This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ The law relating to the distribution of prize money in the Royal Navy and its relationship to the use of naval power in war, 1793-1815 Aldous, Grahame Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). 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Sep. 2021 The Law Relating to the Distribution of Prize Money in the Royal Navy and its Relationship to the Use of Naval Power in War, 1793-1815 PhD Thesis Grahame Aldous Contents Preliminaries Page Acknowledgements 2 Abstract 4 Thesis Chapter 1, Introduction 5 Chapter 2, Review of the Existing Literature 13 Chapter 3, The Origins and Development of Prize Law 28 Chapter 4, The role of international law in English law 47 Chapter 5, International law in the Prize Courts 71 Chapter 6, Prize Distribution: Captains, Officers and Crew 91 Chapter 7, The ‘Flag Share’ 115 Chapter 8, Captains as Flag Officers: Commodores and Captains of the 160 Fleet Chapter 9, 1808: The Year of Revolution? 176 Chapter 10, Freight Money, Head Money and Booty Distinguished 194 Chapter 11, United States of America Prize Distribution 208 Chapter 12, Prize Conclusions 234 Appendices 1. English Legal Referencing and Abbreviations 244 2. Table of Cases 248 3. Table of Royal Proclamations 252 4. Table of Key Prize Statutes 253 5. Prize Distribution Royal Proclamations 1793-1815 comparison 256 tables 6. Bibliography of References 313 1 Acknowledgments I am grateful to a large number of people for their help during my research for this thesis. I have benefited from the help of the staff of The National Archives in Kew, the British Library, the Caird Library at the National Maritime Museum, Greenwich, the Codrington Library, All Souls, Oxford and the Maugham Library and Foyle Special Collections Library at King’s College London. The staff at the Massachusetts Historical Society have helped me to navigate the enormous archive of John Adams material that is available online and the archivists and Law Librarians at the Library of Congress and the US National Archives have patiently and promptly responded to my enquiries by email and in person. I have mined resources from the shelves and archive stores of the Inner Temple Library with the help of the librarians, for whom nothing has been too much trouble. Unfortunately the Inner Temple parliamentary papers were destroyed in the blitz and as a result I have benefited from the help of the Lincoln’s Inn library staff to access their microfiche parliamentary records. Dr. Anna Brinkman, Dr. Alan Anderson and Prof. Daniel Benjamin have kindly shared their unpublished work with me and the mere mention of them in appropriate footnotes does not fully reflect the generosity with which they have done so. The Digby family have welcomed me at Minterne House in Dorset to plunder their fascinating archive including material about Sir Henry Digby, and Sim Comfort has been prepared to share items such as Tucker’s account book from his amazing collection in Wimbledon I am grateful to those who have commented on early drafts of this thesis, especially to my supervisors Prof. Andrew Lambert and Prof. Guglielmo Verdirame QC, to Dr Alan James of KCL for his encouragement at the halfway stage and to Prof. Vanessa Knapp OBE for her support and thoughtful comments throughout. I am grateful to Dr James Davey and Prof. Stephen Neff for their comments and ideas at the examination stage of this thesis. The contents of this thesis remain my responsibility for better or worse, but their input has been of great benefit to the development of both my thoughts and the means of their expression. I should also record my great debt to the late Dr Nick Slope who first encouraged me to channel my research efforts into an academic thesis after I had published articles in The Mariner’s 2 Mirror and The Nelson Dispatch. It is a great shame that he did not live to read this thesis, but I take comfort in the thought that he would have approved. Grahame Aldous QC 5 Norwich Street, London EC4A 1DR August 2020 3 Abstract Prize money was paid to officers and crew of ships who captured enemy ships and cargo at sea in time of war. It was a form of bounty providing private profit for officers and crew involved in public service. In the absence of proper historical research the distribution of prize money to the Royal Navy has been categorised as state piracy at one extreme, and a system administered by the courts applying international law at the other. This thesis traces the development of the rules for prize money distribution in Royal Proclamations and their application through decisions of the English courts that have not previously been explored in any detail. It also considers the political context in which changes to the system were made. The result of this research shows that neither assumption at the extremes is correct. The award of prize money was not state piracy. It was subject to the rule of law and the supervision of the courts. The law that it was subject to, however, was municipal law influenced by international concerns. It was not the administration of ‘international’ as opposed to municipal law. The research also provides a valuable insight into the customs and usage of the Royal Navy in a war for national survival. Comparison with US provisions for prize payments and also with freight payments and head money in the Royal Navy using the same research methodology helps to understand the remarkable features of the Royal Navy prize system that ended not with the age of sail as commonly assumed, but in 1945. This thesis contributes to a better understanding of how the Royal Navy functioned, but also challenges misplaced assumptions about the role of ‘international’ law in the decisions of English courts in the long eighteenth century. 4 Chapter 1, Introduction Prize money was the money paid to the officers and crew of ships who captured ships and cargo belonging to an enemy at sea in time of war. It was a form of bounty whereby service in the Royal Navy could produce a private profit for the officers and crew involved. The distribution of prize money to serving Royal Navy personnel continued into the twentieth century. On 19th December 1945 the First Lord of the Admiralty, A. V. Alexander, rose to address the House of Commons. With the end of war the food shipments from America under the Lend-Lease Act came to an abrupt end. Britain was hungry. Housing, clothes and much else were in short supply. Gazing on bombed out London it was hard to realise that it was the capital of a victorious country.1 Alexander had been asked by Vice-Admiral Taylor MP whether a decision had been made about payment of prize money for vessels captured by the Royal Navy during the Second World War. He announced that rather than being paid as a bounty to those involved in each specific capture, the prize fund would be divided between all those who had served, including the RAF. Taylor congratulated Alexander ‘on being successful in being able to maintain this ancient custom of giving prize money’.2 The following day a headline in The Times thundered ‘From Plunder and Pillage to Common Fund’ over a celebration of ‘the ancient custom of giving prize money’.3 Having evoked the spirit of Drake, the columns below the headline referred to the reigns of the Georges as ‘the second golden period of prize money’. The Times estimated that the total value of prize money for the Second World War would amount to £20 million. The common fund approach had also been adopted during the previous world war, when the fund had reached some £14 million. Of less immediate concern to his audience was the quiet postscript that Alexander added to his announcement: ‘it is the government’s intention that this shall be the last occasion on which prize money will be paid’. And so it was. Thus did the ‘ancient custom of giving prize money’ quietly slip away into history. How was it that this ‘ancient custom’ seemingly rooted in ‘plunder and pillage’ had survived into the 20th century? What had happened during the Georgian ‘golden period’ to bestow upon it such longevity? 1 Lynne Olson, Citizens of London: The Americans Who Stood with Britain in Its Darkest, Finest Hour (London: Scribe, 2015), 366.