CHAPTER III. GREAT BRITAIN, HISTORICAL RESUME.

The practice of Great Britain in prize distribution has always been remarkable for its extreme liberality to the captors of prize. Chancellor Kent has a note to the effect that by common law "goods taken from an enemy belong to the captor."[1]His authority is a case decided in King's Bench in 1697 which says, "And it was resolved by whole court that though, if goods be taken from an enemy it vests the property in the party taking them, by our (common) law, yet by admiralty law, the property of a ship taken without letters of mart vests in the king upon the taking, and this on the high seas."[2]The same view is expressed by a modern writer, who says, "The root of the prize system is found in the ancient doctrine that any person might seize to his own use, goods belonging to an alien enemy and this right extended to captures at sea."[3]

A case in the reign of Edward III, 1343, bears out these opinions. The king of Aragon complained of a case of piracy by Englishmen and asked redress. Edward called his Chancellor and council and the decision was given that the alleged piracy was a case of lawful prize and that by the law maritime the goods belonged to the captor.[4]

However, England very early recognized the contrary principle that prize of war of right belongs to the state andprivate individuals only acquire their title by grant of the crown or parliament. Thus by a patent of 1242, Henry III granted half of all prizes taken by them to masters and crews of king's ships and the same to the men of Oleron and Bayonne in their own ships.[5]In 1295 a letter patent provided that the whole of prizes taken by Bayonne ships should be shared equally between the owners and men[6]and in the Scotch expedition of 1319 Edward II also granted the whole of prizes to the captors.[7]

A close Roll of 1325 states that men of the Cinque Ports had granted one fourth of all prizes to the king.[8]The Portsmen by a grant of William the Conqueror[9]enjoyed special privileges in prize matters and claimed to enjoy prizes of their own right. In early times their forces comprised the greater part of England's naval strength so this privilege was quite important. However, the kings seem to have wished to regain some of the jurisdiction which they had granted away and in the case mentioned Edward II tried to gain jurisdiction over the whole of the prize. In 1326 the king's primal right seemed to be recognized as superior to that of the Portsmen for a grant of that date is made by the king, of all prizes to the portsmen.[10]

During this period no machinery for adjudication was established. The only means through which the king could collect a share of prize was through the common law courts and they proved in most cases inadequate. The jealously guarded jurisdictions of the Cinque ports also largely interfered with the king'sperquisites in prize. Their peculiar customs were held above the king's right. Thus in 1293 when Edward I claimed a share of prizes captured by Portsmen they stated that on the occasion in question they had hoisted a flag called the "Baucon". This action meant a fight to the death in which case by the universally recognized law of the sea all prizes captured by the survivors belonged to them. Furthermore if the king endeavored to interfere with them they would leave the country.[11]Such assertions of independence probably prevented much state interference with prize distribution at this period.

Chapter III, Part 1.

[1]Kent, Commentaries on International law, Abdy edition, Cambridge, 1866, p. 271.

[2]King vs. Broom, 12 Mod. 135; 88 English Reports 1217.

[3]H. E. Smith, Studies in Juridical Law, Chicago, 1902, p. 139.

[4]R. G. Marsdon, introduction to select pleas of the Admiralty, Seldon Series, vi.

[5]Rymer, Foedera, 20 Vols., London, 1704-1735, i, 408.

[6]Calendar of Patent Rolls, Ed. I, 1292-1301, m 16, p. 130.

[7]R. G. Marsdon, Early Prize Jurisdiction in England, English Historical Review, xxiv, 675.

[8]Calendar of Close Rolls, Ed. II, 1323-1327, m 26, p. 412.

[9]D. J. Medley, A Student's Manual of English Constitutional History, Oxford, 1907, p. 485.

[10]Rymer, op. cit. iv, 226.

[11]Marsdon, English Historical Review, xxiv, 677.

After the battle of Sluys in 1340 when Edward III became in fact master of the seas, a title which kings of England had assumed since the time of John, the king issued certain ordinances for the distribution of prize.[1]A distinction was made between prizes taken by ships in the king's pay and privateers. At that time there was no navy owned by the state. In the former case the king is to receive one fourth of the proceeds of all prizes, the owner of the vessel one fourth and the remainder "shall belong to those who took them which halfe ought to be shared equally between them". Out of the portion going to the captors the admiral has two shares or as much as two mariners from each ship, if he is present when the capture is made, if absent he only receives one share. It is also provided that "ships out of sight shall receive no share unless sailing toward and in sight so as to help the takers if need be." The apparent purport of this anomalous language being that joint captors must be of actual constructive assistance to share. In the case of privateers the king has no share of prizes. The whole amount goes to the captors except the admirals perquisite which is the same as in the former case. It is further provided that "whoever takes a ship ought to bring it before the admiral, there to take and receive what the law and custom of the sea requires", no plunder of the prize being permitted before adjudication except on thedecks.[2]

