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Title: Prize Money
Author: Wright, Philip Quincy
Language: English
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Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

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  A. B. Lombard College, 1912


  Submitted in Partial Fulfillment of the Requirements for the
  Degree of






  JUNE 5, 1913





  _James W. Garner._

    In Charge of Major Work

  _James W. Garner._

    Head of Department

  Recommendation concurred in:

              }Final Examination



  _Chapter I. Among the Ancients._


  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

  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

  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

  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.


  General                                                120

  Ancient                                                127

  Medieval                                               128

  Great Britain                                          130


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.



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

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.


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.


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

"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

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

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

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

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

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


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.



"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]


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.


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

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

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

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

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.


Chapter II, Part 2.

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

[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

[26] Op. cit. ii, 569.

[27] Op. cit. ii, 570.

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



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

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.


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

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

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.


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.

[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

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.


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

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

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.


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.


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

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]


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

"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."


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,

[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,

[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.



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

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.


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.


a. Relation of state and individual.

In considering the present theory of prize money distribution in
England and Judicial opinion on the subject, the classification[1]
adopted in summarizing the conclusion of the Grotian school of
international law writers may be used.

1. The state is the only power that can prosecute war and take prize.

"War must be waged by public authority of the state and carried on
through the agency of those who have been duly commissioned for
that purpose by that authority" says Phillimore.[2] However this
theory appears to be subject to a good deal of modification in
practice as for instance in the British treatment of captures made
by non-commissioned vessels. England has never given recognition to
the theory introduced by Rousseau and prominent in French political
theory that war is a conflict between the armed forces of the state
only and not between private individuals.[3] This theory maintains
that the only participants in war should be the armed representatives
of the state, thus non-belligerent nationals of the enemy country
and their private property should be exempt from military attack.
It seeks to place non-belligerents in practically the same position
as neutrals. Carried to its logical conclusion it would lead to the
complete abolition of the right of capturing enemy private property
at sea, and if not carried to this extreme it is at any rate
incompatible with the grant of prize money to individuals for if war
is solely a state affair aggrandizement of the individual should not
be one of its objects.

This theory of war should be distinguished from the view of Grotius
and his contemporaries. The latter holds that war is a state affair
and can only be entered into by the state as such but the individual
is so closely bound to the state that if the state is enemy so also
is the individual that belongs to that state. In other words it
recognizes no clear distinction between enemy belligerents and enemy
non-belligerents. "Bellum omnum, contra omnes". Grotius however, did
recognize state non-belligerency or neutrality. This theory though
somewhat modified in practice has been the one adhered to by Great
Britain. She has recognized the complete international responsibility
of the state in war but when she has recognized non-belligerent
rights of enemy subjects it has only been as a concession in behalf
of humanity and contrary to her well established rights. Thus until
very recently she refused to allow subjects of enemy states any
status in her courts. She is today the firmest opponent of the
movement to abolish the practice of capturing enemy private property
at sea and though she asserts that prize of war belongs to the state,
in practice she still gives it all to the captors thus letting the
individual have a very real personal interest in the war. England
now, of course, recognizes the rights of enemy non-belligerents
required by various international agreements.

b. Reprisal.

2. The right of private reprisal can only be exercised under specific
commission from the state.

"And indeed, says Blackstone, this custom of reprisals seems dictated
by nature herself for which reason we find in the most ancient times
very notable instances of it. But here the necessity is obvious
of calling in the sovereign power to determine when reprisals may
be made; else every private sufferer would be a judge in his own

In his work on international law Phillimore gives rules for reprisal
in time of peace,[5] saying that the sovereign alone can grant the
right of reprisal and only goods sufficient to satisfy the debt can
be taken, the rest must be returned. Matters of private reprisal
can not be adjudicated in prize courts, which are only called into
existence by regular war, but come under the jurisdiction of the
regular courts of admiralty.[6] The matter is now purely theoretic
in England since by the declaration of Paris of 1856 privateering
and consequently the right of private reprisal was abolished. No
commission for this purpose could now be issued and any one engaged
in it would be considered a pirate. Public reprisal is still used
as a method of coercion short of war and may be employed for the
collection of private debts or for obtaining satisfaction for torts
of the individual, though only vessels of the regular navy can take
part, according to the declaration of Paris.

The right of reprisal for private redress in time of peace or
special reprisal should be distinguished from the right of reprisal
during war or general reprisal, sometimes distinguished as the
right of Marque. Formerly vessels were commissioned by letters of
Marque and reprisal to prey on the general commerce of the enemy
to any extent and wherever found during war. This right was only
legal under special commission of the sovereign though England
seems to have taken a very lenient attitude in dealing with
non-commissioned captors even granting them a share of their prizes.
Her attitude seems to have been that subjects by making captures
without commission offended against municipal law but not against
international law. Thus she was at liberty to deal with them as she
chose but the injured alien had no recourse under international law.
As a matter of fact if the non-commissioned captors had observed due
care in the conduct of the prize they were usually rewarded with
prize money on its condemnation.[7] The declaration of Paris which
abolished this practice was severely criticized by many English
writers on the ground that it robbed England of important belligerent
rights and some even doubted whether England was legally bound by it
on account of some diplomatic irregularities in signing it.[8] But
now there can be little doubt but that privateering is illegal in
England though volunteer fleets and subsidized steamship lines which
are used by all naval powers, come dangerously near to amounting to
the same thing.[9]

c. State Title to Prize.

The title to all prize vests originally in the state.

Phillimore says, "The maxim 'Bello Parta Cedunt Reipublicae,' is
recognized by all civilized states. In England all acquisitions of
war belong to the sovereign who represents the commonwealth. The
Sovereign is the fountain of booty and prize."[10] Holland makes a
similar statement: "Most systems of law hold that property taken
from an enemy vests primarily in the nation, 'Bello Parta Cedunt
Reipublicae'. A rule which is the foundation of the law of booty and
prize."[11] The same view has been expressed by the court as follows:

"That prize is clearly and distinctly the property of the crown
and the sovereign in this country, the executive government in all
countries in whom is vested the power of levying the forces of the
state and of making war and peace, is alone possessed of all property
in prize, is a principle not to be disputed.---- It is equally clear
that the title of a party claiming prize must needs in all cases be
the act of the crown, by which the royal pleasure to grant the prize
shall have been signified to the subject."[12] But this principle
is carried further and even after an express grant of prize money
has been made the crown still has exclusive control over prize. In
other words the grant of prize money creates no legal right which the
captor can maintain against the pleasure or whim of the crown. In the
case of "The Elsebe"[13] Sir William Scott said:

