Chapter 2 - Good and Lawful Prize

Summary

Basic to the study of privateering and prizemaking as practised by the Royal Navy and the privateers of New Brunswick and Nova Scotia during the War of 1812 is an understanding of the history and development of English prize law. The regulations under which colonial prize courts operated formed part of a continuum of admiralty law that was firmly anchored in the seafaring traditions of the ancient world. Descended lirom the maritime customs of such mercantile nations as Rhodes, Phoenicia, and Rome, English admiralty law developed to resolve commercial or civil disputes that arose at sea, often involving conflicting usages of different nations.

By the eighteenth century, virtually all maritime nation states had established some form of admiralty jurisprudence to deal with mercantile disputes beyond their shores. Ironically, the strongest prejudice against admiralty law in Britain came from within the legal profession itself. Proponents of the common law vehemently opposed the exercise of civil or international law in a struggle that lasted well into the eighteenth century. Prize law, on the other hand, remained relatively untouched by this judicial jealousy. Legal historian R.G. Marsden traces the development of prize law within the admiralty structure from the first use of the term letter of marque in 1404 until the mideighteenth century when prize procedures for both the Royal Navy and privateers were well established. According to Marsden, the instructions to privateers issued in 1585 set the precedent for subsequent royal instructions “which until recently, have been issued at the commencement of every war.” Changes from war to war illustrate how England's admiralty system gradually curbed the excesses of the Elizabethan era and exerted more control over private armed warships.

Prize Acts followed a similar evolutionary process, especially during the eighteenth century, with each new act incorporating elements of earlier acts along with new clauses to clarify or correct regulations. Studies of eighteenth-century privateering by James G. Lydon, Carl E. Swanson, and David J. Starkey demonstrate how the British government helped popularize privateering by decreasing the fees owing to the crown and the court and offering incentives such as head money.