In admiralty law, prizes (from the Old French , ) are equipment, vehicles, vessels, and cargo captured during armed conflict. The most common use of prize in this sense is the capture of an enemy ship and its cargo as a prize of war. In the past, the capturing force would commonly be allotted a share of the worth of the captured prize. Nations often granted letters of marque that would entitle private parties to capture enemy property, usually ships. Once the ship was secured on friendly territory, it would be made the subject of a prize case: an in rem proceeding in which the court determined the status of the condemned property and the manner in which the property was to be disposed of.
History and sources of prize law
In his book The Prize Game, Donald Petrie writes, "at the outset, prize taking was all smash and grab, like breaking a jeweler's window, but by the fifteenth century a body of guiding rules, the maritime law of nations, had begun to evolve and achieve international recognition."Petrie, The Prize Game, pp. 4–5 (on the evolving prize rules in international law). Grotius's seminal treatise on international law called (Commentary on the Law of Prize and Booty), published in 1604—of which Chapter 12, "", inter alia founded the doctrine of freedom of the seas—was an advocate's brief justifying Dutch seizures of Spanish and Portuguese shipping.Grotius, [Commentary on the Law of Prize and Booty], p. ix (introductory notes describing Grotius's purpose). Grotius defends the practice of taking prizes as not merely traditional or customary, but just. His Commentary claims that the etymology of the name of the Greek war god Ares was the verb "to seize", and that the law of nations had deemed looting enemy property legal since the beginning of Western recorded history in Homeric times.Grotius, (Commentary on the Law of Prize and Booty), p. 43 (considering property seizure as a species of warfare).
Prize law fully developed between the Seven Years' War of 1756–1763 and the American Civil War of 1861–1865. This period largely coincides with the last century of fighting sail and includes the Napoleonic Wars, the American and French Revolutions, and America's Quasi-War with France of the late 1790s.Petrie, The Prize Game, p. 5. Much of Anglo-American prize law derives from 18th Century British precedents – in particular, a compilation called the 1753 Report of the Law Officers, authored by William Murray, 1st Earl of Mansfield (1705–1793). It was said to be the most important exposition of prize law published in English, along with the subsequent High Court of Admiralty decisions of William Scott, Lord Stowell (1743–1836).
American Justice Joseph Story, the leading United States judicial authority on prize law, drew heavily on the 1753 report and Lord Stowell's decisions, as did Francis Upton, who wrote the last major American treatise on prize law, his Maritime Warfare and Prize.Petrie, The Prize Game, p. 7.The Library of Congress catalog does not show an entry for Upton's work under this title.
While the Anglo-American common law case precedents are the most accessible description of prize law, in prize cases, courts construe and apply international law, and not the laws or precedents of any one country."The Elsebe". In Colombos, A Treatise on the Law of Prize, p. 21 (Lord Stowell noting that prize law is matter of international law, not the law of any one nation).
Fortunes in prize money were to be made at sea, as vividly depicted in the novels of C. S. Forester and Patrick O'Brian. During the American Revolution the combined American naval and privateering prizes totaled nearly $24 million (equivalent to approximately $ million in ); in the War of 1812, $45 millionMaclay, A History of American Privateers, Preface, p. ix (totaling captured vessels and prize proceeds). (equivalent to approximately $ million). Such huge revenues were earned when $200 were a generous year's wages for a sailor;A History of American Privateers pp.10–11 (comparing prize awards with pay officers and crew). his share of a single prize could fetch ten or twenty times his yearly pay, and taking five or six prizes in one voyage was common.
With so much at stake, prize law attracted some of the greatest legal talent of the age, including John Adams, Joseph Story, Daniel Webster, and Richard Henry Dana Jr. author of Two Years Before the Mast. Prize cases were among the most complex of the time, as the disposition of vast sums turned on the fluid law of nations (as international law was called at the time), and difficult questions of jurisdiction and precedent.
One of the earliest U.S. cases for instance, that of the Active, took fully 30 years to resolve jurisdictional disputes between state and federal authorities. A captured American privateer captain, 20-year-old Gideon Olmsted, shipped aboard the British sloop Active in Jamaica as an ordinary hand in an effort to get home. Olmsted organized a mutiny and commandeered the sloop. But as Olmsted's mutineers sailed their prize to America, a Pennsylvania privateer took the Active.The Journal of Gideon Olmsted Forward pp. vii to xv (discussing Olmsted's harrowing adventures at sea, followed by a 30 year ordeal in the courts on land). Olmsted and the privateer disputed ownership of the prize, and in November 1778 a Philadelphia prize court jury came to a split verdict awarding each a share. Olmsted, with the assistance of then American General Benedict Arnold, appealed to the Continental Congress Prize Committee, which reversed the Philadelphia jury verdict and awarded the whole prize to Olmsted. But Pennsylvania authorities refused to enforce the decision, asserting the Continental Congress could not intrude on a state prize court jury verdict. Olmsted doggedly pursued the case for decades until he won, in a U.S. Supreme Court case in 1809 which Justice Stanley Matthews later called "the first case in which the supremacy of the Constitution was enforced by judicial tribunals against the assertion of state authority".J. C. Bancroft Davis, United States Reports, Cases Adjudged in the October Term, 1888, vol. 131 (New York: Banks & Brothers 1889) app., p. xxxiv n. (quoting U.S. Supreme Court Justice Stanley Matthews on the significance of the Active case); see also Prize Cases Decided in the United States Supreme Court, Introduction at 5–6 (discussing the Active).
