[8]G. W. Prothero, Select Statutes and Other Documents, 3rd Edition, Oxford, 1906, p. 464.
[8]G. W. Prothero, Select Statutes and Other Documents, 3rd Edition, Oxford, 1906, p. 464.
[9]Marsdon, English Historical Review, xxiv, 689, 697, also Prothero, op. cit. p. 465.
[9]Marsdon, English Historical Review, xxiv, 689, 697, also Prothero, op. cit. p. 465.
[10]Marsdon, English Historical Review, xxiv, 689, 697.
[10]Marsdon, English Historical Review, xxiv, 689, 697.
[11]Select Pleas of the Admiralty, Seldon Series, xi, 107.
[11]Select Pleas of the Admiralty, Seldon Series, xi, 107.
[12]Ibid. xi, 130.
[12]Ibid. xi, 130.
[13]Ibid. xi, 17.
[13]Ibid. xi, 17.
[14]Acts of the Privy Council, 1588-1589, New Series, xvii, 283, 413.
[14]Acts of the Privy Council, 1588-1589, New Series, xvii, 283, 413.
[15]Ibid. xvii, 357.
[15]Ibid. xvii, 357.
[16]Marsdon, English Historical Review, xxiv, 696.
[16]Marsdon, English Historical Review, xxiv, 696.
[17]Select Pleas of the Admiralty, Seldon Series, xi, 204.
[17]Select Pleas of the Admiralty, Seldon Series, xi, 204.
[18]Marsdon, English Historical Review, xxiv, 696.
[18]Marsdon, English Historical Review, xxiv, 696.
[19]Vattel, The Law of Nations, English translation from French by Joseph Chitty, Philadelphia, 1883, p. 285.
[19]Vattel, The Law of Nations, English translation from French by Joseph Chitty, Philadelphia, 1883, p. 285.
Instructions to privateers similar to Elizabeth's proclamation of 1585 were issued in 1625.[1]In instructions of 1628[2]the king's tenth of prizes is referred to. During the civil war the two contending parties each issued proclamations authorizing letters of marque. In 1643 an ordinance of parliament provided that captures made by privateers after adjudication in the admiralty court and payment of tenths and customs should belong to the captors.[3]Similar acts were passed in 1644 and 1645.[4]More extensive provisions were made in an act of 1648.[5]Prize bounty of ten pounds per gun for every enemy vessel destroyed was for the first time granted in an act of this same year.[6]An elaborate parliamentary enactment of 1649 provided for division of prize between the captors, the state, the sick, wounded and the relatives of the slain. A man of war captured by a state ship was divided, one half to the officers and crew, and one half to the sick and wounded. If the enemy vessel was destroyed a gun money or bounty of ten to twenty pounds for each gun on the destroyed ship was distributed in the same manner. If the vessel captured was a merchant ship, one third went to the captors, one third to the state and one third to the sick and wounded. In the case of a privateer making the capture, one third went to the officers and crew, one third to the sick and wounded, one sixth to the owner and one sixth to the state. Recaptureswere to be returned to the original owner on the payment of one eighth salvage. The customary Admiral's one-tenth was to be paid into the state treasury and used for the purchase of medals.[7]
Piracy was extremely prevalent at that time. Adherents of Prince Rupert plundered British vessels without scruple. A successful effort to stop such depredations was made in 1650. The authorizing act provided for division of the captured pirate vessels at the rate of one half to the state, one third to the owner and one sixth to the officers and crew.[8]In a declaration of 1652 the admiralty forbade the old custom of pillage on deck, demanding that the prize be brought in to port intact,[9]but the order seems to have proved impossible of execution and after the Restoration the old custom was revived.
An ordinance of 1660 authorized the capture as prize of vessels breaking the provisions of the navigation act and provided for the division of such prizes, one half to the captors and one half to the state.[10]The navigation act of 1663[11]provided for the adjudication of such prizes in the vice admiralty courts of the colonies. The division of the proceeds was to be one-third to the colonial governor, one-third to the king and one-third to the captors.
