b. Reprisal.
2. The right of private reprisal can only be exercised under specific commission from the state.
"And indeed, says Blackstone, this custom of reprisals seems dictated by nature herself for which reason we find in the most ancient times very notable instances of it. But here the necessity is obvious of calling in the sovereign power to determine when reprisals may be made; else every private sufferer would be a judge in his own cause."[4]
In his work on international law Phillimore gives rules for reprisal in time of peace,[5] saying that the sovereign alone can grant the right of reprisal and only goods sufficient to satisfy the debt can be taken, the rest must be returned. Matters of private reprisal can not be adjudicated in prize courts, which are only called into existence by regular war, but come under the jurisdiction of the regular courts of admiralty.[6] The matter is now purely theoretic in England since by the declaration of Paris of 1856 privateering and consequently the right of private reprisal was abolished. No commission for this purpose could now be issued and any one engaged in it would be considered a pirate. Public reprisal is still used as a method of coercion short of war and may be employed for the collection of private debts or for obtaining satisfaction for torts of the individual, though only vessels of the regular navy can take part, according to the declaration of Paris.
The right of reprisal for private redress in time of peace or special reprisal should be distinguished from the right of reprisal during war or general reprisal, sometimes distinguished as the right of Marque. Formerly vessels were commissioned by letters of Marque and reprisal to prey on the general commerce of the enemy to any extent and wherever found during war. This right was only legal under special commission of the sovereign though England seems to have taken a very lenient attitude in dealing with non-commissioned captors even granting them a share of their prizes. Her attitude seems to have been that subjects by making captures without commission offended against municipal law but not against international law. Thus she was at liberty to deal with them as she chose but the injured alien had no recourse under international law. As a matter of fact if the non-commissioned captors had observed due care in the conduct of the prize they were usually rewarded with prize money on its condemnation.[7] The declaration of Paris which abolished this practice was severely criticized by many English writers on the ground that it robbed England of important belligerent rights and some even doubted whether England was legally bound by it on account of some diplomatic irregularities in signing it.[8] But now there can be little doubt but that privateering is illegal in England though volunteer fleets and subsidized steamship lines which are used by all naval powers, come dangerously near to amounting to the same thing.[9]
c. State Title to Prize.
The title to all prize vests originally in the state.
Phillimore says, "The maxim 'Bello Parta Cedunt Reipublicae,' is recognized by all civilized states. In England all acquisitions of war belong to the sovereign who represents the commonwealth. The Sovereign is the fountain of booty and prize."[10] Holland makes a similar statement: "Most systems of law hold that property taken from an enemy vests primarily in the nation, 'Bello Parta Cedunt Reipublicae'. A rule which is the foundation of the law of booty and prize."[11] The same view has been expressed by the court as follows: