Feral Jundi

    Self-interest was the driving force that compelled men of the sea to accept the international law of prize . . . [including merchants] because it brought a valuable element of certainty to their dealings. If the rules were clear and universal, they could ship their goods abroad in wartime, after first buying insurance against known risks. . . . On the other side of the table, those purchasing vessels and cargoes from prize courts had the comfort of knowing that what they bought was really theirs. The doctrine and practice of maritime prize was widely adhered to for four centuries, among a multitude of sovereign nations, because adhering to it was in the material interest of their navies, their privateersmen, their merchants and bankers, and their sovereigns. Diplomats and international lawyers who struggle in this world to achieve a universal rule of law may well ponder on this lesson. –Donald A. Petrie, The Prize Game, p. 145-46.

*****

   This is cool.  Mr. Petrie has written an interesting book that deals with prize law back when privateering was a common worldwide practice.  Prize law was the necessary foundation of laws that insured everyone who actually captured an enemy’s stuff, could legally keep it.  This applied to privateers, but it also applied to the various navies that practiced the concept of commerce raiding and taking prizes.

   On a side note, the US Navy continued paying prizes to it’s officers all the way up until the Spanish American War.  Imagine if today’s Navy could seize ships and be legally awarded that prize in a court of law?

   The other reason why I wanted to get this out there, is that if we are to apply the Letter of Marque to modern day problems, the other necessary component that made the LoM work properly back then was prize law and courts who adhered to those laws.  And because prize law dealing with privateering or commerce raiding has atrophied do to non-use, it is necessary to bring up some recent literature on the subject, as well as older texts. A good first step in that process, is to refer to the mavens on prize law, if such a thing exists.  Mr. Petrie and his book would be a good first step.  Studying Grotius would be another good step to create a modern foundation of prize law. (there are others listed below)  I am also positive that there are plenty of lawyers out there that could reawaken prize law in this context.

   If the readership has any links to prize law related articles or books, I would love to add that stuff and make this post a good place to collect that information. Prize law is also way outside my lane, and I really cannot give it the proper respect.  So if you are a lawyer, judge or legal maven, please step in and correct the record, or add to the stew of ideas here.  I am all ears. –Matt

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La Blanche towing la Pique, a French prize, 1795

The Prize Game: Lawful Looting on the High Seas in the Days of Fighting Sail 

Donald A. Petrie

Product Description

In the Middle Ages, European nations raised standing armies to fight their foes. At sea, however, their resources were much more limited and largely dependent on privately owned vessels and their crews. To stimulate the growth and ardor of their fleets, the monarchs of Renaissance Europe offered the crews of their naval vessels and licensed privateers a chance to get rich by plundering enemy ships and cargoes. These actions gave rise to the doctrine and practice of maritime prize–a subject little studied but regularly referred to by C. S. Forester, Patrick O’Brian, and other popular writers about the era. Now, after a decade of research in European and American archives, Donald A. Petrie explains the origins of prize taking, the rules of the sea that became universally accepted among the maritime powers of the world, and the final decline of prize taking during the nineteenth century.

Most of the book is devoted to rollicking, never-before-published sea stories about this form of looting that helped define the last century of fighting sail. From the North Cape of Norway to the southern tip of Africa, from Charleston, South Carolina, to the East River of New York, these tales of high-seas adventure span a broad area and period. For readers fascinated by warfare in the days of sail, in both history and fiction, Petrie has unveiled the mysteries of prize taking in a manner that is highly readable yet thoroughly authentic. His book is the first such study to be published in this country since 1861.

Link to book here.

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Prize (law)

From Wikipedia

    Prize is a term used in admiralty law to refer to 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, it was common that the capturing force would be allotted a share of the worth of the captured prize. Nations often granted letters of marque which 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 it was to be disposed of.

In his book The Prize Game, Donald Petrie writes, “[a]t 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.” Grotius’s seminal treatise on international law published in 1604 called De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty) (of which Chapter 12, “Mare Liberum” inter alia founded the doctrine of freedom of the seas) was an advocate’s brief justifying Dutch seizures of Spanish and Portuguese shipping. In defending the practice of taking prizes as not merely traditional or customary but on examination, just, Grotius’s Commentary points out 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.

History and Sources of Prize Law

In his book The Prize Game, Donald Petrie writes, “[a]t 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.” Grotius’s seminal treatise on international law published in 1604 called De Iure Praedae Commentarius (Commentary on the Law of Prize and Booty) (of which Chapter 12, “Mare Liberum” inter alia founded the doctrine of freedom of the seas) was an advocate’s brief justifying Dutch seizures of Spanish and Portuguese shipping. In defending the practice of taking prizes as not merely traditional or customary but on examination, just, Grotius’s Commentary points out 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.

Prize law reached its fullest development in the period from the Seven Years War of 1756-63 to the American Civil War of 1861-65, which 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 1790’s. Much of Anglo-American prize law comes out of 18th Century British precedents, in particular a compilation called the 1753 Report of the Law Officers authored by William Murray, 1st Earl of Mansfield (1705-93) said to be the most important exposition of maritime law of prize ever published in English, and 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.

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; in the War of 1812, $45 million. This at a time when $200 was a generous year’s wages for a sailor; 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, and difficult questions of jurisdiction and precedent. One of the earliest US cases for instance, that of the Active, took fully 30 years to resolve “who’s in charge?” 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, commandeered the sloop, but on its way to America a Pennsylvania privateer took the Active. 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.”

Link to wikipedia here.

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War of 1812: Privateers (website)

The issuing of Letters of Marque and Reprisal started initially as a method of legal redress, the reprisal part hints at this. However this was so widely abused that it became little more than piracy. The diplomatic difficulties caused lead states to agree on certain basic principles for the regulation of privateering.

Letters of marque were no longer used as a means of settling a private wrong and now were only issued at commencement of sate sanctioned hostilities that is following a declaration of war. That captured enemy vessels had to be judged before an Admiralty court and neutrals rights had to be respected. Infringement of these regulations could lead to the forfeiture of the bond fro good behaviour or in some case the impressment of the offending crew.

The works following show how complex the rules were and how carful the privateering commander had to be.

Henry J. Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1798-1828 ( Cambridge University press, 1989

This gives and excellent academic survey of how prize law functioned in this period.

Richard Hill, The Prizes of war: the naval prize system in the Napoleonic Wars 1793 -1815 (UK:Sutton publishing, 1998)

Donald A. Petrie The Prize Game: lawful looting on the High Seas in the days for fighting sail (Maryland: Naval Institute press, 1999)

Story here.