"It is admitted on the part of the captors that their claim rests
wholly on the order of council, the proclamation and the prize act.
It is not denied that independent of these instruments the whole
subject matter is in the hands of the crown as well in point of
interest as in point of authority. Prize is altogether a creature of
the crown. No man has or can have any interest, but what he takes
as the mere gift of the crown. Beyond the extent of that gift he
has nothing.---- This is the principle of law on the subject and
founded on the wisest reasons. The right of making war and peace
is exclusively in the crown. The acquisitions of war belong to
the crown and the disposal of these acquisitions may be of utmost
importance for the purposes both of war and peace. This is no
peculiar doctrine of our constitution, it is universally received
as a necessary principle of public jurisprudence by all writers on
the subject.---- Bello parta cedunt reipublicae---- It is not to be
supposed that the wise attribute of sovereignty is conferred without
reason; it is given for the purpose assigned that the power to whom
it belongs to decided peace or war may use it in the most beneficial
manner for the purposes of both. A general presumption arising from
these considerations is that the government does not mean to divest
itself of this universal attribute of sovereignty conferred for such
purposes unless it is so clearly and unequivocally expressed.----For
these reasons the crown has declared that till after adjudication
the captor has no interest which the court can properly notice for
any legal effect whatsoever." From considerations of public policy
the judge considers that the sacrifice of this inalienable right of
the crown would be apt to lead to constant international differences
or even war and concludes "I am of opinion that all principles of
law, all considerations of public policy, concur to support the
right of release prior to adjudication which I must pronounce to be
still inherent in the crown." As based on policy and international
law this decision was no doubt correct and necessary, but it seems
more doubtful whether from the standpoint of English law either a
court or the royal prerogative can divest a property right which has
been unequivocally granted by act of parliament, as appears to have
been done in the case of the act here in question.[14] However under
the present prize act the crowns rights are expressly reserved so
there could now be no question. It therefore appears that at present
England recognizes the absolute title of the crown to all prizes,
until after decree of distribution.

d. Adjudication of Prizes.

Distribution should be decreed only after adjudication of the prize
by a competent tribunal of the state. Benedict has said "Before
property captured can be properly disposed of it must be condemned
as prize in a regular judicial proceeding in which all parties
interested may be heard."[15]

The letter[16] of Sir J. Nicholl and Sir William Scott to United
States Ambassador Jay authoritatively states British opinion. The
portion given was quoted by the authors from a report made by a
commission to the king in 1753.

"Before the ship or goods can be disposed of by the captors there
must be a regular judicial proceeding, wherein both parties may be
heard, and condemnation thereupon as prize in a court of admiralty,
judging by the law of nations and treaties.

"The proper and regular court for these condemnations is the court of
that state to whom the captor belongs.

"If the sentence of the court of admiralty is thought to be
erroneous, there is in every country a superior court of review
consisting of the most considerable persons to which the parties who
think themselves aggrieved may appeal, and the superior court judges
by the same rule which governs the court of admiralty, viz. the law
of nations, and the treaties subsisting with that neutral power whose
subject is a party before them.

"If no appeal is offered it is an acknowledgement of the justice of
the sentence by the parties themselves and conclusive.

"In this method all captures at sea were tried during the last war
by Great Britain, France, and Spain and submitted to by the neutral
powers. In this method by courts of admiralty acting according to
the law of nations and particular treaties all captures at sea
have immemorially been judged of in every country in Europe. Any
other method of trial would be manifestly unjust, absurd and

In regard to the competency of courts this subject is now dealt with
by statute. It has been judicially stated that no British subject
can maintain an action in a municipal court against the captors for
prize. The court of admiralty is the proper tribunal and it exercises
prize jurisdiction only under special commission from the crown.[17]
In 1801 a case arose in which a vessel was condemned as prize and the
proceeds distributed by decree of the vice admiralty court of Santa
Domingo.[18] It appeared that the court had no commission to act as a
prize court. On retrial the British prize court said:

"But the court having no authority those proceedings are nill and of
no legal effect whatsoever." In spite of this decision Phillimore
expresses the opinion that in the absence of a special commission the
regular courts of admiralty could legally exercise prize jurisdiction
according to ancient custom.[19] Under the present law there can be
no question as to what courts are commissioned. It therefore appears
to be established that English jurisprudence demands a judicial
adjudication by a duly commissioned court before distribution of
prize money.

e. Method of Distribution.

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

The statutory regulations and orders in council decreeing the method
of distribution in England together with the instructions to naval
commanders have already been noted.[20] A brief consideration of
their judicial interpretation may throw some additional light on the
actual method of determining the shares of prize received by the

Benefit may be received by the captors or destroyers of vessels in
three ways. 1. As prize bounty. A special reward is often given for
destroying or capturing enemy vessels. Usually it is given only for
destroying armed vessels of the enemy though in some cases, bounty
has also been given for the destruction of merchantmen. It is a sum
of money given from the treasury of the government irrespective of
the value of the prize captured. In distributing it an effort is
made to determine the strength of the opposing vessel, thus it is
given either as gun money, a fixed amount for each gun on the enemy
vessel or as head money, a fixed amount for each man on the enemy
vessel at the beginning of the engagement. 2. As military salvage.
A reward is usually given for the recapture and return of vessels
belonging to citizens of their own or allied countries. This reward
is of a similar nature to the salvage which is ordinarily paid for
the recovery of shipwrecked vessels in time of peace. The amount paid
is usually a certain proportion of the total value of the recaptured
prize. 3. As prize money. This is the portion of the actual proceeds
of the prize captured given to the captors. The amount of benefit in
this case would of course depend on the value of the prize captured,
and if the prize is destroyed there obviously is no prize money.
Formerly money might also be received as ransom, that is a prize
would be released by the captors on the giving of a ransom bill which
obligated the master of the prize to continue to a certain port, to
refrain from future voyages during the war, and to pay a fixed sum
of money as ransom. Thus ransom would partake of the nature of prize
money and be divided in the same way. The practice was abolished in
England in 1782 by statute[21] but seems to have been allowed later
in special cases[22] though each succeeding prize statute repeated
the prohibition. It is now illegal unless specially authorized by
Order in Council under the naval prize act of 1864.[23]


Chapter V, Part 2.

[1] See ante, p. 26.

[2] Op. cit. iii, 77; see also Blackstone, op. cit. i, 257.

