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  1. 14. Piracy vs Privateering The difference between piracy and privateering is mainly a legal one, as at sea, the motivations – getting wealthy and famous - and the actions – preying on merchant vessels - were quite similar. The privateer’s activity, carried out under the appropriate letter of marque, was lawful under the law of nations, while piracy was the first international crime to be recognized and punished. While the crew of a privateer captured by an enemy warship or privateer benefited from the status of prisoner of war and could not be sentenced to death, the crew of a pirate could be hanged immediately. (Captain Kidd on the gibbet, Wapping, 1701) In some trials, it was sometimes difficult for the court to bring the proof of the illegal character of the activity of a predator of the sea, who could produce a forged letter of marque or extend its scope through a broad interpretation of its terms or contest legal issues. The trial of the famous Captain Luke Ryan (1750-1789)( Luke Ryan: Premier Privateer - Journal of the American Revolution (allthingsliberty.com)), an Irish/French privateer (and former smuggler) captured by the British Navy, was exemplary in this regard. He first received a letter of marque from Britain and, after his ship was seized as a smuggler by the Revenue service, he escaped to France where he was commissioned by the US Ambassador in France, Benjamin Franklin. In two years, he captured dozens of British and Irish merchants around British coasts. He was finally betrayed and captured by the Royal Navy and put on trial in 1782 for high treason and piracy. He contested to be a treacher and a pirate as he claimed to have the French nationality and a lawful letter of marque. The court rejected his arguments and he was sentenced to death but was granted a royal pardon and released from prison in 1784.
  2. 13. Managing prisoners – the ‘cartels’ When the captor ransomed the prize’s master, the crew of the captured ship would left aboard the prize. They would be sent to an agreed destination as prisoners of war in their own ship, used as a “cartel ship”, under a ‘cartel agreement’ signed by both captains (captor’s and prize’s). The prisoners would be exchanged in port with prisoners of the captor’s nation, through the intermediary of a prisoners agent. Cartel ships were, in the law of nations, a ship used on ‘humanitarian voyages’, in particular to carry communications or prisoners between belligerents (Cartel (ship) - Wikipedia). Any ship used as a cartel was under protection against to (re-)capture, unless it engaged in commerce or warlike acts like carrying official dispatches or messengers. The prisoners were under the obligation not to engage in hostilities towards their captor. If they re-captured the cartel ship they would have no right to salvage and the owner of the vessel would have no right to reclaim his ship (Cartel (ship) - Wikipedia). During the Napoleonic wars, the treatment of French prisoners on prison ships was so harsh (following the decision of Napoleon to refuse to send English prisoners of war home and to leave French prisoners in English custody) that the prisoners of cartels would plan to escape at all costs. An example of cartel ship re-taken by the prisoners is the recapture of the Prince cartel in 1802 by French prisoners (see The Great Escape of 1802: French Prisoners of War Take Over The Prince - Port Towns and Urban Cultures).
  3. 12. Ransom In some circumstances, the capture of a prize was source of complication for the captor. Far from a friendly port, it was risky to send the prize with a prize crew, as it could be recaptured (see point 8 above). Or, making up a new prize crew could have depleted too much the captor’s crew, if some prizes had already been sent to port with prize crews. And if the captor had already many prisoners of war aboard (from other prizes), taking more could be simply impossible or difficult because of the limited provisions, with no friendly port at proximity. By the latter part of the 18th century, a legitimate alternative recognized by the law of nations was, for the captor, to sell the prize back to her captain who would pay a ransom either in cash or, more often, with a bill of exchange, to be drawn on the ship owner(s)[1]. The ransom was calculated taking into account the value of the cargo. A copy of the bill of exchange was given to the former master of the prize. It was a safe conduct against any new capture by the captor’s Navy or its allies. In some cases, the master of the prize was kept as hostage on the captor’s ship as a guarantee for the payment. And the captured ship could be seized in any port where the captor could find her. The advantage of the ransom alternative was that the cruise range could be considerably extended, even oversea. A disadvantage was that the ship value was lost. And sometimes, the ship owners refused to pay the bill of exchange, especially when the released ship could be sent in remote areas, away from the captor’s reach (like whalers in arctic hunting grounds). [1] A bond was also signed by the (former) master of the prize to the captor, as a personal guarantee of the payment of the bill. If the ship company/owner refused to pay the bill, the master was obliged to pay himself the sum indicated on the bill.
