History and sources of prize law
Hugo de Groot, known as Grotius
, a 17th-century Dutch academic prodigy known as the Mozart of international law, who wrote the 1604 Commentary on the Law of Prize and Booty
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.
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. Grotius defends the practice of taking prizes as not merely traditional or customary but just. His Commentary points out that the etymology of the name of the Greek war god Ares was the verb "to seize"; that the law of nations had deemed looting enemy property legal since the beginning of Western recorded history in Homeric times.
Prize law fully developed between the Seven Years' War of 1756–63 and the American Civil War of 1861–65. 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. 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 (1705–93) 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.
While the Anglo-American common law case precedents are the most accessible description of prize law, it is important to bear in mind that in prize cases, courts construe and apply international customs and usages, the Law of Nations, and not the laws or precedents of any one country.
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. Such huge revenues were earned when $200 were a generous year's wages for a sailor; 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.
Captain Gideon Olmsted, who at age 20 commandeered the British sloop Active
in a mutiny, and spent the next 30 years litigating a claim for prize money
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 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. 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."