The booty captured by the other forces amounted only to about £80,000. The Treasury and the India office proposed to make a lump sum of the treasure captured by certain of the columns, and divide it among the forces engaged; but to this arrangement objection was taken by the prize agents of General Whitlock's force, who claimed the whole of the Banda and Kirwee treasure by reason of being the actual captors. Thereupon a long correspondence ensued, the result of which was that the matter was referred to the Judge of the High Court of Admiralty (Dr Lushington), under the provisions of 3 and 4 Vict. c. 65 and 22, and of an Order in Council, 16 June, 1864, before whom it was argued at great length, and by whom the following propositions were laid down. "The Court of Admiralty has no original jurisdiction in matters of prize. That which it exercises is derived from a royal proclamation issued at the outbreak of each war, and a commission requiring the Lords of the Admiralty to give the necessary powers to the High Court of Admiralty to adjudicate upon the prize. The Court's jurisdiction with respect to booty commenced with the passing of the 3 and 4 Vict. c. 65 and 22. The enactment as to booty that the Court shall proceed in cases of prize of war refers only to the course of procedure, and does not mean that in all respects the distribution of booty should be assimilated to that of prize. Even if the property is not strictly booty, or is of unusually large value, the principles applicable to actual and joint capture are nevertheless to be followed. In considering the various claims to booty, the Court will not be influenced by opinions expressed by the civil and military authorities ante litem motam. The decisions in cases of prize and the usage in grants of booty should be regarded but not implicitly followed. The decisions in cases of prizeconsidered. "All prize belongs to the Crown, which for at least 150 years has been in the habit of granting it to the takers. The takers are of two classes, "actual" or "constructive." "Actual capture" is the rule always followed in the adjudication of prize, except in cases in which the application of constructive capture is well recognized and established. War. miny. Post War. Postliminy. The Prize Court has repeatedly expressed its intention not to enlarge the doctrine of actual capture. "Joint captors" are those who not being themselves the actual captors, have assisted or are taken to have assisted the actual captors by conveying either encouragement to them or intimidation to the enemy. Meritorious service is not in itself sufficient to constitute a person a joint captor. Claims of joint capture rest either upon association or co-operation. "Joint captors by reason of association" claim in virtue of some bond of union existing between themselves and the actual captors. Claims by reason of co-operation are founded upon aid rendered on the particular occasion to the actual captors. When association exists a capture made by one enures to the benefit of all. It is not necessary that the others should be co-operating further than that each at the time of the capture should be discharging the part assigned to him of the service for which all are associated. Union under the immediate command of the same officer, and that union alone, constitutes the title to joint sharing. If the bond of union has ceased to exist at the time of capture, community of enterprise is insufficient for a title to share by reason of association. The limits of co-operation are those within which encouragement to the friend and intimidation to the enemy in fact co-operate. The principles, though not all the rules applicable to prize, may be followed in the adjudication of booty." The previous usage in grants of booty considered. "The conditions of warfare on land and at sea are so different that a wider application of the term "co-operation" must be allowed in matters of booty than is recognized in cases of prize; but some practical limits must be assigned to the term. The rule of right at sea and the extent of communication on land must be distinguished. As all the ship's company are considered the actual captors of prize taken by any of its members, so the whole division of an army, if in the field, usually constitutes the actual captors of booty taken by any of its detachments. Post "Association" for purposes of booty must be military War. and not political, and there must be some limits even to liminy. military associations. Troops are not associated together so as to be considered joint captors, because they are carrying out parts of a political plan involving military operations, or because their commanders receive instructions from the same political authority. The association must be under the immediate command of the same commander. "Cooperation" which will give a title to booty must directly tend to produce the capture in question. What tends to produce the capture cannot be exhaustively defined. Generally strict limits