"But if it chance that in naval war the king supplies the ships and their armament and also provides supplies and wages for the soldiers and sailors the same contributions place the whole booty at the disposal not of the general or admiral but of the king, nor will the soldiers or sailors get any part thereof except such as is granted to them by the king's liberality. In every other event however, after the king's share has been set aside, the admiral can divide the residue between the soldiers and sailors a seventh part of the residue being due to himself".[8] Ayala had previously remarked that by the Spanish law the king's share ranged from one fifth to one half of the prize. In his theory goods must be brought within the territory of the capturing state (intra praesidia) to give a good title. If recaptured before this, by postliminium, they revert to the original owner. Reprisals must be authorized by the sovereign.[9]
Thomas More conceived of a liberal policy of disposing of prize, in his Utopia. In speaking of the capture of cities he says, "If they knowe that annye cytezeins counselled to yealde and rendre vp the citie, to them they gyue parts of the condemned mens goods. They resydewe they distribute and giue frelye amonge them, whose helpe they had in the same warre. For none of themselfes taketh any portion of the praye."[10]
Bodin clearly enunciated the sovereigns exclusive right over sea captures. "Mais les droits de la mer n'appartienment qu'au Prince Souverain."[11]
Gentilis the forerunner of Grotius expressed the limitations on the power of the state. There was danger that in the rise of states to independence the Machiavellian policy would be adopted, that states would consider themselves bound by no law. Gentilis showed the limitations that natural law impose upon states even in war. In his view, property can not be wantonly destroyed, neutral property can never be captured and neutral territory is always inviolable.[12]
In his epoch making work which appeared in 1625, Grotius correlates the principles of those preceding him and in authoritative style sets forth the new international law.[13] His chapters on prize distribution may be briefly summarized as follows: The right of reprisal is recognized but it is only allowable under authority of the state. In the case of reprisals the property in goods taken immediately accrues to the captor to the extent of the debt or damages due and expenses, but any balance over this ought to be restored. The prize should be adjudged in a court of the state before distribution.[14] Goods captured at sea require firm possession to give a title. In Roman law this is established when the vessel is brought to port (intra praesidia), but modern practice establishes the twenty four hour rule. Recaptures, before possession is established, revert to the original owner by postliminium.[15] Neutral property is never subject to capture not even in enemy ships. Enemy property is good prize. If taken otherwise than in regular public service, i.e. in private reprisals, or under special grant of pillage, it becomes the property of the immediate captor though the municipal law of the captors state may alter this condition. Goods taken in public service accrue to the state which may distribute the proceeds at will.[16] Instances are given of the distribution laws in contemporary states. "Among the Italians a third part of a captured ship goes to the captain of the victorious ship, a third part to the merchants to whom the cargo belonged and a third part to the sailors."[17] "With the Spaniards, if ships are sent out at private expense, part of the prize goes to the king, part to the high admiral,[18] and ships of war go altogether to the king."[19] By the custom of France, the Admiral has a tenth,[20] and so with the Hollanders but here a fifth part of the booty is taken by the state.[21]
Zouche of Oxford University, England, in 1650 made a valuable contribution to international law literature in his "Juris et Judicii Fecialis sive Juris Inter gentes Explicatia", a book famed as being the first to describe the science as jus inter gentes, international law, rather than the former misleading name, jus gentium, law of nations. He maintains that war can only be declared by the supreme authority of the state. However if acts of aggression are committed by individuals during war without authorization, international law has no jurisdiction over the matter, though municipal law may decree punishment.[22] As coming from England this theory is interesting as it seems to forecast the later doctrine of that country that unauthorized captures at sea are permissible so far as the enemy is concerned though municipal law decrees the whole product of such captures to the crown.[23] Zouche admits the right of reprisal. By reprisal is understood the right assumed by a subject to collect a foreign debt or to collect damages for injuries received in a foreign country through the seizure of goods on the high seas belonging to any subject of that state. Though the practice seems hard to reconcile with justice, Zouche in common with most of the international law writers holds that all the members of a state are liable for the debts of one member so by strict international law, reprisal is allowable but only under commission from the sovereign.[24]
Puffendorf writing in 1672 practically quotes the views of Grotius in prize matters.[25] He maintains that individuals can not make war, which is only a state affair, "Il est certain, que c'est au souverain seul qu'appartient le droit de faire la guerre."[26] In regard to captures he holds that the title to booty vests originally in the sovereign but it is equitable for the sovereign to divide the proceeds among those who have borne the heaviest burdens of war. Recaptures revert to the original owner. The right of reprisals is admitted but exception is taken to the view of Grotius that in case of reprisals and all captures made by private undertaking the proceeds belong immediately to the captor. Puffendorf asserts "Tout le droit que les particuliers ant ici depend toujours originairement de la volonte du souverain,"[27] thus emphasizing more strongly the absolute title of the state to all captures. A careful reading of Grotius seems to reveal that his idea was the same. He says that by the practice of nations captures not made in regular war usually accrue to the captor but this rule may be changed by municipal law and "so a rule may be introduced by law that all things which are taken from the enemy shall be public property,"[28] thus virtually asserting Puffendorf's statement that the original title always vests in the sovereign.
In brief the laws of prize distribution enunciated by the great founders of international law of the sixteenth and seventeenth centuries appear to be as follows:
1. The state is the only power which can prosecute war and make prize.
2. The right of private reprisal can only be exercised under specific commission from the state.