By a patent of 1386 the king gives all his share to the admiral[3]and in the following year the whole of prizes is granted to privateers.[4]

In 1406 a grant of Henry IV provides that ship owners shall have prizes taken from the enemy but they must deliver up to the king any prisoners they may take for whom a reasonable reward will be given.[5]In the same year a letter from the admiral calls on all mariners to enter the king's service and says that "whatever profits and gains such persons shall make from the king's enemies on said voyages they shall have and enjoy freely without impediment or disturbance."[6]By statute of 1416[7]it was provided that letters of Marque might be issued by the privy council to any one having grievances against a foreign power. In such issues of letters of Marque the profit of goods taken went to the captor to the extent of the damages received. All goods in excess of that amount were supposed to be returned but few cases of such return are on record.[8]It was under authority of this act that letters of Marque were issued in England until the final abolition of the practice in the treaty of Paris of 1856.

A treaty with Flanders of 1426 contains the provision that "no prizes shall be divided at sea or in a foreign harbour but shall be brought entire to a port of England and there it will be adjudged by the king and council, the chancellor or the admiral whether the prize belonged to friends or enemies andit will be disposed of in good and brief manner."[9]Here we seem to have a distinct enunciation of the most modern principles of prize law that no title to prize is legally conferred until after adjudication by a competent organ of the state making the capture.

In 1442 an ordinance of Henry VI "for the safeguarding of the sea" emphasizes these same principles. It declares that neutrals must not be harmed in war and that award of prize must be made by a competent tribunal before distribution of proceeds. The scheme to be used in distributing the proceeds in case the vessel is found good prize is as follows: One half goes to the master, quarter master, sailors and soldiers. The remainder is to be divided into three parts, of which two go to the owners and one to the chief and under captains. The ordinance also contains rules for the conduct of privateers.[10]In the same year a statute[11]permitted any one making capture of an enemy vessel "to take the goods and merchandises and enjoy them without any restitution thereof to be made in any wise, even though the goods belonged to neutrals and they had no safe conduct from the king of England."

Shortly before this, the collection of sea laws known as the Black book of the Admiralty was compiled for the use of the Lord High Admiral. The book contains that ancient body of sea law, the Roles of Oleron,[12]besides several later ordinances and inquests. The principle portion dealing with prize distribution is part "A" which consists of the ordinance ofEdward III made after the battle of Sluys, already mentioned.[13]It also contains "An inquisition made at Queensborough in 1375" which is a statement by a jury of the existing law at that time. It restates the earlier ordinance of Edward III except that the king's share of prizes is not mentioned.[14]The inquest also permits merchant ships to make captures from the king's enemies, apparently without a special commission and divide the proceeds two thirds to the owner and one third to the mariners.[15]Captures by merchant vessels without commission seem to have been quite common and were openly approved by the king.[16]The fact that these ancient ordinances were collected for authoritative use seems to indicate that they were recognized law in the fifteenth century.

The period of the hundred years war, thus brought about definite progress in prize money laws. Prize distribution became the subject of definite ordinances. In Edward Third's ordinance most of the principles of prize distribution mentioned by international law writers of three centuries later were enunciated.[17]The issuance of such an ordinance implied a recognition of the principle, "bello parta cedunt reipublicae"[18]the original title to prize vests in the state. Definite rules for distribution were declared and most important of all, adjudication of prizes by a competent court was demanded before distribution. The office of admiral was created by Edward I inthe year 1300 when Gervase Alvard was appointed Admiral of the Cinque Ports. At first several admirals were appointed with jurisdiction over different portions of the sea. In 1340 owing to difficulties which he got into with neutral powers, who complained of the depredations of English privateers, the court of admiralty was created with prize jurisdiction in such cases. The first mention of prize courts is in 1357.[19]Attempts were made by the common law courts to retain their jurisdiction but it soon became recognized that sea matters were properly under the control of the admiralty. In 1360 one admiral was appointed for all the fleets in the person of Sir John Beauchamp. The duties of the office were greatly extended, in fact it claimed so wide a jurisdiction that in the reign of Richard II two statutes[20]were passed greatly limiting the Admiral's power.

