Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
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.
Public-domain text, read in full here on John Shaqi.
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