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of the

tion over

seems ultimately to have fallen into desuetude 30. The last case heard before it was that of Sir Henry Blunt in 173731. The modern practice in England in respect of the distribution of booty of war, is for the Crown to refer the claims of those, who petition for a share of the distribution, to the Lords of the Treasury, who under the advice of the Law Officers of the Crown, settle a scheme of distribution for the approval and sanction of the Crown itself,32 as all acquisitions of war belong of Right to the Crown, parta bello cedunt reipublicæ. A Statute, which was passed in 1840, extends the jurisdiction of the Extension High Court of Admiralty of England to all matters Admiralty and questions concerning booty of war or the dis- Jurisdictribution thereof, which it shall please the Crown, booty. by the advice of the Privy Council, to refer to the judgment of that Court; and in all matters so referred the Court is to proceed as in cases of prize of war, and the judgment of the Court therein is to be binding upon all parties concerned. The High Court of Admiralty may accordingly under this Statute, exercise a jurisdiction in cases of booty, apart from, but analogous to, its jurisdiction in questions of prize, with this difference however, that whilst it has a customary jurisdiction over all tions of prize, it can only exercise its statutory jurisdiction over such questions of booty, as the Crown, with the advice of the Privy Council, may be pleased to refer to its judgment.

30 Lindo v. Rodney, 1 Douglas, p. 593- The Army of the Deccan, 2 Knapp, p. 149.

ques

2 Knapp, p. 106. Buenos Ayres,
1 Dodson, p. 28. Elphinstone v.
Bedreechund, Knapp, p. 360.

33 The Elsebe, 5 Ch. Rob,

31 Sir H. Blunt's case, I Atkyns, p. 296. p. 181.

32 The Army of the Deccan,

34 3 and 4 Vict. c. 65. § 22.

CHAPTER V.

RIGHT OF A BELLIGERENT ON THE HIGH SEAS.

The Maritime intercourse of Nations subject to special rules in time of War-Object of war-Enemy's property on the High Seas-Institution of the Office of Admiral-Establishment of an Admiralty Jurisdiction of Nations-Order of Prize Proceedings recognised by Treaties-The Rooles or Jugemens d'Oleron —The Consolato del Mare-General Rule amongst Nations down to the middle of the Sixteenth Century to distinguish the Ship from the Cargo-Règlement of Francis I. of France in 1543-Edict of 1584 -French doctrine of Hostile Infection-Ordonnance de la Marine of 1681-Spanish Ordenanza de Corso of 1718-French Règlement of 1778-Law of the French Prize Courts down to 1854Sir William Grant-Rule of the United States of AmericaWheaton-Chancellor Kent-Bynkershoek-Freight of enemy's goods upon capture payable to neutral shipowners-Measure of freight The Grand Pensionary de Witt, founder of the doctrine of Free Ships, Free Goods-Treaty of Paris of 1646-Dutch Treaties with Spain and Portugal-British Treaties with Portugal and the States General-Treaties of Utrecht in 1713-Armed Neutrality of 1780-Four systems of Maritime Law-The Natural system of the Consolato del Mare-The French system of the Ship and Cargo mutually infecting each other-The Dutch system of the Cargo following the character of the Ship-The System of the Congress of Paris as embodied in its Declaration of 16 April 1856, that the Neutral Flag covers the Cargo-Adhesion of all the European Powers to it, with the exception of Spain-Spain and Mexico and the Confederate States of America have adopted the last three articles of the Declaration, as part of their own legislation-The United States of America have declared their intention to observe the three last articles-Accession of the South American States to the Declaration of Paris