The office of admiral was of a two-fold character. He was not only commander-in-chief of the navy and as such entitled to share in prizes, but also he exercised the king's power of jurisdiction over the sea and in this capacity presided over the courts of admiralty and the prize courts. In the latter capacity the connection of the admiral with the privy council was very close. He was himself a member of the privy council and that body always exercised final jurisdiction in prize cases if it saw fit. It should be understood that no normal adjudication of all prizes was at this time required. In the Black Book of the Admiralty the admiral was given vigorous means of collecting his perquisites, "inquiry is to be made of all ships, who have notpaid the admiral his share, the names of the captors, masters, owners and value of goods taken is to be presented."[21]Thus it was only in special cases where the admiral had heard of a capture and had not received a share or where some party made a complaint, that a case was adjudicated. The great majority of cases never came before the court and the captor had undisturbed possession.

The apparent insufficiency of the admiralty in prize cases brought forth a new set of officers in 1414, the Conservators of the Ports.[22]These officers had criminal and prize jurisdiction in maritime cases but the plan seems to have been attended with small success and soon fell into desuetude.

Through this period the Cinque Ports maintained to some extent their ancient privileges. The Warden of the Ports exercised the function of admiral over mariners sailing from them. Nominally he was under the authority of the Lord High Admiral but as a matter of fact he exercised an almost independent jurisdiction until 1628.

As noted the issue of letters of Marque by the privy council was authorized by statute but the carriage of such letters by privateers does not seem to have been universally required, especially in war. Efforts were made to restrain privateering by law for the benefit of neutrals.

What accounts for England's very early adoption in theory at least of these advanced principles of maritime law?England's insular position turned her people to the sea and commerce. The French wars necessitated a continuous military and naval policy. It also brought about internal unity and nationalism much earlier than in other countries. Thus the state definitely organized and regulated the navy. The great naval victories and the assumption by the king of the title "master of the seas" increased the spirit of nationalism and naval pride. There was however, a conflict between "the rights of the king as sovereign lord of the sea entitled to demand for offence and defence the service of all his subjects; the privileged corporations of the sea port towns with their peculiar customs and great local independence; and the private adventure of independent merchants and mariners whose proceedings seem to be scarcely one degree removed from piracy."[23]But as we have noted the king emerged from the conflict victorious. The office of Lord High Admiral of all the seas was created, the navy came to be considered a definite branch of the royal administration. A royal navy was built up under Henry IV and Henry V. The king affirmed his right to prize and his right of jurisdiction over privateers and their captures.

But along with England's aggressive naval policy was her dependence upon commerce. Successful commerce necessitated strict recognition of neutral rights and a rule of order at sea, embracing the destruction of piracy and illegal privateering. Thus the king established the admiralty as a prize court, made treaties binding himself to the protection of neutral rights,demanded adjudication of all prizes, and sought by ordinance to restrain illegal privateering. After the reign of Henry V the commercial interests of England won the upper hand, the royal navy was sold, the naval protection was placed in the hands of commissioned merchant privateers and more strict enforcement of neutral rights was sought. Thus the conflict between an aggressive naval policy and the protection and encouragement of commerce brought about a very early recognition in England of advanced principles of prize capture and distribution.

Through the latter half of the fifteenth century, England was too distraught by internal struggles to pay much attention to naval matters and no progress was made in prize money laws.

It is impossible to tell specifically the effects of the prize money laws in England at this early date. However, in so far as they formed an important element in the general maritime laws, they undoubtedly tended to create order at sea, to protect commerce and to increase the king's jurisdiction over the sea forces. This coordination of authority over sea war would tend to increase naval efficiency and was an important element in making England a great sea power.

Chapter III, Part 2.

[1]Black Book of the Admiralty, Rolls Series, No. 55, i, 21.

[2]Ibid. i, 31.

[3]Cal. Pat. Ric. II, 1385-1389, pp. 216, 253.

[4]Cal. Pat. Ric. II, 1385-1389, pp. 339, 342.

[5]Rotuli Parliamentorum, 7 Vols., London, 1767-1777, iii, 570, art. 22.

[6]Royal Commission of Historical Manuscripts, Reports, v, 501.

[7]4 Hen. V, c 7, 1416.

[8]In a case of Reprisals against France, Cromwell returned the excess over damages to the French ambassador, see Carnazza-Amari,Traité de Droit International Public en Temps de Paix, French translation from Italian by Montanari-Revest, 2 Vols., Paris, 1880, ii, 599. Also in Phillimore, Commentaries on International Law, 3rd Edition, 4 Vols., London, 1885, iii, 33.

