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 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]