[3] On the relation of the individual to the state see Westlake,
Principles of International Law, Cambridge, England, 1894, p. 258;
Rousseau, The Social Contract, English translation from French, by
Tozer, London, 1909, p. 106. The theory associated with the name of
Rousseau appears to have been first enunciated by Giustino Gentili in
1690, see C. M. Ferrante, Private Property in Maritime War, Political
Science Quarterly, 1895, xx, 708.

[4] Blackstone, op. cit. i, 259.

[5] Phillimore, op. cit. iii.

[6] By the terms of the Giudon de la Mer; the ordinance of Louis XIV,
1681; the treaty of Utrecht, 1713; the treaty of Versailles, 1786;
the right of reprisal was to be granted only to those who could prove
damages done and when the offending state had refused legal redress.
Prizes judged were to be judged in the same way as prize of war and
any surplus in excess of the amount claimed was to be returned,
Carnazza-Amari, op. cit. ii, 596, compare with English statute of
1416, ante p. 35, and note.

[7] Phillimore, op. cit. iii, 601.

[8] On English opposition to the declaration of Paris see Phillimore,
op. cit. iii, 360; T. G. Bowles, Maritime Warfare, London 1878;
Robert Ward, Treatise of the Relative Rights and Duties of
Belligerent and Neutral Powers in Maritime Affairs, 1801, reprinted
with notes on the Declaration of Paris by Lord Stanley of Alderley,
London, 1875.

[9] Sir Thomas Barclay, Privateers, Encyclopedia Britannica, 11th
Edition, xxii, 370.

[10] Phillimore, op. cit. iii, 209.

[11] T. E. Holland, Jurisprudence, 11th Edition, London, 1910, p. 212.

[12] Lord Chancellor Brougham in Alexander vs Duke of Wellington,
2 Russel and Mylne 54, 1831; quoted in Phillimore, op. cit. iii,
209; Walker, The Science of International Law, p. 320; Wheaton,
International Law, p. 490.

[13] 5 C. Rob. 173, 1804, quoted in Atherley-Jones, op. cit. p. 524,
Wheaton, International Law, p. 490.

[14] 37 Geo. III, c 109, 1797.

[15] E. C. Benedict, The American Admiralty, 4th Edition, Albany,
1910. p. 420.

[16] For full text of letter see, Phillimore, op. cit. iii, 666;
Wharton, Digest of the International Law of the United States, 2nd
Edition, Washington, 1887, iii, sec. 330; Moore, International Law
Digest, Washington, 1906, vii, 603.

[17] Le Caux vs Eden, 2 Doug. 595, 99 Eng. Rep. 375; see also
Phillimore, op. cit. iii, 213. As to necessity of a commission to
establish a prize court see ante p.

[18] Huldah, 3 C. Rob. 235, quoted in Atherley-Jones, op. cit. p. 521.

[19] Phillimore, op. cit. iii, 655.

[20] See ante p. 73.

[21] 22 Geo. iii, c 25, s 1, 2, 1782.

[22] The Ships taken at Genoa, 4 C. Rob. 403; The Hoop, 1 C. Rob.
169, quoted in Phillimore, iii, 644.

[23] 27 and 28 Vict., c 25, s 45, 1864; also Holland, Manual of
Naval Prize Law, sec. 273.


As previously noted the distribution of bounty is now regulated by
statute and proclamation. If awarded in any war it is given as head
money of five pounds per man on every enemy armed vessel sunk or
destroyed.[1] The sharers of bounty are much more limited than those
of prize money. Thus joint or constructive captors do not share
and the flag officer if not present has no claim.[2] Only those
who actually take part in the conflict share in bounty. Bounty is
apportioned among the officers and crew of those vessels sharing, in
the same way as prize money, with the exceptions noted above.


Chapter V, Part 3.

[1] 27 and 28 Vict., c 25, s 42.

[2] Order in Council, Sept. 17, 1900, see Statutory rules and
Orders, Revised 1903, Vol. ix, tit. Navy, p. 112.


Whether or not military salvage is paid depends upon (1) the
character of the original captor, whether recognized belligerent
or pirate, (2) the character of the original owner of the vessel
whether neutral, subject, or ally, (3) the character of the title the
original captor has in the vessel.

In regard to the first point it may be said that recaptures from
pirates or unrecognized belligerents should always be returned to the
original owner on the payment of salvage. Pirates can never acquire
any title in a capture, so the title of the original owner remains
good. We need therefore consider only recapture from recognized

In the case of recapture of neutral vessels the original captor had
no title and could get none. A prize court of his own country would
have decreed restitution of the vessel to the original owner so the
recaptor has conferred no benefit by recapturing the vessel. He
therefore is entitled to no salvage. In cases, however where no legal
prize court exists in the country of the original captor the recaptor
does the original owner benefit so should be rewarded by salvage.
This situation was held to have existed in France in 1799 and in a
case[1] which came up at that time Sir William Scott speaking for the
British prize court said:

"I know perfectly well that it is not the modern practice of the law
of nations to grant salvage on recapture of neutral vessels; and
upon this plain principle that the liberation of a clear neutral
from the hand of the enemy is no essential service rendered to him,
inasmuch as that same enemy would be compelled by the tribunals
of his own country, after he had carried the neutral into port to
release him with costs and damages for the injurious seizure and
detention." However in the case before the court the French courts
were held to be incompetent so salvage was awarded the captor.

In recapture of vessels originally belonging to subjects, most
countries make distinctions in reference to the character of the
original captors title. However Great Britain has provided by statute
that recaptures shall always revert to the original owner when a
subject on payment of salvage with the one exception that in case the
vessel has been fitted out by the enemy as a ship of war it shall not
be returned but shall be declared good prize.[2]

The final case remains of recaptures of vessels of an ally. Here
the question of the original captor's title enters in, for if the
original captor had good title, the vessel is enemy property and
should be condemned as good prize to the benefit of the recaptor;
but if the title of the original captor is incomplete the original
owner still has a certain title which must be respected. The question
therefore arises, when is the original captor's title complete? There
have been many rules on the subject. Thus Sir William Scott has said:

"It can not be forgotten that by the ancient law of Europe the
perductio infra praesidia, infra locum tutum was a sufficient
conversion of the property, that by a later law a possession of
twenty-four hours was sufficient to divest the former owner. This is
laid down in the 287th article of the Consolato Del Mare in terms
not very intelligible in themselves but which are satisfactorily
explained by Grotius and by his commentator Barbeyrac in his notes
upon that article."[3] Sir Leoline Jenkins, in 1672 said:

