1902 Encyclopedia > Prize, Prize of War

Prize, Prize of War




PRIZE, or PRIZE OF WAR, denotes the ship or goods of an enemy, or in transitu to an enemy, captured at sea. Goods captured on land are not prize, but booty of war. To be good prize the capture must be on the high seas or in the territorial waters of one of the belligerents, and must be by an armed vessel duly commissioned by the sovereign of the captor. A capture made in neutral waters is a violation of neutrality, and may be restored at the discretion of the neutral power. Most nations have municipal regulations upon the subject. Thus prize cap-tured in breach of the neutrality of Great Britain may be restored by the High Court of Justice (Admiralty Division) under the powers of the Foreign Enlistment Act, 1870, 33 & 34 Vict. c. 90, § 14. Capture may be actual or constructive. Constructive or joint captors are those who have assisted the actual captors by conveying encourage-ment to them or intimidation to the enemy. All public ships of war within signalling distance are usually held entitled to share in the proceeds of the capture. This rule is incorporated in the United States code of prize law, the Act of Congress of June 30, 1864. It is not all enemy's property that is good prize. The conflicting interests of neutrals have led to modifications of the general belligerent right of seizing enemy's property wherever found, a right which had become established as part of the general maritime law as early as the Consolato del Mare (see vol. vi. p. 317, and SEA LAWS). By the rules laid down in the Consolato neutral vessels or neutral goods were to be restored to the owners without com-pensation for the loss of time and other inconveniences attending capture. This may be said to have been the general law of the sea down to 1856. At the same time it is to be noticed that two doctrines inconsistent with the original rule had met with the sanction of certain nations, viz., (1) the French doctrine of hostile infection, by which neutral property on an enemy's ship or a neutral ship carrying enemy's property was good prize; (2) the Dutch doctrine, by which the character of the ship alone was regarded—free ship made free goods, enemy ship enemy goods (see Twiss, Law of Nations, vol. ii. ch. v.). In 1856 the Declaration of Paris adopted an intermediate system. To this Declaration most nations have acceded (see PRIVATEER). By article 2 of the Declaration, " the neutral flag covers enemy's goods, with the exception of contraband of war." By article 3, " neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag." Contraband of war, speaking generally, includes all articles, such as provisions and munitions of war, likely to add to the military or naval resources of the enemy (see CONTRABAND). After the capture has been made, the next proceeding is the determination of its legality. It is now an understood rule of international law that the question of prize or no prize must be determined by a qualified prize court (see below). Captors should send their capture to a conveni-ent port, if possible a port of their own nation or an allied power, for adjudication. They may forfeit their rights by misconduct in this respect. The property in the prize vests in the sovereign, in accordance with the old maxim of law Parta hello cedunt reipublicx. This right attaches both in cases of capture and recapture, subject in the latter case to what is called the jus postliminii, that is, the right of the owner of property recaptured from the enemy to have it returned—formerly if the recapture has taken place before the property had been taken within the enemy's territory (infra prxsidia), at present if less than twenty-four hours has elapsed between the capture and recapture. The right of the recaptors to salvage on recap-ture is regulated by the municipal law of different nations. By English law one-eighth of the value is the sum usually awarded, but this may be increased to one-fourth under special circumstances. The right does not exist at all if the vessel has been fitted out as a vessel of war by the enemy, 27 & 28 Vict. c. 25, § 40. One-eighth is awarded for recapture from pirates, 13 & 14 Vict. c. 26, § 5. In the United States, by the Prize Act of June 30, 1864, salvage on recapture is allowed according to the circum-stances of the case. There is no sum fixed as in England. Although the prize vests in the sovereign, it has been held in England that the captors have an insurable interest in the prize immediately after capture and before condemna-tion on the ground that under the Prize Act the captors have a certain expectation of profit upon the safe arrival of the prize in port, and that they are liable to condemna-tion in damages and costs if the capture be unjustifiable. By the general maritime law a prize may be released upon ransom; but it has been the general policy of European nations to discountenance ransom as less beneficial to the state than the detention of a prize. Thus an Act of 1782, and subsequent Acts, avoided ransom bills given by British subjects, and subjected a commander giving one to an enemy to penalties, unless in either case the circum-stances were such as to justify the giving or taking of the bill. The Naval Prize Act, 1864, is less strict in its terms. It enacts that the queen in council may from time to time in relation to any war make such orders as are expedient as to contracts for the ransoming of a ship or goods; contravention of the orders makes the contract void and renders the offender liable to a penalty not exceeding £500, 27 & 28 Vict. c. 25, § 45. By the Naval Discipline Act, 1866, a commanding officer making an unlawful agreement for ransom is liable to be dismissed from the service, 29 & 30 Vict. c. 109, § 41. The United States have never prohibited ransom bills. The rights of the sovereign to prize may be waived, as was formerly done by the crown of Great Britain in the case of privateers (see PRIVATEER).