  4. 11. Neutrality and Nationality Neutral nations – not at war or allied with one of the belligerents – had the right to continue their accustomed trade under the maritime law of nations, however subject to 3 belligerent’s superior rights: a) the right to halt and inspect b) the right to confiscate military supplies and contraband intended for the enemy and c) the right to blockade. Those principles were quite difficult to apply in prize courts. A question was to identify the neutrals, as the nationality criteria were different from today. In the 18-19th centuries, a merchant was considered as a national of the nation within the borders of which he had a business place. So, following the outbreak of war, a merchant had the choice to stay within the borders of the nation at war and become a belligerent’s national merchant (under its protection and subject to trade rules of that nation), or leave and become a neutral (protected as neutral). As Petrie puts it, “the ingenuity of belligerents in evading the penalties of the law of nations through pretended neutrality, false papers, quick title transfers, and a myriad of other devices, made up the principal business of the prize courts during the last century of fighting sail” (p. 163).
  5. 10. The Fate of the Prize and her Cargo When they were condemned as good prize, the ship and her cargo were sold and the court held proceeds : - to the satisfaction, first, of neutral claimants (cargo shippers in particular) who could intervene before the court during one year and one day (consequently, the prize money was only paid to the captor one year after condemnation !) - for distribution, second, to the captor’s sovereign and crew (in accordance to domestic rules in force). Complications came when neutral cargo was found in an enemy ship, or enemy cargo in a neutral ship… Without going into details, the position of Britain was : a) lawful goods of a friend found on board an enemy ship had to be restored to its owner; b) goods of the enemy found on board a neutral or friend ship, could be taken. The position of other nations (FR, US, RU, Scandinavian nations) was that the nationality of the ship is presumed to be stamped on her cargo (‘free ships make free goods’).
  6. 9. Before the Prize Court The proceeding before the prize court was designed to avoid unnecessary delay and risks for the cargo. The first question discussed before the court was to determine whether the captured ship was a prize or not ? This question was decided promptly and based only on: a) the ship’s documents and b) testimony of members of both crews (these were interrogated under specific procedure and separately to avoid any mutual influence; their testimony was then transmitted with the ship’s documents to the prize judge). Only when documents presented to the court raised questions impossible to resolve quickly, was further evidence admitted. That crucial question could be resolved in three ways: o if the judge found that the chase was not a good prize but that the captor had legitimate causes of suspicion, the chase was released immediately without financial compensation; o if the judge found that the chase was not a prize and that the captor’s suspicion was unwarranted, the captive was entitled to immediate release but also to a judgement for damages against the captor… o if the judge found that the chase was a good prize, the judge “condemned” the ship and her cargo (remember, this is a legal proceeding against a ship, not against a person). Here under the building of the Admiralty Court (Doctors Commons) in London
  7. 8. Recapture ‘en route’ to the Prize Court A prize could be recaptured with the prize crew on her way to the port by the enemy. In such case, persons and cargoes seized by the enemy were restored to their original status. The fact is that it occurred often (during the American War of 1812, of 1500 British merchant ships captured by the US Navy, 750 of them were recaptured by the Royal Navy or British privateers). The merchant ships re-captured were reverted to their original owners and “the re-captors could not make prize of them”. But the owners had to pay to the recaptor a financial reward, generally a share of the value of the ship and her cargo (this charge was called by the prize courts a “military salvage”). Prisoners of war aboard a prize could stage an uprising and overthrow their captors (the prize crew). Thus, the choice of a prize crew was difficult and risky (if too many men were allocated to the prize crew, the privateer lost its fighting and manoeuvrability capacities; if the prize crew was too limited, then the risk of a successful uprising of the prisoners would increase).
  8. 7. Selection of the Prize Court The prize had to be sent to a port with a prize crew. This would be decided by the master of the captor, according to te proximity of the port, the condition of the chase, the chance to be intercepted by the enemy, etc., but also, under prize law, according to the convenience of the prize’s owners or cargo shippers who might appear in court as claimant against the condemnation of their ship/cargo. As put by D. A. Petrie, “A flagrant disregard for the convenience of claimants could result in a loss of the prize in court and an assessment of damages against her captors”. Great Britain had a High Court of Admiralty in London (in the ‘Doctors’ commons’, see here under the picture and the map) and Vice-Admiralty Courts in its colonies all over the world. Other nations (American, Dutch, French, Spanish) had no such ‘external’ courts but used to designate their own judges on allied territory (for instance, Benjamin Franklin was US minister plenipotentiary in Paris, and also a judge for prize captured by American privateers and brought into French ports).