"In England we have not the letter of any law for our direction only
I could never find that the court of admiralty either before the
late troubles or since has in these cases adjudged the ships of one
subject good prize to another." He then refers to the Commonwealth
laws of 1649 and says, "Whether the usurpers intended this as a new
law or an affirmance of the ancient custom of England I will not take
upon me to determine, only I will say, condemnation upon the enemies
possession for twenty-four hours is a modern usage."[4] Later legal
adjudication and condemnation was clearly required before the title
of the captor state was complete. Thus Lord Mansfield said:

"I have talked with Sir George Lee who has examined the books of the
court of admiralty and he informs me that they hold the property not
changed, so as to bar the owner in favor of a vendee or recaptor till
there had been a sentence of condemnation, and that in the reign
of Charles II, Sir Richard Floyd gave a solemn judgment upon the
property and decided restitution of a ship retaken by a privateer
after she had been fourteen weeks in the enemies possession because
she had not been condemned."[5] And again "That no property vest
in any goods taken at sea or on land by a ship or her crew, till a
sentence of condemnation as good and lawful prize."[6] These cases
referred to vessels owned by subjects rather than allies as they
occurred before the law granting especial restitution to citizens had
been passed but they serve to make it clear that English law regards
the title of the enemy captor complete and the title of the original
owner destroyed after legal condemnation in the enemy prize court
and not before. Vessels originally belonging to allies after such
condemnation will be considered good prize and the ally has no claim.
There is no question of salvage, instead the captor receives his
share of prize money. Recaptures before the enemy title is complete
revert to the ally on payment of salvage but if instances can be
given of British property retaken by them and condemned as prize, the
court of admiralty will determine the case according to their own

Thus the recaptor may receive no reward at all, may be entitled to
salvage or may be entitled to prize money.

The first case occurs when a neutral vessel is recaptured from a
recognized belligerent.

The second occurs when the recapture is made from a pirate, when the
original owner is a British subject, or when the original owner is
an ally and the vessel has not been condemned by the enemy's prize

The third case occurs when the vessel originally belonged to an ally
but has been legally condemned by the enemy prize court and in any
case of an ally's vessel where that country refuses to return British

To be entitled to salvage the recaptor must make an actual military
recapture. Constructive recaptures such as occupation of a vessel
abandoned by the enemy do not entitle to military salvage.[8]

As already stated where salvage is allowed it consists of one-eighth
of the value of the vessel and cargo recaptured or in cases of
exceptional difficulty one-fourth to be governed by the discretion of
the court.[9] Salvage is apportioned among the officers and crew in
the same manner as prize money.


Chapter V, Part 4.

[1] The War Onsken, 2 C. Rob. 299, quoted in Atherley-Jones, op. cit.
p. 601.

[2] 27 and 28 Vict., c 25, s 40, L'Actif, Edw. Adm. Rep. 184, quoted
in Atherley-Jones, op. cit. p. 608.

[3] The Ceylon, 1 Dod. Adm. Rep. 105, quoted in Atherley-Jones, op.
cit. p. 607.

[4] Sir Leoline Jenkins, Life of, by Wynne, ii, 770; quoted in
Atherley-Jones, op. cit. p. 619.

[5] Lucas 79, quoted in Atherley-Jones, op. cit. p. 619.

[6] Lindo vs. Rodney, 2 Doug. 612; 99 Eng. Rep. 385; see also
Atherley-Jones, op. cit. p. 619.

[7] The Santa Cruz, 1 C. Rob. 497, quoted in Atherley-Jones, op. cit.
p. 622.

[8] Phillimore, op. cit. iii, 638.

[9] 27 and 28 Vict., c 25, s 40, 1864.


Whenever a vessel or cargo is adjudged good prize by the court it is
publicly sold and the proceeds are decreed to the captors as prize
money, unless they are non-commissioned or forfeit it by failure to
observe the regulations imposed upon them for the conduct and safe
keeping of the prize.[1] In England the proceeds of all vessels and
cargoes, whether of a purely mercantile or of a military character
are divided as prize money, though the government reserves the right
of preemption on naval and victualling stores.[2] The rules which
govern the prize court in adjudging a captured vessel good prize or
not are beyond the scope of this paper. In general all enemy vessels
are condemned, and neutral vessels are condemned for breach of
blockade, carriage of contraband or unneutral service. These matters
are at present largely covered by the Hague conventions of 1907 and
the Declaration of London of 1909.[3] However as previously noted the
crown reserves the right to free any vessel even though its capture
was perfectly legal and it was of a class that would ordinarily be
adjudged good prize.[4]

In the distribution of prize money there must be decided, first,
what vessels are to share in the prize; second, what proportion each
vessel is to get, and third, what proportion of the vessels share
each officer and man on board is to receive.

The second and third points are settled by the prize proclamation
which decrees division among the officers and men of all the
vessels sharing according to the grade they occupy. There is no
division among the vessels but all men entitled to share are grouped
together in eleven grades, each one of which receives a fixed
proportion of the prize money. This portion is then divided equally
among all the men of that grade, no matter on what vessel they
served. Thus a sailor on a vessel constructively assisting receives
exactly the same share as a sailor of the same grade on the vessel
making the actual capture.[5]

Where some of the vessels are allies the division is usually
regulated by treaty. The provisions of Great Britain's treaties with
France of 1854 and 1860 have already been noted.[6] In these cases
division was to be made between the vessels of the allies according
to the number of men on board irrespective of rank. Of course, for
the share decreed to her own vessels, England employed her own rules
of division. Where there is no treaty or some of the vessels are
privateers the division among the vessels is decreed by the court, an
effort being made to apportion it according to the relative strength
of the vessels. To determine this the number of men, guns or both on
the various vessels are considered. Thus Mansfield said,

"The law of nations does not determine but if one might guess at it,
it must be in the ratio of the strength of the respective captors,
to know which the number of guns, weight of metal, number of men and
strength of each fleet must be stated."[7]

The court must decide the first question proposed, namely what
vessels were either actual or joint captors and as such entitled to
share. In defining these terms the court has said:

"All prize belongs absolutely to the crown which for the last 150
years has been in the habit of granting it to the takers who are of
two classes, actual captors and joint or constructive captors. Joint
captors are those who have assisted or are taken to have assisted the
actual captors by conveying encouragement to them or intimidation to
the enemy."[8] It is in general considered that this encouragement or
intimidation is given by all vessels in sight but this is not always
true. Thus:

"For it is perfectly clear that being in sight of all cases is not
sufficient. What is the real and true criteria?---- There must be
some actual, constructive endeavor as well as a general intention."[9]

But in the case of king's ships all in sight generally share.