[9]Rymer, op. cit. x, 368.

[10]Rot. Par. v, 59, art. 30; see also Acts of the Privy Council, Sir Harris Nicolas, Editor, v, 128.

[11]20 Hen VI, c 1, 1442.

[12]"The Laws of Oleron are the ancient usages, generally received from Richard I, on his return from the Holy Land to Oleron, revised and approved for matters marine and which all the people of the west afterwards received for their affairs." Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's Digest, i, 272; Marsdon doubts whether Richard had anything to do with the origin of the Laws of Oleron, Introduction to select pleas of the admiralty, Seldon Series, vi; See also discussion by Twiss, Sea Laws, Encyclopedia Britannica, 11th Edition, xxiii, 535.

[13]See antep 34.

[14]Black Book of the Admiralty, Rolls Series, No. 55, i, 145.

[15]Ibid. i, 135.

[16]Nicolas, Introduction to Acts of the Privy Council, v, 136.

[17]See antep 26.

[18]Bynkershoek, Questiones Juris Publica, quoted in Phillimore, op. cit. iii, 209.

[19]Rymer, op. cit. vi, 15.

[20]13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392.

[21]Black Book of the Admiralty, i, 151.

[22]2 Hen V, St. 1, c 6, 1414.

[23]William Stubbs, The Constitutional History of England, 5th Edition, 3 Vols., Oxford, 1903, ii, 289.

After the wars of the roses prize distribution was still occasionally decreed by special letters patent. In his famous voyage of 1496 John Cabot was by letter patent required to give one fifth of all prizes to the king.[1]In 1512 the admiral guaranteed to turn over to the king one half of "all manner of gaynes and wynnyngs of werre".[2]This rule was repeated in 1521.[3]Frequently the charters of vessels authorized them to take prizes. The charter party of the ship "Cheritie" dated 1531 says: "and yff the sayd shyppe take any pryse, purchase any flotson or lagen, hit shalbe devyded into III equal parties, that ys to the sayd capmerchaunte the one parte and to the owner the second parte and to the master and his companye the therde parte."[4]Similarly the charter party of the "George", 1535, provided that: "If any prize, purches, flotezon, or lagason or any other casueltie happe to be taken by the saide ships in this her present viage the saide merchaunt shall have his juste parte thereof accordyng to the lawe of Oleron."[5]In the rule of 1544 mariners carrying letters of marque were granted the whole of their prizes without accounting to the admiral or warden of the ports for any.[6]A similar proclamation was issued by Mary in her French wars of 1557.[7]With few exceptions however the admiral had a right to one tenth of all prizes.

Elizabeth increased this share to one third in thecase of captures made by the queen's ships but it remained one tenth in the case of privateers. In 1585[8]Elizabeth issued a proclamation authorizing the Lord High Admiral to issue letters of reprisal to all who showed that they had suffered losses from Spain. Rules for distribution of proceeds and for the conduct of privateers were included. Similar proclamations have been issued by the sovereign of England at the beginning of every subsequent war in which privateering was allowed. The proclamation provided for the division of the proceeds, one third to the owners, one third to the victualer, and one third to the officers and crew. The captain also was entitled to the best piece of ordnance and the master the best anchor and cable. Officers and crew were especially granted the right of pillage on the decks.[9]In 1589 Elizabeth was in alliance with Henry IV of France. A remarkable proclamation of this time authorized English subjects to take letters of marque from the French king and provided that he should be entitled to one fifth of the proceeds of all prizes.[10]

Thus during the Tudor period new developments of prize money law were found. During the period and especially the latter part of it, England's policy was one of extreme naval aggressiveness. But instead of being restrained by the commercial necessities of the previous epoch it was increased by the renaissance spirit of adventure. England's national unity was established, the enthusiasm of discovery, the experience ofimmemorial acquaintance with the sea impelled her people into an unparalleled career of sea conquest. Thus during the Elizabethan period it is not surprising to find a retrogression in prize law. Belligerent rights were enforced at the expense of neutrals. Naval warfare was almost exclusively in the hands of privateers. The admiral still retained his right to a tenth of prizes, the queen received a varying share, but the greater part went to the privateers and at no time was there a definite rule of distribution. While she publicly disavowed illegal depredations by her privateers Elizabeth secretly encouraged them.

