Prize Law and Condemnation

The court's half of the business is here: what had to happen to a capture after it was made, and what followed when nothing did. The licensing half, the commission and the shares, belongs to privateering and letters of marque.

What condemnation was

Prize law answered one question: by what right does the captor hold what he has taken? Capture gave possession; only the sentence of a competent court gave title, and the period's own words for that sentence were condemnation as lawful prize. A ship brought in was libelled, advertised to all the world, proved out of her own papers, sentenced, appraised and sold. A parliamentary title of 1708 gives the transaction in five words, calling the Ambuscade a French privateer "condemned and sold as Prize".¹

Two courts, and a third to keep out of it

The High Court of Admiralty ran two civil sides sharing a judge and a civilian bar. Prize business was causes that "arose from prizes (ships captured from an enemy in time of war)". The National Archives' own description states that the two jurisdictions "were formally separated in about 1660, after which they were heard in their own separate courts", a date the description itself hedges. Instance appeals went to the High Court of Delegates, prize appeals to the High Court of Appeals for Prizes, whose papers survive from 1689.²

A third jurisdiction must be kept out of it. The Admiralty's criminal jurisdiction over piracy, exercisable overseas by royal commission from 1700 under the Act for the more effectual suppression of piracy, was separate. A prize court condemned property; a commission under that Act hanged people. See admiralty courts.

Bringing in: unbroken bulk, monition, papers

The Act of 1692, 4 Will. and Mar. c. 25, set the sequence. Prizes were to be brought into an English port and placed "immediately without breakeing of Bulk" in the hands of the Commissioners for Prizes, so that the court could see what had actually been taken; rummaging before adjudication was an act against the evidence. Condemned goods were then "sold by Inch of Candle to the best advantage".³

The proceeding ran against the thing, so the summons went to all the world. A monition was "a process in the nature of a summons", "warning all persons interested to appear before the Court to show cause why the ship should not be condemned as lawful prize", and was "usually affixed to one of the pillars of the Royal Exchange". Proof came from the paper and the people: the ship's documents were seized entire and numbered, and her crew examined on standing written questions before commissioners in the nearest friendly port.⁴

The division of the proceeds

Under the 1692 Act a privateer's net proceeds went in five parts, four to those interested in her and one to the Crown; a naval prize went in three equal parts, to the captors, to the Treasurer of the Navy for the wounded and for widows, and to the Crown.⁵

The Cruizers and Convoys measure of Anne is reported to have surrendered the Crown's shares and put head money of five pounds a head in place of gun money. Accounts of it disagree over the condition attached to head money and over whether gun money vanished. None of it touched the requirement of a sentence.

Kidd, and the condemnation that never happened

The one colonial condemnation set out in any detail comes down because it was used against the man who obtained it. Robert Bradinham, surgeon of the Adventure Galley, deposed at the 1701 trial that on the outward passage "We took a Ship by the Way, and carried her to New York, where we condemn'd her", a French banker. Asked whether Kidd offered to carry any other prize in, he said he did not; Joseph Palmer answered the same question: "He never did, nor talked of any such thing."⁶

The Quedagh Merchant went the other way, her cargo shared among the company instead of brought in. Lord Chief Baron Ward put the consequence from the bench: "If there was a French Pass in the Ship, you ought to have condemned her as Prize." He told the jury that Kidd "ought to have had the Ship and Goods inventoried and Condemned, according to Law". The failure was read as intention: "by his not condemning them, he seems to shew his Aim, Mind and Intention". The passes Bellomont seized and nobody produced are treated at Kidd's French passes.⁷

The colonial weak joint

Distance was the enemy of legality. A capture in the Red Sea or off Madagascar could not realistically be carried before a court, and the further a cruise ranged the more the economics pushed towards selling the goods where they could be sold, the ground shared with prizes, cargoes and fencing. The remedy was the colonial bench, sitting, like the prize court at home, without a jury, under Crown appointees. Its prize competence is dated variously, to a patent of 1662, to 1692 and to 1708; the New York condemnation of 1696 shows it working before the latest of those.

How many prize causes were begun, and how many ended in condemnation or in restitution, has never been counted, and any rate computed from the surviving files would measure the archive, not the courts, since papers proving neutrality went back to successful claimants, surviving only in the court's English translations. Hardly any colonial vice admiralty proceedings of 1690 to 1725 are at Kew. The text of the Cruizers and Convoys statute has not been collated against the accounts that report what it changed.