"They are under a constant obligation to attack the enemy whenever
seen. A neglect of duty is not to be presumed and therefore from the
mere circumstance of being in sight a presumption is sufficiently
raised that they are there animo capiendi."[10] This rule holds
irrespective of the character of the vessel making the actual capture.

With privateers the case is different:

"For they are not under obligation to fight. It must be shown in
their case that they were constructively assisting. The being in
sight is not sufficient with respect to them to raise a presumption
of cooperation in capture.--There must be the animus capiendi
demonstrated by some overt act, by some variation of conduct which
would not have taken place but with reference to that particular
object and if the intention of acting against the enemy had not been
effectually entertained."[11] As privateering has been abolished this
rule is now purely theoretical.

These rules are subject to exceptions however as for instance in the
case of captures made in the night or after a joint chase. In such
cases ships of the navy definitely associated share though not in
sight. Thus:

"A fleet so associated is considered as one body unless detached by
orders or entirely separated by accident and what is done by one
continuing to compose in fact a part of the fleet, enures to the
benefit of all."[12]

A vessel shares in the captures of its tenders.

"I apprehend that the tender becomes as has been contended in law a
part of the ship to which she has been attached and that any capture
made by her enures to the benefit of the ship to which the tender is
an adjunct."[13] Tenders are usually non-commissioned vessels but as
they are considered agents of a commissioned vessel their captures
are good. The same is true of captures made by ships boats but no
constructive captures are allowed by boats of other vessels in sight.

Transport vessels do not participate as joint captors. A case
involving transports arose in 1799. The court said:

"It has not been shown that these ships set out in an originally
military character, or that any military character has been
subsequently impressed upon them by the nature and course of their
employment and therefore, however meritorious their services may
have been and however entitled they may be to the gratitude of
their country it will not entitle them to share in this valuable

The division of captures made by joint naval and military expedition
are under the jurisdiction of prize courts. So far as possible the
same principles of division are employed in dividing proceeds among
soldiers of the army as in dividing prize money in the navy. In
regard to the conditions that permit a joint land expedition to share
the court said in 1799:

"Much more is necessary than a mere being to sight to entitle an army
to share jointly with the navy in the capture of an enemy's fleet". A
common interest is presumed with naval vessels in sight, not so with
the army. "The services must be such as were directly or materially
influencing the capture so that the capture could not have been made
without such assistance or at least not certainly and without great
hazard."[15] The prize act of 1864 now governs the division in joint
military and naval captures.[16]

Captures made by non-commissioned ships which now includes all
vessels not part of the royal navy go to the government.[17] Such
captures were originally one of the Droits of Admiralty[18] but since
the office of admiral has been in commission they enure to the crown.
Peculiarly enough, though all such forfeitures now go to the crown
the technical distinction of condemnation to the king, jure coronae
and condemnation to the king in his office of admiralty. Droits of
Admiralty is still maintained in the decrees of prize courts. By
statute[19] all such Droits of Admiralty and Jure Coronae are now
put into the consolidated fund of Great Britain. In practice it has
usually happened that the greater part of the proceeds of captures
made by non-commissioned captors is given to the captor as a special
reward.[20] For this it appears that England does not recognize an
international obligation to prevent captures by non-commissioned
vessels in time of war. It is hard to reconcile this attitude with
her adoption of the Declaration of Paris in 1856. She does not of
course issue letters of Marque or officially permit capture by any
vessels other than those of the royal navy. England has not been
engaged in any important naval war since the treaty of Paris so it
is impossible to say exactly what her practice in this regard would
be. Legally all rights in captures by non-commissioned captors enure
to the crown so if such vessels infringed on neutral rights England
would undoubtedly refuse to give them any reward, which would soon
have the effect of stopping such captures.

Definite rules are prescribed for the conduct of prizes, as for
instance, the cargoes must not be tampered with, the holds must
be closed, all necessary papers must be presented with the prize,
the prize must be brought in without delay and proceedings must be
commenced in the prize court without unreasonable delay.[21]

"It is to be observed that the captors have no right to convert
property till it has been brought to legal adjudication. They are not
even to break bulk."[22]

"The captor holds but an imperfect right; the property may turn out
to belong to others, and if the captor put it in an improper place
or keeps it with too little attention he must be liable to the
consequences if the goods are not kept with the same caution with
which a prudent person would keep his own property."[23]

Negligence on the part of the captors in caring for the prize or
infringement of national or international laws on the subject will
result in the forfeiture of all share of the prize[24] and indeed
as already observed[25] without any fault on the part of the captor
the crown may refuse the captors any share by returning the vessel
as a matter of policy. This almost always occurs at the close of a
war when it is usually provided by treaty that unadjudicated prizes
should be returned. The captor's rights in prize are purely at the
mercy of the crown. What he receives he receives by the crown's grace
and not by legal right.


Chapter V, Part 5.

[1] See post p. 102 to 104.

[2] 27 and 28 Vict., c 25, s 38, 1864.

[3] See Higgins, The Hague Peace Conferences, for all international
conventions bearing on these points.

[4] See ante p. 82 et. seq.

[5] Statutory Rules and Orders, revised, 1903, tit. Navy, ix. 109.

[6] See ante p. 61 and 62.

[7] Duckworth vs. Tucker, 1809, 2 Taunt. 7, quoted in Atherley-Jones,
op. cit. p. 560.

[8] Banda and Kirwee Booty, 1866, 1 Law Rep. Adm. and Ecc. 109, see
also Phillimore, op. cit. iii, 222.

[9] The Vryheid, 2 C. Rob. 16, quoted in Atherley-Jones, op. cit. p.

[10] La Flore, 5 C. Rob. 268, quoted, ibid. p. 546.

[11] Amitie, 6 C. Rob. 261, quoted, ibid. p. 546.

[12] Forsigheid, 3 C. Rob. 311, quoted, ibid. p. 546.

[13] The Carl, 2 Spinks 261, quoted, ibid. p. 550.

[14] The Cape of Good Hope, 2 C. Rob. 284, quoted, ibid. p. 556.

[15] The Dordrecht, 2 C. Rob. 55, quoted, ibid. p. 558.

[16] 27 and 28 Vict., c 25, s 34, 1864.

[17] "Any ship or goods taken as Prize by any of the officers and
crew of a ship other than a ship of war of Her Majesty shall, on
condemnation, belong to Her Majesty in Her office of Admiralty." 27
and 28 Vict., c 25, s 39, 1864.

[18] See ante p. 52.

