The Laws Of War, Affecting Commerce And Shipping Part 6

The t.i.tle to Property taken in War may, upon general t.i.tle to principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property, the t.i.tle is considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours.[98]

Ships and goods captured _at sea_, are excepted from the operation of this rule. The right to all captures rests primarily in the Sovran, and no individual can have any interest in a prize, whether made by a crown or private armed vessel, but what he receives under the grant of the state.

When a prize is taken at sea, it must be brought with due care into some port, for adjudication by a competent court. The condemnation must be p.r.o.nounced by a prize court of the Government of the captor, sitting either in the country of the captor, or of his ally. The prize court of an ally cannot condemn.[99]

[Sidenote: Proceedings Preliminary to Condemnation.]

The Proceedings Preliminary to Condemnation may be roughly described as follows:--

The _captor_, immediately on bringing his prize into port, sends up and delivers upon oath to the registry of the Court of Admiralty, all papers found on board the prize. The preparatory examinations of the captain and some of the crew of the _captured ship_ are then taken, upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought. These also are forwarded to the registry of the Court of Admiralty. A written _notice_, called a _monition_, is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested, to appear and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service; and if any claim has been given, the cause is then ready for hearing, upon evidence arising out of the ship's papers and preparatory examinations.

The _neutral master or proprietor of the cargo_ takes measures as follows:--Upon being brought into port, the master usually makes a protest, which he forwards to London as instructions, (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship or such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself goes to London to take the necessary steps, as soon as he has undergone his examination.

The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by the affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong; and that no enemy has any right or interest therein; security must be given to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the mean time to take the usual steps, (but which seldom happens, as he is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication,) a process issues against him, on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual way.

As soon as the claim is given, copies of the ship's papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It however seldom happens, owing to the great pressure of business, (especially at the commencement of war), that causes can possibly be prepared for hearing immediately on the expiration of the time for the return of the monition; in that case, each cause must necessarily take its regular turn. Correspondent measures must be taken, by the neutral master, if carried within the jurisdiction of a Vice-Admiralty Court, by giving a claim, supported by his affidavit, and offering a security for costs, if the claim should be p.r.o.nounced grossly fraudulent.

If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the Court, where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence); and he afterwards applies at the registry of the Lords of Appeal in prize causes, which is held at the same place as the registry of the High Court of Admiralty, for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the High Court of Admiralty; and within nine months, if in a Vice-Admiralty Court; but may be taken out at later periods if a reasonable cause can be alleged for the delay which has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause; it directs the registrar to transmit a copy of all proceedings of the inferior courts; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for the inhibition, security is given on the part of the appellant to the amount of two hundred pounds, to answer costs, in case it should appear to the Court of Appeal that the appeal is vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party, and his proctor, by shewing the instrument under seal, and delivering a note of its contents. If the party cannot be found, and his proctor will not accept the service, the instrument is to be served, _viis et modis_; that is, by affixing it to the door of the last place of residence, or by hanging it on the pillars of the Royal Exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed on the back of the instrument, sworn before the surrogate of the superior court, or before a notary public, if the service is abroad.

If the cause be adjudged in the Vice-Admiralty Court, it is usual, on entering the appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in, England, who carries it to a proctor, and the same steps are taken to procure and send the inhibition as when the cause has been adjudged in the High Court of Admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition can be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.

Upon an appeal, fresh evidence may be introduced, if, upon hearing, the Lords of Appeal should be of an opinion that the cause is of such doubt, or that further proof ought to have been ordered by the court below.

Further proof usually consists of affidavits made by the a.s.serted proprietors of the goods, in which they are sometimes joined with their clerks, and others acquainted with the real transactions, and with the real property of the goods claimed. In corroboration of these affidavits, may be annexed the original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by affidavits of persons who can speak of their authenticity; and if copies or extracts, they should be collected and certified by public notaries. The affidavits are sworn before magistrates, or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British Consul.

The degree of proof required depends upon the degree of suspicion or doubt that belongs to the case. In case of heavy suspicion and great importance, the court may order what is called "plea and proof," that is, instead of admitting affidavits and doc.u.ments introduced by the claimant only, each party is at liberty to allege, in regular pleadings, such circ.u.mstance as may tend to acquit or condemn the capture, and to examine witnesses in support of the allegation, to whom the opposite party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are seldom resorted to. Standing Commissions may be sent to any neutral country for the general purpose of receiving examinations of witnesses, in all cases where the court may find it necessary, for the purposes of justice, to decree an enquiry to be conducted in that manner.[100]

[Sidenote: Prize Jurisdiction.]

