PART 1. PRIZE COURTS.

TRANSCRIBER'S NOTE

Underlined text is denoted by _underscores_. There is no 'bold' or

'italic' text.

Obvious typographical errors and punctuation errors have been

corrected after careful comparison with other occurrences within

the text and consultation of external sources.

More detail can be found at the end of the book.

PRIZE MONEY

BY

PHILIP QUINCY WRIGHT

A. B. Lombard College, 1912

THESIS

Submitted in Partial Fulfillment of the Requirements for the

Degree of

MASTER OF ARTS

IN POLITICAL SCIENCE

IN

THE GRADUATE SCHOOL

OF THE

UNIVERSITY OF ILLINOIS

1913

UNIVERSITY OF ILLINOIS

THE GRADUATE SCHOOL

JUNE 5, 1913

I HEREBY RECOMMEND THAT THE THESIS PREPARED UNDER MY SUPERVISION BY

QUINCY WRIGHT

ENTITLED PRIZE MONEY

BE ACCEPTED AS FULFILLING THIS PART OF THE REQUIREMENTS FOR THE

DEGREE OF MASTER OF ARTS

_James W. Garner._

In Charge of Major Work

_James W. Garner._

Head of Department

Recommendation concurred in:

}Committee

}

}on

}

}Final Examination

_TABLE OF CONTENTS._

_Introduction._

_Chapter I. Among the Ancients._

Page

Part 1. Greece 2

a. Land War--Principles, Causes, Effects.

b. Maritime War--Prize Courts, Piracy,

Rhodian Laws.

Part 2. Rome 10

a. Land War--Method of Division.

b. Maritime War--A Land People, Piracy,

Principles, Causes, Effects, Ferocity

of War.

_Chapter II. During the Middle Ages._

Part 1. Maritime Codes 16

Early Codes, Consolato del Mare, Character

of its Rules, Effects, No Recognition

of States.

Part 2. The New International Law 21

Machiavelli, Brunus, Victoria, Ayala, More,

Bodin, Gentilis, Grotius, Zouche,

Puffendorf, Summary.

_Chapter III. Great Britain, Historical Resumé._

Part 1. Earliest Times to 1340 30

a. Laws--Common Law Rule, Liberality to

Captors, Grant by Letters Patent,

Cinque Ports.

b. Administration--Common Law Courts, Slight

Control.

Part 2. 1340 to 1485 34

a. Laws--Distribution by Ordinance,

Privateers, Letters of Marque, Adjudication

of Prizes, Black Book of Admiralty.

b. Administration--Establishment of

Admiralty, First Prize Court,

Conservator of Ports.

c. Significance--Cause, Effect.

Part 3. 1485 to 1603 43

a. Laws--Letters Patent, Admirals Tenth,

Prize Proclamations, Letters of Marque

from France.

b. Administration--Aggressive Policy, Crowns

Control, Adjudication not the Rule,

Restraint of Privateers, Summary.

c. Significance--Effect, Encouragement of

Privateers, Cheap War.

Part 4. 1603 to 1688 50

a. Laws--Proclamations, Puritan Ordinances,

Prize Bounty, Piracy, Navigation Acts,

Spoil on Decks, Jure Coronae, Droits,

of Admiralty.

b. Administration--Adjudication Required,

Admirals Jurisdiction, Cinque Ports,

Civil War, Puritanism, Restoration,

Trading Companies, Significance.

_Chapter IV. Great Britain, Recent Laws._

Part 1. 1688 to 1864 56

Grants by statute, Queen Anne's Statute,

Lord Loughborough's Opinion, Later Acts,

Acts of 1793, of 1812, of 1815, Ransom

Forbidden, Slave Trade, Crimean War.

Part 2. 1864 to 1913 64

Permanent Statutes, Naval Agency and

Distribution Act, Naval Prize Act of

1864, Naval Instructions, Duties of

captors, Sharers of Prize, Recapture.

_Chapter V. Great Britain, Recent Administration._

Part 1. Prize Courts 70

Lord High Admiral, Admiralty Courts, Admiralty

in Commission, Struggle with Common Law,

Jenkins, Mansfield, Stowell,

Vice Admiralty Courts, Commissioning

Prize Courts, High Court of

Justice, Appellate Authorities,

Lord High Admiral, Chancellor,

Delegates of Appeal, Judicial

Committee, of Privy Council,

International Prize Court for Appeals.

Part 2. Theory of Distribution 78

a. Relation of State and Individual in War--War

by State Authority, Rousseau's

Theory, Grotian Theory, English

Practice.

b. Reprisal--Private, Public, General

reprisal, Declaration of Paris.

c. State Title to Prize--Original Title in

State, Phillimore, Holland, Brougham,

State can return prize without cause,

Stowell, The Elsebe.

d. Adjudication of prizes--Jay Letter,

Competent Court.

e. Method of Distribution--Benefits

received; bounty, salvage, prize money.

Part 3. Prize Bounty 91

Headmoney, Conditions of Giving.

Part 4. Prize Salvage 92

Pirates, Neutral vessels, Subjects Vessels,

Change of Title, Allies, Summary.

Part 5. Prize Money 98

Division among Men, Among Allies, Vessels

Entitled to Share, Joint Captors,

Privateers, Associated Vessels, Tenders,

Boats, Transports, Joint Land and Naval

Captures, Non-commissioned Captors,

Forfeiture of Prize Money.

_Chapter VI. Great Britain, Significance of Present Law._

Part 1. Causes of Law 106

Imperial Power, Naval Supremacy, Commercial

Dependence, Governmental Control, to

encourage sea men.

Part 2. Effects of Prize Money 109

a. On the Navy--When privateering legal,

since Declaration of Paris, does

not increase efficiency, commercial

war.

b. On International Law--Neutral rights,

destruction of prizes, right to

capture private property at sea,

attitude of naval personnel, of

publicists, at Second Hague Conference.

c. Conclusion--Little Effect for good or

evil, why it remains law, attitude

of England at the Second Hague

Conference, it should be abolished.

_Bibliography_

General 120

Ancient 127

Medieval 128

Great Britain 130

INTRODUCTION.

The rules for disposing of the proceeds of prizes captured in war

is a question of municipal law. After a prize has been legally

condemned, international law has no direct concern with the ultimate

disposition which the captor state may choose to make of the

proceeds. Indirectly, however, the prize money laws of different

states may be of great interest to other states, for the character

of the internal regulations in this matter may determine the amount

of energy displayed by cruisers in making captures; the impartiality

of national prize tribunals, the number of prizes and the number of

condemnations made in a particular war; questions of vital interest

to both belligerent and neutral merchantmen plying their trade on the

high seas in time of war.

It is the purpose of this paper to investigate the character of prize

money laws in force in various countries at different periods of

their history, the conditions which have given rise to such rules,

and the effect particular rules have had upon maritime captures in

time of war.

_CHAPTER I. AMONG THE ANCIENTS._

PART 1. GREECE.

a. Land War.

The Greeks are possibly the earliest people who attained a sufficient

degree of civilization to have any definite laws of war, consequently

we shall first look to them for laws of prize distribution. In his

chapter on "the right of acquiring things captured in war",[1]

Grotius treats at length the condition of private property in war

among the ancients. His remarks are intended to refer to both land

and naval warfare though in fact all his instances are drawn from

land warfare. It is probable that the same theories applied in both

cases though on the high seas from the nature of the case, the state

would have much greater difficulty in enforcing any restrictions upon

the right of making captures and appropriating the profits therefrom

than on land.

In regard to the Greek treatment of prize, Grotius says:[2]

"After the battle of Plataea there was a severe edict that no

one should privately take any part of the booty.[3] Afterwards

when Athens was conquered the booty was made public property by

Lysander[4] and the Spartan officers who had to deal with the

measure were called prize sellers.[5] If we go to Asia the Trojans

were accustomed as Virgil teaches to draw prize lots as is done

in dividing common property.[6] In other cases the decision of the

matter was with the general and by this right Hector promises Dolon

the horses of Achilles when he stipulates for them,[7] by which you

may see that the right of prize treasure was not in the captor alone.

So when Cyrus was victor, the booty was taken to him,[8] and when

Alexander, to him."[9]

In his work on International law among the ancients,[10] Phillipson

has presented similar instances of the distribution of booty. He adds

to the statement made by Grotius in regard to the battle of Plataea

that after making proclamation that no one should take the booty

"Pausanias ordered the helots to collect the treasure of which one

tithe was allotted to the Gods at Delphi, another to the Olympian

God, and a third to the God at the Isthmus, and the rest was divided

according to title and merit. An additional reward was also given

to those who particularly distinguished themselves, and a special

portion reserved for Pausanias."[11] and again, "In 426 B.C. when

Ambracia was reduced by the Acaranians with the help of the Athenians

under Demosthenes, a third part of the spoils was assigned to Athens,

three hundred panoplies to Demosthenes and the remainder divided by

the Acaranians among their cities."[12]

Similar practices have been noted by Prof. Amos S. Hershey in a

recent article. He says "It was customary to divide the booty amongst

the victorious soldiery, i.e. after devoting one tenth of the spoil

to the Gods and a portion to the leaders and warriors who had

particularly distinguished themselves."[13]

The Greeks also appear to have recognized the right of reprisal.

