"In this method all captures at sea were tried during the last war by Great Britain, France, and Spain and submitted to by the neutral powers. In this method by courts of admiralty acting according to the law of nations and particular treaties all captures at sea have immemorially been judged of in every country in Europe. Any other method of trial would be manifestly unjust, absurd and impracticable."
In regard to the competency of courts this subject is now dealt with by statute. It has been judicially stated that no British subject can maintain an action in a municipal court against the captors for prize. The court of admiralty is the proper tribunal and it exercises prize jurisdiction only under special commission from the crown.[17] In 1801 a case arose in which a vessel was condemned as prize and the proceeds distributed by decree of the vice admiralty court of Santa Domingo.[18] It appeared that the court had no commission to act as a prize court. On retrial the British prize court said:
"But the court having no authority those proceedings are nill and of no legal effect whatsoever." In spite of this decision Phillimore expresses the opinion that in the absence of a special commission the regular courts of admiralty could legally exercise prize jurisdiction according to ancient custom.[19] Under the present law there can be no question as to what courts are commissioned. It therefore appears to be established that English jurisprudence demands a judicial adjudication by a duly commissioned court before distribution of prize money.
e. Method of Distribution.
The method of distributing prize money is determined by municipal law.
The statutory regulations and orders in council decreeing the method of distribution in England together with the instructions to naval commanders have already been noted.[20] A brief consideration of their judicial interpretation may throw some additional light on the actual method of determining the shares of prize received by the captors.
Benefit may be received by the captors or destroyers of vessels in three ways. 1. As prize bounty. A special reward is often given for destroying or capturing enemy vessels. Usually it is given only for destroying armed vessels of the enemy though in some cases, bounty has also been given for the destruction of merchantmen. It is a sum of money given from the treasury of the government irrespective of the value of the prize captured. In distributing it an effort is made to determine the strength of the opposing vessel, thus it is given either as gun money, a fixed amount for each gun on the enemy vessel or as head money, a fixed amount for each man on the enemy vessel at the beginning of the engagement. 2. As military salvage. A reward is usually given for the recapture and return of vessels belonging to citizens of their own or allied countries. This reward is of a similar nature to the salvage which is ordinarily paid for the recovery of shipwrecked vessels in time of peace. The amount paid is usually a certain proportion of the total value of the recaptured prize. 3. As prize money. This is the portion of the actual proceeds of the prize captured given to the captors. The amount of benefit in this case would of course depend on the value of the prize captured, and if the prize is destroyed there obviously is no prize money. Formerly money might also be received as ransom, that is a prize would be released by the captors on the giving of a ransom bill which obligated the master of the prize to continue to a certain port, to refrain from future voyages during the war, and to pay a fixed sum of money as ransom. Thus ransom would partake of the nature of prize money and be divided in the same way. The practice was abolished in England in 1782 by statute[21] but seems to have been allowed later in special cases[22] though each succeeding prize statute repeated the prohibition. It is now illegal unless specially authorized by Order in Council under the naval prize act of 1864.[23]
NOTES.
Chapter V, Part 2.