[11] Marsdon, English Historical Review, xxiv, 677.
[PART 2. 1340-1485.]
a. Laws.
After the battle of Sluys in 1340 when Edward III became in fact master of the seas, a title which kings of England had assumed since the time of John, the king issued certain ordinances for the distribution of prize.[1] A distinction was made between prizes taken by ships in the king's pay and privateers. At that time there was no navy owned by the state. In the former case the king is to receive one fourth of the proceeds of all prizes, the owner of the vessel one fourth and the remainder "shall belong to those who took them which halfe ought to be shared equally between them". Out of the portion going to the captors the admiral has two shares or as much as two mariners from each ship, if he is present when the capture is made, if absent he only receives one share. It is also provided that "ships out of sight shall receive no share unless sailing toward and in sight so as to help the takers if need be." The apparent purport of this anomalous language being that joint captors must be of actual constructive assistance to share. In the case of privateers the king has no share of prizes. The whole amount goes to the captors except the admirals perquisite which is the same as in the former case. It is further provided that "whoever takes a ship ought to bring it before the admiral, there to take and receive what the law and custom of the sea requires", no plunder of the prize being permitted before adjudication except on the decks.[2]
By a patent of 1386 the king gives all his share to the admiral[3] and in the following year the whole of prizes is granted to privateers.[4]
In 1406 a grant of Henry IV provides that ship owners shall have prizes taken from the enemy but they must deliver up to the king any prisoners they may take for whom a reasonable reward will be given.[5] In the same year a letter from the admiral calls on all mariners to enter the king's service and says that "whatever profits and gains such persons shall make from the king's enemies on said voyages they shall have and enjoy freely without impediment or disturbance."[6] By statute of 1416[7] it was provided that letters of Marque might be issued by the privy council to any one having grievances against a foreign power. In such issues of letters of Marque the profit of goods taken went to the captor to the extent of the damages received. All goods in excess of that amount were supposed to be returned but few cases of such return are on record.[8] It was under authority of this act that letters of Marque were issued in England until the final abolition of the practice in the treaty of Paris of 1856.
A treaty with Flanders of 1426 contains the provision that "no prizes shall be divided at sea or in a foreign harbour but shall be brought entire to a port of England and there it will be adjudged by the king and council, the chancellor or the admiral whether the prize belonged to friends or enemies and it will be disposed of in good and brief manner."[9] Here we seem to have a distinct enunciation of the most modern principles of prize law that no title to prize is legally conferred until after adjudication by a competent organ of the state making the capture.
In 1442 an ordinance of Henry VI "for the safeguarding of the sea" emphasizes these same principles. It declares that neutrals must not be harmed in war and that award of prize must be made by a competent tribunal before distribution of proceeds. The scheme to be used in distributing the proceeds in case the vessel is found good prize is as follows: One half goes to the master, quarter master, sailors and soldiers. The remainder is to be divided into three parts, of which two go to the owners and one to the chief and under captains. The ordinance also contains rules for the conduct of privateers.[10] In the same year a statute[11] permitted any one making capture of an enemy vessel "to take the goods and merchandises and enjoy them without any restitution thereof to be made in any wise, even though the goods belonged to neutrals and they had no safe conduct from the king of England."