fended on the ground of necessity, or as a means of preventing greater evils. It was on this ground that Italy and Spain justified their destruction of the maritime towns on the coast of Africa, which had become mere nests of pirates. But the sacking of towns and villages, and delivering them up to a prey to fire and the sword, are terrible remedies, which are often worse than the evil to be removed. 'Dreadful extremities,' says Vattel, 'even when we are forced into them; savage and monstrous excesses, when committed without necessity.' Another excuse for ravaging a district of country, is to render it a barrier against the advance of an enemy. Thus, the Czar, Peter the Great, laid waste an extent of fourscore leagues of his own territory, to check the advance of Charles XII., of Sweden. The victory of Pultowa was claimed as the result of this sacrifice. Again, in 1812, the Russians laid waste a vast extent of country, and burnt their capital, to prevent its affording a shelter to the French, from the rigours of a Polar winter.' The disastrous retreat from Moscow was claimed as the fruit of this circumspection. 'Such violent remedies,' says Vattel, 'are to be sparingly applied; there must be reasons of suitable importance to justify the use of them. A prince who should, without necessity, imitate the Czar's conduct, would be guilty of a crime against his people; and he who does the like in an enemy's country, when impelled by no necessity, or induced by feeble reasons, becomes the scourge of mankind.'

§ 24. The general rule by which we should regulate our conduct toward an enemy, is that of moderation, and on no occasion should we unnecessarily destroy his property. The pillage and destruction of towns,' says Vattel, 'the devasta

1 Buonaparte had entered Russia with 360,000 men, at a time when a large portion of the Russian army was in a remote part of the empire. The opposing Russian force therefore acted on the defensive, and for a while retreated, keeping, nevertheless, excellent order. At length the time arrived to change these tactics, and a system was adopted for which the greatest sacrifices had been made. A population of 200,000 persons voluntarily quitted their homes, sacrificing their houses and property, in order that Moscow might not afford quarters to the enemy. Every personal enjoyment and private object was given up for the safety of their country. This sacrifice of the people drove the French in discomfiture and disgrace from the Russian empire.

2 Vattel, Droit des Gens, liv. iii. ch. viii. § 142; ch. ix. §§ 166–72; Martens, Précis du Droit des Gens, § 280; Kluber, Droit des Gens Mod., §§ 262-65; Phillimore, On Int. Law, vol. iii. § 50; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 6.

tion of the open country, ravaging and setting fire to houses, are measures no less odious and detestable, on every occasion when they are evidently put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, be it here observed that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offences against the law of nations, and even then, it is glorious to listen to the voice of humanity and clemency, when rigour is not absolutely necessary. Cicero condemns the conduct of his countrymen in destroying Corinth, to avenge the unworthy treatment offered to the Roman ambassadors, because Rome was able to assert the dignity of her ministers, without proceeding to such extreme rigour.'

§ 25. An English court of admiralty, as will be shown hereafter, does not, merely of its own inherent powers, exercise jurisdiction of questions of booty, or of captures made on land by military forces, without the presence, and cooperation of ships or their crews. The federal courts of the United States have never decided directly upon their jurisdiction of such a question, but from the similarity of English and American admiralty and prize jurisdictions, and the opinion of the court in the case of The Emulous,' there is little doubt but that our prize courts are limited, in this respect, the same as those of England. It has also been decided in England that a municipal court has no jurisdiction of cases of hostile seizure; moreover, that the circumstance of the place where the seizure was made, being in the undisputed possession of British power, with a provisional government and organised courts of justice, did not alter the character of the transaction. Wildman remarks: There is no instance in history or law, ancient or modern, of any question, before any legal judicature, ever having existed about it [booty] in this kingdom. It is often given to the soldiers on the spot, or wrongfully taken by them, contrary to discipline. If there is any dispute it is regulated by the commanderin-chief.' As such questions do not come within the jurisdiction of either courts of Admiralty or of law, they must be taken cognisance of by the military tribunals, and be go