Shortly after the restoration of Charles II in 1661 an act was passed by parliament for the regulation of the navy.[12]Among other things it forbids spoil of prizes before adjudication but especially permits pillage on the decks. In 1749 this act was amended and the ancient practice of giving up the decks toplunder was finally forbidden.[13]
In ordinances issued before the Dutch war of 1664[14]and the French war of 1666[15]all prizes were granted to the captors with the sole reservation of the admiral's tenth. Prizes were also liable to payment of customs duties. An order in council of the latter date defined the rights of the king and admiral in prizes "bona inimicorum"[16]. To the king by Jure Coronae belonged all prizes driven into harbor by the king's ships, seized in port before war broke out coming into port voluntarily or deserting from the enemy. To the Lord High Admiral by Droits of admiralty belonged ships captured at sea by non-commissioned captors, salvage due for ships recaptured from the enemy, and ships forsaken by the crew unless in the presence of the king's ships. In other cases the rule of the ordinance held good, the admiral received only his tenth and the king his customs duties the remainder going to the captors.
From this brief resumé of the legislation of the seventeenth century it is evident that the laws, reached, during this period, a certain definiteness and stability which they had before lacked. In 1628 the office of Lord High Admiral was temporarily put in commission and given a more systematic organization. From this time the prize cases of the court are recorded on separate records and condemnation before distribution of prizes was the rule. Sir Leoline Jenkins says "And theAdmiral may inquire if any defraud the king of his prizes, or the admiral of his one tenth part or buy or receive prize goods or break bulk before they are condemned as prize or there be a decree for an appraisement or sale."[17]
The prestige of the admiralty was increased through the fact that the Warden of the Cinque Ports, Zouche, sold out his right to Lord High Admiral Buckingham in 1624.[18]From this time the Courts of admiralty were virtually supreme in maritime jurisdiction. Thus Jenkins said, "The Admiralty has jurisdiction over offences,super altum mare, punishable by laws of Oleron, laws of admiralty, or laws or statutes of the realm."[19]The Cinque ports still retained jurisdiction over certain matters. During the latter part of the seventeenth century through the adverse pressure of the crown on the side of its prize jurisdiction and of the common law courts on the side of its instance jurisdiction the authority and prestige of the admiralty court greatly declined.
The civil wars of the middle Stuart period precluded a possibility of prize-law development, rather it encouraged piracy and maintained disorder. Parliamentarians and royalists authorized unrestrained privateering against the opposition. During the Stuart exile, Prince Rupert was at the head of an organized system of piracy. The Puritan regime and the restoration period however witnessed a marked advance in the legalizing of maritime methods. The Puritans stood for law and popular control. They did much to crush piracy, required thecarriage of letters of marque by privateers and the first act of parliament touching prize distribution appeared at this time. It is to be noted however that while the government claimed prior rights in prizes and demanded legal adjudication; in behalf of a forward naval policy it displayed exceptional generosity to the captors, in its rule of division of proceeds. Not only did all the prize go to the captors but in addition bounty was granted in case of the destruction or capture of armed vessels and medals were awarded for specially meritorious acts. The extreme effort of the Puritans to enforce legality at sea is evidenced by the effort to abolish the old custom of pillage on deck and the great number of prize cases settled in the court of admiralty at this period. During this time Zouche of Oxford published his great work on international law and did much to crystallize legal views on prize matters.[20]
The restoration period carried out the same principles in general except that with the restoration of the office of Lord High Admiral the old Droits d'Admiralty were revived. In these periods the humane policy of apportioning a share of the prizes to the sick, wounded and heirs of the slain was instituted, a policy continued in the later practice of maintaining a naval hospital at Greenwich with the proceeds of forfeited shares of prize money.[21]In 1690 the whole privy council was constituted a court of appeal in prize cases.[22]Vice Admiralty courts with prize jurisdiction had been established in the colonies.[23]The colonial governor was usually theVice Admiral of the colony. The great trading companies were usually granted large rights of reprisal but adjudication was required in the court of admiralty. In 1690 the king received the admiral's share of one tenth in a case involving a prize of 100,000 pounds captured by the East India Company from the great Mogul.[24]
The legislation of the seventeenth century gave complete recognition to the Grotian principles of prize distribution and in practice these laws seem to have been applied regularly and consistently by well established legal institutions.
