As has been indicated since the beginning of the eighteenth century the principles of prize distribution in England have undergone but little alteration. With the statutes of Anne parliamentary control of prize matters became established and the method at that time adopted of decreeing distribution by order in council authorized by act of parliament has since been followed. The policy of giving all the proceeds of prizes to the captors after legal adjudication before a competent prize court has likewise been adhered to from that time.
By the reign of Anne, England was definitely established as an imperial colonial power. Her Indian empire was founded, her American colonies were flourishing, Marlborough's successful wars gave her great European prestige. This necessitated the establishment of a policy of naval supremacy, a policy which she has since maintained. At the same time she realised her increasing dependence on commerce. Numerous efforts were made to increase British trade at this time through legislation. She understood that law must reign on the sea if commerce was to prosper.[1] While she depended on her navy to protect her trade routes, she recognized that she could not protect them from the cruisers of all the world and so sought to respect neutral rights. This necessity was realized slowly. During the eighteenth century in pursuing her aggressive naval policy England several times offended neutral powers as for instance by the rule of 1756 but in the main neutral rights were respected and prizes were not taken or distributed except with the strict sanction of law.
Thus as in former periods England's military policy has been influenced by the two factors, commercial dependence and naval aggressiveness. The interests of the former have compelled her to respect neutral rights and maintain strict legality in all her war-like measures. As reflected in her prize law it has brought about powerful legal control of prize matters through prize courts of great authority and unfailing justice. It has forced the crown to assert its primal right to all prizes that it may restore them if policy demands. It has put all prize law under the control of parliamentary statutes, directing the policy of the law but has left the government wide discretion in arranging the details to suit the exigencies of a particular conflict.
The interests of the latter have impelled her to assert belligerent rights to the utmost. England has always been the most reluctant of all nations to abandon an established belligerent right at sea.[2] Thus she still gives the whole of the proceeds of legally captured prizes to the captors for the purpose of encouraging seamen, and increasing the efficiency of the navy.
NOTES.
Chapter VI, Part 1.
a. The Navy
To discuss the effects of England's prize money law is a very difficult task. However a few remarks may be made considering the question with reference to its effect, first, on the English navy and second, on international law.
It might be thought that the encouragement of mariners by the hope of private gain would tend to increase the efficiency of the navy and this is the avowed purpose of distribution in all the statutes authorizing it. England has undoubtedly always had a very efficient navy but she has almost always found it necessary to use the press gang[1] to man her vessels in her important naval wars. The hope of prize money has not been sufficient to furnish enough volunteers to fill the navy.
In connection with privateering there can be no doubt but that the generous giving of prizes has enabled England to make effective war with little national expense. Elizabeth's wars cost her nothing, rather they were a source of income. The same was true of the wars of the eighteenth century. The hope of gain seemed always sufficient to enlist private enterprise in privateering war. However privateering is now abolished. Modern naval strategy demands a few men-of-war rather than many cruisers. Captain Mahan[2] considers commercial war as of comparatively small importance. An effective blow can only be struck by conflict with the enemy's armed vessels. Any amount of commerce destroying can not conclude the war in his opinion, though he by no means takes the stand that commerce destroying should be abolished. It would seem that the small share of prize which might possibly be received by a sailor in a modern ship would be a negligible factor in increasing naval efficiency. Rather it would be a deterrent as it would attract vessels into commercial war instead of into the more effective conflicts with the enemy's armed vessels. With the abolition of privateering it would seem that the value of prize money as a means of increasing the efficiency of the navy departed.
b. International Law.
England's prize money laws can not be said to have imperiled neutral rights. England has always insisted on the most extreme belligerent rights but it can not be said that her courts often denied a neutral right that was really established by international law. The prize courts of Mansfield and Stowell have been considered models of fairness throughout the world. Though the utmost privileges were given to privateers and the sailors of the royal navy the even handed justice of the prize courts fully protected neutral rights by restoring illegal captures made with the hope of private gain. With a people of less law abiding disposition and less used to submission to law than the English this might not be true.
It might be supposed that the generosity toward the captors of prize would be calculated to decrease the destruction of prizes at sea. If the prize were destroyed of course the captor would obtain no prize money. English publicists are inclined to admit the right of destruction at sea. Thus Scott, Lushington and Holland say that it should not be resorted to except in cases of extreme urgency but on occasion it may be justifiable or even praiseworthy.[3] Continental writers on the contrary are inclined to disallow entirely the legality of the destruction of prizes. Bluntschli and Heffter greatly deprecate the practice.[4] In spite of the apparent authority for such action given by English publicists English cruisers have very seldom destroyed prizes. This may be due partly to her prize money law but probably to a greater extent to her widely scattered territories which make it almost always possible to get a prize to an English port. At present the destruction of neutral prizes is closely circumscribed by the provisions of the Declaration of London[5] on that point so it is not likely that the abolition of prize money would bring about an increase in this practice.
The movement toward the abolition of the right to capture enemy private property at sea, historically advocated by the United States, is coming into increasing favor in England, though England as a nation always has been and still is the leading opponent of the innovation.[6] As pointed out above, modern naval strategy deprecates commercial war as also does humanitarianism. A considerable number of English publicists are now advocating the abolition of this right not only on behalf of humanity but also as a matter of wise military policy for Great Britain. The increasing importance of unrestrained commerce to the island has influenced many to believe that England would gain more than she would lose by the abandonment of this belligerent right.[7]
It may be useful to consider how much effect the institution of prize money has upon England's attitude on this question. There is no doubt but that sailors and officers of the navy like to get prize money. There is the gambler's zest to money received in this way and undoubtedly the personnel of the navy would offer all the resistance in their power to the abolishment of prize money. A section in the proposed prize act of 1910 illustrates this.
