a. Laws.
The practice of Great Britain in prize distribution has always been remarkable for its extreme liberality to the captors of prize. Chancellor Kent has a note to the effect that by common law "goods taken from an enemy belong to the captor."[1] His authority is a case decided in King's Bench in 1697 which says, "And it was resolved by whole court that though, if goods be taken from an enemy it vests the property in the party taking them, by our (common) law, yet by admiralty law, the property of a ship taken without letters of mart vests in the king upon the taking, and this on the high seas."[2] The same view is expressed by a modern writer, who says, "The root of the prize system is found in the ancient doctrine that any person might seize to his own use, goods belonging to an alien enemy and this right extended to captures at sea."[3]
A case in the reign of Edward III, 1343, bears out these opinions. The king of Aragon complained of a case of piracy by Englishmen and asked redress. Edward called his Chancellor and council and the decision was given that the alleged piracy was a case of lawful prize and that by the law maritime the goods belonged to the captor.[4]
However, England very early recognized the contrary principle that prize of war of right belongs to the state and private individuals only acquire their title by grant of the crown or parliament. Thus by a patent of 1242, Henry III granted half of all prizes taken by them to masters and crews of king's ships and the same to the men of Oleron and Bayonne in their own ships.[5] In 1295 a letter patent provided that the whole of prizes taken by Bayonne ships should be shared equally between the owners and men[6] and in the Scotch expedition of 1319 Edward II also granted the whole of prizes to the captors.[7]
A close Roll of 1325 states that men of the Cinque Ports had granted one fourth of all prizes to the king.[8] The Portsmen by a grant of William the Conqueror[9] enjoyed special privileges in prize matters and claimed to enjoy prizes of their own right. In early times their forces comprised the greater part of England's naval strength so this privilege was quite important. However, the kings seem to have wished to regain some of the jurisdiction which they had granted away and in the case mentioned Edward II tried to gain jurisdiction over the whole of the prize. In 1326 the king's primal right seemed to be recognized as superior to that of the Portsmen for a grant of that date is made by the king, of all prizes to the portsmen.[10]
b. Administration.
During this period no machinery for adjudication was established. The only means through which the king could collect a share of prize was through the common law courts and they proved in most cases inadequate. The jealously guarded jurisdictions of the Cinque ports also largely interfered with the king's perquisites in prize. Their peculiar customs were held above the king's right. Thus in 1293 when Edward I claimed a share of prizes captured by Portsmen they stated that on the occasion in question they had hoisted a flag called the "Baucon". This action meant a fight to the death in which case by the universally recognized law of the sea all prizes captured by the survivors belonged to them. Furthermore if the king endeavored to interfere with them they would leave the country.[11] Such assertions of independence probably prevented much state interference with prize distribution at this period.
NOTES.
Chapter III, Part 1.