Chapter III, Part 4.
[1]Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 476.
[1]Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 476.
[2]Cal. St. Pap. Dom. Car. I, 1625-1626, p. 142.
[2]Cal. St. Pap. Dom. Car. I, 1625-1626, p. 142.
[3]Marsdon, English Historical Review, xxv, 253.
[3]Marsdon, English Historical Review, xxv, 253.
[4]Henry Scobell, A Collection of Acts and Ordinances, London, 1658, 1649, c 21, p. 9.
[4]Henry Scobell, A Collection of Acts and Ordinances, London, 1658, 1649, c 21, p. 9.
[5]Ibid. c 21, p. 9.
[5]Ibid. c 21, p. 9.
[6]Ibid. 1648, c 12, p. 4.
[6]Ibid. 1648, c 12, p. 4.
[7]Ibid. 1648, c 15, p. 7.
[7]Ibid. 1648, c 15, p. 7.
[8]Ibid. 1649, c 21, p. 9.
[8]Ibid. 1649, c 21, p. 9.
[9]Marsdon, English Historical Review, xxvi, 40.
[9]Marsdon, English Historical Review, xxvi, 40.
[10]Ibid. xxvi, 41.
[10]Ibid. xxvi, 41.
[11]Acts of the Privy Council, Colonial, i, 302.
[11]Acts of the Privy Council, Colonial, i, 302.
[12]15 Car. II, c 7, s 6, 1663; Provision was first made for establishing Vice Admiralty courts in the patent to James, Duke of York, Lord High Admiral, in 1662. Governor Windsor established a court at Jamaica in this year, Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s 379; Marsdon, English Historical Review, xxvi, 53.
[12]15 Car. II, c 7, s 6, 1663; Provision was first made for establishing Vice Admiralty courts in the patent to James, Duke of York, Lord High Admiral, in 1662. Governor Windsor established a court at Jamaica in this year, Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s 379; Marsdon, English Historical Review, xxvi, 53.
[13]13 Car. II, c 9, s 7, 1661.
[13]13 Car. II, c 9, s 7, 1661.
[14]Marsdon, English Historical Review, xxvi, 44.
[14]Marsdon, English Historical Review, xxvi, 44.
[15]Ibid. xxvi, 45.
[15]Ibid. xxvi, 45.
[16]Ibid. xxvi, 47, see also Phillimore, op. cit. iii, 600.
[16]Ibid. xxvi, 47, see also Phillimore, op. cit. iii, 600.
[17]Sir Leoline Jenkins, Life of, by Wynne, i, 88, quoted in Comyn's Digest, i, 271.
[17]Sir Leoline Jenkins, Life of, by Wynne, i, 88, quoted in Comyn's Digest, i, 271.
[18]Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 304.
[18]Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 304.
[19]Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's Digest, i, 272.
[19]Sir Leoline Jenkins, Life of, by Wynne, i, 87, quoted in Comyn's Digest, i, 272.
[20]See Antep. 24.
[20]See Antep. 24.
[21]54 Geo. III, c 93, s 72, 1814.
[21]54 Geo. III, c 93, s 72, 1814.
[22]Marsdon, English Historical Review, xxvi, 53; Cal. St. Pap. Dom. 1690-1691, p. 92.
[22]Marsdon, English Historical Review, xxvi, 53; Cal. St. Pap. Dom. 1690-1691, p. 92.
[23]Ibid. xxvi, 53.
[23]Ibid. xxvi, 53.
[24]Ibid. xxvi, 55.
[24]Ibid. xxvi, 55.