The times., 1898-05-08
WE'LL HOLD THE PRIZES.
Precedents Seem to Justify Our
SquadrOn's Captures.


The owners of the Spanish steamer !
the United States gunboat Nashville off |
Key West at 7 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 definite time. namely, Saturday
at noon, when hostilities 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
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: "Ou 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
of the opinion that the act of Spain in
withdra wing 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 Spain's making earlier
reply and precipitating matters. and that
e. sE.-. 1. -
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
hostiiities had certainly begun Others
insisted that there must be actual hos
ulities; 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 it
seems to sustain the seizure II was
found in Phillimore's international law.
which is recognized as a high authority
in such matter. 1t was as follows:
In l76l negotiations for peace between Eng
| land and France were set on foot. BY Article
NJ OF the first memorial presented by France
II was demanded that captures before the dec
lsration, except kings ships should be restored
| or recompense made, because taken contrary to
the law OF nations. And here il may be remarked
that tho exception proposed in favor of merchant
men as contrasted 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
ment. The answer 10 this demand was perfectly
sound IN point OF reason and justice, and was no
| doubt Imed with the advice of the eminent
| civilians who at that time the advisers Of
/ the crown - The demand Of restitution Of cap
| lures before the war cannot be admitted for it
| is not founded upon any particular convention
nor yet resulting from the law OF nations; for the
right OF hostilities does not result from formal
declaration Of war, bat from the hostilites which
| the aggressor first offered"
The soundnee OF the law and the business Of
| the reasoning appear to have been eventually ad-
mitted by the enemy himself. for at the peace
Of Paris in 1863 the restoration of these prizes
was not mentioned with respect 20 the claims OF
| France.
Another case found In the same book
! which might have some bearing on the
! present case was also "A controversy be-
| tween France and Great Britain. Eng
| land seized ships OF France during the
| American revolution when France came
/ 10 the aid OF America The seizures We're
made before France had taken any active
| part In hostiliHes. The writer declares:
France had declared war wher, she announced
| her treaty with the rebellious subiects-ior such
| az thet time they were-of Great Britain. when
| she sent her feet TO America with orders which
could rot fail IN lead to open hostilities she had
declared when she recalled her ambassador
| and no one cognzant with the principles Of in
1 ternalonal law can seriously doubt that il
| was perfectly competent for England. upon
the announcement Of the treaty. and the with
| drawal OF her ambassador, TO have Immediately
| commenced open hostiliti-s. to have adopted
| The preventive measure ~ embargo. II was sim.
| ply question Of discretion on the part Of Eng.
| land a. to the moment she should choose Ia or
| der the first cannon fired. . Mr.. Fox the Eng
| ljsh minister replied and Justly repudiatpd ss
| altogether untenable, the position which France
| cndeayored for the FIRST time 20 establish that a
| war in America was 70 be distinguished from a
| war IN Europe, and. therefore. that the cap
| tures in Europe made before declaration we're
| Illegal. Mr. Fox also justly rested the attack BY
| the English admiral the law OF sclf-defeuse
| and pointed out the situation where the captures
| were made as evidence that they were taken in
| q hostile enterprise; and Mr. Ward correctly Oh
| serves: ''he would have done well 10 have
| added, what alone must have closed the sub
sect. that q declaration had. in effect been made
| 90 the ambassador Of France. who had accented
| the challenge and knew all its consequences -
| Lastly | should observe that I am unable To
l agree with the learned and able Calyo that 4
| formal declaration Of war must precedc the be-
| gInning Of hostilities. The opinion is founded
| on the theory that the Declaration of Paris
tlSl6l has altered tho previously existing sisagc
| and practices which constitute the law on this
| subject This opinion seems to me. at present
| as incorrect il would be 10 maintain that
| nations obliged by that declaration to sub
| init their disputes to arbitration.
| Aside from precedents, however II 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 feet or squadron
| receive onetwentieth part Of all prize money
| awarded 10 any vessel vessels under his i'm
| mediate control. The commanding officer Of n
| squadron or division under the command of n
| commander-in-che receives one-fftieth Of the
] amount awarded to the captors, his share to
| come out of the part Of the prize money awarded
| 10 the government when the government receives
| q share.
The feet captain is entitled to one ne-Lun-
/ dredth part OF the award made TO any vessel or
| vessels Of the feet or squadron with which hc is
| serving, except in case where the capture is
| made by the vessel in which he is serving and in
that case he shares in proportion to his pay with
| the other officers and men on board the vessel
| To the commander Of a single vessel Is given
| one-teuth o. the money awarded TO his vessel if
| II was acting al the time OF the capture under
| the command Of a commanding officer OF q
| fleet, squadron or divisioa and -twentietFs
| II il was acting Independently.
| After these deductions the remainder Of the
! prize money awarded TO a vessel is distributed
among the officers and crew Of the vessel in pro-
| portion 10 their respective pay.
All vessels Of the Navy within signaling dis
| lance Of the vessel or vessels making the cap
| ture. under such circumstances and in such con
4 Ill IL .