Arch of Property water borne in an enemy's ports. such acts of devastation as abnormal, and as involving a departure from the ordinary practice of civilised warfare. It is to be regretted that Great Britain retaliated in kind on this occasion, for the lex talionis is not the rule of modern warfare; and if one of the belligerent parties should have placed itself in the wrong by having recourse to exceptional measures, the balance cannot be redressed in the right manner by the adversary having recourse to identical measures, and so placing himself in pari delicto. When Prince Blucher proposed to blow up the Bridge of Jena, and to overthrow the Column of Austerlitz upon the Allied Powers entering Paris, he sought to retaliate upon the French Nation the acts of wanton destruction and desolation which they had inflicted upon the Prussian Nation; but the Allied Powers wisely and prudently withstood Prince Blucher's desire. An example of a wiser practice was shown by the Emperor Francis of Austria in regard to the Arch of the Simplon, which Napoleon had erected in Milan to commemorate his victories over the Austrians. The history of those victories was given in a series of bas reliefs, the last of which represented Napoleon dictating peace to the Emperor Francis in Vienna. The Emperor Francis directed the historical series of bas reliefs to be completed, and opposite to the bas relief representing the Emperor Napoleon dictating peace to the Austrians at Vienna, the Arch at present exhibits a bas relief representing Napoleon's subsequent abdication at Fontainbleau. $70. There is a class of movable property belonging to an Enemy, which whether it be of a public or private nature, is invariably treated as booty of war, if it is found within the territory of the Enemy. Whatever moderation may be exercised towards private property on land by a victorious belligerent, the extreme right of seizure and confiscation is exercised by him against the shipping which may be found within an enemy's ports. M. de Hautefeuille observes, in explanation of the exercise of the extreme Right of a belligerent in this particular, that mariners are the hardiest and most courageous portion of the population of a country, and that ships are calculated to become instruments of warfare, or at least to serve the purposes of war. The capture and destruction of such property has accordingly a direct tendency to impair the military power of the enemy and to reduce him to the necessity of making peace. It would be therefore a questionable act of humanity to proscribe the destruction of it. The same reason however does not tell so forcibly in support of the capture and confiscation of the cargoes which are afloat in ports, and are the property of private citizens. The explanation of the difference in the practice of belligerents in confiscating private property which is afloat, whilst the private property of Enemy-Subjects on land is spared, may be sought in the fact, that such property is at the time of capture actually employed in promoting the Enemy's commerce and navigation, which are justly regarded as the sources and sinews of his naval power, and that the destruction of the latter can only be brought about effectually by the capture and confiscation of such private property, seeing that the State rarely, if ever, embarks in enterprises of commerce 2. It is upon similar considerations that a cargo belonging to enemies and found afloat in the port of a belligerent Nation at the breaking out of war is confiscable jure belli, whilst an enemy's property on land is not, according to the modern practice, liable to confiscation. 28 Wheaton, Elements, part IV. c. 2. § 7. between prize. § 71. With regard to enemy's property captured Distinction on land, and which is properly termed booty of war, booty and a different Forum exercises jurisdiction over it from that which decides upon all questions of captures at sea, which are properly termed prize of war. The latter has devolved to the Courts of Admiralty, by virtue of the jurisdiction exercised in olden times by the Lord Admiral of the Fleet, whilst the former appertains to that branch of the military jurisdiction exercised by the Commander-in-Chief of an Army in the field. Courts of Admiralty accordingly take no cognisance of questions of booty. In very early times in England, causes respecting booty were determined in the Court of Chivalry, before the Constable and the Marshal of the King. Lord Hale 29 observes that in matters civil, for which there is no remedy by the Common Law, the military jurisdiction continues as well after the war as during the time of it; for that part of the jurisdiction of the Constable and the Marshal stands still, notwithstanding the war determines, as concerning right of prisoners and booty, military contracts, &c. We find Court of accordingly that the Court of Chivalry took cognisance of goods taken beyond the seas, of prisoners, of hostages, of ransom, &c.; and the statute of 13 Richard II. c. 2, in limiting its jurisdiction to contracts and things touching war which cannot be determined by the Common Law, directed its proceedings to be governed by the laws and customs of war. After the office of Lord High Constable of England ceased in the thirteenth year of Henry VIII. the jurisdiction of the Court of Chivalry came to be disputed on the grounds that the Earl Marshal alone was not competent to hold the Court, and it Chivalry. 29 De Prærogativa Regis, c. 12. §3. Crompton on the Jurisdic tion of Courts. Rymer, Fad.VIII. p. 211 and 423. 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 questions 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. 2 Knapp, p 106. Buenos Ayres, Dodson, p. 28. Elphinstone v. Bedreechund, Knapp, p. 360. 33 The Elsebe, 5 Ch. Rob. 4 Vict. c. 65. § 22. 31 Sir H. Blunt's case, I Atkyns, p. 296. p. 181. 34 3 and 32 The Army of the Deccan, 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 1854 – Sir 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 |