[19] 27 and 28 Vict., c 24, s 17; 1 and 2 Vict., c 2, s 2; 1 Edw.
VII, c 4, s 1; 10 Edw. VII and 1 Geo. V, c 28, s 1.

[20] The Haase, 1 C. Rob. 286, quoted in Phillimore, op. cit. iii,

[21] For statutory obligations see 27 and 28 Vict., c 25, s 37, for
rules of Hollands, Manual of Naval Prize Law, see ante, p. 66.

[22] L'Ecole, 6 C. Rob. 220, quoted in Atherley-Jones, op. cit. p.

[23] Maria and Vrow Johanna, 4 C. Rob. 348, quoted ibid. p. 524.

[24] 27 and 28 Vict., c 25, s 37, 1864.

[25] See ante p. 82 et seq.



As has been indicated since the beginning of the eighteenth century
the principles of prize distribution in England have undergone but
little alteration. With the statutes of Anne parliamentary control of
prize matters became established and the method at that time adopted
of decreeing distribution by order in council authorized by act of
parliament has since been followed. The policy of giving all the
proceeds of prizes to the captors after legal adjudication before a
competent prize court has likewise been adhered to from that time.

By the reign of Anne, England was definitely established as an
imperial colonial power. Her Indian empire was founded, her American
colonies were flourishing, Marlborough's successful wars gave her
great European prestige. This necessitated the establishment of a
policy of naval supremacy, a policy which she has since maintained.
At the same time she realised her increasing dependence on commerce.
Numerous efforts were made to increase British trade at this time
through legislation. She understood that law must reign on the sea if
commerce was to prosper.[1] While she depended on her navy to protect
her trade routes, she recognized that she could not protect them
from the cruisers of all the world and so sought to respect neutral
rights. This necessity was realized slowly. During the eighteenth
century in pursuing her aggressive naval policy England several times
offended neutral powers as for instance by the rule of 1756 but in
the main neutral rights were respected and prizes were not taken or
distributed except with the strict sanction of law.

Thus as in former periods England's military policy has been
influenced by the two factors, commercial dependence and naval
aggressiveness. The interests of the former have compelled her to
respect neutral rights and maintain strict legality in all her
war-like measures. As reflected in her prize law it has brought about
powerful legal control of prize matters through prize courts of great
authority and unfailing justice. It has forced the crown to assert
its primal right to all prizes that it may restore them if policy
demands. It has put all prize law under the control of parliamentary
statutes, directing the policy of the law but has left the government
wide discretion in arranging the details to suit the exigencies of a
particular conflict.

The interests of the latter have impelled her to assert belligerent
rights to the utmost. England has always been the most reluctant of
all nations to abandon an established belligerent right at sea.[2]
Thus she still gives the whole of the proceeds of legally captured
prizes to the captors for the purpose of encouraging seamen, and
increasing the efficiency of the navy.


Chapter VI, Part 1.

[1] For English regard for commerce see Blackstone, I, 260; "Indeed
the law of England as a commercial country pays very particular
regard to foreign merchants in innumerable instances." He also quotes
Montesquieu, Esprit des Lois, XX, 13; "That the English have made the
protection of foreign merchants one of the articles of their national
liberty." See also navigation Acts of 1650, Scobell, 152, of 1651,
Scobell, 176, of 1660, 12 Car. II c 18.

[2] See discussion of the rule of 1756, and England's opposition
to the armed neutralities of 1780 and 1800 in Wheaton, History of
the Law of Nations. On her opposition to the immunity of enemy
property on neutral vessels, see Ward, Treatise on the Rights and
Duties of Neutrals, and Bowles, Maritime War. England is today the
strongest opponent of the movement to abolish the right to capture
enemy private property at sea, see Report of meeting of Institut of
International Law, Revue de Droit International, 1875, vii, 275, 329;
also official report of the Second Hague Conference.


a. The Navy

To discuss the effects of England's prize money law is a very
difficult task. However a few remarks may be made considering the
question with reference to its effect, first, on the English navy and
second, on international law.

It might be thought that the encouragement of mariners by the hope
of private gain would tend to increase the efficiency of the navy
and this is the avowed purpose of distribution in all the statutes
authorizing it. England has undoubtedly always had a very efficient
navy but she has almost always found it necessary to use the press
gang[1] to man her vessels in her important naval wars. The hope of
prize money has not been sufficient to furnish enough volunteers to
fill the navy.

In connection with privateering there can be no doubt but that the
generous giving of prizes has enabled England to make effective war
with little national expense. Elizabeth's wars cost her nothing,
rather they were a source of income. The same was true of the wars of
the eighteenth century. The hope of gain seemed always sufficient to
enlist private enterprise in privateering war. However privateering
is now abolished. Modern naval strategy demands a few men-of-war
rather than many cruisers. Captain Mahan[2] considers commercial war
as of comparatively small importance. An effective blow can only be
struck by conflict with the enemy's armed vessels. Any amount of
commerce destroying can not conclude the war in his opinion, though
he by no means takes the stand that commerce destroying should
be abolished. It would seem that the small share of prize which
might possibly be received by a sailor in a modern ship would be a
negligible factor in increasing naval efficiency. Rather it would be
a deterrent as it would attract vessels into commercial war instead
of into the more effective conflicts with the enemy's armed vessels.
With the abolition of privateering it would seem that the value of
prize money as a means of increasing the efficiency of the navy

b. International Law.

England's prize money laws can not be said to have imperiled neutral
rights. England has always insisted on the most extreme belligerent
rights but it can not be said that her courts often denied a neutral
right that was really established by international law. The prize
courts of Mansfield and Stowell have been considered models of
fairness throughout the world. Though the utmost privileges were
given to privateers and the sailors of the royal navy the even
handed justice of the prize courts fully protected neutral rights by
restoring illegal captures made with the hope of private gain. With a
people of less law abiding disposition and less used to submission to
law than the English this might not be true.

It might be supposed that the generosity toward the captors of prize
would be calculated to decrease the destruction of prizes at sea.
If the prize were destroyed of course the captor would obtain no
prize money. English publicists are inclined to admit the right of
destruction at sea. Thus Scott, Lushington and Holland say that
it should not be resorted to except in cases of extreme urgency
but on occasion it may be justifiable or even praiseworthy.[3]
Continental writers on the contrary are inclined to disallow entirely
the legality of the destruction of prizes. Bluntschli and Heffter
greatly deprecate the practice.[4] In spite of the apparent authority
for such action given by English publicists English cruisers have
very seldom destroyed prizes. This may be due partly to her prize
money law but probably to a greater extent to her widely scattered
territories which make it almost always possible to get a prize to an
English port. At present the destruction of neutral prizes is closely
circumscribed by the provisions of the Declaration of London[5] on
that point so it is not likely that the abolition of prize money
would bring about an increase in this practice.

