The times., 1898-05-02
Adj. Willard's Hotel,
Charges rloderate, Medicine Included.
WE'LL HOLD THE PRIZES.
irecedents Seem to Justify Our
SquadrOn's Captures.

SGundron's Captures.
(From the New York SUM-
The owners of the Spanish steamer
Buena Ventura, which was captured by
the United States gunboat Nashville off
Key West at o'clock Friday morning,
have protested against the capture of
the boat on the ground that war did not
exist when she was taken. They assert
that the United States ultimatum to Spain
fixed a definite time. namely, Saturday
at noon, when hostiities would be begun
If the terms of the ultimatum were not
complied with. That being the case.
they say that any seizure made prior to
that hour is Illegal. Lawyers versed in
admiralty and in international law said
yesterday that the point raised was a
very fine one, and that it could only be
decided by the prize court that should be
appointed to appraise the prize and dis
pose of her. Owens Declaration of
War" which is a recognized English
authority says: 'tOn the outbreak of
hostilities the right of capture at once
becomes active
The question in the present case, the
lawyers say. is whether or not hostilities
had actually begun. Some of the lawyers
who were seen by The Sun reporter were
of the opinion that the act of Spain in
Withdrawing her own minister from this
country and handing his passports to
Minister Woodford was a hostile act
They argued that, while in his ultimatum
the President fixed Saturday noon as the
limit OF time for compliance with his
terms, there was nothing in the ultima
tum to prevent Spains making earlier
reply and precipitating matters. and that
! is exactly what she did. Others said that
the order of the President and the Sec
retary OF the Navy to Captain Sampson
to proceed to Havana and blockade the
port was a distinctly hostile act. and
that when the squadron weighed anchor
hostilites had certainly begun. Others
insisted that there must be actual hos
tilities; that is. that there must have
been guns fired or a blockade actually
established before hostilities could be
said to have begun.
There are very few precedents bearing
on the case, the lawyers say. One was
hunted up for The Sun reporter in the
office of Mr. William NJ. WINS. and il
seems to sustain the seizure 1t was
found in Phillimores international law
which Is recognized a high authority
in such matter. 1t was as follows:
In i76l negotiations for peace between Eng
land and France were set on foot. By Article
NJ Of the first memorial presented by France
it was demanded that captures before the dec
laration, except kings ships. should be restored,
or a recompense made. because taken contrary TO
the law of nations. And here it may be remarked
that tha exception proposed in favor of merchant
men as contTasted with kings ships is wholly at
variance with one of the fundamental rules of
international law, namely that the will of the
subject is bound up in the will of the govern
mont afs-r- IL l.
sound in point OF reason and Justice, and was no
/ doubt fr k'ed with fthe advice OF the eminent
civilians 80 were at that time the advisers of
tho crown . The demand of restitution Of cap
tures before the cannot be admitted. for it
is not founded upon any particular convention
nor yet resulting from the law of nations: for the
right OF hostiities does not result from formal
declaration of war. but from the hostilites which
the aggressor first offered"
The soundness OF the law and the business OF
the reasoning appear TO have been eventually ad-
mtted by the enemy himself. for at the peace
of Paris in 1893 the restoration Of these prizes
was not mentioned with respect to the claims OF
France.
Another case found in the same book
which might have some bearing on the
present case was also controversy be-
tween France and Great Britain Eng
land seized ships of France during the
American revolution when France came
TO the aid of America. The seizures were
made before France had taken any active
part in hostilities. The writer declares:
France had declared war when she announced
her treaty with the rebellious subjects-for such
at that time they were-of Great Britain whom
she sent her fleet to America with orders which
could not fail TO lead 10 open hostilities; she had
declared war when she recalled her ambassador
and no one cognZant with the principles of in
ternational law can seriously doubt that it
was perfectly competent for England, upon
tue announcement OF the treaty and the with
drawal Of her ambassador. to have immediately
commenced open hostilities or to have adopted
the preventive measure Of embargo. Ii was sim.
ply a question of discretion the part of Eng
land to the moment she should choose to or
der the first cannon fired. - + Mr.. Fox, the Eng
lish minister replied and justly repudated, as
altogether untenable, the position which France
endeavorcd for the first time to establish. that
war in America to be distinguished from a
war in Europe, and therefore, ----t the cap
lures in Europe made before a declaration were
illegal. Mr.. Fox also Justly rested the attack by
the English admiral on the law OF selfdefense,
and pointed out the situation where the captures
were made as evidence that they were taken in
a hostile enterprise; and Mr.. Ward correctly OBJ
serves: 'He would have done well to have
added, what alone must have closed the sub
ect. that a declaration had, in effect been made
to the ambassador Of France, who had accepted
the challenge and knew all its consequences"
Lastly, | should observe that | unable to
agree with the learned and able Calvo that
formal declaration of war must precede the be
ginning of hostilities. The opinion is founded
on the theory that the Declaration of Paris
1s5G) has altered the previously existing usage
and practices which constitute the law on this
subject. This opinion seems to me, at present,
as incorrect as it would be to maintain that
nations are obliged by that declaration to sub
NIT their disputes to arbitrator.
Aside from precedents, however, it was
remarked by some of the lawyers yes
terday that if hostilities had not actually
begun they did begin the moment the
Buena Ventura was captured. for the act
of capturing her was in the highest de-
gree hostile
Another interesting point is the divis-
ion of the prize money that comes from
the sale of prizes. This money is divided
as follows:
The commanding officer of a fleet squadron
receive onetwentieth part OF all prize money
awarded to any vessel or vessels under his i'm
mediate control. The commanding officer of
squadron or division under the command of
commander-in- chief receives one-fftieth OF the
amount awarded to the captors, his share to
come out of the part of the prize money awarded
to the government when the government receives
a share.
The fleet captain Is entitled to one onehun-