"That prize is clearly and distinctly the property of the crown and the sovereign in this country, the executive government in all countries in whom is vested the power of levying the forces of the state and of making war and peace, is alone possessed of all property in prize, is a principle not to be disputed.—— It is equally clear that the title of a party claiming prize must needs in all cases be the act of the crown, by which the royal pleasure to grant the prize shall have been signified to the subject."[12] But this principle is carried further and even after an express grant of prize money has been made the crown still has exclusive control over prize. In other words the grant of prize money creates no legal right which the captor can maintain against the pleasure or whim of the crown. In the case of "The Elsebe"[13] Sir William Scott said:
"It is admitted on the part of the captors that their claim rests wholly on the order of council, the proclamation and the prize act. It is not denied that independent of these instruments the whole subject matter is in the hands of the crown as well in point of interest as in point of authority. Prize is altogether a creature of the crown. No man has or can have any interest, but what he takes as the mere gift of the crown. Beyond the extent of that gift he has nothing.—— This is the principle of law on the subject and founded on the wisest reasons. The right of making war and peace is exclusively in the crown. The acquisitions of war belong to the crown and the disposal of these acquisitions may be of utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our constitution, it is universally received as a necessary principle of public jurisprudence by all writers on the subject.—— Bello parta cedunt reipublicae—— It is not to be supposed that the wise attribute of sovereignty is conferred without reason; it is given for the purpose assigned that the power to whom it belongs to decided peace or war may use it in the most beneficial manner for the purposes of both. A general presumption arising from these considerations is that the government does not mean to divest itself of this universal attribute of sovereignty conferred for such purposes unless it is so clearly and unequivocally expressed.——For these reasons the crown has declared that till after adjudication the captor has no interest which the court can properly notice for any legal effect whatsoever." From considerations of public policy the judge considers that the sacrifice of this inalienable right of the crown would be apt to lead to constant international differences or even war and concludes "I am of opinion that all principles of law, all considerations of public policy, concur to support the right of release prior to adjudication which I must pronounce to be still inherent in the crown." As based on policy and international law this decision was no doubt correct and necessary, but it seems more doubtful whether from the standpoint of English law either a court or the royal prerogative can divest a property right which has been unequivocally granted by act of parliament, as appears to have been done in the case of the act here in question.[14] However under the present prize act the crowns rights are expressly reserved so there could now be no question. It therefore appears that at present England recognizes the absolute title of the crown to all prizes, until after decree of distribution.
d. Adjudication of Prizes.
Distribution should be decreed only after adjudication of the prize by a competent tribunal of the state. Benedict has said "Before property captured can be properly disposed of it must be condemned as prize in a regular judicial proceeding in which all parties interested may be heard."[15]
The letter[16] of Sir J. Nicholl and Sir William Scott to United States Ambassador Jay authoritatively states British opinion. The portion given was quoted by the authors from a report made by a commission to the king in 1753.
"Before the ship or goods can be disposed of by the captors there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize in a court of admiralty, judging by the law of nations and treaties.
"The proper and regular court for these condemnations is the court of that state to whom the captor belongs.
"If the sentence of the court of admiralty is thought to be erroneous, there is in every country a superior court of review consisting of the most considerable persons to which the parties who think themselves aggrieved may appeal, and the superior court judges by the same rule which governs the court of admiralty, viz. the law of nations, and the treaties subsisting with that neutral power whose subject is a party before them.
"If no appeal is offered it is an acknowledgement of the justice of the sentence by the parties themselves and conclusive.