Questions of Public Law (1737)
Cornelius van Bynkershoek
THE treatment of privateers also belongs to public law, not only because privateering requires public authorization, but also because controversies that arise out of it frequently disturb states and bring them into conflict. It was formerly the practice at Rome, that he who was not a soldier of the Roman people was not authorized to attack an enemy of the Roman people, according to Cato’s opinion, quoted by Cicero and Plutarch. But later the Romans adopted the law of Solon mentioned by Gaius, in accordance with which a partnership formed for privateering was recognized. Princes have now, for a very long time, employed the resources of individuals in addition to their public resources against their enemies. Formerly, in the United Netherlands, those who managed the war vessels were private individuals, and to them, besides the premiums taken from captured and recaptured ships, there were paid certain sums from the public treasury proportioned to the expenses incurred and to the time during which they had served. Those ships of private individuals were called cruisers, and the States-General employed them to a great extent against the Spaniards. Several edicts were issued regarding them, which it is needless to recite. Now as formerly individuals have carried on war with their own ships, sailors, and soldiers, and at their own risk, with no other inducement than the hope of such maritime booty as they may take. These are called ‘Capers’ and ‘freebooters’, or by the more respectable name ‘privateers’. I do not know whether the brigands (latrunculi) spoken of in the Roman law belonged to this class, nor can the question be determined. Furthermore, I cannot agree with Alberico Gentili who, in various passages of his De advocatione Hispanica, and even in his discussion of the law then observed, called privateers pirates, and considered them as deserving to be treated as pirates. But this is so absurd that it does not require a studied refutation, for privateers act wholly under authority, and they do not sail out except under commission from the States-General or the admiral, countersigned by the vice-admiral of each specific district, and after taking an oath under an appropriate bond not to do any damage to neutrals. These and similar rules pertaining to the regulation of privateers are to be found in the charter of the admiralty, in various edicts of the States-General, and in special laws (regulations of privateers) which the States-General have issued from time to time to privateers, when various nations have brought charges that their acts were unjust. But I have neither the time nor the inclination to enumerate and to quote all these documents, which are or at least can be made available to all.
It is more worth while to inquire whether captains, who have been put in command of privateering vessels by the holders of the commission and have been hired to commit depredations, can legally enter into a partnership with each other for sharing in the prizes which they may take separately. If they have been hired merely to take booty and they have no further charge, it is certain that they have no authority without the consent of their principals, and hence any agreement entered regarding the division of spoils is null and void. One cannot offer as a valid objection to this the fact that in the above-mentioned law of Solon cited by Gaius, partnerships formed to take prizes are valid, as I translated and explained the law in my Observations, for it is apparent that Solon had reference to those who are their own masters and go out to plunder on their own account, as, for instance, if owners of vessels thus go out using their own ships, sailors, and soldiers, like the receivers of commissions whom the Dutch call reeders. If such owners of vessels form partnerships for the division of the prizes or any other purpose these are certainly valid, because every man may dispose of his own as he sees fit; but one could not transfer this rule to captains of vessels unless, as is very seldom the case, these are also the owners of the vessels. Our present concern is with those who, when hired merely as privateers, exceed their authority by entering into agreements with each other. There was an important case of this kind which was carried even to the court of review. A privateering vessel belonging to A and another belonging to B seized an enemy vessel together, and then, according to B, the captains of the two ships made an agreement to share equally in whatever booty would be taken thereafter. They presently separated, and the ship of A alone made a capture, which B at once claimed should be divided according to the agreement. A denied that the contract concerned prizes which they took separately, and held that even if it did, the contract would be void; and this view was sustained by the court of Flushing. But when B appealed to the supreme court he won his case on March 3, 1696, and the court of review sustained this decision on October 4, 1697. With this decision, the official opinions rendered in another case agreed, and the Admiralty of Amsterdam had even before, in 1665, given a similar decision.