Thus in the Iliad, Nestor speaks of making reprisals on the Epeian

nation, in satisfaction for a prize won by his father Neleus at the

Elian games and for debts due to many private subjects of the Pylian

kingdom. The booty was equitably divided among the many creditors.[14]

This testimony is based on the writings of Herodotus, Plutarch,

Xenophon, Homer, Virgil, Pliny and other classical writers. It

has little bearing on our present subject except in so far as it

indicates the recognition even at so early an age of the principle

that the title to captured property does not rest in the immediate

captor but that proceeds of prize shall be equitably divided by the

general or other officer. In the case of the battle of Plataea there

seems to be also a recognition of the principle that prizes of right

belong to the whole public, in other words to the state.

These two principles, that prizes do not belong to the original

captor but should be divided, and that the state may appropriate

prizes seem to constitute the Greek theory on the subject. It is

unlikely that they were the subject of definite laws but recognition

was given to them if at all by command of the general on the occasion

of a particular war, as is indicated in the cases cited.

The basis for this theory, apparently far ahead of its time may be

found in the well developed feeling of political obligation among the

Greeks. They appear to have recognized public war as a state affair,

consequently individual soldiers acted only in the capacity of agents

of the state in regular military operations.[15] Their captures

accrued not to themselves but to the state for whom they acted.

Of the actual effect of such a prize law among the Greeks it is

difficult to make a statement. It might be supposed that the

incentive toward the capture of booty would be decreased by such a

rule yet so far as we can learn of Greek warfare there was no limit

to the atrocities committed either on persons or property.[16] The

Greek soldier felt justified in going to any extreme in acting for

his state.[17]

b. Maritime War.

Grotius has nothing to say of prize laws in maritime warfare.

Phillipson believes that the Greeks made prize of enemy vessels and

also of neutral vessels for breach of blockade. He gives evidence

which indicates that theoretically, confiscable goods went to the

state, and that rudimentary prize courts were held. Thus he says:

"In most Greek states there was something of the nature of a prize

court, to which appeals could be made by those who held they had been

contrary to the law of nations deprived of their property. In Athens,

the assembly of the people frequently took cognizance of such claims.

Thus two trierarchs were accused of appropriating the proceeds of

a cargo from Naucrates on the ground that if confiscable it ought to

have gone to the State. An assembly was therefore held and the people

voted for a hearing on the question."[18] But in general, law at sea

was very poorly enforced and neutral rights seldom respected. In fact

it seems likely that maritime war fell little short of piracy so far

as the capture of private property was concerned.[19] Thus Polycrates

of Samos wishing to establish his supremacy on the Aegean built up

a navy which swept the sea, robbing friend and foe alike,[20] and

so "at the commencement of the Peloponnesian war the Lacedaemonians

captured not only the trading vessels of their enemy the Athenians,

and also of their allies, but even those of neutral states and all

who were taken on board were treated as enemies and indiscriminately

slaughtered."[21]

The Aegean sea was a nest of pirates and the profession was looked

upon not only as a legitimate means of emolument but was even

considered glorious.[22] They were frequently engaged in war as

mercenaries. Thus Psammilicha was reinforced by Carian and Ionian

pirates,[23] Euripidas and Aelotian employed pirates as mercenaries

in 218 B.C.[24] and Polyxenidas the commander of the fleet of

Antiocha entered into an alliance with Nicander, a pirate chief who

contributed five decked ships in 190 B.C.[25] In such cases of course

the state surrendered all right in controlling the distribution of

prize money or of itself sharing in the proceeds.

The Rhodian sea laws[26] are said to have been effective in the third

century B.C. in temporarily freeing the sea of Pirates[27] and giving

opportunity for considerable commercial advancement. Unfortunately

these laws have been almost entirely lost so we do not know what

measures were taken for disposing of the captured pirate vessels or

other enemy goods that might be considered prize.

It seems that the theory of the states control over prize applied in

naval as in land war but that in practice government authority at no

period of ancient Greek history extended very effectively over the

seas for any considerable length of time and that private property

was for the most part at the tender mercies of the pirates.

_NOTES._

Chapter I, Part 1.

[1] Grotius, Hugo. De Jure Belli et Pacis. 3 Vols. Original and

English translation from the Latin by William Whewell. Cambridge,

England, lib. iii, c vi, p. 104.

[2] Op. cit. iii, 123.

[3] Heroditus, ix, 79, quoted in Grotius, op. cit. iii, 123.

[4] Plutarch, Lysander, 442 a, quoted ibid.

[5] Xenophon, de Lacedemonia Republica, c 13, n 11, quoted ibid.

[6] Virgil, Aeneid, ix, 268, quoted ibid.

[7] Homer, Iliad, v, 331, quoted ibid.

[8] Euripides, Rhes. v, 182, quoted ibid.

[9] Pliny, xxxiii, 3, quoted ibid.

[10] Coleman Phillipson. The International Law and Custom of Ancient

Greece and Rome. 2 Vols. London, 1911.

[11] Heroditus, ix, 80, 81, quoted in Phillipson, op. cit. ii, 237.

[12] Thucidides, iii, 114; Heroditus, viii, 11, 123; Plutarch,

Alcibiades, 7; Plato, Synp. 220; quoted in Plato op. cit. ii, 237.

[13] Hershey, Amos S. The History of International Relations During

Antiquity and the Middle Ages. American Journal of International Law,

1911, v. 915.

[14] Homer, Iliad, lib ii, quoted in Blackstone, Commentaries, i, 259.

[15] Fustel de Coulanges, The Ancient City, English Translation from

French by Willard Small, 10th Edition, Boston, 1901, p. 293.

[16] Wheaton, History of the Law of Nations, New York, 1845, p. 5.

Walker, History of the Law of Nations, Cambridge, Eng., 1899, p. 41.

[17] "To a king or commander nothing is unjust which is useful."

Thucydides, History, lib vi, quoted in Wheaton, History, p. 5; see

also Hershey, op. cit. American Journal of International Law, v. 915.

[18] Phillipson, op. cit. ii, 381.

[19] Walker, History, p. 41. Walker, Science of International Law,

Cambridge, England, 1893, p. 60.

[20] G. W. Botsford, A History of Greece, New York, 1912, p. 75.

[21] Thucydides, ii, 67, quoted in Phillipson, op. cit. ii, 382.

[22] Homer, Iliad, i, 367; vi, 58; ix, 588, xxii. 64; Odyssey, xv,

385; 426; xvii, 425; quoted in Phillipson, op. cit. 370.

[23] Heroditus, ii, 152, quoted in Phillipson, op. cit. ii, 371.

[24] Polybius, iv, 68, quoted ibid.

[25] Livy, xxxvii, 11, quoted ibid.

[26] The so-called Rhodian laws of the middle ages, the earliest

manuscript of which apparently dates from 1478, have no connection

with the ancient sea laws of Rhodes. Of the latter only the law of

Jettison survives, see Robert D. Benedict, The Historical Position

of the Rhodian Law, Yale Law Journal, 1908-09, xviii, 223; Hershey,

op. cit. Amer. Jour. of International Law, 1911, v. 917; Walter

Ashburner, the Rhodian Sea Law, Oxford, 1909.

[27] Hershey, op. cit. American Journal of International Law, 1911,

v. 915; Phillipson, op. cit. ii, 373.

PART 2. ROME.

a. Land War.

From the Greek theories the Roman legal mind developed elaborate

rules for the apportionment of booty captured in land war. The Romans

clearly recognized that the prizes taken in public war belong to the

state.

"Whatever is captured from the enemy, the law directs to be public

property: so that not only private persons are not the owners of

it, but even the general is not. The Questor takes it, sells it

and carries the money to the public account." says Dionysius of

Halicarnassus.[1] This might seem to imply that no individual could

enjoy a share of the proceeds but such does not seem to have been

the case. It simply means that the title to all captures vested in

the state which could if it saw fit transfer a share of the booty to

the captors or others. Grotius[2] gives definite rules employed by

the Romans in dividing the produce of such booty. His statements are

based on the writings of Livy and other Latin writers.

In dividing booty money account was taken of the pay of the soldiers

and of special bravery.[3] Special reward was usually made to

the general.[4] Sometimes a portion was given to others who had

contributed to the expenses of the war.[5] Often a portion was

dedicated to the Gods[6] although this practice was much less common

among them than among the Greeks. It was considered a particularly

worthy act on the part of a general if he refused to accept any

share of the booty as was sometimes done by those seeking state

honors.[7] The whole system was closely circumscribed by law. A

penalty attached to the crime of peculation, the private secreting of

booty without submitting it to the public.[8] Roman orators dilated

at length on the infamy of peculation.[9]

These rules applied only to soldiers of the regular army engaged

in regular war. In irregular warfare soldiers were often given the

privilege of committing indiscriminate pillage in which case the

booty belonged to the captor.[10] This practice however was greatly

deplored by many writers.[11] Captures made by allies not under the

immediate commands of Roman generals or by subjects carrying on war

without pay at their own risk accrued to the sole benefit of the

captors.[12]

b. Maritime War.