verned by military laws and regulations, and by the laws of war.1

§ 26. In speaking of the constitution, authority, and functions of the English prize court, and of the wisely formed and admirably developed code of admiralty jurisdiction and rules of procedure, Mr. [now Sir Robert] Phillimore remarks: 'It is not surprising that, in great maritime kingdoms, the jurisdiction of the admiral's court should have thrown into the shade the tribunal of the general. But, that the latter should have left such faint traces of its origin and mode of procedure, and should so soon have fallen into desuetude, is a very remarkable fact in the history of jurisprudence.' Mr. Knapp, in a learned note to his report of the great case of the Army of the Deccan, argued before the Privy Council, in 1833, has shown the error of the dicta of Lord Mansfield, in Lindo v. Rodney, repeated in the foregoing extract from Wildman, that there is no instance in history or law, ancient or modern, of any question ever having existed respecting booty taken in a continental land war, before any legal judicature in this kingdom.' It appears from this note of Mr. Knapp, that in very early times, in England, causes respecting booty were determined in the court of chivalry, before the constable and marshal. Lord Hale says: In matters civil, for which there is no remedy by the common laws, the military jurisdiction continues as well after the war as during the time of it; for that part of the jurisdiction of the constable and marshal stands still, notwithstanding the war determines, as concerning right of prisoners and booty, military contracts, ensigns, etc.' Α number of instances are cited, where the court of chivalry took cognisance of cases of goods taken beyond the seas, of prisoners, of hostages, ransom, etc., and where, during the minority of the constable of England, his authority to try such cases was delegated to others by special commission. Since the time of Henry VIII., when the office of constable of England ceased, the jurisdiction of this court was frequently disputed, on the ground that it could not be held before the earl marshal alone, and it finally seems to have fallen into desuetude. The last case tried before it was that of Sir

Le Caux v. Eden, 2 Doug. Rep., p. 594; Elphinstone v. Bedreechund, Knap. Rep., p. 316; The Two Friends,' 1 Rob. Rep., p. 225; the 'Emulous,' I Gallis. Rep., p. 563.

Henry Blunt, in 1737. The statute of 13 Richard II., chapter second, limited its jurisdiction to cases which cannot be determined by the common law,' and in its proceedings it was to be governed by 'the customs and laws of war.'1

§ 27. As no action can be maintained in an English court of municipal law with respect to booty, and as courts of admiralty had no jurisdiction of the matter, the inquiry arises, what became of this jurisdiction when it ceased to be exercised by the court of the constable and marshal?2 All booty, as

1 Phillimore, On Int. Law, vol. iii. § 127; Lord Hale, De Praerogativa, cap. xi. § 3; Lindo v. Rodney, Douglas Rep., p. 593; Army of the Deccan, 2 Knapp Rep., pp. 149-51; Oldis v. Donmille, Show. Parl. Cases, p. 58; Sir H. Blunt's Case, i Atkyn's Rep., p. 296.

