand, if a capture should have been made by a private vessel having a Commission to make Reprisals, one tenth 13 of the prize went to the Lord High Admiral, or to the Sovereign jure admiralitatis, and the rest was for the benefit of the privateer. Sir Leoline Jenkins, in commenting upon a claim of the Lord High Admiral to the tenth of all prizes, observes, "There is no mention in the Lord Admiral's Patent of these tenths, nor is there any constant uninterrupted custom alleged for them, except in the case of private men of war, from whom the Lord Admiral doth receive his tenths. That the Earl of Warwick had them given him by the late usurpers from the public ships likewise, is yet fresh in memory; and that after they had extinguished the name and office of Admiral (as much as in them lay), they sequestered the tenths, as a distinct thing in the provenue of their prizes, and applied them to different uses from the rest1." The custom accordingly of the Lord Admiral's tenth would thus appear to have been confined in England to prizes taken by private ships, and was most probably a tradition of a period earlier than the Black Book of the Admiralty 15. In France,

12 16 Car. II. c. 6. ; also 21 and 22 Car. II. c. 11.

13 The Dixième of the Admiral is recognised in the Ordonnance of Charles VI of France, 7 Dec. 1400. Lebeau, Nouveau Code des Prises, Tom. I. p. 4.

14 Letter of Sir L. Jenkins to

PART II.

the King in Council. (Wynn's Life of Jenkins, Vol. II. p. 766.

15 There is no trace of any proportionate share for the Admiral to be found amongst the provisions of the Black Book, which certainly is more ancient than King Edward the Third's time:

Ꮓ

on the other hand, the Admiral for his support, and in consideration of the dignity of his place, and the importance of his services, had in the year 1400 A. D. "son droit de dixième ;" which in 158216 was confirmed to him as an established right, not only over all prizes whatever, but over all prisoners. The Statute 4 and 5 William and Mary, c. 25, § 18, gave to privateers the sole interest in all vessels captured by them, without a deduction of the tenth for the Lord High Admiral or the Commissioners for executing his Office. The same Statute gave to privateers four fifths of the cargo, and to King's ships one third of the proceeds of each capture. It was however felt in the next ensuing reign that prize matters ought to be placed on a more liberal footing, as comparisons were drawn, by which the situation of naval officers in the service of France was made out to be more advantageous than the situation of officers in the service of England; so that on the breaking out of hostilities with France, a Royal proclamation was issued by Queen Anne on 1 June 1702, giving to her Majesty's ships half, and to privateers the whole interest in the prize; but no general Parliamentary regulation during that war appears to have been passed on the subject prior to the Statute 6 Anne, c. 13, in 1708. By this Statute the sole interest in the prize was granted both to King's ships and to privateers after condemnation in a Court of Admiralty. A similar policy appears to have been adopted

but in the chapters "sur les Armemens en Course," which are probably of a date earlier than 1330, and are annexed to most of the editions of the Consolato del Mare, we find a provision that the Admiral was to have from twenty to forty parts,

according to agreement with the parties, who might have fitted out the vessels. (Pardessus, Lois Maritimes, Tom. V. p. 417.)

16 Letters Patent of Henri III. (16 August 1582.) Lebeau, Tom. I. p. 18.

by other States about the same time. The Swedish Ordinance of 1715 granted in like manner the whole benefit of prize after condemnation to the actual captor. The Statute of Anne further provided that the proceeds of each prize should be distributed amongst the captors according to their respective shares, in manner, form, and proportion, as by her Majesty's most gracious proclamation to be issued for that purpose shall be directed and appointed, any law, statute, provision, or declaration to the contrary thereof in any wise notwithstanding. Wherever therefore the capture is made by the King's ships or forces, the interest in the prize is vested in the Sovereign jure coronæ until final adjudication. In such cases the property is adjudged by the Court of Admiralty as lawful prize to the Crown, whereupon the Prize Act comes into operation, and transfers the interest of the Crown, after adjudication, to the captors.

control of

captures.

§ 171. As the Prize Acts only vest in the captors Absolute the interest of the Crown, after the captures have the Crown been adjudicated to be good Prize of War, it is com- over all petent for the Crown at any time before adjudication to renounce its interest in any capture, and to direct it to be given up altogether to the claimants, even after prize proceedings have been instituted by the captors. Prize," says Lord Stowell, " is a creature of the Crown. No man has or can have any interest but what he takes as the mere gift of the Crown. Beyond the extent of that gift he has nothing. This is the principle of law on the subject, and founded on the wisest reasons. The Right of making war and peace is exclusively in the Crown. The acquisitions of war belong to the Crown, and the disposal

17 Collectanea Maritima, p. 175.

Recaptures subject to

liminii.

of those acquisitions may be of the utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our Constitution; it is universally received as a necessary principle of public jurisprudence by all writers on the subject. Parta bello cedunt reipublicæ 18" Lord Stowell accordingly held, that as the Prize Act and the Royal Proclamation did not give the property to the actual captors until after final adjudication, the Crown could at any time before adjudication declare, that property which had been seized under the general Order of Reprisals, should not be further proceeded against as enemy's property, and could direct it to be released. The practice on such occasions prior to the Prize Act of 1708 appears to have been for the Crown to issue an Order in Council directing the release of the property seized 19; but subsequently to 1708 it would seem that the Lords of the Admiralty have been accustomed to issue to the captors personally an Order for the release of the property captured by

them.

§ 172. Every capture of a vessel is complete as the jus post- between the belligerents when the surrender has taken place, and the spes recuperandi is gone; but as between the original owner of the vessel and a third party in respect of the jus postliminiï, if the vessel should be recaptured, or as between the captor of the vessel and a third party in respect of the right of the former to dispose of the vessel in favour of the latter, by sale or otherwise, positive rules have been introduced, partly from equity, to extend the jus postliminii in favour of the original owner; partly from policy, to prevent any irregular conversion of

18 The Elsebe, 5 Ch. Rob. p. 184.

19 Various instances of such

orders are cited in a note to the Elsebe, 5 Ch. Rob. p. 189.

property, before it has been ascertained to have been lawfully acquired jure belli. It was a provision of the Consolato del Mare 20, that if a ship and cargo which had been captured by the enemy, should have been recaptured by a friendly ship, the recaptor ought to restore the ship and cargo to those who were on board of her, if there should be any persons found on board still alive; but in such a case the recaptor ought to receive a sufficient recompense for his trouble, and for any damage which he might have incurred. But this applies only to those cases in which the recaptor has retaken his prize within the jurisdiction and in the waters of the country, to which the ship belongs, or else in a roadstead where the captors have not yet moored their prize, that is, have not placed her in safety; otherwise if the prize had been already carried into a place of safety by the captors, it is not a case for receiving a recompense; but on the contrary it is consistent with justice that the vessel and her cargo ought to belong to the recaptors. Such is the language of the Consolato del Mare on the subject of the recapture of vessels and their cargoes; and such seems to have been the ancient law of Maritime Capture amongst the Nations of Europe, in accordance with the principle of the Roman law, as applicable to persons captured by the enemy, antequam in præsidia perducatur hostium, manet civis 21 By the consent of Nations," says Grotius," things are said to be taken in war, when they are so detained, that the first owner has lost all probable hope of recovering them, and cannot pursue them, as Pomponius determines a like question. This takes place when they are brought within the boun

66

20 Chapitre 295 (290) Du navire pris et repris. (Pardessus, Lois Maritimes, Tom. II. p. 339.

21 Digest. L. XLIX. Tit. XV. c. 5. § 1.