Many statutes dealing with prize have been enacted at different times in England. The first general Prize Act was 6 Anne c. 13. The Act that now regulates prize is the Naval Prize Act, 1864, already referred to. Various offences in relation to prize are dealt with by the Naval Prize Act and the Naval Discipline Act. Such are false swearing in a prize cause or appeal, taking money, &c, out of a ship before condemnation, ill-using persons on board the prize, &c, or breaking bulk with a view to embezzlement. Prize is subject to the usual customs regulations. The United States Prize Act is the Act of June 30, 1864, just seven days later in date than the British Prize Act. The two Acts are similar in character, but the United States Act is more full and definite than the British, as it deals with some matters which in Great Britain are left to the discretion of the executive.

Prize Court.—This is a court sitting by the commission of the the sovereign of the captor for the determination of prize causes. A capture does not become good prize until condemnation by a prize court. As a general rule the court must be commissioned by the sovereign, must sit in the country of the captor, and must be in possession of the prize. In the case of allied powers, it is usually agreed (as it was between Great Britain and France in 1854) that the decision shall be made by a court of the country to which the officer in command belongs. A prize court may sit in the territory of an ally, though this is irregular ; but it is a violation of neutrality to constitute a prize court within the lim its of a neutral power. A prize may, however, in case of necessity be brought into a neutral port and sold there under the decree of a prize court, subject to objection on the part of the neutral Government. The sentence of a prize court is, where the jurisdiction is well-founded, a judgment in rem and entitled to universal respect. In the British dominions the prize courts are such courts as the crown or parliament invests with authority in prize matters. In practice these are the High Court of Justice (Admiralty Division) and the Vice-Admiralty Courts abroad. By the Naval Prize Act, 1864, the High Court of Admiralty of England (now represented by the Admiralty Division) has jurisdiction as a prize court throughout the British dominions. It is to be noticed that this jurisdiction is entirely derivative ; the court has no original prize jurisdiction as it has original instance jurisdiction. The prize jurisdiction of Scotch courts was vested in the High Court of Admiralty of England by 6 Geo. IV. c. 120, § 57. In the United States (in accordance with Art. III. § 2 of the constitution, "The judicial power shall extend
to all cases of admiralty and maritime jurisdiction")

the prize courts are the district courts, the State courts having no jurisdiction. The procedure of a prize court is simple in its character. In Great Britain and the United States standing inter-rogatories are administered to the captors. The case is heard upon the depositions of the witnesses in answer to the interrogatories, and upon the ship's papers, which it is the duty of the captor to forward to a port of his country for deposit in the court. The flag is regarded as prima facie evidence of the nationality of a captured vessel. The pleadings are not technical. A libel is filed, followed by a monition to parties interested. If the cause be not prosecuted, the court will issue a monition to the captors to proceed. A prize court has power to order matters incidental to the cause, such as unlivery and appraisement and sale. It also distributes prize money in some cases (see below). The procedure of prize courts in the British dominions may be regulated by order in council under the powers of the Naval Prize Act, 1864; in the United States it depends upon the Prize Act of June 30, 1864. An appeal lies in England from the Admiralty Division to the Court of Appeal and thence to the House of Lords, from the Vice-Admiralty Courts abroad to the Judicial Committee of the Privy Council. In the United States it lies to the supreme court where the matter in dispute exceeds 2000 dollars, or involves a question of general importance. In addition to prize proper, prize courts have had jurisdiction in some analogous matters conferred on them by statute. Thus a prize court in the British dominions has juris-diction over (1) enemy's property captured in a conjunct expedition of land and naval forces, 2 & 3 Will. IV. c. 53, § 30, or captured on land by a naval or naval and military force acting either alone or with allied forces, 27 & 28 Vict. c. 25, §§ 34, 35 ; (2) petitions of right where the subject-matter of a petition arises out of the exercise of any belligerent right by the crown, or would be cognizable in a prize court if the same were a matter in dispute between private persons, § 52. Questions of booty of war may be referred to the Admiralty Division as a prize court, 3 & 4 Vict, c. 65, § 22. The United States prize courts have by the Act of 1854 jurisdiction over property captured in an insurrection.