The actual control of the crown over prize matters does not seem to have been lost. Illegal depredation of privateers was not due to inability of the administration to control them but to the definite policy of the crown. The high court of admiralty was revived in 1524 after a period of dormancy during the civil wars and its definite records date from that time. It exercised a constant prize jurisdiction. In 1558 the case of Gonner vs. Pattyson[11]came before it. Gonner obtained a decree granting him a vessel on the plea that "he by right of war captured as lawful prize the said ship—belonging to Scotchmen, foes and enemies of this famous realm of England—and that the captors were and are by reason of the premises true owners and proprietors thereof." In Matthews vs. Goyte,[12]1565, the sentence decreed division between joint captors. In 1577 a definite effort was made to suppress piracy. A commission was appointed to judge and summarily punish pirates with rathereffective results.

Regular adjudication of prize cases was not yet the rule. Cases were only tried on complaint of one of the parties but in 1589 an order in council directed that all prizes be brought in for adjudication by the admiralty.[13]The privy council itself however exercised jurisdiction in many cases. Thus in 1589 John Gilbert and Walter Raleigh were given a commission to capture prizes on a certain voyage and divide them among the crew. Apparently they appropriated the prizes themselves. A complaint was made to the queen. The matter was considered in the privy council with the result that Raleigh and Gilbert were commanded to appear and tell how the money had been disposed of and especially to answer for the part due the queen.[14]And again: On the return of the fleet with prizes after the destruction of the Spanish armada, in 1589, the privy council gave orders directing the handling of the prizes. Instructions were given to Sir Anthony Ashley to investigate the prizes and determine the country of the ship, the amount and value of the cargo, etc. In the same year on hearing that certain prizes had been sold and distributed by the captain the queen was very angry and "tooke yt in very ill parte that anie persons would adventure to receive or buy anie of those goodes before aucthorytie or direction was given for the sake of the same."[15]

In the latter part of Elizabeth's reign vigorous efforts were made to restrain privateers. In 1601 a new commission was appointed to hear and arbitrate neutral claims. In 1602by proclamation judges of the admiralty were directed to institute proceedings against any privateer sailing without commission or selling prizes before adjudication.[16]In this year the ship "Fortune" was confiscated to the admiralty for failing to bring in a prize for adjudication.[17]This stand is most advanced and shows that progress was being made toward a definite requirement of legal process before prizes could be distributed. A case of similar nature had occurred in 1598. The vessel "Grace of Padstow" without a letter of reprisal captured a Danish prize. The prize was returned by the court on the grounds that the captor had no commission.[18]This extreme enforcement of the obligation of privateers to carry specific commissions has been advocated by some international law writers.[19]However in cases of actual war, prizes have never been returned but as in this instance in cases of private reprisal the return of captures was occasionally enforced.

Thus while in the greater part of the Tudor period the laws of prize distribution were not so clearly defined as formerly and great freedom was allowed adventurers and privateers, at the same time the actual control of distribution by the administration seems to have been more strict than ever before. Especially was this true of the latter part of the reign of Elizabeth.

The effect of the generous laws of distribution of this period undoubtedly was to encourage adventure andprivateering. The voyages of the great sea captains of Elizabeth were fitted out primarily for the sake of private gain from prizes. Preying on Spanish Galleons not only satisfied the love of adventure of such men as Hawkins, Drake and Raleigh but it also gave them wealth. So long as their acts harmonized with the queen's policy she did not care to inquire too closely into the strict legality of all their seizures. This policy by which the queen not only made the navy support itself but actually received income from it through her share of prizes enabled Elizabeth to carry on her wars without any national expense. Her reign is renowned for its economy and lack of taxation. This doubtless added to its popularity and increased the sense of nationalism in the English nation. During this period generous giving of prize money was a valuable means of increasing the efficiency of the navy and the national unity of England. The strict acts of the latter part of Elizabeth's reign and their consistent enforcement indicated genuine progress in the protection of neutral rights at sea through governmental control.

Chapter III, Part 3.

[1]Political History of England, William Hunt and Reginald Poole, Editors, 12 Vols., London, 1910, v, 106.

[2]Rymer, Op. cit. xiii, 1326.

[3]Henry VIII, Letters and Papers, Foreign and Domestic, Master of the Rolls, Great Britain, Director, 1524-1526, p. 33.

[4]Select Pleas of the Admiralty, Seldon Series, vi, 37.

[5]Ibid, vi, 82.

[6]Marsdon, English Historical Review, xxiv, 684.

[7]Calendar of State Papers, Domestic, Mary, 1547-1580, p. 93.

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