RIGHT OF A BELLIGERENT ON THE HIGH SEAS. 139

Protocol No. 24. annexed to that Declaration-Territorial Theory of Hübner-Doctrine of Martens-Bynkershoek's and Lampredi's Objections-Manning's Refutation of Hübner's Theory-The Passport, the true criterion of a ship's national character-The Sea Letter-It is conclusive of the national character of a merchant ship-Belligerent right of visitation and search-Case of the Swedish Convoy-Vattel-Chancellor Kent-Convention of the Baltic Powers in 1801-Wheaton-Right of Approach-Regulation of the right of visitation and search-Rule of an Affirming Gun -Lampredi's view-Mr. Justice Story's opinion-General Halleck-Sir Robert Phillimore-Heffter-Treaty of the PyreneesPractice of Nations as to ship's papers-Builder's Contract or Bill of Sale-Certificate of Registry, if required by Municipal LawNecessary cargo-papers-Ship's manifest and bills of ladingCharter-party-Absence of ship's papers or of cargo papers justifies the detention of a vessel for enquiry-Right of DetentionNeutral merchant vessel may not sail under convoy-Chancellor Kent-Wheaton-A neutral merchant may not embark his goods in an armed ship of the enemy, according to the judgment of the British Prize Courts-The Prize Courts of the United States in conflict with British Prize Courts on this subject.

intercourse

§ 72. THE open Sea is not capable of being Maritime reduced into the possession of any Nation, and of nations. accordingly can never become part of the territory of a Nation. There is therefore no juridical objection ratione loci to a Nation freely prosecuting its Right by force against another Nation upon the open Sea. On the other hand, all Nations are entitled to the free use of the open Sea for the purposes of innocent Navigation; and no Nation can claim with reason to prosecute its Right by force against another Nation upon the open Sea in such a manner, as to interfere with the innocent Navigation of it by other Nations, which are not parties to the contention. It is obvious, however, when two Nations are contending by force in the prosecution of Right, that their relations, as belligerents, will differ essentially from the relations of

Object of

war.

Nations which are at peace with one another; and
in order that the Navigation of the open Sea by
other Nations at such a time should have an in-
nocent character, it must be so conducted as not to
work any prejudice to the contention of either belli-
gerent, as such. The conditions, therefore, under
which Nations may innocently navigate the open
Sea in time of war, will differ very materially from
the conditions under which they may so navigate
it in time of peace; and although there may
be no
conflict of principle between those conditions, the
reason of the thing suggests that the maritime inter-
course of Nations in time of war will be governed
by very different rules from those which prevail in
time of
peace.

§ 73. The primary object of War being the reparation of damages, War for the most part implies Reprisals against the property of an enemy. But War differs so far from Reprisals, that whereas the latter are grantable against the ships and goods of an enemy ad damni dati modum et damnorum consequendorum causa, and all Reprisals, as distinguished from War, cease, when full satisfaction has been obtained; War, on the other hand, may contemplate, in addition to redress, the punishment of injustice or violence, and the taking of security against future injury, by depriving an enemy of some part of his property or possessions. Again War may be undertaken to prevent injustice or violence; in which case there will be no place for Reprisals as such, but the belligerent will be entitled of Natural Right to deprive his enemy of everything which tends to augment his strength and to enable him to do injustice or violence. Every belligerent endeavours to accomplish this object in the manner most suitable to himself; and whenever an oppor

on the

tunity presents itself, he takes possession of the property of his enemy and confiscates it to his own. use, thereby diminishing his enemy's power to carry on the war, whilst he secures at the same time to himself an equivalent for the expenses and losses incurred in the prosecution of it. The movable property equally with the houses and lands of an Enemy-Nation is accordingly liable to be taken by a belligerent and confiscated to his own use, not merely when such movable property is found within the territory of an enemy, but when it is found on Enemy's the High Seas, there being no juridical impediment property ratione loci to a belligerent seizing the property of high seas. his enemy in a place which is nullius territorium. If a belligerent cruiser accordingly meets a merchant vessel on the open Sea, and the vessel or its cargo belongs to an enemy, it is consistent with the primary object of all war, that the belligerent should do justice to himself by taking possession of his enemy's property and converting it to his own use. Property so taken by a belligerent from an enemy on the high sea is termed prize (prise) of war, whilst property taken from an enemy on land is termed booty (butin) of war. No juridical difficulty can arise when the property of an enemy found on the high sea is not mixed up with the property of a neutral; but it may happen in the case of a ship and its cargo, that the ship itself is the property of several owners, one or more of whom are the subjects of a Neutral Power; or the vessel may be the property of a neutral merchant and the cargo the property of an enemy; or the vessel may be enemy's property, and the cargo neutral property; or the cargo may be

1 Vattel, L. III. c. 161.

2 The French word Butin is supposed to be a diminutive of

the Low German word Bute.
Cf. Dictionaire de Trevoux.

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