Commission Although letters of marque and reprisal were sometimes issued before a formal declaration of war, as happened during the American Revolution when the rebelling colonies of Massachusetts, Maryland, Virginia, and Pennsylvania all granted letters of marque months before the Continental Congress's official Declaration of Independence of July 1776,Prize Cases Decided in the United States Supreme Court, Introduction at 2–7 (detailing confusion of early state prize courts competing with, and denying the appellate authority of, the Continental Congress's prize court). by the turn of the 19th century it was generally accepted that a sovereign government first had to declare war. Francis Upton wrote in Maritime Warfare and Prize that the "existence of war between nations terminates all legal commercial intercourse between their citizens or subjects", since "[t]rade and commerce presuppose the existence of civil contracts ... and recourse to judicial tribunals; and this is necessarily incompatible with a state of war."Upton, Maritime Warfare and Prize, pp. 16–17 (discussing cessation of business when war declared). Indeed, each citizen of a nation "is at war with every citizen of the enemy", which imposes a "duty, on every citizen, to attack the enemy and seize his property, though by established custom, this right is restricted to such only, as are the commissioned instruments of the government."Upton, Maritime Warfare and Prize, pp. 16–17 (discussing implications of state of war).
The formal commission bestowed upon a naval vessel, and the Letter of Marque and Reprisal granted to private merchant vessels converting them into naval auxiliaries, qualified them to take enemy property as the armed hands of their sovereign, and to share in the proceeds.Petrie, The Prize Game at 7
Capturing a prize
When a privateer or naval vessel spotted a tempting vessel—whatever flag she flew or often enough flying none at all—they gave chase. Sailing under false colors was a common ruse, both for predator and prey. The convention was that a vessel must hoist her true colors before firing the first shot. Firing under a false flag could cost dearly in prize court proceedings, possibly even resulting in restitution to the captured vessel's owner.Uptown, Maritime Warfare and Prize pp. 421–22 (citing The Peacock, 4 Rob. 185, a British case involving restitution and allocation of expenses after firing under false colors).
Often a single cannon shot across the bow was enough to persuade the prey to heave to, but sometimes brutal hours and even days of cannonading ensued, along with boarding and hand-to-hand fighting with cutlasses, pistols, and boarding pikes. No matter how furious and bloody the battle, once it was over the victors had to collect themselves, put aside anger and exercise forbearance, treating captives with courtesy and civility to the degree prudence allowed.Upton, Maritime Law and Prize, p. 445 (citing the federal district court case of the Louisa Agnes which noted indecorous treatment like putting the captured crew in irons might well be defensible as necessary, under the circumstances). Officers restrained the crew to prevent pillaging defeated adversaries, or pilfering the cargo, known as breaking bulk. Francis Upton's treatise on Maritime Warfare cautioned:
Taking the prize before a prize court might be impractical for any number of reasons, such as bad weather, shortage of prize crew, dwindling water and provisions, or the proximity of an overpowering enemy force—in which case a vessel might be ransomed. That is, instead of destroying her on the spot as was their prerogative, the privateer or naval officer would accept a scrip in form of an IOU for an agreed sum as ransom from the ship's master. On land this would be extortion and the promise to pay unenforceable in court, but at sea it was accepted practice and the IOUs negotiable instruments.Petrie, The Prize Game 13–30 (discussing ransoming of whaleship Eliza Swan).
On occasion a seized vessel would be released to ferry home prisoners, a practice which Lord Stowell said "in the consideration of humanity and policy" Admiralty Courts must protect with the utmost attention.Colombos, Law of Prize, p. 168 (quoting Lord Stowell on cartel ships). While on her mission as a cartel ship she was immune to recapture so long as she proceeded directly on her errand, promptly returned, and did not engage in trading in the meantime.Upton, Maritime Warfare and Prize, 13–30 (treating of cartel immunity, noting the case of the ship Venus condemned as a prize for having taken a cargo on board after delivering prisoners to France as a cartel ship ).