But even if the contract was as B claimed, I hold that all of these decisions and opinions are erroneous except that of the court of Flushing. It was with amazement that I found, in reading the reports of the supreme court, into which were inserted the individual opinions of the judges of both courts, that in this case the only question discussed was whether there had actually been an agreement between the two captains that they should share prizes taken separately, or only those taken in the presence of both. But no one concerned himself about the point of law which particularly disturbs me. Grant that the contract called for the division of all booty, for I will not raise that question, I still hold that A cannot be involved by the contract of his captain. A sent out his captain with the intention of bearing losses and gains alone, and he commissioned him only to take prizes, not to enter into a partnership regarding gains and losses, for he could himself have made the contract with B had he so desired. Accordingly, whatever agreement A’s captain made, he entered into without instructions, in which case he could not bind his principal. I grant that if B’s ship had alone captured a prize, A might readily have been persuaded to accept a share, nor would it then have been difficult to persuade B to make the defence that A has made. The first prize, taken by their common efforts, became common property by a kind of implied contract arising out of the circumstances of the case, but this was not true of the second, which A’s ship took while alone, and which A will keep as his prize if, as I think, he is not bound by the contract of his captain. Hence, setting aside the question of fact, I prefer on legal principles the decision of the court of Flushing to all the others.
Furthermore, we must carefully consider the question of the division of booty in cases where ships are present though not participating in the battle when one or more vessels are engaged in capturing a prize. With reference to warships there is a rule in the decree of the States-General of January 28, 1631: ‘that one ship may aid another ship attacking, but not if the first shall call out that he does not need assistance.’ However, this seems to me to be a special rule applying to war vessels, otherwise there is nothing to hinder one armed vessel from joining another in attacking and capturing a common enemy who is not yet subdued. For the same reason, I consider as a special rule the sixth article of the charter which the States-General on July 15, 1633, drew up for the privateers cruising against the Spanish in American waters, and which states that ‘a privateer shall not have a share of the prize which he takes jointly with a ship of the West India Company unless he was explicitly called upon for aid’. I would also consider as a special rule the seventh article of the same charter, which states ‘that privateers shall not, on pain of forfeiture of ship and goods, interfere with the captures which the company’s ships wish to make’. However, if a privateer is called upon for aid, and takes a prize together with a ship of the Company, the prize is divided, but, according to a principle now generally accepted, the division is made in proportion to their respective size and force, as the sixth of the above-cited charter of 1633 defines. And if the ships are equal in force each receives a half of the prize, otherwise it is better to observe what is called a geometrical proportion.
But what shall we say if two or more privateers pursue a hostile ship, or again if several ships are near by without being participants in the capture, while in either case a single ship captures the prize. According to the decree of January 28, 1631, which I mentioned above, ‘the prize is divided between all the vessels of war which pursued the prize, but the ship which actually made the capture shall have the provisions, the small arms, and the plunderage’. But, as you see, the decree is concerned with vessels of war, the prizes of which the government has at its disposal; otherwise if it were a matter of privateers, I should rather assign the prize to that one alone who attacked the hostile ship and captured it, however numerous may have been the ships in pursuit or in sight. And yet there are those who grant a share of the booty even to those who were near or merely within sight, but with such a view I cannot agree. I grant that the mere presence of others might have the effect of making the capture or surrender easier, but we are not concerned with the causes of the surrender, but rather with the question of who made the capture. Neither would we admit to a share of the booty a fort, town, or fleet in whose presence a capture was made, even though it might be said that the capture was made especially through fear of one of these. But it is clear that if another vessel shared in the attack, an accidental partnership has come into being between them, which requires that the prize taken by their united strength be shared in proportion to the forces employed by each. But in a case of this kind we do not attempt to determine how great an effort each made, since this would be very difficult in practice, but whether the assisting vessel actually took part in the battle and contributed somewhat to the victory by actual deeds. The principle is somewhat similar to that of the civil law, which adjudges animals of the hunt not to all the huntsmen who pursue, but to those who actually make the capture.
