[41] Bentwich, The Declaration of London, p. 35; for text of proposed bill, see ibid. p. 171.
[PART 2. THEORY OF DISTRIBUTION.]
a. Relation of state and individual.
In considering the present theory of prize money distribution in England and Judicial opinion on the subject, the classification[1] adopted in summarizing the conclusion of the Grotian school of international law writers may be used.
1. The state is the only power that can prosecute war and take prize.
"War must be waged by public authority of the state and carried on through the agency of those who have been duly commissioned for that purpose by that authority" says Phillimore.[2] However this theory appears to be subject to a good deal of modification in practice as for instance in the British treatment of captures made by non-commissioned vessels. England has never given recognition to the theory introduced by Rousseau and prominent in French political theory that war is a conflict between the armed forces of the state only and not between private individuals.[3] This theory maintains that the only participants in war should be the armed representatives of the state, thus non-belligerent nationals of the enemy country and their private property should be exempt from military attack. It seeks to place non-belligerents in practically the same position as neutrals. Carried to its logical conclusion it would lead to the complete abolition of the right of capturing enemy private property at sea, and if not carried to this extreme it is at any rate incompatible with the grant of prize money to individuals for if war is solely a state affair aggrandizement of the individual should not be one of its objects.
This theory of war should be distinguished from the view of Grotius and his contemporaries. The latter holds that war is a state affair and can only be entered into by the state as such but the individual is so closely bound to the state that if the state is enemy so also is the individual that belongs to that state. In other words it recognizes no clear distinction between enemy belligerents and enemy non-belligerents. "Bellum omnum, contra omnes". Grotius however, did recognize state non-belligerency or neutrality. This theory though somewhat modified in practice has been the one adhered to by Great Britain. She has recognized the complete international responsibility of the state in war but when she has recognized non-belligerent rights of enemy subjects it has only been as a concession in behalf of humanity and contrary to her well established rights. Thus until very recently she refused to allow subjects of enemy states any status in her courts. She is today the firmest opponent of the movement to abolish the practice of capturing enemy private property at sea and though she asserts that prize of war belongs to the state, in practice she still gives it all to the captors thus letting the individual have a very real personal interest in the war. England now, of course, recognizes the rights of enemy non-belligerents required by various international agreements.