tions were first put out of the hands of the sovereign CHAP. IX. appears to be still a mystery, which the insufficiency of authentic records has failed to elucidate.*

* As the authority of the Admiralty Court in these matters has been always so unquestionable, no other tribunal except as aftermentioned having so much as hinted at a jurisdiction over the subject matter, the point, as to whether this power was first executed by the Admiral's Court, without any special commission from the Crown, or whether such commission was necessary to constitute or call it forth, is a point likely to be as uninteresting and useless to the reader, as it would be a thankless, if not fruitless task to the writer; but, as some ink has been already spilt on the subject, and a claim was very strongly urged by the Admiralty Court in Ireland, where it was insisted that the ordinary commission included prize (see Browne's View of the Civil Law, vol. ii. p. 212.), it is enough to mention that though the Court of Admiralty of England may have, in some instances, exercised a prize jurisdiction without any special or direct commission from the Crown, some authority from the Crown, some commission must have previously issued for that purpose, or that Court could never have tried the question. The learned Dr. Browne has argued, in his work on the Admiralty Jurisdiction, that as no prize commission had issued, as far as appears in ancient times, the authority of the Admiralty of England must be considered as inherent. The fallacy of such an argument is evident from the nature of the interest of the Crown in the subject of prize; it is clear that a commission of some sort is necessary for any Court to entertain such a question; it is also clear that the authority, whether by special commission or otherwise, which has been granted to the Admiralty Court, has been, from time immemorial, sufficient to embrace the whole question of prize, and that to no other Court has a commission sufficient for that purpose being granted. The only manner in which the prize jurisdiction of the Court of Admiralty can be considered to be inherent, would appear to the writer of these pages, to be this: that though the Court of Admiralty had originally received a commission from the Crown to try the question of prize, it was thought proper that that Court so constituted, should occasionally, as for instance, on the special occasion of a war, receive special commissions from the Crown to call forth its jurisdiction; and this is the signification which appears due to the expressions, "constitute" and "call forth," made use of by Lord Mansfield, so strongly objected to by Dr. Browne, as ambiguous and unsatisfactory; but they are no more ambiguous than the obscurity, in which the constitution of the prize branch of the Admiralty jurisdiction is involved, demands;

CHAP. IX. In the earlier ages of our naval history, the whole The antiquity interest of prize was, doubtless, not so considerable as of this power of to require great specification. The law of nations had the Admiralty

Court.

received but little attention*, and how this booty was

and the further remark by Lord Mansfield, also objected to by the learned commentator, that, "since Queen Elizabeth's reign, the Judge of the Admiralty, either by an inherent power, or by the king's commission, or both, has solely exercised prize jurisdiction,” is peculiarly correct, for that great lawyer never intended this expression to convey the doubtful meaning which has been applied to it in this instance: this is the more evident from a material point in Lord Mansfield's dicta having been omitted, seemingly ex industria. The remark of Lord Mansfield, as reported in Douglas, is :-"Since the reign of Queen Elizabeth no special commission appears to have issued; but the Judge of the Admiralty, either by virtue of an inherent power, or the king's commission, or both, has solely exercised the jurisdiction of prize." The expression inherent, made use of by his Lordship, can only mean an inherent power by previous grant from the Crown, "the fountain of prize."

"The law of nations, strictly so called, was in a great measure unknown to antiquity, and is the slow growth of modern times, under the combined influence of christianity and commerce.1 It is well known, that when the Roman empire was destroyed, the christian world was divided into many independent sovereignties, acknowledging no common head, and connected by no uniform civil polity. The invasions of the barbarians of the north, the establishment of the feudal system in the middle ages, and the military spirit and enterprise cherished by the crusades, struck down all regular commerce, and surrendered all private rights and contracts to mere despotic power. It was not until the revival of commerce on the shores of the Mediterranean, and the revival of letters, and the study of the civil law by the discovery of the Pandects, had given an increased enterprise to maritime navigation and a consequent importance to maritime contracts, that anything like a system of international justice began to be developed. It first assumed the modest form of commercial usages; it was next promulgated under the more imposing authority of royal ordinances; and it finally became, by silent adoption, a generally connected system, founded in the natural convenience, and asserted by the general comity of the commercial nations of Europe. The

1 See 1 Ward, Law of Nations, ch. 6. p. 171-200.; Id. ch. 3. p. 120-130.

disposed of by the sovereign is a matter which is left CHAP. IX. to conjecture. It suffices to mention, that when the naval transactions of this country became more frequent and more important, a generous but sagacious policy was exercised by the sovereign, and this kind of property was bestowed on our sailors as an additional impulse to their courage and enterprise.* But the admiral was always invested with the power of judicially distributing this bounty from the earliest times: perhaps the most ancient evidence of this jurisdiction of the admiral (whether by special commission for that purpose, or otherwise, does not appear) is handed down to us by an ancient instrument in Rymer, vol. vi. p. 15. It is a letter from Edward III. to the King of Portugal, and recites a complaint that the admiral, before whom the goods were judicially demanded, determined that they should not be restored, as having been taken in time of war. Præsertim cum Admirallus noster, coram quo bona hujusmodi fuerant ab occupantibus ipsorum JUDICIALITER repetita.† "It is the common practice of European

system thus introduced for the purposes of commerce, has gradually extended itself to other objects, as the intercourse of nations has become more free and frequent. New rules, resting on the basis of general convenience, and an enlarged sense of national duty, have, from time to time, been promulgated by jurists, and supported by Courts of justice, by a course of juridicial reasoning, which has commanded almost universal confidence, respect, and obedience, without the aid, either of municipal statutes, or of royal ordinances, or of international treaties."-Story's Conflict of Laws, § 3.