The act was offered in order to permit of the appeal of prize cases to the international prize court provided for by the Hague conference of 1907. The section in question[8] authorized the admiralty to give prize money on estimated value even when the prize was liberated by the court. The object of this section was evidently to insure reward to the captors in case of a possible undue liberality on the part of the international prize court, and would seem to imply a certain lack of confidence in that court. This bill was lost with little discussion. However, the provision indicates that the element favoring prize money is ready to push its interests in legislation.
If the war right of capturing private enemy property at sea were abandoned the chance of getting prize money would automatically disappear except in the comparatively rare cases of contraband and breach of blockade. Is the naval sentiment in favor of prize money strong enough to keep England from falling in with other nations in this movement toward abolishing the right of capture at sea? It does not seem likely. The selfish, personal desires of a small portion of the population can not be sufficient to sway the policy of a great nation like England if broader considerations demand a change. England's resistance to the movement for abolishing the right to capture private property at sea can be traced to other causes. John Stuart Mill once called the right to attack commerce "our chief defensive weapon."[9] Phillimore, Twiss, Westlake, and Lorimer all favored the retention of the right. It is idle to suppose that these men had no stronger reason for their stand than that it permitted seamen to get prize money. From the standpoint of military science there has been in the past justification for the retention of this right by England, and many sincerely believe that even now England must retain it as a military defense.
In the vote on the American proposition for abolishing this right of capture taken at the Second Hague conference[10] the prize money laws of the different countries apparently had no effect on their vote. Italy and Sweden who give prize money as well as the United States and Germany who do not favored the resolution. On the other hand, Japan who has never given prize money voted against the proposal as also did Great Britain, France and Russia who have always given it. It should be remembered that the United States advocated the abolition of the right to capture private property at sea for a century before she abolished prize money. Italy also has consistently advocated that policy since 1870 though she still gives prize money.[11] It does not seem that the local law of prize money has any great effect on the countries attitude on the question of the right to capture private property at sea.
As stated there is a growing movement in England in favor of abandoning the right of capturing private property at sea. The discussion has been entirely based on considerations of broad national policy. The existence of prize money has not entered into the matter. It does not seem likely that England's laws of prize money have had or do now have any appreciable influence on her attitude in this question.
c. Conclusion.
It seems that under present conditions the giving of prize money in England has little effect either for good or evil. Since the abolition of privateering it appears to have had little value in increasing the efficiency of the navy or in decreasing the expense of war. Neutral rights have not been imperiled by it for in England it has not given rise to biased judgment on illegal captures. While it may have decreased the destruction of prizes before adjudication it does not appear likely that its abandonment would now have any effect on this matter. Neither does it seem probable that it has had much influence in determining England's stand on the question of the right to capture private enemy property at sea.
In view of this inoffensive character of prize money in England it is not surprising that it remains law. Sailors and naval officers want to keep it. The institution is long established in custom by which the English are proverbially bound. Unless a definite charge can be brought against it, it does not seem likely that the present practice will be abolished. England's stand at the Hague conference of 1907 seemed to indicate this attitude. On that occasion a proposition was introduced by the French delegation to abolish prize money.[12] It was offered as a substitute to the American plan of abolishing the right to capture private property at sea. Great Britain opposed the scheme. Sir Ernest Satow, the British delegate, said that England could not agree to the proposition as the English parliament had reasons for believing in their present custom of distribution. The reasons, he did not give. He added that he considered the matter as being one solely for internal settlement and not one of international law.[13] We may therefore expect prize money to remain as an institution of British policy, though its influence on international law seems to be very slight.
On theoretical grounds the practice seems to have little basis for existing. It is not in harmony with the modern view of war which seeks so far as possible to eliminate the element of personal gain and to limit the operations of war to strictly state agencies. It encourages war on commerce. Its use savors of privateering. It offers a constant temptation for infringing neutral rights by making illegal captures. With the abolition of privateering and the present views of naval strategy its usefulness as an encouragement for seamen and a means of increasing the efficiency of the navy have departed. It accentuates the gambler's chance which is contrary to all modern ethics. Sailors, the same as soldiers, should receive fixed pay for their services, and not be compelled to rely for their salaries, in part at least, upon the uncertain chance of prize money. Bentwich says of prize money: "The present custom of dividing among the captors the proceeds of sale after adjudication of a prize court preserves in maritime war that taint of belligerent greed and of interested attack upon private property which is against the spirit of modern warfare and which has been declared illegal in land operations."[14]
Though prize money as given in England was an institution of great international importance in the balmy days of privateering especially during the reign of Elizabeth when it was largely responsible for the romantic careers of England's empire builders, for the wholesale capture of Spanish galleons and for England's naval supremacy, it does not seem to have been of any particular importance to any one outside of the naval service of Great Britain since the abolition of privateering. Practically it is valueless. Theoretically it is bad. It should be abolished.
NOTES.
Chapter VI, Part 2.