As to captures at sea, the Jurisconsult Valneius Maecianus said, "I

am master of the earth, but the law is mistress of the sea."[13]

Grotius has nothing to say directly of maritime captures among the

Romans, though he implies that the same laws applied to them as to

land captures. A case of naval prize arose during the Punic war in

the capture of the Carthaginian woman, Saphonoba, from a vessel at

sea. The Roman general considered that all prize of war belonged to

the Roman people and was to be divided by the senate, so ordered

that she be sent to Rome. The lady settled the matter by taking

poison.[14]

The Romans were a land people. They very much disliked naval

warfare,[15] consequently they never supported much of a fleet.[16]

True, on meeting a naval power like Carthage they created a very

effective navy on short notice[17] but whenever they could they

avoided naval warfare. Piracy was extremely prevalent on the

Mediterranean during Roman times. Often Roman generals made use of

pirate vessels both for transport and to harass the enemy.[18] In

these cases of course the state put up no claim to control prizes.

Later, pirates became so powerful that Rome saw the necessity of

crushing them. Servilius actively engaged in suppressing piracy and

he felt bound to render full account to Rome of all captures.[19]

Pompey finally crushed the pirates in the battle of Coracesum B.C. 67

and completely drove them out of the Mediterranean.[20] The Romans

recognized the right of reprisal and according to Chancellor Kent

they required the carriage of a commission by vessels engaged in that

business.[21]

Roman law, then, recognized that captures were the property of the

state, that apportionment should be governed by law, that in special

cases the state could waive all right in favor of the immediate

captors.

Rome's policy was directed toward the securing of order through law.

Discipline and authority were the fundamental principles on which

her greatness was founded. Her military policy was to subordinate

individuals to the general good, to make each soldier a cog in the

wheel working in harmony with the whole. Individual freedom of

action was curtailed not in the interests of humanity but in the

interests of the efficiency of the general army. Her rules of prize

distribution are completely in harmony with these principles. No

private right of aggrandizement in war existed, all was controlled

by the state. The state was the combatant in war, the state bore

the losses and to the state accrued the gains. State authority

overshadowed every act of the individual.[22]

In practical effects the Roman laws of prize money probably

accomplished the purpose for which they were intended, that is,

they lessened the chance for insubordination among the soldiers.

Under them soldiers remained at their post of duty instead of going

on journeys of pillage. It made war regular and public instead of

guerrilla and private.

Humanitarian effects were slight or none at all. Though not impelled

by the hope of personal gain the Roman soldiers seem to have

captured, devastated and destroyed without compunction. Wheaton says

of Roman warfare, "Victory made even the sacred things of the enemy

profane, confiscated all his property, moveable and immoveable,

public and private, doomed him and his posterity to perpetual slavery

and dragged his kings and generals at the chariot wheels of the

conqueror thus depressing an enemy in his spirit and pride of mind,

the only consolation he has left when his strength and power are

annihilated."[23]

Though Roman warfare was cruel, it was regulated by law. Roman

civilization recognized the supremacy of the state, the public

character of regular war, and of immediate interest to the present

subject, the exclusive control by the state of all military

captures.

_NOTES._

Chapter I, Part 2.

[1] Antiquita Roma, vii, 63, quoted in Grotius, op. cit. iii, 124.

[2] Grotius, op. cit. iii, 127.

[3] Livy, xiv, 34, 40, 43, quoted in Grotius, op. cit. iii, 129.

[4] Heroditus, ix, 80, quoted in Grotius, op. cit. iii, 130.

[5] Dionysius of Halicarnassus, v, 47, quoted, in Grotius, op. cit.

iii, 134.

[6] Livy, v, 23, quoted in Grotius, op. cit. iii, 135; Phillipson,

op. cit. ii, 238.

[7] Apud Dionysius of Halicarnassus Excerpt, p. 714, quoted in

Grotius, op. cit. iii, 131.

[8] Polybius, History, x, 16, quoted in Grotius, op. cit. iii, 138.

[9] Cato, xi, 18; Cicero, Verres, iv, 41, quoted in Grotius, op. cit.

iii, 137, 138.

[10] Livy, xliv, 45; xlv, 34, quoted in Grotius, op. cit. iii, 133.

[11] Livy, v, 20, quoted in Grotius, op. cit. iii, 134.

[12] Cald. Cons. 85, quoted in Grotius, op. cit. iii, 140.

[13] Digest, xiv, 3, quoted in Charles Calvo, Le Droit International

Theorique et Pratique, 5th Edition, 6 Vols., Paris, 1896, i, 15.

[14] Livy, xxx, 14; 11 Appian Pun. 28, quoted in W. E. Heitland, The

Roman Republic, 3 Vols., Cambridge, England, 1909, sec. 385.

[15] Heitland, op. cit. secs. 246, 436; Phillipson, op. cit. ii, 369.

[16] Heitland, op. cit. sec. 161.

[17] Heitland, op. cit. sec. 245.

[18] Heitland, op. cit. secs. 949, 960.

[19] Cicero, Verres, i, 56, 57, quoted in Heitland, op. cit. sec. 965.

[20] Heitland, op. cit. sec. 993.

[21] Kent, Commentaries, Holmes, Editor, 12th Edition, 4 Vols.,

Boston, 1893, i, 95.

[22] de Coulanges, op. cit. 293.

[23] Wheaton, History of the Law of Nations, p. 25.

_CHAPTER II. DURING THE MIDDLE AGES._

PART 1. MARITIME CODES.

"In the dark ages, between 476 and 800 A.D. International law reached

its nadir in the West".[1] Private war, on land and piracy at sea

were unrestrained. There were of course no laws providing for the

division of prize money.

By the eleventh and twelfth centuries many cities of the

Mediterranean and North seas had become powerful commercially and

issued laws for determining maritime affairs. Such were the Amalfitan

Tables, the Judgments or Roles of Oleron, the Laws of Wisby, and

the Consolato del Mare originating in Barcelona.[2] As these laws

simply stated the universal customs of the sea it came about that

all maritime towns would adopt one of these codes.[3] Thus by the

fifteenth century the Consolato del Mare was recognized maritime law

in most of the commercial cities of the Mediterranean[4] while the

Judgments of Oleron were in a similar way recognized by the towns

of the North Sea.[5] These laws were intended primarily to regulate

the private relations of mariners, owners and merchants, but on

account of the necessity of protection from pirates many of them

also included laws of maritime war and prize. State organization

had not developed sufficiently to afford protection to merchants on

the sea, consequently the merchants themselves formed protective

organizations, furnished armed cruisers for making prizes and

established consulates for judging maritime cases and for enforcing

the definite codes of maritime law.[6]

The Consolato Del Mare may be taken as an example of the maritime

codes. It probably originated in the thirteenth century. The earliest

known manuscripts are in the Catalonian language and apparently were

engrossed in the middle of the fourteenth century. The earliest

printed copy is dated 1494 and is also in the Catalonian language.[7]

The chapters on prize law, state the principles on which enemy

property may be captured. In general the principle is established

that enemy vessels and neutral goods are exempt. Originally the

armed merchantmen were in no way bound to any state so no commission

delegating state authority to make captures is mentioned. Apparently

the prizes had to be adjudicated at the consulates established by the

merchant leagues.[8]

There are chapters dealing with "cruizers" which give the municipal

usages concerning the distribution of prize between the owners,

officers and crew of vessels.[9]

"Thus among the Italians a third part of a captured ship goes to the

captain of the victorious ship, a third part to the merchants to whom

the cargo belonged, and a third part to the sailors".[10]

It thus appears that the Consolato distinctly recognized the reign

of law in prize matters. It respected neutral rights, it required

adjudication on prizes, it gave rules for the division of prize

money, respecting the claims of merchants, captain and crew to share

in the distribution.

The rules of the Consolato appeal to one decidedly as rules intended

to govern commercial enterprises. The policy of the merchants was

of defensive rather than offensive war so no stringent belligerent

rights were affirmed. Primarily intended for commerce, it is not

surprising that such a large amount of respect was paid to neutral

rights and such a large share of the prizes given to merchants. The

minute rules, seemingly forecasting every possible contingency also

speak of a strong desire to establish order, and firm law, both

conditions essential to commerce.

The Consolato was probably effective for its purpose. We know that

the merchant guilds and the maritime towns flourished, piracy

decreased, commerce prospered. The merchant sailors would not be

likely to be lured into making prizes for private gain when their

very object was the destruction of piracy. Also habits of commerce

and obedience to law would induce them to exhibit moderation in war

matters. The maritime laws and the supremacy of the commercial towns

was a great step toward legalizing maritime warfare and especially

toward ameliorating the condition of private property on the sea.

One of the peculiarities of the Consolato from a modern standpoint

is that it does not recognize the exclusive right of states to make

war. This is explained by the fact that territorial states had not

become sufficiently centralized to organize a definite maritime

jurisdiction. However, in the early part of the sixteenth century

the movement toward the individualizing of territorial states was

rapidly nearing completion and it is interesting to note that when

the movement was sufficiently advanced nearly all the states adopted

one of the old maritime codes into their laws, of course adding to it

the principle of state authorization for all reprisals or wars and

state jurisdiction over prize cases.[11]

_NOTES._

Chapter II, Part 1.

[1] Walker, History of the Law of Nations, p. 64.

[2] For brief discussion of many of the Maritime Codes see E. C.

Benedict, The American Admiralty, 4th Edition, Albany, 1910. The

so-called Rhodian Sea Laws are thought by Ashburner to date from the

seventh or eighth century A. D. Other writers place them later. The

earliest manuscript apparently dates from the fifteenth century. It

is well established that they have no connection with the ancient sea

laws of Rhodes but possibly they were authorized by the Byzantine

Caesars and undoubtedly they consist of laws recognized in the

Eastern Mediterranean in the middle ages. These laws relate only to

civil matters at sea and have no provisions dealing with prize but

in their general provisions they may have furnished a basis for the

maritime codes of a few centuries later, see Ashburner, The Rhodian

Sea Law, Oxford, 1909.

[3] Twiss, Introduction to the "Black Book of the Admiralty", Rolls

Series, No. 55, iii, 80.

[4] For discussion of the influence of the Consolato, see Twiss,

Consulate of the Sea, Encyclopedia Britannica, 11th Edition, vii, 23.

Ashburner takes a less favorable view of the Consolato. He considers

it a literary production giving the authors theory of sea law rather

than a correct statement of the law as it was. In his opinion more

confidence should be placed in the maritime statutes of the towns

such as the laws of Amalaric, St. Cuzala, Genoa, St. Ancon, Baracchi,

St. Caltaro, etc. than in the Consolato.--Ashburner, op. cit. p. 120.

[5] For discussion of the Laws of Oleron, see Twiss, Sea Laws,

Encyclopedia Britannica, 11th Edition, xxiii, 535; Sir John Comyn, A

Digest of the Laws of England, 5 Vols., Dublin, 1785, i, 271; also

note post p. 42.

[6] Wheaton, History of the Law of Nations, p. 62.

[7] For discussion of origin and early manuscripts see Twiss,

Introduction to "The Black Book of the Admiralty", iii, 26 et seq.

[8] For text of prize chapters of the Consolato, see English

translation by Dr. Robinson in his Collectanea Maritima, No. v;

quoted in Wheaton, History of the Law of Nations, p. 63; Original

and translation by Twiss, Black Book of the Admiralty, Rolls Series

No. 55, iii, 539; French translation by Pardessus, in his Collection

des Lois Maritimes Anterieures aux XVIII Siecle, ii, c 12, noted in

Wheaton, op. cit. p. 61, Walker, History of the Law of Nations, p.

116; See also note by Grotius, op. cit. iii, 9.

[9] Twiss, Introduction to Black Book of the Admiralty, iii, 76.

[10] Consolato Del Mare, c 285, quoted in Grotius op. cit. iii, 145.

[11] Wheaton, History of the Law of Nations, p. 66.

PART 2. THE NEW INTERNATIONAL LAW.

During the sixteenth century the idea of the individuality of

territorial states reached material realization. A school of

international law writers arose who endeavored to determine

the relations which ought to exist between these states. A new

recognition was given to the state's exclusive authority over matters

of war and prize. The old Roman laws of JusGentium and JusNaturale

were combined with the observed practices of nations to build up

rules conformable to the new situation.

Machiavelli writing in 1513[1] distinctly recognized the independence

of the territorial state.[2] He conceived of the Prince as being

under obligations to no superior, either human or divine.[3] He

recognized the state as the sole agency which could authorize war

and the capture of prize but recommended liberality in distributing

the produce of prize and booty as a policy calculated to encourage

loyalty and perseverance in the soldiers,[4] a theory well in harmony

with his idea of human nature, which considered man as actuated

solely by the hope of personal gain.[5]

Conrad Brunus in 1548 also voiced the theory of state supremacy in

war. "The war making power resides in the supreme authority of the

state to whom it exclusively belongs to authorize hostilities against

other nations by a solemn declaration."[6]

Francis de Victoria held that captured moveables become by the

law of nations property of the captors but pillage should be only

permitted when necessary for reducing the enemy.[7]

Balthazar Ayala took an even more advanced stand. He pointed out

that according to the laws of Spain, lands, houses and ships of war

taken from the enemy become the property of the crown and as to other

articles the right of the captors to appropriate them as booty is

restrained by that of the state to regulate the division reserving

to itself a certain share and distributing the rest according to the

respective rank of the captors. In regard to naval captures he says:

"But if it chance that in naval war the king supplies the ships and

their armament and also provides supplies and wages for the soldiers

and sailors the same contributions place the whole booty at the

disposal not of the general or admiral but of the king, nor will the

soldiers or sailors get any part thereof except such as is granted

to them by the king's liberality. In every other event however,

after the king's share has been set aside, the admiral can divide

the residue between the soldiers and sailors a seventh part of the

residue being due to himself".[8] Ayala had previously remarked that

by the Spanish law the king's share ranged from one fifth to one

half of the prize. In his theory goods must be brought within the

territory of the capturing state (intra praesidia) to give a good

title. If recaptured before this, by postliminium, they revert to the

original owner. Reprisals must be authorized by the sovereign.[9]

Thomas More conceived of a liberal policy of disposing of prize,

in his Utopia. In speaking of the capture of cities he says, "If

they knowe that annye cytezeins counselled to yealde and rendre vp

the citie, to them they gyue parts of the condemned mens goods. They

resydewe they distribute and giue frelye amonge them, whose helpe

they had in the same warre. For none of themselfes taketh any portion

of the praye."[10]

Bodin clearly enunciated the sovereigns exclusive right over sea

captures. "Mais les droits de la mer n'appartienment qu'au Prince

Souverain."[11]

Gentilis the forerunner of Grotius expressed the limitations on the

power of the state. There was danger that in the rise of states to

independence the Machiavellian policy would be adopted, that states

would consider themselves bound by no law. Gentilis showed the

limitations that natural law impose upon states even in war. In his

view, property can not be wantonly destroyed, neutral property can

never be captured and neutral territory is always inviolable.[12]

In his epoch making work which appeared in 1625, Grotius correlates

the principles of those preceding him and in authoritative style

sets forth the new international law.[13] His chapters on prize

distribution may be briefly summarized as follows: The right of

reprisal is recognized but it is only allowable under authority

of the state. In the case of reprisals the property in goods

taken immediately accrues to the captor to the extent of the debt

or damages due and expenses, but any balance over this ought to

be restored. The prize should be adjudged in a court of the

state before distribution.[14] Goods captured at sea require firm

possession to give a title. In Roman law this is established when

the vessel is brought to port (intra praesidia), but modern practice

establishes the twenty four hour rule. Recaptures, before possession

is established, revert to the original owner by postliminium.[15]

Neutral property is never subject to capture not even in enemy ships.

Enemy property is good prize. If taken otherwise than in regular

public service, i.e. in private reprisals, or under special grant of

pillage, it becomes the property of the immediate captor though the

municipal law of the captors state may alter this condition. Goods

taken in public service accrue to the state which may distribute

the proceeds at will.[16] Instances are given of the distribution

laws in contemporary states. "Among the Italians a third part of a

captured ship goes to the captain of the victorious ship, a third

part to the merchants to whom the cargo belonged and a third part

to the sailors."[17] "With the Spaniards, if ships are sent out at

private expense, part of the prize goes to the king, part to the

high admiral,[18] and ships of war go altogether to the king."[19]

By the custom of France, the Admiral has a tenth,[20] and so with

the Hollanders but here a fifth part of the booty is taken by the

state.[21]

Zouche of Oxford University, England, in 1650 made a valuable

contribution to international law literature in his "Juris et

Judicii Fecialis sive Juris Inter gentes Explicatia", a book famed

as being the first to describe the science as jus inter gentes,

international law, rather than the former misleading name, jus

gentium, law of nations. He maintains that war can only be declared

by the supreme authority of the state. However if acts of aggression

are committed by individuals during war without authorization,

international law has no jurisdiction over the matter, though

municipal law may decree punishment.[22] As coming from England this

theory is interesting as it seems to forecast the later doctrine

of that country that unauthorized captures at sea are permissible

so far as the enemy is concerned though municipal law decrees the

whole product of such captures to the crown.[23] Zouche admits the

right of reprisal. By reprisal is understood the right assumed by a

subject to collect a foreign debt or to collect damages for injuries

received in a foreign country through the seizure of goods on the

high seas belonging to any subject of that state. Though the practice

seems hard to reconcile with justice, Zouche in common with most of

the international law writers holds that all the members of a state

are liable for the debts of one member so by strict international

law, reprisal is allowable but only under commission from the

sovereign.[24]

Puffendorf writing in 1672 practically quotes the views of Grotius

in prize matters.[25] He maintains that individuals can not make

war, which is only a state affair, "Il est certain, que c'est au

souverain seul qu'appartient le droit de faire la guerre."[26] In

regard to captures he holds that the title to booty vests originally

in the sovereign but it is equitable for the sovereign to divide

the proceeds among those who have borne the heaviest burdens of war.

Recaptures revert to the original owner. The right of reprisals

is admitted but exception is taken to the view of Grotius that in

case of reprisals and all captures made by private undertaking the

proceeds belong immediately to the captor. Puffendorf asserts "Tout

le droit que les particuliers ant ici depend toujours originairement

de la volonte du souverain,"[27] thus emphasizing more strongly the

absolute title of the state to all captures. A careful reading of

Grotius seems to reveal that his idea was the same. He says that by

the practice of nations captures not made in regular war usually

accrue to the captor but this rule may be changed by municipal law

and "so a rule may be introduced by law that all things which are

taken from the enemy shall be public property,"[28] thus virtually

asserting Puffendorf's statement that the original title always vests

in the sovereign.

In brief the laws of prize distribution enunciated by the great

founders of international law of the sixteenth and seventeenth

centuries appear to be as follows:

1. The state is the only power which can prosecute war and make prize.

2. The right of private reprisal can only be exercised under specific

commission from the state.

3. The title to all prizes vests originally in the state.

4. Distribution should be decreed only after adjudication of the

prize by a regular tribunal of the state.

5. The method of distributing prize money is determined by municipal

law.

Undoubtedly the practice of nations did not, in a great many cases

equal the lofty ideals of the publicists but at the same time their

principles were for the most part given theoretic recognition by the

sovereign authorities of states belonging to the family of nations

and as centralized authority gained in strength they became more and

more realized in practice.

_NOTES._

Chapter II, Part 2.

[1] "The Prince" was written in 1513, first published 1532,

posthumously.

[2] "Princes ought avoid as much as they are able to stand in

anothers discretion." Machiavelli, The Prince, English Translation

from Italian by Dacres, Tudor Translations, vol. 39, London, 1905,

c 21.

[3] "And therefore it suffices to conceive this, that a Prince,

and especially a new Prince can not observe all those things for

which men are held good, he being often forced for the maintenance

of his state to do contrary to his faith, charity, humanity, and

religion."--The Prince, c 18, p. 323. "And therefore, a wise Prince

can not, nor ought not keep his faith given, when the observance

thereof turns to disadvantage and the occasions that made him promise

are past." The Prince, c 18, p. 322.

[4] "The Prince" c 16, p. 315.

[5] For Machiavelli's political theory see W. A. Dunning, A History

of Political Theories, 2 Vols, New York, 1902, i, 285 et seq.

[6] De Legationibus, 1548, iii, 8, quoted in Wheaton, History of the

Law of Nations, p. 50.

[7] Reflectiones Theologicae, 1557, vi, 52, quoted in Wheaton, op.

cit. p. 41; Walker, History of the Law of Nations, p. 229.

[8] De Jure et Officiis Bellicis et Disciplina Militari, 1582,

Original and English translation from Latin by J. P. Bate, J.

Westlake, Editor, 2 Vols, Carnegie Institution of Washington, 1912,

ii, 38; taken from Spanish Ordinance, Book 14, tit. 26, par. 2.

[9] Op. cit. Lib. i, c 4, 5, also see Wheaton, op. cit. p. 45 Walker,

op. cit. p. 248.

[10] Utopia, 1516, English translation from Latin by Robynson, Arber,

Editor, English Reprint Series, vol. 2, London, 1869, p. 142, also

quoted in Walker, op. cit. p. 242.

[11] De La Republique, 1577, Liv. i, c 10, p. 246, quoted in Walker,

op. cit. p. 262.

[12] De Jure Belli, 1589, Holland Editor, Oxford, 1877, p. 250, see

also Walker, op. cit. p. 265.

[13] De Jure Belli et Pacis, 1625, Edition Cited, see also summary by

Walker, op. cit. 313 et seq.

[14] Op. cit. iii, 48.

[15] Op. cit. iii. 111.

[16] Op. cit. iii, 105.

[17] Op. cit. iii, 145, taken from Consolato Del Mare, c 285.

[18] Op. cit. iii, 145, taken from Leg. Hisp. xix, tit. xxvi, p. 2, 1.

[19] Op. cit. iii, 144, taken from Leg. Hisp. iv, tit. xxvi, p. 2.

[20] Op. cit. iii, 145, taken from Const. Gall. liv. xx, tit. 14,

art. 1.

[21] Op. cit. iii, 145.

[22] Juris et Judicii Fecialis sive Juris Inter Gentes Explicatio,

1650 original and English translation from Latin by J. L. Brierly,

T. E. Holland, Editor, 2 Vols., Carnegie Institution of Washington,

1911, ii. 112.

[23] Post 81, 103.

[24] Op. cit. ii, 115.

[25] Le Droit de la Nature et des Gens, French translation by

Barbeyrac, 2 Vols., Leide, 1759, ii, liv. viii, c 6, s 8, p. 558 et

seq.

[26] Op. cit. ii, 569.

[27] Op. cit. ii, 570.

[28] De Jure Belli et Pacis, Edition cited, ii, 122.

_CHAPTER III. GREAT BRITAIN, HISTORICAL RESUME._

PART 1. EARLIEST TIMES TO 1340.

a. Laws.

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 and private 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]

b. Administration.

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's perquisites 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.

_NOTES._

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.

PART 2. 1340-1485.

a. Laws.

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 the decks.[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 and it 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 of Edward 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.

b. Administration.

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 in the 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 not paid 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.

c. Significance.

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.

_NOTES._

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 ante p 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 ante p 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.

PART 3. 1485-1603.

a. Laws.

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 the case 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]

b. Administration.

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 of immemorial 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 rather effective 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 1602 by 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.

c. Significance.

The effect of the generous laws of distribution of this period

undoubtedly was to encourage adventure and privateering. 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.

_NOTES._

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.

[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.

[10] Marsdon, English Historical Review, xxiv, 689, 697.

[11] Select Pleas of the Admiralty, Seldon Series, xi, 107.

[12] Ibid. xi, 130.

[13] Ibid. xi, 17.

[14] Acts of the Privy Council, 1588-1589, New Series, xvii, 283, 413.

[15] Ibid. xvii, 357.

[16] Marsdon, English Historical Review, xxiv, 696.

[17] Select Pleas of the Admiralty, Seldon Series, xi, 204.

[18] Marsdon, English Historical Review, xxiv, 696.

[19] Vattel, The Law of Nations, English translation from French by

Joseph Chitty, Philadelphia, 1883, p. 285.

PART 4, 1603-1688.

a. Laws.

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. Recaptures were 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 to plunder 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.

b. Administration.

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

the Admiral 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 the

carriage 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 the Vice

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.

_NOTES._

Chapter III, Part 4.

[1] Cal. St. Pap. Dom. Jac. I, 1623-1625, p. 476.

[2] Cal. St. Pap. Dom. Car. I, 1625-1626, p. 142.

[3] Marsdon, English Historical Review, xxv, 253.

[4] Henry Scobell, A Collection of Acts and Ordinances, London, 1658,

1649, c 21, p. 9.

[5] Ibid. c 21, p. 9.

[6] Ibid. 1648, c 12, p. 4.

[7] Ibid. 1648, c 15, p. 7.

[8] Ibid. 1649, c 21, p. 9.

[9] Marsdon, English Historical Review, xxvi, 40.

[10] Ibid. xxvi, 41.

[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.

[13] 13 Car. II, c 9, s 7, 1661.

[14] Marsdon, English Historical Review, xxvi, 44.

[15] Ibid. xxvi, 45.

[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.

[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.

[20] See Ante p. 24.

[21] 54 Geo. III, c 93, s 72, 1814.

[22] Marsdon, English Historical Review, xxvi, 53; Cal. St. Pap. Dom.

1690-1691, p. 92.

[23] Ibid. xxvi, 53.

[24] Ibid. xxvi, 55.

_CHAPTER IV. GREAT BRITAIN, RECENT LAWS._

PART 1. 1688-1864.

After the revolution of 1688 English methods of legislation became

in many cases crystallized into their present form. This was true of

prize money law. In 1692[1] the first statute granting prize money

to the captors was passed, for the purpose as the bill stated of

encouraging privateers in the pending war with France.

In connection with instructions for privateers issued in 1693[2]

provision was made that prize ships taken by privateers should go to

the captors but the king was entitled to one-fifth of the goods on

board, the other four-fifths going to the captors. Prizes taken by

king's or hired ships went, one-third to the widows and children of

the slain, the sick and the wounded; one-third to the officers and

crew; and one-third to the king. Gun money of five pounds a gun was

granted for capturing or destroying a man of war in addition to the

prize money. Recaptured ships were to be returned after payment of

salvage of one-third to one-eighth according to the time the vessel

had been in the enemy's possession.

With the outbreak of the war of the Spanish succession the statutory

method of providing for prize distribution was established. By a

statute of 1707[3] the sole property in all prizes was granted to

the officers and seamen of queen's ships and the officers, seamen

and owners of privateers, the capture being first adjudged good

prize in a court of admiralty. The act also provided for the payment

of head money or bounty to the amount of five pounds per man on

board every war ship or privateer of the enemy, sunk or destroyed.

The act was to continue only for that war. Orders in council issued

on authority of the act provided details for the conduct of prize

courts and the division of prize money and bounty among the captors.

In reference to this act and the previous history of prize money in

England, Lord Loughborough said in 1789,[4] "Before the sixth year

of the reign of Queen Anne there were no laws made on the subject.

Previous to that time all prizes taken in war were of right vested

in the crown and questions concerning the property of such prizes

were not the subject of discussion in courts of law. But in order to

do justice to claimants from the first year after the restoration

of Charles II, special commissions were issued to enable courts

of Admiralty to condemn such captures as appeared to be lawful

prizes,[5] to give relief where there was no color for the taking

and generally to make satisfaction to parties injured. But in the

sixth year of Queen Anne it was thought proper for the encouragement

of seamen to vest in them the prizes they should take and for that

purpose the statutes of 6 Anne c 13 and c 37 were passed." From the

foregoing discussion it appears that the learned judge failed to

note the statute 4-5 Wm. and Mary c 25 passed in 1692 not to mention

the commonwealth statutes of 1648 and 1649. It also seems clear that

admiralty courts exercised jurisdiction over prize matters long

before the restoration of Charles II.

Queen Anne's act of 1707 is typical of those which have been passed

at the beginning of every subsequent war in English history until

the passage of the permanent prize act of 1864.[6] Since that time

the principle of giving the total proceeds of prize to the captors

has been adhered to although the principle that the initial title

to all captures vests in the crown has been maintained with equal

consistency.

Another act of 1707[7] extended the act previously mentioned to

captures made in America and provided for prize jurisdiction in

colonial courts of vice admiralty. The outbreak of the war of the

Austrian succession brought forth the prize act of 1740.[8] This

added to Queen Anne's act the provision that vessels recaptured

should be restored to the original owners on the payment of one

eighth salvage. A new act was passed in 1744[9] which repeated

the former acts adding provisions in regard to privateers. It was

provided that captures by privateers should belong to the ship

exclusively and division between the owners and crew should be

regulated by special contract between them. The admiralty was

authorized to issue letters of Marque on receiving of satisfactory

bond of good behaviour from the owners.

The act of 1756[10] repeated the provisions of the preceding act

with reference to the Seven Years war, as did the act of 1776[11]

with reference to the American Revolution and the acts of 1779,[12]

1780,[13] and 1781[14] passed on the outbreak of hostilities

with France, Spain and Holland, respectively. In the act passed

in 1793[15] to regulate prize matters in the French war a few

new provisions were added. Captures on land were put under the

jurisdiction of the admiralty and similar principles of division

authorized. Joint captures by land and naval forces were to be

divided by special orders in council. Recaptures were to be returned

on paying a salvage of one-eighth in case the capture was made by a

public vessel, and one-sixth if made by a privateer. The duration of

this act was extended by an act of 1797.[16] At the outbreak of war

with America a prize proclamation was issued, Oct. 26, 1812.[17] It

provided "That the net produce of all prizes taken, the right whereof

is inherent in His Majesty and his crown be given to the takers".

Rules were then given for the division among the officers and crew.

An act of 1813[18] authorized this proclamation and an act of the

following year[19] gave complete rules for prize distribution. Aside

from the matters covered in previous acts it provided that all prize

money shares not claimed or forfeited should go to the support of

the Greenwich naval hospital. An elaborate scheme for the division

of shares was included. By this scheme the proceeds of prizes taken

before 1808 were to be divided into five shares, besides the flag

shares, which were to be divided among five grades of seamen. Those

taken after 1808 were to be divided into eight shares and in the same

manner distributed among eight grades of seamen. The sizes of vessels

were evidently increasing rapidly, to necessitate this change in the

number of grades of mariners.

In 1815 a very elaborate act[20] was called forth by the return of

Napoleon from Elba, entitled "an act for the encouragement of seamen

and the more effectual manning of his majesty's navy during the

present war." It provided that the flag officers, commanders and crew

should have sole right in all prizes taken by public armed vessels

declared lawful prize before courts of admiralty or vice admiralty

to be divided in proportions from time to time decreed by orders

in council. Hired armed vessels were subject to the same rules.

Captures made with aid of allies were to be divided equally with the

ally. Land captures made by the navy were also the sole property of

the captors after proper adjudication, but joint captures by land

and naval forces were to be subject to special order in council.

Desertion, forfeited shared of prize money. Recaptures were to be

returned to the original owner on the payment of one-eighth salvage

if the captor was a public vessel and one-sixth if a private vessel,

except that if the recaptured vessel had been fitted out by the enemy

as a war ship it should not be returned to the original owner but

should be declared good prize for the benefit of the captors. Head

money or bounty of five pounds per man on board every enemy ship at

the beginning of an engagement was to be paid all vessels capturing,

sinking or destroying a war ship or privateer of the enemy. Ransom of

captured vessels was forbidden except in case of necessity. All money

given as bounty or salvage was to be subject to the same rules of

division as prize money. Letters of Marque were to be granted on

proper security for good behavior and the privateers were to be sole

proprietors of all captures after proper adjudication. The force of

this act only extended to the pending war.

During the middle of the nineteenth century England was engaged

in an active campaign to suppress the slave trade. As a result

proclamations were constantly issued decreeing the division of the

proceeds of vessels captured in this trade. The same rules were

followed as in the case of prizes of war, the whole of the captures

being given to the captor after adjudication. Such proclamations

were issued in 1834,[21] 1846,[22] 1849[23] and were authorized by a

statute passed in 1839[24] and amended in 1842.[25]

In the Crimean war of 1854 England followed her old policy in

prize distribution.[26] The act of 1815 was practically reenacted.

In addition it was provided that for any breach of her majesty's

instructions or the law of nations the shares of prize money would

be forfeited to the crown. In this war Great Britain was in alliance

with France and an interesting treaty was entered into by the two

countries providing for the division of prizes between them.[27]

Prizes were to be adjudicated by the courts of the country of the

officer in superior command in the engagement. Joint captors in sight

were to share but adjudication was always to be by the country of the

ship making the actual capture. If vessels of one of the allies

were captured for illicit trade it was to be tried by the country

of the captured vessel. In case of vessels of the two countries

acting in conjunction or of vessels of the two countries giving

constructive assistance the net proceeds were to be divided to the

several vessels according to the number of men on board irrespective

of rank. Distribution was to be regulated by the municipal laws of

each country. The treaty also contained instruction for bringing in

prizes. A similar treaty was entered into by France and Great Britain

in their joint expedition against China in 1860.[28]

_NOTES._

Chapter IV, Part 1.

[1] 4 and 5 William and Mary, c 25, 1692.

[2] Marsdon, English Historical Review, xxvi, 51.

[3] 6 Anne, c 13, 1707.

[4] Brymer vs Atkins, 1 H. Blacks, 189; 126 Eng. Rep. 97; see also

Phillimer, op. cit. iii, 576.

[5] 13 Car. II, c 9, 1661.

[6] 27 and 28 Vict. c 25, 1864.

[7] 6 Anne, c 37, 1707.

[8] 13 Geo. II, c 4, 1740.

[9] 17 Geo. II, c 34, 1744.

[10] 29 Geo. II, c 34, 1756; 32 Geo. II, c 25, 1759.

[11] 16 Geo. III, c 5, 1776.

[12] 19 Geo. III, c 67, 1779.

[13] 20 Geo. III, c 23, 1780.

[14] 21 Geo. III, c 15, 1781.

[15] 33 Geo. III, c 66, 1793.

[16] 37 Geo. III, c 109, 1797.

[17] State Papers, Foreign and Domestic, i, 1348.

[18] 53 Geo. III, c 63, 1813.

[19] 54 Geo. III, c 93, 1814.

[20] 55 Geo. III, c 160, 1815.

[21] State Papers, xx, 1214.

[22] Ibid. xxxiv, 438.

[23] Ibid. xxxix, 1252.

[24] 2 and 3 Vict., c 73, 1839.

[25] 5 and 6 Vict., c 91, 1842.

[26] 17 Vict., c 18, 1854.

[27] De Martens, Nouveau Recueil General de Traités, xv, 580.

[28] Ibid. xx, 460.

PART 2. 1864-1913.

Prize distribution in Great Britain at present is authorized by two

permanent acts passed in 1864. The first of these acts known as

the "Naval agency and distribution act of 1864"[1] provides that

all salvage, bounty and prize money be distributed according to

proclamation or order in council and that the shares in which such

distribution shall occur be determined in the same manner. Pursuant

to this act a proclamation was issued August 3, 1886[2] providing

that the whole of prizes legally adjudicated be for the benefit of

officers and seamen making the capture and that the flag officers

receive one-thirtieth of the proceeds and the captain one-tenth. The

remainder is to be divided equally among eleven grades of officers

and seamen. This rule has been superseded by an Order in Council

of September 17, 1900[3] shortly after the outbreak of the South

African war. It provides that only ships within sight so as to cause

intimidation of the enemy are to share in prize money as joint

captors. All bounty, salvage and prize money received for any action

are to be in general divided in the same manner. The flag officer

is to receive one-thirtieth of the prize but no share of bounty,

unless actually present at the capture. The captain in actual command

receives one-tenth. The remainder is divided among eleven grades of

officers and men as before.

The other act now in force regulating prize matter is the "Naval

Prize Act of 1864".[4] It provides for prize courts and prescribes

their procedure, these matters however have been amended by "the

prize courts act of 1894".[5] In joint captures by land and naval

forces prize courts have jurisdiction. In cases of the infraction of

municipal or international law all proceeds of the prize go to the

government, notwithstanding any grant that may have been made to the

captors. Ships taken as prize by any ship other than a regular ship

of war enure solely to the government. This provision effectually

abolishes privateering. Recaptured ships are to be returned to the

original owner if an English subject on payment of from one-eighth to

one-fourth salvage unless they have been fitted out by the enemy as

ships of war when they will be considered good prize. If prize bounty

is granted in any war by proclamation the officers and crew actually

present at the taking or destroying of any armed ship of the enemy

are entitled to bounty calculated at the rate of five pounds for each

person on board the enemy's ship at the beginning of the engagement.

The saving clause of the act states that "nothing in this act shall

give to the officers and crew of any of her majesty's ships of war

any right or claim in or to any ship or goods taken as prize or the

proceeds thereof, it being the intent of this act that such officers

and crews shall consent to take only such interest (if any) in the

proceeds of prizes as may be from time to time granted to them by the

crown." The principle that original title to all prize vests in the

crown is thus distinctly asserted.

Perhaps the best exposition of the present rules for the conduct of

prizes and the distribution of the proceeds from them is contained in

the instructions to naval officers which have been authoritatively

issued in England, based on the statutes and orders mentioned.

Such a code was prepared by Mr. Godfrey Lushington in 1866[6] and

revised by Prof. T. E. Holland in 1888.[7] It contains the following

provisions[8] bearing on bounty, prize salvage and prize money.

"247--When any ship or vessel shall be captured or detained her

hatches are to be securely fastened and sealed and her lading and

furniture and in general everything on board are to be carefully

secured from embezzlement. The officers placed in charge of her shall

prevent anything from being taken out of her until she has been tried

and sentence shall have been passed on her in a court of prize.

"250--If any ship or vessel shall be taken acting as a ship of war

or privateer without having a commission duly authorizing her to do

so, a full report of all particulars is at once to be made to the

admiralty.

"252--The ship to which a prize strikes her flag is the actual

captor. Other ships may be held by the prize court to share as joint

captors on the ground either of association or cooperation with the

actual captor.

"253--If ships are associated or cooperating together a capture made

by one enures to the benefit of all.

"255--Ships being in sight of the prize as also of the captor under

circumstances to cause intimidation to the prize and encouragement

to the captor are held to be cooperating with the actual captor.

"259--In the case of captures made jointly by British and allied

ships of war the duties of the respective commanders are usually

regulated by treaty.

"263--Upon adjudication the prize court will order the vessel and

cargo to be restored to their respective owners upon payment by them

of prize salvage.

"266--The prize salvage which will be awarded to the recaptors for

the recapture of any British vessel before she has been carried into

an enemy's port is one-eighth part of the value of the prize or in

case the recapture has been made under circumstances of special

difficulty or danger a sum not exceeding one-fourth part of the value.

"267--If however the vessel has before her recapture been set forth

or used by the enemy as a ship of war, then upon recapture the

original owner is not entitled to restitution, but both vessel and

cargo will be condemned as lawful prize to the recaptor.

"269--It may happen that an enemy vessel which has been captured by a

British cruiser is afterwards lost to an enemy's cruiser and finally

recaptured by another British cruiser. The commander effecting such a

recapture should send in the vessel for adjudication and the original

captors are not entitled to restitution, but both vessel and cargo

would be condemned as lawful prize to the recaptors.

"270--If a commander recapture from the enemy a neutral vessel which

would not have been liable to condemnation in the prize court of the

enemy he is not entitled to salvage and should without delay and

without taking ransom, set her free to prosecute her voyage.

"271--If a commander recapture from the enemy an allied vessel

his duty is generally regulated by treaty. In default of treaty

regulations he will send her into a British port for adjudication

and the prize court will award salvage or not according as the prize

court of the ally would or would not have awarded salvage to an

allied ship for recapturing a British vessel."

_NOTES._

Chapter IV, Part 2.

[1] 27 and 28 Vict., c 24, Chitty's Statutes, Lely, Editor, London,

1895, tit. Navy, viii, 1, Phillimore, op. cit. iii, 902.

[2] State Papers, lxxvii, 1189.

[3] Statutory Rules and Orders, Revised, London, 1904, tit. Navy, ix,

109.

[4] 27 and 28 Vict., c 25, printed in L. Oppenheim, International

Law, London, 1906, ii, 541; Wheaton, International Law, Boyd, Editor,

3rd English Edition, London, 1889, p. 750; Phillimore, op. cit. iii,

908.

[5] 57 and 58 Vict., c 59, 1894; Chitty's Statutes, tit. Admiralty,

i, 43.

[6] Manual of Naval Prize Law, London, 1866.

[7] Manual of Naval Prize Law, London, 1888.

[8] Quoted in Atherley-Jones, Commerce in War, London, 1907, pp.

575-645.

_CHAPTER V. GREAT BRITAIN, RECENT ADMINISTRATION._

PART 1. PRIZE COURTS.

In regard to the actual administration of these laws of prize

distribution the decisions of prize courts in cases where the

questions of distribution have arisen furnish the most satisfactory

clue to the practice.

It may be well to devote a short space to a consideration of

the organization of courts exercising prize jurisdiction.[1] As

previously noted, in early times the admiralty jurisdiction, both

administrative and judicial was placed in the charge of one man, the

Lord High Admiral of England. There were it is true certain favored

localities which claimed exemption from his jurisdiction. Such were

the Cinque Ports which exercised coordinate jurisdiction through

their Warden of the Cinque Ports. To this day the Cinque Ports retain

this privilege[2] in some matters, especially questions of civil

salvage but in prize matters, the Warden early lost his authority.

As time went on the Office of Lord High Admiral began to lose its

character of a personal prerogative especially in the judicial

field. The admiralty courts came under the authority of the king.

They exercised instance and prize jurisdiction without distinction

but in the middle of the seventeenth century the court began to have

separate sittings for the two jurisdictions possibly because of the

conflict between the Droits of the Duke of York as Lord High Admiral

and of King Charles II.[3]

The administrative duties of the office of Lord High Admiral were

also absorbed by the crown. Throughout the seventeenth century the

office of Admiral was frequently put in commission. That is, the Lord

High Admiral's jurisdiction was retaken by the king and commissioners

were appointed by him to exercise the duties of the office. By act

of 1690[4] express provision was made for thus disposing of the

office of admiralty and for the most part it has been in commission

since.[5] From this time, therefore, the organization of the

department of admiralty and of admiralty courts has been directly

under the control of the crown in parliament and acts providing for

the institution of prize courts and the distribution of prize money

have been passed by them generally before each war as previously

indicated.[6]

The history of the admiralty courts of England has been the history

of a struggle between them and the common law courts, each seeking

to increase its jurisdiction at the expense of the other. Acts were

passed in the reign of Richard II[7] limiting the power of the

admiralty courts. Through the seventeenth and eighteenth centuries

their power underwent a constant decline, a fact greatly deplored by

Sir Leoline Jenkins one of the judges of the seventeenth century.

The common law courts even attempted to usurp their jurisdiction in

prize matters. In 1781 however the exclusive jurisdiction of the

admiralty in prize matters was recognized.[8] It was at this time

that Lord Mansfield as Lord Chief Justice of England was beginning

to correlate prize law by his famous decisions in appealed cases.

But it was to Sir William Scott, afterwards Lord Stowell, Judge of

the admiralty and prize court of England during the Napoleonic wars

that the fame of the English Prize Court is largely due. The English

Prize Court was at this time regarded almost as an international

authority, as is witnessed by the fact that the United States through

Ambassador Jay in 1794 requested of England an exposition of prize

court procedure for the use of the United States. The reply of Sir

William Scott and Sir J. Nicholl embodies nearly all the rules

adopted by the United States.[9] Of Lord Stowell's work it has been

said, "But his work as a judge of the Prize Court remains to this day

distinct and conspicuous and no changes of international law can ever

diminish his fame as the creator of a great body of English prize

law the only complete and judicially made code in existence among

European nations."[10] Through the nineteenth century the English

High Court of admiralty under such judges as Dr. Stephen Lushington,

Sir Robert Phillimore, and Sir Travers Twiss occupied a position of

increasing importance. Its jurisdiction was greatly increased by a

statute of 1840.[11] Among other things it was there given power to

adjudicate booty of war in the same manner as prize. Its jurisdiction

was further enlarged by acts of 1846,[12] 1854,[13] 1861,[14] and

1867.[15] By the Judicature acts of 1873[16] and 1875[17] the High

Court of Admiralty was incorporated into the High Court of Justice

as part of the Probate, Divorce and Admiralty division of that

court. The Supreme court of judicature act of 1891[18] defined the

prize jurisdiction of the High Court.

Beginning with the establishment of a court in Jamaica in 1662[19]

Vice Admiralty courts have been established in most of the colonies

with jurisdiction similar to that of the courts of admiralty

of England. By act of 1832[20] governors of colonies were made

ex-officio vice admirals and the chief justices of the colonial

courts, judges of the courts of vice admiralty. This act was amended

in 1863[21] and in 1867.[22] By the Colonial courts of Admiralty act

of 1890[23] all courts of law in British possessions having unlimited

civil jurisdiction were created courts of admiralty with jurisdiction

equal to that of the Admiralty division of the High court of Justice.

The custom has been to constitute admiralty and vice admiralty courts

into prize courts by special commission on the outbreak of war. It

has been questioned whether a special commission granting authority

to adjudicate prize matters to the admiralty courts is necessary.

Blackstone seems to consider the authority inherent. He says:

"In case of prizes also in time of war, between our own nation and

another or between two other nations, which are taken at sea and

brought into our ports, the courts of admiralty have an undisturbed

and exclusive jurisdiction to determine the same according to the

laws of nations."[24] Phillimore expresses a similar view.[25]

However the general opinion seems to be that the prize and instance

jurisdiction of the admiralty courts are separated and the former is

granted only by commission from the crown in time of war.[26] Thus

the naval prize act of 1864[27] provides that all admiralty and vice

admiralty courts may be commissioned to act as prize courts during

war under the jurisdiction of the high court of admiralty with appeal

in all cases to the queen in council.

The Supreme Court of Judicature act of 1891[28] declared the high

court to be a prize court within the meaning of the prize court act

of 1864.[29] It therefore is a perpetual prize court and requires no

special commission.[30] Other admiralty and vice admiralty courts

exercise prize jurisdiction under provisions of the prize courts act

of 1894[31] which declares that commissions for the establishment

of prize courts may be issued at any time even during peace by

the office of admiralty to become effective on the issuance of a

proclamation declaring war. Laws of procedure may likewise be issued

at any time by order in council in accordance with the provisions of

the naval prize act of 1864.[32]

In earliest times the Lord High Admiral of England and the Warden

of the Cinque Ports were the highest appellate authorities in prize

cases in their respective jurisdictions. Later, appeal apparently lay

to the king in chancery but by 1534[33] the custom was established

of appointing a special commission of appeals. This commission was

appointed by the crown and consisted generally of members of the

privy council. This condition prevailed until 1833[34] when the

"delegates of appeals" was abolished and it was provided that all

admiralty appeals whether instance or prize, should lie to the

judicial committee of the privy council. By act of 1832[35] it had

been provided that appeals from all vice admiralty courts lie to the

same body. The naval prize act of 1864[36] likewise provided for

appeal to the queen in council.

After the incorporation of the high court of admiralty with the

High Court of Justice in 1873 it was provided in the appellate

jurisdiction act of 1876[37] that in its instance jurisdiction appeal

lie, as in the other courts, to the High Court of Appeal and then

to the House of Lords. Appeal in prize cases however was allowed to

remain to the privy council as prescribed by the act of 1864.[38] At

present, therefore, appeal from all prize courts of Great Britain lie

ultimately to the judicial committee of the privy council.

In the Hague Conference of 1907 a convention[39] providing for an

international prize court composed of fifteen judges selected from

the leading countries to act as a court of final appeal in prize

cases for all nations was adopted. In 1909 the declaration of

London[40] signed by the leading maritime nations provided definite

rules for many unsettled points of maritime law. Shortly after the

meeting of this conference, autumn of 1910, a bill was proposed in

the House of Commons to reorganize the English prize procedure so

as to allow for appeal to the international court. The bill was

defeated.[41] The international prize court has not as yet been

organized. At present there is no provision in English law which

would permit of appeal to it in case it came into being. Although

her delegates signed the Convention at the Hague, England has never

officially ratified it and it is difficult to say whether in case of

a war Great Britain would feel bound by this convention.

_NOTES._

Chapter V, Part 1.

[1] For history and discussion of admiralty and prize courts see

Marsdon, Introduction to select pleas of the Admiralty; Roscoe,

Growth of English Law; Carter, History of English Legal Institutions;

Ridges, Constitutional Laws of England; Benedict, The American

Admiralty; Encyclopedia Britannica, 11th Edition, titles, Admiral,

Lord High; Admiralty, Jurisdiction.

[2] The local jurisdiction of all sea port corporations but the

Cinque Ports was abolished in 1835, 5 and 6 William IV, c 76.

[3] W. G. F. Phillimore, Admiralty, High Court of, Encyclopedia

Britannica, 11th Edition, i, 206.

[4] 2 William and Mary, St. 2, c 2, 1690.

[5] The Lord High Admirals since 1690 have been, Prince George of

Denmark, husband of Queen Anne, 1702-1708; The Earl of Pembroke,

1708-1710; The Duke of Clarence, afterwards, William IV, 1827-1828.

[6] See ante p. 56 et seq.

[7] 13 Ric. II, c 5, 1390; 15 Ric. II, c 3, 1392.

[8] Le Caux vs Eden, 2 Doug. 595; 99 Eng. Rep. 375; Lindo vs Rodney,

2 Doug. 613; 99 Eng. Rep. 385. See also Phillimore, op. cit. iii, 213.

[9] See post p. 84.

[10] E. S. Roscoe, The Growth of English Law, London, 1911, p. 139.

[11] 3 and 4 Vict., c 65, s 22, 1840.

[12] 9 and 10 Vict., c 99, 1846.

[13] 17 and 18 Vict., c 104, 1854.

[14] 24 and 25 Vict., c 10, 1861.

[15] 31 and 32 Vict., c 71, 1868.

[16] 36 and 37 Vict., c 66, 1873.

[17] 38 and 39 Vict., c 66, 1873.

[18] 54 and 55 Vict., c 53, s 4, 1891.

[19] Cal. St. Pap. Col. America and West Indies, 1661-1668, p. 112, s

379; Marsdon, English, Historical Review, xxvi, 53.

[20] 2 and 3 William IV, c 51, 1832.

[21] 26 and 27 Vict., c 24, 1863.

[22] 30 and 31 Vict., c 45, 1867.

[23] 53 and 54 Vict., c 27, 1890.

[24] Blackstone, Commentaries, iii, 108.

[25] Phillimore, op. cit. iii, 655; see also post p. 86.

[26] Roscoe, op. cit. p. 125; Hannis Taylor, The Origin and Growth of

the English Constitution, 3rd Edition, 2 Vols., Boston, 1895, i, 550.

[27] 27 and 28 Vict., c 25, ss 3, 4, 5, 6.

[28] 54 and 55 Vict., c 53, s 4, 1891.

[29] 27 and 28 Vict., c 25, 1864.

[30] "This Jurisdiction is permanent and unlike that of the prize

courts in British possessions requires no commission from his

majesty, proclamation of war, or other executive act to bring it

into operation." The Earl of Halsbury, The Laws of England, London,

1907-1912, xxiii, 276.

[31] 57 and 58 Vict., c 39, 1894.

[32] 27 and 28 Vict., c 25, 1864.

[33] 25 Hen. VIII, c 19, s 3, 4, 1534.

[34] 2 and 3 William IV, c 92, 1833.

[35] 2 and 3 William IV, c 52, 1833.

[36] 27 and 28 Vict., c 25, 1864.

[37] 39 and 40 Vict., c 59, 1876.

[38] 27 and 28 Vict., c 25, 1864.

[39] Convention Relative to the Creation of an International Prize

Court, Final Acts of the Second International Peace Conference, 1907,

No. 12, for text see A. Pearce Higgins, The Hague Peace Conferences;

Bentwich, The Declaration of London.

[40] For discussion and text see Norman Bentwich, The Declaration of

London; A. Pearce Higgins, The Hague Peace Conferences.

[41] Bentwich, The Declaration of London, p. 35; for text of

proposed bill, see ibid. p. 171.

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