*"Follow and take them, for if they escape, ye lose my love for ever; and if ye capture them all their goods shall be yours,” said King Richard I. to his sailors, on the occasion of a naval skirmish. See Sir H. Nicolas's History of the Navy, vol. i. p. 121.

† Some further illustrations of the origin of prize may be interesting to the reader; the following is extracted from Sir H. Nicolas's History of the Navy, vol. i. p. 140. "Ships and goods captured from the enemy became the property of the king; but prize-money seems to have been as ancient as the English navy

CHAP. IX. states in every war, to issue proclamations and edicts on the subject of prize; but, till they appear, Courts of

itself, though the amount depended entirely on the sovereign's bounty. In March, 1205, the king granted to the galleymen of the galleys, which Thomas of Galway brought into his service, the moiety of what they had captured from his enemies; and he promised them other recompense according to their services, as he should be advised by his justiciary, so that they should be well rewarded. About the same time the crews of two galleys received one hundred marks, and were promised a moiety of such prizes as they might take from the enemy; and, on another occasion, 1007. were advanced to the mariners and galleymen out of the money produced by the sale of the goods of a ship, which, coming from Normandy, was captured in Wales. The king disposed of prizes as he thought proper; retaining some vessels for his own use, and bestowing the remainder on his favourite or deserving subjects. A French ship, called The Countess, was given to his natural brother, the Earl of Salisbury. Of the other prizes, the best ship was to be reserved for the king; the second best was given to Richard de Mariscis, Archdeacon of Northumberland; and the third best to William de Briwere. Philip de Ulecot, and the Archdeacon of Durham, had also ships given to them; and, the cloth taken in the vessels at Barfleur, in 1212, was directed to be sent to the king at the Tower of London."

The grant of a moiety of prize is made by the Crown in 1242, and is there recorded by the same learned historian: "Permission was granted to the inhabitants of Bayonne to attack the French and others at war with the king, by sea and land; and in reward of their services, they were promised the first thousand marks belonging to the king, arising from whatever property they might take from the enemy, to assist them in enclosing their town, together with one moiety of the remainder of such property for their wages; but the other moiety was to go to the king."

The following is abridged from Sir C. Robinson's "Collectanea Maritima," in which that learned writer endeavours to trace the history of the interest of captors in prize: “Before the reign of Henry VIII., there was not any fixed and constant navy royal. Before that time, the ports and maritime towns of the kingdom fitted out on proper summons their quota of ships of war for the public service, which met at a certain place of rendezvous, and put themselves under the conduct of the king or his admiral. The manner in which prizes, taken in those expeditions, were anciently distributed amongst the fleet, is recorded in the black book of the Admiralty, according to the following proportions:

“Item s'il avient que desoubz les gages du roy, sur la mer, ou

Admiralty have a law and usage on which they proceed, CHAP. IX. from habit and ancient practice, as regularly as they

en ports, biens des ennemys estre gaignez par toute la flotte, ou par parcelle d'icelles, donques aura et prendra le roy de toutes manères diceulx biens la quarte partie, et les [Seigneurs] des nefs une autre quarte partie, et l'autre moitie diceulx biens auront les gaigneurs diceulx; la quelle moitie doit estre entre eux egalement parties, de la quelle moitie aura l'admiral en chacune nef deux shares, c'est a dire, autant comme deux mariners, s'il est present au temps que la prise est faitte; et s'il est absent, donques ils n'aura forsque de chacun vessel ung share. Et iceulx de la flotte qui sont hors de veve, autemps de la prise, n'auront nulle parte d'icelles, s'ils ne sont segglants vers la prize, et dedens la vene, perainso qu'ils soient semblables d'aider au captours de la prise avec leurs voiles, se mestier estoit!

"Item se hors de gages du roy aucunes biens par galliotes, ou autres, soient pris sur la mer, donques le roy ne chalengera nul droit, ne proprement aura nul par mais iceulx qui gaignez les auront, forspris que l'admiral en aura deux shares, en chacune nef comedit est, c'est a dire autant comme deux hommes, l'une share avec la mayne, et l'autre avec la vitaile et la nef."-Book A, Art. 19, 20.

Henry VIII. put the navy of England on a better footing by building ships of war and erecting yards and magazines. (Anderson's Hist. of Commerce.) In the third year of this king's reign, a naval expedition was set forth, entirely at the expense of the king, although all the ships, except the Regent, appear to have been hired vessels. There is an instrument respecting this expedition preserved in Rymer, which shows the state of the navy at that time as to the pay of the several ranks, and the distribution of prize-money. It is drawn up in the form of a contract, and is entitled, A Pair of Indentures between the King and the Admiral, by which "the admiral was to have eighteen ships, armed and equipped, at the king's charge, and manned by 3000 men, harnessed and arrayed, over and above 700 soldiers, marines, and gunners, that shall be in the king's ship, called the Regent." For his own wages and diet, the admiral was to have ten shillings a day; each of the eighteen captains, eighteen-pence; the soldiers and mariners per month, ten shillings, i.e. five shillings for wages, and five shillings for victuals; and with respect to prizes, "for as much as our sovereign lord, the king, at his costs and charges, victualleth the said army and navy, the said admiral shall answer the king one half of all manner of gains and winnings of the werre, one ship royal, being of the portage of two hundred tons, with the