The Jurisdiction over Prizes is exercised by the Judge of the Admiralty, exclusively of every other judicature of the kind, except in cases of appeal.

This Jurisdiction in matter of Prize, (whether it is coeval with the Court of Admiralty, or, which is much more probable, of a later inst.i.tution, beyond the time of memory,) though exercised by the same person, is quite distinct in its nature.

The Judge of the Admiralty is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of his jurisdiction, but not a word of prize.

To const.i.tute that authority, in every war, a commission under the great seal issues to the Lord High Admiral to will and require the Court of Admiralty, and the Lieutenant and Judge of the said court, his surrogate or surrogates, and they are thereby authorised and required to proceed upon all and all manner of captures, seizures, prizes, and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the Courts of Admiralty and the Law of Nations.

A warrant issues to the judge accordingly.

The Court of Admiralty is called the Instance Court; the other the Prize Court. The manner of proceeding is totally different. The whole system of litigation and jurisprudence in the Prize Court is peculiar to itself.

[Sidenote: Common Law Courts not always excluded]

A thing being done on the high seas does not exclude the jurisdiction of the Courts of Common Law. For seizure, stopping, or taking a ship upon the high seas, but _not as prize_, an action will lie; but for taking as _prize_, no action will lie. The nature of the question, not the locality, excludes.

The end of a Prize Court is to suspend the property till condemnation, to punish every sort of misbehaviour in the captors; to restore instantly (full sail) if upon the most summary examination there does not appear a sufficient ground; to condemn finally, if the goods really are prize, against everybody; giving every body a fair opportunity of being heard. A captor may, and must force everybody interested to defend; and every person interested may force him to proceed to condemn without delay.[101]

[Sidenote: Prize Courts.]

Before the sixth of the reign of Queen Anne there were no laws made on this subject. Previous to that time all prizes taken in war were of right vested in the Crown, and questions concerning the property of such prizes were not the subject of discussion in courts of law. But in order to do justice to claimants, from the first year after the Restoration of Charles the Second, special commissions were issued to enable the Courts of Admiralty to condemn such captures as appeared to be lawful prizes; to give relief where there was no colour for taking; and generally to make satisfaction to parties injured. By the Act of the 13 Car. II. c. 9, (now repealed) indeed, some regulations were made concerning the treatment of ships taken, but no provisions enacted respecting any security to be given on delivery; the sole interest in the thing condemned being in the Crown; it was in public custody, and the disposition of it a mere matter of prerogative; no such provisions therefore were necessary.

But in the sixth year of Queen Anne, it was thought proper, for the encouragement of seamen, to vest in them the prizes they should take; and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were pa.s.sed.

The first of these acts only relates to proceedings in the Courts of Admiralty in England, but contains no particular directions to them; the practice of those courts being already settled.[102]

There is a long series of statutes, which follows the above, on the subject of the Prize Courts. The following may be taken as a general description of their operation.

The judge should proceed, according to their form, to sentence with all possible expedition. If on the preparatory examination there arises a doubt in the breast of the judge, whether the capture is prize or not, and further proof appears to be necessary, the ship and cargo is appraised by persons named on the part of the captor, and is delivered up to the claimants, on their giving good and sufficient security to pay to the captor the full value, according to the apprais.e.m.e.nt, if the ship is adjudged lawful prize by the judge; by this the claimant is ent.i.tled to the immediate possession of the subject in dispute, which the captor cannot obtain but on the refusal of the claimant to give security for the appraised value. After a sentence of condemnation, the captor has a right to the possession; the execution of the sentence is not suspended by an appeal, but the party appellant gives good and sufficient security to restore the cargo, or its full value, in case the sentence is reversed.[103]

[Sidenote: Where Prize Courts can be held.]

Having explained shortly the operation of the Prize Courts, it must be observed, that the Prize Court of an Ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason is, that the Sovran has a right and is bound to inspect the conduct of the captors, for he is answerable to other states for the acts of the captor. The Prize Court of the captor may sit in the country of a co-belligerent or an ally, because there is a common interest between such on the subject, and both governments may be presumed to authorize any measures conducing to give effect to their arms, and to consider each others ports as mutually subservient.[104]

It is not lawful for such a court to act in a neutral territory; and it was at one time even doubted, where property had been carried into, and was lying in a neutral port, whether the validity of the capture could be determined even by a Court of Prize established in the captor's country; because it was thought that the possession in reach of the court was essential to the exercise of a jurisdiction in a proceeding _in rem_. The principle was admitted by Sir Wm. Scott to be correct, in the case of the Henrick and the Maria;[105] but he considered that the English Admiralty had gone too far in supporting condemnations in England, of prizes abroad in neutral ports, to permit him to recall the vicious practice of the Court to acknowledged principle.