must be observed of time, place and relation. Services rendered at a great distance from the place of capture, or acts done long before the capture was contemplated even though they affect the whole scene of operations, do not constitute legal co-operation." NOTE. For a critical investigation of the right of Postliminy, as illustrated by the Roman Law and the older commentators on International Law, and as exhibiting the philosophical tendencies of the German school of International Jurists, the reader is referred to Heffter's work Le Droit International Public, traduit par Bergsen, ed. 1857, §§ 187-190. See also Story, On Prize Courts, ed. by F. T. Pratt, D.C.L. (1854), p. 81, citing the Santa Cruz, the San Francisco, the Adeline, 9 Cranch, 246, and Valin, T. II. p. 262, for the law in the case of the country of the recaptor having no municipal regulations on the subject. For the views of German writers see Bluntschli, L. VIII. §§ 727-741, and for a review of modern continental authorities on the subject, see Calvo, T. II. 4ème Partie, Liv. II. §§ 1316-1329. CHAPTER VII. FOREIGN ENLISTMENT ACTS. Foreign [Ir is proposed in the present chapter to give a short account of the settlement and provisions of the Foreign Enlistment Acts of the United States and of Great Britain, and of the leading decisions upon them. It is scarcely necessary to draw attention to the importance of the subject in connexion with the relations between neutrals and belligerents in time of war. The history of the great contest in the United States, the diplomatic correspondence between the authorities at Washington and London, and the well-known case of the Alexandra, will bear sufficient testimony to that fact; and, as from what has been said in the former chapter, the law relating to privateering is materially influenced by the municipal regulations we are about to describe, it will not be out of place to take that description in this intermediate chapter. The history of the two principal American Foreign Enlistment Acts of 1794 and 1818 begins, strictly speaking, with the trial of Gideon Henfield on the 22nd of May, 1793; but the narrative of that event may fitly be preceded by a notice of two letters from Washington to Alexander Hamilton'. In the first, dated April the 12th, 1793, speaking of the war then commenced between Great Britain and France, the President said: "It behoves the government of this country to use every means in its power to prevent the citizens thereof from embroiling us with either of those powers by endeavouring to maintain a strict neutrality. I therefore require that you will give the subject mature consideration that such 1 See Hamilton's Works, Vol. IV. pp. 357 and 359. Enlist measures as shall be deemed most likely to effect this Foreign purpose may be adopted without delay, for I have under- ment stood that vessels are already designated as privateers, Acts. and are preparing accordingly." In the second, dated the 18th of April, he alludes to a meeting to be held the next day to discuss the measures necessary for preserving a strict neutrality, and specifies one question (among several others) as of paramount importance, viz. whether a proclamation should issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, and whether it should contain a declaration of neutrality. On the next day, the 19th, it was resolved that such a proclamation should issue, and by that proclamation the citizens were reminded of the neutral attitude of their government, of its intention strictly to preserve that attitude, and of the evil consequences to such of the citizens as should aid or abet hostilities in defiance of this proclamation. Within a month after its publication its effect and the neutral attitude of the United States were tested by the conduct of M. Genet,. the minister plenipotentiary from the re- Case of M. public of France. The facts, as stated by Mr Hamilton', were, that M. Genet, on his arrival at Charleston, caused two privateers to be fitted out, to which he issued proclamations to cruise against the enemies of France. There also the privateers were manned partly with citizens of the United States, who were enlisted or engaged for the purpose, without the privity or permission of the American Government. One or both of these privateers made captures of British vessels in the neighbourhood of the United States coasts, and brought or sent their prizes into their ports. The British minister demanded restitution of these prizes. With that demand, Mr Hamilton thought there should be a compliance; but this view was opposed both by Mr Jefferson and the then Attorney General. It is not necessary to dwell at any further length upon these facts, or upon the language and conduct of M. Genet. What we have just stated is for the purpose of shewing the point in which the neutral attitude of the United States was imperilled, and the reasons and 1 Works of Alex. Hamilton, Vol. iv. p. 394. 2 As to that see American State Papers, Vol. i. pp. 77—82. Genet. |