Part 5 (1/2)

Unless in special cases, private property on land is not touched, without making compensation; though contributions are sometimes levied in lieu of a necessary confiscation, or for the expenses of maintaining and affording protection. In other respects private rights are unaffected by war.

[Sidenote: Government Property.]

The property, however, belonging to the Government of the vanquished nation, pa.s.ses to the victorious state, which also takes the place of the former Sovereign, in respect to the eminent domain.[82]

[Sidenote: Limitations of the Right of making War.]

The right of making War, as we have shown in the first chapter of this book, solely belongs to the Sovran power. Subjects cannot, therefore, of themselves, take any step in the affair; nor are they allowed to commit any act of hostility without orders from their Sovran.

The Sovran's order which commands acts of hostility, is either general or particular. The declaration of war, which enjoins the subjects to attack the enemy's subjects, implies a general order. Generals, officers, soldiers, privateersmen, and partisans, being all.

commissioned by the Sovran, make war by virtue of a particular order.

In declarations of war, the ancient form is still retained,[83] by which subjects in general are ordered, not only to break off all intercourse with, but also to _attack_ the foe. Custom interprets this general order. It authorises, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subject to undertake any offensive expedition without a commission or particular order.[84]

SECTION II.

_Prizes and Privateers_.

[Sidenote: Privateer Commissions.]

During the lawless confusion of the feudal ages, the right of making Reprisals was claimed and exercised, with out a Public Commission. It was not until the fifteenth century that Commissions were held necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without licence. There were ordinances in Germany, France, Spain, and England, to that effect.[85]

[Sidenote: Non-Commissioned Captors.]

Hostilities, without a Commission, are contrary to usage, and exceedingly irregular and dangerous, but they are not considered as acts of Piracy during the time of war. Noncommissioned vessels of a belligerent nation may at all times capture hostile s.h.i.+ps, without being deemed, by the Law of Nations, Pirates. But they have no interest in the prizes they take, and the property so seized is condemned to the Government as _Droits of the Admiralty_. The reward of this cla.s.s of captors is left to the liberality of the Admiralty, and is often referred to the Admiralty Court.

[Sidenote: Right of Capture.]

The fruits of any forcible detention or occupancy, prior to hostilities, are vested in the crown; similarly, _British_ property taken in course of trade forbidden by the laws of his country, is condemned to the Crown, and not to the individual captor.[86]

To prevent the custom house or excise vessels, that may be commissioned with letters of marque, turning their attention from the smugglers to the more attractive adventure of privateering, all interest in their prizes is reserved to the crown,[87]

[Sidenote: Grants to the Admiralty.]

Though all rights of prize belong originally to the Crown, yet it has been thought expedient to grant a portion of those rights to maintain the dignity of the Lord High Admiral. This grant, (whatever it conveys,) carries with it a total and perpetual alienation of the rights of the crown, and nothing short of an Act of Parliament can restore them; whereas the grant to private captors is nothing more than the mere temporary transfer of a beneficial interest. The rights of the Admiral, as distinguished from those of the Crown, are these; that when vessels come in, not under any motive arising out of the occasions of war, but from distress of weather, or want of provisions, or from ignorance of war, and are seized in port, they belong to the Lord High Admiral; but where the hand of violence has been exercised upon them, where the impression arises from acts connected with war, from revolt of their own crews, or from being forced or driven in by the Queen's s.h.i.+ps, they belong to the Crown.

This includes s.h.i.+ps and goods already come into the ports, creeks, or roadsteads, of all the Queen's dominions.[88]

[Sidenote: Acquisition of Captures.]

Persons fitting out Private Vessels under a Commission to cruise against the enemy, acquire the property of whatever Captures they may make, as a compensation for their disburs.e.m.e.nts, and for the risks they run; but they acquire it by grant from the Sovran who issues out the commission to them. The Sovran allows them either the whole, or a part of the capture; this entirely depends on the nature of the contract he has made with them.[89]

This grant of prize is, in terms, a grant of the property of the Queen's enemies, but it is not restricted to the property of the nations with whom we are at war. It is held in construction and practice to embrace all property liable to be condemned as prize, and which is not particularly reserved to the Crown, or the Admiralty.[90]

It depends, also, on the munic.i.p.al regulations of each particular power: and as a necessary precaution against abuse, the owners of Privateers are required by the ordinances of commercial states to give adequate security that they will conduct the cruize according to the laws and usages of war, and the instructions of the Government; and that they will respect the rights of neutrals, and bring their prizes in for adjudication.

[Sidenote: Commissions of Privateers.]