If there be a contract for mutual defence, as is often the case with merchantmen, and one ship in the partnership takes a prize, the question arises whether all the partners share or whether the captor should have the whole prize. The counsellors of State have held that if the capture was made without a special agreement, the prize falls to the ship which makes the capture, and that this rule is not vitiated by the fact that losses are shared by the partners, since these are not apportioned by any general rule of the partnership but on the principle of ‘gross average’. This opinion seems to be correct, and it is on this principle that the States-General, in Article 54 of the edicts published from time to time regarding such partnerships, have decreed the public sale of booty ‘for the reward of those who furnished assistance in the capture’. Such partnerships, indeed, are not made for the sake of gain, but only for the sake of avoiding loss. For that reason the losses are shared, as Grotius explains in his Inleiding tat de Hollandsche Rechtsgeleertheyd, and Loccenius, De Jure Maritime, properly observes that this practice of sharing is inherent in the very nature of the partnership.
But the contracts neither say nor imply anything concerning the sharing of gains, nor can there be any implied contract if the purpose of the partnership precludes it. And yet one might conclude from certain phrases that gains as well as losses were shared; for when Article 48 of the above-cited edict stipulates that losses shall be borne in proportion to the value of each vessel, Article 49 adds that the value of ships shall be so reckoned for damages as well as for profits. What then is the intention of this phrase unless booty is also shared by the whole partnership? This phrase can and must indeed be understood to refer to ships which actually aided in the capture, so that we are to divide the shares for aid, as the above-cited Articles 54 and 9 explicitly state, and this proportion should, as I said above, be geometric and not arithmetic.
There remains the question of what court has jurisdiction in questions of military and naval booty. The edict of the Earl of Leicester of April 4, 1586, stipulates that the magistrates of the nearest place or those appointed for the task shall decide on questions of prisoners, and I assume that the general rules about prisoners should apply to all booty. Indeed, in the time of Leicester, the different provinces were more concerned than later that the States-General and their officials should not assume too much power. We should, so far as possible, support the constitution of the Earl of Leicester, but Article 3 of the charter of the Admiralty of August 13, 1597, from which I quoted in Chapter XVII, precludes our following his regulations in the matter of maritime booty. When we consult this charter it becomes apparent, as I showed above, that the Admiralty had been granted jurisdiction only over booty taken at sea by war vessels or by privateers sailing under a commission from the Admiralty. This jurisdiction of the Admiralty is wholly delegated, and there is an invariable rule regarding delegated jurisdiction that what is not specifically delegated, reverts to the jurisdiction of the parent court. Hence, if ships, like merchantmen that sail without a commission from the Admiralty, should meet and capture an enemy vessel, the prize would come before the court that has ordinary jurisdiction. If soldiers should happen to capture an enemy vessel the military court would have jurisdiction. Nevertheless, when the count of Styrum, then prefect of Muiden, took some ships on the coast of Gelderland near Nijkerk, and decided that the military court of Muiden should adjudge the prize, the Estates of Holland decreed on April 14, 1673, that jurisdiction belonged to the Admiralty of Amsterdam, for it was a well-known and established rule that the Admiralty was competent in cases of booty taken upon the seas and rivers. But I do not see how this can be so, since the ships that-made the capture were neither vessels of war, nor privateers carrying commissions from the Admiralty. Let us conclude as follows: regarding booty taken by ships bearing commissions of the Admiralty, the Admiralty must judge, according to the cited Article 3; regarding booty taken on land or sea by soldiers, military courts must judge, since these have jurisdiction over the behaviour of the army, and civil courts must judge in civil cases; and here I would define as civil courts those that have jurisdiction in ordinary cases. Regarding booty taken by soldiers on land, the counsellors of the Estates of Holland formerly pronounced judgement in accordance with Article 10 of the ancient charter of January 22, 1590. But this article is not found in the new charter of October 4, 1670, and the old practice is no longer observed.