The movement toward the abolition of the right to capture enemy
private property at sea, historically advocated by the United States,
is coming into increasing favor in England, though England as a
nation always has been and still is the leading opponent of the
innovation.[6] As pointed out above, modern naval strategy deprecates
commercial war as also does humanitarianism. A considerable number
of English publicists are now advocating the abolition of this right
not only on behalf of humanity but also as a matter of wise military
policy for Great Britain. The increasing importance of unrestrained
commerce to the island has influenced many to believe that England
would gain more than she would lose by the abandonment of this
belligerent right.[7]

It may be useful to consider how much effect the institution of
prize money has upon England's attitude on this question. There is
no doubt but that sailors and officers of the navy like to get prize
money. There is the gambler's zest to money received in this way and
undoubtedly the personnel of the navy would offer all the resistance
in their power to the abolishment of prize money. A section in the
proposed prize act of 1910 illustrates this.

The act was offered in order to permit of the appeal of prize cases
to the international prize court provided for by the Hague conference
of 1907. The section in question[8] authorized the admiralty to give
prize money on estimated value even when the prize was liberated
by the court. The object of this section was evidently to insure
reward to the captors in case of a possible undue liberality on the
part of the international prize court, and would seem to imply a
certain lack of confidence in that court. This bill was lost with
little discussion. However, the provision indicates that the element
favoring prize money is ready to push its interests in legislation.

If the war right of capturing private enemy property at sea were
abandoned the chance of getting prize money would automatically
disappear except in the comparatively rare cases of contraband and
breach of blockade. Is the naval sentiment in favor of prize money
strong enough to keep England from falling in with other nations
in this movement toward abolishing the right of capture at sea?
It does not seem likely. The selfish, personal desires of a small
portion of the population can not be sufficient to sway the policy
of a great nation like England if broader considerations demand a
change. England's resistance to the movement for abolishing the right
to capture private property at sea can be traced to other causes.
John Stuart Mill once called the right to attack commerce "our chief
defensive weapon."[9] Phillimore, Twiss, Westlake, and Lorimer all
favored the retention of the right. It is idle to suppose that these
men had no stronger reason for their stand than that it permitted
seamen to get prize money. From the standpoint of military science
there has been in the past justification for the retention of this
right by England, and many sincerely believe that even now England
must retain it as a military defense.

In the vote on the American proposition for abolishing this right of
capture taken at the Second Hague conference[10] the prize money laws
of the different countries apparently had no effect on their vote.
Italy and Sweden who give prize money as well as the United States
and Germany who do not favored the resolution. On the other hand,
Japan who has never given prize money voted against the proposal
as also did Great Britain, France and Russia who have always given
it. It should be remembered that the United States advocated the
abolition of the right to capture private property at sea for a
century before she abolished prize money. Italy also has consistently
advocated that policy since 1870 though she still gives prize
money.[11] It does not seem that the local law of prize money has any
great effect on the countries attitude on the question of the right
to capture private property at sea.

As stated there is a growing movement in England in favor of
abandoning the right of capturing private property at sea. The
discussion has been entirely based on considerations of broad
national policy. The existence of prize money has not entered into
the matter. It does not seem likely that England's laws of prize
money have had or do now have any appreciable influence on her
attitude in this question.

c. Conclusion.

It seems that under present conditions the giving of prize money
in England has little effect either for good or evil. Since the
abolition of privateering it appears to have had little value in
increasing the efficiency of the navy or in decreasing the expense of
war. Neutral rights have not been imperiled by it for in England it
has not given rise to biased judgment on illegal captures. While it
may have decreased the destruction of prizes before adjudication it
does not appear likely that its abandonment would now have any effect
on this matter. Neither does it seem probable that it has had much
influence in determining England's stand on the question of the
right to capture private enemy property at sea.

In view of this inoffensive character of prize money in England it is
not surprising that it remains law. Sailors and naval officers want
to keep it. The institution is long established in custom by which
the English are proverbially bound. Unless a definite charge can be
brought against it, it does not seem likely that the present practice
will be abolished. England's stand at the Hague conference of 1907
seemed to indicate this attitude. On that occasion a proposition was
introduced by the French delegation to abolish prize money.[12] It
was offered as a substitute to the American plan of abolishing the
right to capture private property at sea. Great Britain opposed the
scheme. Sir Ernest Satow, the British delegate, said that England
could not agree to the proposition as the English parliament had
reasons for believing in their present custom of distribution. The
reasons, he did not give. He added that he considered the matter as
being one solely for internal settlement and not one of international
law.[13] We may therefore expect prize money to remain as an
institution of British policy, though its influence on international
law seems to be very slight.

On theoretical grounds the practice seems to have little basis for
existing. It is not in harmony with the modern view of war which
seeks so far as possible to eliminate the element of personal gain
and to limit the operations of war to strictly state agencies.
It encourages war on commerce. Its use savors of privateering.
It offers a constant temptation for infringing neutral rights by
making illegal captures. With the abolition of privateering and the
present views of naval strategy its usefulness as an encouragement
for seamen and a means of increasing the efficiency of the navy have
departed. It accentuates the gambler's chance which is contrary to
all modern ethics. Sailors, the same as soldiers, should receive
fixed pay for their services, and not be compelled to rely for their
salaries, in part at least, upon the uncertain chance of prize
money. Bentwich says of prize money: "The present custom of dividing
among the captors the proceeds of sale after adjudication of a prize
court preserves in maritime war that taint of belligerent greed and
of interested attack upon private property which is against the
spirit of modern warfare and which has been declared illegal in land

Though prize money as given in England was an institution of great
international importance in the balmy days of privateering especially
during the reign of Elizabeth when it was largely responsible for
the romantic careers of England's empire builders, for the wholesale
capture of Spanish galleons and for England's naval supremacy, it
does not seem to have been of any particular importance to any one
outside of the naval service of Great Britain since the abolition of
privateering. Practically it is valueless. Theoretically it is bad.
It should be abolished.


Chapter VI, Part 2.

[1] Common Law fully admits the legality of pressing sailors into
service, see Blackstone, I, 419.

[2] Influence of Sea Power upon History, pp. 132-138; Lord
Palmerstone also deprecated the value of commercial war, Political
Science Quarterly, 1905, xx, 711.

[3] Atherley-Jones, op. cit. 529, 534.