Prize Money.—The term prize money is used in a wider sense than the term prize. It extends to any reward granted by the state for the capture of enemy's property whether by land or sea. (1) The Act consolidating the right to and distribution of army prize money is the Army Prize Act, 1832, 2 & 3 Will. IV. c. 53. The right and interest of troops to prize money and bounty money is at the discretion of the crown, and is to be distributed in such propor- tions as the crown may direct. It is to be noticed that capture by troops of an enemy's ship in a road, river, haven, or creek of the enemy gives a right to prize money in this sense, though it is not prize proper, not having been captured at sea by an armed ship. Deserters are not entitled to prize money. Shares not claimed within six years are forfeited. A list of persons entitled is trans- mitted to Chelsea Hospital, the treasurer of which distributes the money either to such persons or their assignees, or to the regi- mental agent, according to the rules laid down in the Act. Prize money may be assigned subject to certain conditions. In the case of officers the assignment must express the consideration money actually paid for the assignment; in the case of non-commissioned officers or seamen the assignment is only valid where there is no regimental agent. In conjunct expeditions of land and naval forces, the share of the land forces is to be paid to the treasurer of Chelsea Hospital. By 27 & 28 Vict. c. 36, § 3, prize money not exceeding £50 may be paid without probate or letters of administration. By 39 Vict. c. 14, the accounts are to be laid before parliament. In the United States provision was made by several Acts of Congress that officers and soldiers who had served in certain wars should be entitled to warrants for bounty-lands as a reward for their services. (2) For the right to prize money where the captor at sea is not a public ship of war, see PRIVATEEK. Where the captor is a public ship of war of Great Britain, the officers and crew have only such interest in the proceeds of prize as the crown may from time to time grant them. This interest is subject to forfeiture for misconduct in rela- tion to the prize, 27 & 28 Vict. c. 25, §§ 36, 55. In the United States, by the Prize Act of 1864, the whole proceeds go to the captor where the prize is of superior or equal force, one-half to the captor and one-half to the United States where the prize is of inferior force. The prize money accruing to the United States forms part of the fund for pensions. Besides a share of the prize, prize bounty is generally given. By the Naval Prize Act, 1864, this is at the rate of £5 for each person on board the enemy's ship, if a ship of war, 27 & 28 Vict. c. 25, § 42. By the United States Act of 1864, the rate is 200 dollars if the prize is of superior or equal force, 100 if of inferior force. The distribution of prize money and prize bounty in Great Britain is regulated by the Naval Agency and Distribution Act, 1864, 27 & 28 Vict. c. 24. The money is distributed under the direction of the lords of the Admiralty in the proportions speci- fied in a royal proclamation or order in council. The proportions are graduated according to rank (see vol. xvii. p. 298). Assign- ment of a share by a petty officer or seaman or a non-commissioned officer of marines or marine is void unless in accordance with orders in council. All forfeited and unclaimed shares, and a percentage of 5 per cent, out of the proceeds and grants, are carried to the account of the naval prize cash balance. The Admiralty Division has the sole right of determining disputes as to distribution or investment. In the United States the distribution is regulated by the Act of 1864. The distribution is by the district court; it is a judicial act, not, as in Great Britain, the act of a Government department. The proportions too are fixed by statute—not left, as in Great Britain, to the discretion of the executive. The command- ing officer of a fleet or squadron has one-twentieth allotted to him, of a division one-fiftieth, a fleet captain one-hundredth, the com- mander of a single vessel one-tenth of the amount awarded to the vessel; the residue share in proportion to their pay. Prize money is paid into the treasury of the United States to be distributed according to the decree of the court. Ransom money, salvage, bounty, and proceeds of condemned property are distributable as prize money. Assignments of prize money must be attested by the commanding officer and the paymaster. There are certain cases where money is granted to the officers and crew of vessels making captures which are not prize in the strict sense of the word. Under this head may be classed the salvage on recapture already men- tioned, besides the cases provided for in the following enactments. By 22 & 23 Car. II. c. 11, § 10, 2 per cent, of the value of the ship defended may be awarded to those wounded and the representatives of those slain in the defence of a merchant ship against pirates. By the Customs Act, 1876, 39 & 40 Vict. c. 36, §§ 210-216, rewards may be granted to officers of the customs out of the penalties for goods seized. By the Slave Trade Act, 1873, 36 & 37 Vict. c. 88, §§ 11, 12, a bounty of £5 per slave or of £4 per ton is payable to the officers and crew of one of Her Majesty's ships upon capture of a slave ship. Where the capture is not by a ship of war, the bounty is one-third of the value of the ship seized, and a bounty of £5 for each slave. By an Act of Congress of March 3, 1819, a bounty of 25 dollars is given for each slave captured, and the proceeds of con- demned slave ships are divided between the United States and the captors, half to each. (J. W†.)



The above article was written by: James Williams, B.C.L.



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