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 ships, 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 class 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 ships, they belong to the Crown.

This includes ships and goods already come into the ports, creeks, or roadsteads, of all the Queen’s dominions.[88]