Prize Money

by Quincy Wright

[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 enforced.

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.