Shortly before this, the collection of sea laws known as the Black book of the Admiralty was compiled for the use of the Lord High Admiral. The book contains that ancient body of sea law, the Roles of Oleron,[12] besides several later ordinances and inquests. The principle portion dealing with prize distribution is part "A" which consists of the ordinance of Edward III made after the battle of Sluys, already mentioned.[13] It also contains "An inquisition made at Queensborough in 1375" which is a statement by a jury of the existing law at that time. It restates the earlier ordinance of Edward III except that the king's share of prizes is not mentioned.[14] The inquest also permits merchant ships to make captures from the king's enemies, apparently without a special commission and divide the proceeds two thirds to the owner and one third to the mariners.[15] Captures by merchant vessels without commission seem to have been quite common and were openly approved by the king.[16] The fact that these ancient ordinances were collected for authoritative use seems to indicate that they were recognized law in the fifteenth century.
b. Administration.
The period of the hundred years war, thus brought about definite progress in prize money laws. Prize distribution became the subject of definite ordinances. In Edward Third's ordinance most of the principles of prize distribution mentioned by international law writers of three centuries later were enunciated.[17] The issuance of such an ordinance implied a recognition of the principle, "bello parta cedunt reipublicae"[18] the original title to prize vests in the state. Definite rules for distribution were declared and most important of all, adjudication of prizes by a competent court was demanded before distribution. The office of admiral was created by Edward I in the year 1300 when Gervase Alvard was appointed Admiral of the Cinque Ports. At first several admirals were appointed with jurisdiction over different portions of the sea. In 1340 owing to difficulties which he got into with neutral powers, who complained of the depredations of English privateers, the court of admiralty was created with prize jurisdiction in such cases. The first mention of prize courts is in 1357.[19] Attempts were made by the common law courts to retain their jurisdiction but it soon became recognized that sea matters were properly under the control of the admiralty. In 1360 one admiral was appointed for all the fleets in the person of Sir John Beauchamp. The duties of the office were greatly extended, in fact it claimed so wide a jurisdiction that in the reign of Richard II two statutes[20] were passed greatly limiting the Admiral's power.
The office of admiral was of a two-fold character. He was not only commander-in-chief of the navy and as such entitled to share in prizes, but also he exercised the king's power of jurisdiction over the sea and in this capacity presided over the courts of admiralty and the prize courts. In the latter capacity the connection of the admiral with the privy council was very close. He was himself a member of the privy council and that body always exercised final jurisdiction in prize cases if it saw fit. It should be understood that no normal adjudication of all prizes was at this time required. In the Black Book of the Admiralty the admiral was given vigorous means of collecting his perquisites, "inquiry is to be made of all ships, who have not paid the admiral his share, the names of the captors, masters, owners and value of goods taken is to be presented."[21] Thus it was only in special cases where the admiral had heard of a capture and had not received a share or where some party made a complaint, that a case was adjudicated. The great majority of cases never came before the court and the captor had undisturbed possession.
The apparent insufficiency of the admiralty in prize cases brought forth a new set of officers in 1414, the Conservators of the Ports.[22] These officers had criminal and prize jurisdiction in maritime cases but the plan seems to have been attended with small success and soon fell into desuetude.
Through this period the Cinque Ports maintained to some extent their ancient privileges. The Warden of the Ports exercised the function of admiral over mariners sailing from them. Nominally he was under the authority of the Lord High Admiral but as a matter of fact he exercised an almost independent jurisdiction until 1628.
As noted the issue of letters of Marque by the privy council was authorized by statute but the carriage of such letters by privateers does not seem to have been universally required, especially in war. Efforts were made to restrain privateering by law for the benefit of neutrals.
c. Significance.
What accounts for England's very early adoption in theory at least of these advanced principles of maritime law? England's insular position turned her people to the sea and commerce. The French wars necessitated a continuous military and naval policy. It also brought about internal unity and nationalism much earlier than in other countries. Thus the state definitely organized and regulated the navy. The great naval victories and the assumption by the king of the title "master of the seas" increased the spirit of nationalism and naval pride. There was however, a conflict between "the rights of the king as sovereign lord of the sea entitled to demand for offence and defence the service of all his subjects; the privileged corporations of the sea port towns with their peculiar customs and great local independence; and the private adventure of independent merchants and mariners whose proceedings seem to be scarcely one degree removed from piracy."[23] But as we have noted the king emerged from the conflict victorious. The office of Lord High Admiral of all the seas was created, the navy came to be considered a definite branch of the royal administration. A royal navy was built up under Henry IV and Henry V. The king affirmed his right to prize and his right of jurisdiction over privateers and their captures.
But along with England's aggressive naval policy was her dependence upon commerce. Successful commerce necessitated strict recognition of neutral rights and a rule of order at sea, embracing the destruction of piracy and illegal privateering. Thus the king established the admiralty as a prize court, made treaties binding himself to the protection of neutral rights, demanded adjudication of all prizes, and sought by ordinance to restrain illegal privateering. After the reign of Henry V the commercial interests of England won the upper hand, the royal navy was sold, the naval protection was placed in the hands of commissioned merchant privateers and more strict enforcement of neutral rights was sought. Thus the conflict between an aggressive naval policy and the protection and encouragement of commerce brought about a very early recognition in England of advanced principles of prize capture and distribution.