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._