[4] Atherley-Jones, op. cit. 530.

[5] The Declaration of London, Chap. iv. The Declaration of London
however is not officially ratified by Great Britain, see Bentwich,
The Declaration of London.

[6] England's delegates, Messrs. Twiss, Westlake, Lorimer, and
Bernard gave the only dissenting votes to the proposition favoring
the abolition of the right to capture private property at sea,
Institute of International Law at its meeting at the Hague in 1875,
see Revue de Droit International, 1875, vii, 288. England also
opposed the proposition at the Second Hague Conference, in 1907, see
Second Hague Conference, Acts and Documents, iii, 832.

[7] Among English Publicists favoring the abolition of the right
to capture private property at sea may be mentioned Lawrence, Hall
and Maine. The question came before the house of commons by motion
of Sir John Lubbock, March 22, 1878, but was negatived without
division. (See Phillimore, op. cit. iii, 361.) Lord Palmerstone once
said, "Question Statesmen, none will tell you that the depredations
of privateers have ever decided the success or final result of a
war." (See Political Science Quarterly, 1905, xx, 711) and in a
speech of 1856 he hoped for the abolition of the right to capture
private property at sea. (See Speech by Rufus Choate, Second Hague
Conference, Acts and Documents, iii, 770.) Among English publicists
on the opposite side are Phillimore, Westlake, T.C. Bowles, Twiss,
Lorimer, Sir Shurston Baker, and Norman Bentwich. John Stuart Mill
in a letter to the Times, March 11, 1871 spoke of abandonment of the
right to capture private property, as "the abandonment of our chief
defensive weapon--the right to attack an enemy in his commerce."
(See Phillimore, op. cit. 361.) However, in a speech in 1867 he had
apparently countenanced the reform, (See Speech of Rufus Choate,
Second Hague Conference Acts and Documents, iii, 770.)

[8] Section 21 of the proposed act. For text of this act see
Bentwich, The Declaration of London, 174.

[9] Political Science Quarterly, 1905, xx, 711, see also note 7 above.

[10] The full result of the vote was as follows: Aye--Germany,
United States, Austria-Hungary, Belgium, Brazil, Bulgaria, China,
Cuba, Denmark, Equador, Greece, Hayti, Italy, Norway, Netherlands,
Persia, Roumania, Siam, Sweden, Switzerland and Turkey,--21;
Nay--Columbia, Spain, France, Great Britain, Japan, Mexico,
Montenegro, Panama, Portugal, Russia, Salvador--11; Not Voting,

[11] For attitude of United States and other countries on this
question see speech by Andrew D. White, at the first Hague
Conference, (Holls, The Peace Conference at the Hague) and speech
by Rufus Choate at the Second Hague Conference, (Second Hague
Conference, Acts and Documents, iii, 770.)

[12] The French proposition was as follows: "Considering that, as
the law of nations still positively admits the legality of the
right of capture, applied to private enemy property at sea, it is
eminently desirable that, until a binding agreement is established
between states on the subject of suppression, the exercise of it be
subordinated to certain modifications.

"Considering, that it is necessary to the above point that,
conforming to the modern conception of war that it ought to be
directed against states and not against individuals, the right
of capturing private property apply only as a means of coercion
practiced by a state against a state;

"That in view of these ideas all the individual benefit to the profit
of agents of the state which exercises the right of capture ought to
be excluded and that the loss suffered by individuals from the taking
of prize ought to be finally borne by the state to which they belong;

"The French delegation has the honor of proposing to the fourth
commission that it express the wish that states which exercise the
right of capture appropriate the portion of prizes given to the crews
of the capturing vessels and promulgate the necessary measures,
so that the loss, caused by the exercise of the right of capture,
will not rest entirely upon the individuals from whom the wealth
may have been captured."--This "Voeu" known as annexe 16 of the
fourth commission appears in French text in Second Hague Conference
Acts and Documents, iii, 1148; English translation in Westlake,
International Law, ii, 313. For discussion of the measure see Second
Hague Conference, Acts and Documents, iii, 792, 809, 842, 845, 906,
909. Before a vote was taken the two portions of the motion were
separated. The final result as given on page 909 of the volume cited
was as follows:

On Abolition of prize money; Aye--Germany, Austria-Hungary, Chile,
China, France, Greece, Italy, Japan, Montenegro, Norway, Holland,
Persia, Russia, Servia, Sweden, Turkey, 16. Nay--United States,
Argentina, Cuba, Mexico, 4. Not Voting--Belgium, Brazil, Denmark,
Dominican Republic, Equador, Spain, Great Britain, Hayti, Panama,
Paraguay, Portugal, Salvador, Siam, Switzerland, 14.

On State insurance against private loss; Aye--Austria-Hungary,
France, Great Britain, Montenegro, Holland, Russia, Servia, 7.
Nay--Germany, United States, Argentina, Chile, China, Cuba,
Italy, Japan, Mexico, Norway, Persia, Sweden, Turkey, 13. Not
Voting--Belgium, Brazil, Denmark, Dominican Republic, Equador,
Spain, Greece, Hayti, Panama, Paraguay, Portugal, Salvador, Siam,
Switzerland, 14.

Although the United States has abolished prize money, her delegates
voted against the proposition on this occasion on the grounds that
it was a matter for internal regulation, and that they did not wish
to take the emphasis from the broader project of total abolition of
the right to capture private property which they advocated. Though
England abstained from voting, her delegate expressed opposition to
the "Voeu" in debate.

[13] Second Hague Conferences, iii, 906.

[14] Bentwich, The Law of Private Property in War, p. 72.



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Medley, D. J. A Student's Manual of English Constitutional History.
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Ridges, E. W. Constitutional Law of England. London, 1905.

Roscoe, E. S. The Growth of English Law. London, 1911.

Rotuli Parliamentorum, 1278-1503. 7 Vols. London, 1767-1777.

Rymer, Thomas. Foedera. 20 Vols. London, 1704-1735.

Scobell, Henry. A Collection of Acts and Ordinances. London, 1658.

Select Pleas of the Admiralty. Reginald G. Marsdon, editor. 2 Vols.
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Smith, Horace E. Studies in Juridical Law. Chicago, 1902.

Statutory Rules and Orders, revised, 1903, 13 Vols. London, 1904.
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Statutes at Large. 1215-1869. 108 Vols. London, 1762-1869.

Stephens, Serjeant. New Commentaries on the laws of England. 15th
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Stubbs, Bishop William. The Constitutional History of England. 5th
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Taylor, Hannis. The Origin and Growth of the English Constitution.
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