2 It appears from the treatise De Praerogativa Regis, xx., cc. 11 and 12, Lord Hale was of opinion that the jurisdiction in matters of booty or military prize, if existing anywhere but in the Privy Council, is in the court of the constable and marshal. Also that in matters civil, for which there is no remedy by the common law, the military jurisdiction continues as well after the war, as during the time of it. There is a direct instance of the exercise of this jurisdiction, in a manuscript treatise of Lord Hale, in Lincoln's-Inn Library, headed, 'Upon certain petitions of late exhibited in the Court of Chivalry there have been raised divers questions of law.' The statute of Richard II. enacts, 'to the constable it pertaineth, to have cognisance of contracts touching deeds of arms and of war out of the realm, and also of things that touch war within the realm, which cannot be determined nor discussed by the common law, with other usages and customs to the same matters pertaining. It will be noticed that the word 'marshal' is not employed in the above sentence, although the statute clearly refers to the court of the constable and marshal.' Those two persons presided over it as judges. Henry VIII. was advised that it was unnecessary to maintain the office of constable of England. The earl-marshal frequently held a court after the constableship had become extinct. Thomas, Duke of Norfolk, as marshal, held a court for the trial of the Lincolnshire rebels in 1535, being twenty years after the extinction of the constableship. Nor was the jurisdiction of that court in the least contested. (Gilbert, Hist. of Reform, i. lib. iii.) In 1622, in consequence of the jurisdiction of the earl-marshal being questioned by Brook and Treswell, two defendants, the Lords of the Council were required by James I. to investigate and determine the issue. All parties were commanded to be present. Their lordships determined that the authority of the earl-marshal severally, as well as jointly with a high constable, was fully set forth, and that the authorities were so very good that it was plain the earl-marshal was a judge, and had power of judicature in the vacancy of a constable, as well as with the constable, and that there had been as much said to prove the authority of that court as could be said for any court in Westminster Hall. On this report the king issued his commission on the 1st of August following, and declared that 'the constable and marshal were joint judges together, and several in the vacancy of either,' and commanded the earl-marshal from henceforth to proceed in all causes whatsoever whereof the court of constable and marshal ought properly to take cognisance, as judicially and definitively as any constable or marshal of this realm, either jointly or severally, hitherto has done.'

before remarked, belongs to the Crown, and is captured under the authority of the Crown. The Crown must, therefore, ultimately decide upon the legality of the capture and the distribution of the booty. The mode in which it now exercises this jurisdiction is to refer the claims of those who petition for a share in the distribution to the Lords of the Treasury, who lay down the principles which are to govern the case, and a board of trustees are appointed under the royal sign-manual warrant to ascertain, collect, and distribute the booty according to the scheme which has been approved and sanctioned by the Crown. The Privy Council have determined that they will not exercise jurisdiction as a court of appeal from the decisions of the Lords Commissioners of the Treasury, as to grants by the Crown of property accruing to it by virtue of its prerogative.

They, however, have advised the Crown,

This court followed the rules of Civil Law, but 'the Course and Custom of Chivalry and Arms' governed all cases for which that law was found wanting. In 1702, the decision in Chambers v. Jennings (7 Mod. Rep. 125), that this court, not being a court of record, could neither fine nor imprison, inflicted an irreparable injury on its authority. Nevertheless it may be fairly questioned whether this court (although slumbering) may not still exist. The statute defining its jurisdiction is unrepealed.

1 But the Privy Council has now become the ultimate court of appeal in cases of booty, by virtue of the 3 and 4 Will. IV., c. 41, and by the joint operation of the 2 and 3 Vict. c. 65, and 24 and 25 Vict. c. 10, s. 3.

In England all booty or prize of war belongs, and remains to the period of distribution, the property of the Crown (the 'Elsebe,' 5 Rab. 173; Nicholl v. Goodhall, 10 Ves. 156; Alexander v. Duke of Wellington, 2 Russ. and Mylne, 35). The warrant for distribution is a mere direction from the Crown, like the order from a customer to his banker; it vests no property in the objects of the Crown's bounty until the money has been actually paid to them under it.

Moreover, the Privy Council has exercised an original jurisdiction in matters of prize.

Lord Hale says that there is no evidence on record of any Admiralty jurisdiction till the time of Edward III., and asks where the jurisdiction in matters maritime was exercised during all this intermission of Admiralty courts. He answers to this question, 'a very great part thereof, especially touching capture of ships and goods arrested and taken by way of reprisal, was transacted coram consilio regis and in Chancery." (Hargrave Manuscripts, No. 137, f. 118-26.)

Original jurisdiction was exercised by the Privy Council in a case which arose out of the captures at Toulon by land and sea forces in 1793; a grant had been made to the navy, but the army concerned in the expedition presented a memorial to the king that the warrant might be recalled, and another issued granting them a share for their co-operation. This memorial was referred to a committee of the Privy Council, who heard the case argued before them by counsel for the army and navy, and finally advised the king not to recall his warrant. Similar jurisdiction was exercised by the Privy Council in the case of the captures at Seringapatam.