[Sidenote: Judgments of Prize Courts conclusive.]

The jurisdiction of the Court of the capturing nation is conclusive upon the question of property in the captured thing. Its sentence settles all further dispute between claimants; and if that sentence is manifestly unjust, or against the Law of Nations, the state is alone responsible, and not the captors. An unjust sentence is a good ground for issuing commissions of Reprisals. Numerous treaties between the different powers of Europe, regulating the subject of Reprisals, declare that they shall not be granted, unless in case of the _denial of justice_. "An unjust sentence," says Wheaton, "must certainly be considered as a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice."[106]

Thus the sentence of a Prize Court, it is plain, is sufficient to confirm the captor's t.i.tle to captures at sea; but a different rule applies to real property or immoveables.

Immoveable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire subjugation and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect.

Thus, a third party cannot safely purchase conquered land till the Sovran from whom it has been taken has renounced it by a treaty of peace, or has irretrievably lost his sovereignty.[107] Until such confirmation, it continues liable to be divested by the _jus postliminii_. The purchaser of any portion takes it, at the peril of being evicted by the original Sovran owner, when he is restored to his dominions.[108]

I now pa.s.s on to the more commercial question of Pa.s.sports, Safe-Conducts, and Licences to Trade.

SECTION III.

_Licences_.

[Sidenote: Pa.s.sports and Safe Conducts]

Pa.s.sports, and Safe-conducts, are a kind of privilege, insuring safety to persons in pa.s.sing and repa.s.sing, or to certain things during their conveyance from one place to another. All Safe-conducts, like every other act of Supreme Command, emanate from the Sovran authority, but are constantly delegated to inferior officers, either by an express commission, or by a natural consequence of the nature of their functions. The person named in the Pa.s.sport cannot transfer his privilege to another. They generally promise security wherever the grantor has authority and command, and are interpreted by the same rules of liberality and good faith, with other acts of the Sovran power.[109]

[Sidenote: Licences to Trade with the Enemy]

A Licence granted by a state to its own subjects, or to those or the enemy, is a dispensation on its own side of the Laws of War, as far as its terms can be fairly construed. The adverse party may justly consider such licence as a ground of capture and confiscation _per se_; but the Prize Courts of the state, under whose authority they are issued, are bound to consider them as lawful relaxations of the ordinary state of war. In the country which grants them, licences to carry on a pacific commerce are rigidly interpreted, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every small deviation be held to vitiate the fair effect of them.[111]

During the later period of the last century, and the earlier portion of this, licences were considered as privileges granted to individuals for their own benefit, and in which the nation at large was but little, or remotely, interested. They were therefore held liable to the same strict construction with other similar grants. Yet this rule was never held in a narrow captious manner; and if the apparent intention of Government was complied with, and there was no suspicion of fraud, a sufficient liberality was allowed in the construction.

When the extraordinary mode of warfare established by the Emperor Napoleon, (by an attempt at a general embargo) was carried on, new expedients were required to counteract its evils, and licences to a great extent were granted to relieve the stagnant trade of the country; and this measure, so highly beneficial, and even necessary, was facilitated by the adoption of a still more liberal mode of construction, and which, no doubt, will again guide these cases.[112]

[Sidenote: Duties of Merchants using Licences]

In trading under a Licence, the merchant ought to follow the terms or it as strictly as possible; but if he is acting _bona fides_, some breaches of it will be permitted. Being high acts of Sovranty, they are necessarily the creatures of that act of power, and must not be carried further than the intention of the great authority that grants them may be supposed to extend; not that they are to be construed with pedantic accuracy, nor that any small deviation should be held to vitiate the fair effect of them. An excess in the _quant.i.ty_ of goods permitted might not he considered noxious to any extent. A variation in the quality or substance of the goods might be more significant, because a liberty a.s.sumed of trading in one species of goods, under a license to trade in another, might lead to very dangerous abuses. The license must be looked to for the enumeration of goods that are to be protected by it.[113]