  9. 6. Multiple Captors In some cases, several predators, in squadron under the command of a senior officer (Navy) or in ‘wolf pack’ (privateers) were involved in a chase. Several ships may have been engaged during the chase (that could last for days). If the chase surrendered to one of these ships (called the ‘actual captor’), the question raised of how to divide the prize money between all protagonists. As D.A. Petrie puts it, “the general rule [in the Navy] was to divide the proceeds among all captors vessels that were in sight at the same time the chase lowered her national flag, the universal signal of surrender. Apportionment was based on the relative “force” of each vessel, being the weight of the cannon balls that each could fire, or on the size of their crews.” Of course, this rule caused much controversy and prize litigation in court between the officers involved (who was or was not in sight at the very moment the prey surrendered). Among privateers, the rules were the same, unless a different arrangement had been contracted by the hunters before the cruise. If a naval vessel (from the same country as the privateer) was in sight, she could claim a part of the prize. But when a privateer witnessed the capture of an enemy ship by a naval vessel, it was more difficult to claim anything to the Navy (except if help had been granted to capture the prize).
  10. 5. Geographical Limits Predators were not allowed to chase in neutral waters (= 3 miles from neutral shore), even in ‘hot pusuit’. But of course, in enemy territorial waters, hunting was a fair game and many actions took place in enemy coastal waters.
  11. 4. After the inspection After the inspection, the master of the captor gave his opinion to determine whether the prize was a national/ally/neutral engaged in legal trade or an enemy vessel benefiting from a license to sail or a protection (eg a scientific expedition; Cook benefited from such protection). In such case, the captor had to release the captured ship and her crew. If a non-enemy merchant was engaged in illegal trade or transport activities (eg trade with the enemy, running blockade, transporting enemy troops, carrying contraband, etc.), it could be considered as a possible prize and sent with a prize-crew to the port where it could be submitted for adjudication to the prize court. The crew of the prize could be transferred on the captor. The captain or mate of the prize and one or two crew members had to stay on the prize ship to be heard separately by the court. When the prize was not a neutral merchant but an enemy vessel, the captor had the right to: - Remove the crew of the prey to place them under guard on his ship - Remove the stores and guns of the chase for his own use - Negociate with the captain of the chase (as agent of the owners) “a ransom agreement by which the chase would be released in exchange for a promise to pay a ransom sum” - Abandon the chase, when expecting bad weather or a battle. (TO BE FOLLOWED: 5. Geographical Limits 6. Multiple Captors 7. Selection of the Prize Court 8. Recapture ‘en route’ to the Prize Court 9. Before the Prize Court 10. The Fate of the Prize and her Cargo 11. Neutrality and Nationality 12. Ransom and long-distance privateering 13. Managing prisoners – the ‘cartels’ 14. Ports 15. Piracy vs Privateering)
  12. 3. The Inspection Any enemy war ship could be captured and sent to port before a prize court for adjudication and condemnation as a prize. However, the most valuable prize were merchant ships with high revenue cargo. Any ship of a belligerent maritime nation had the right to halt and inspect friend, neutral or enemy merchant ships (but not neutral navy vessels). A boat was sent from the predator (Navy vessel or privateer) to the chase with an officer and max. 1 other person (in addition to the oarsmen). Inspection was carefully regulated by law : the officer had the right to: - Examine all the ship’s documents (registry, logbooks, journals, bill of lading, muster roll, seapass, etc.) - Interview the captain, officers and crew (separately) to confront their testimonies - Inspect all open parts of the ship - Require the master of the prize to accompany him aboard with all papers to allow the captor’s captain to verify the paper himself.
  13. 2. The Chase Once commissioned, privateers had to gather as much intelligence as they could on their prey, in order to reduce the risk of illegitimate prize and bad encounter : - Local trade routes - Predominant kind of traffic - Nationality of the merchant men in the area - Presence of any ship of war in the area - Etc. When a strange sail was sighted and when risks were not too high, the captain decided to chase it. Vessels were free to fly the flag of another nation (including their enemy) or no flag at all. The predator would signal to the prey to bring her bow into the wind, heave to and await inspection (signaling occurred through signal flag, trumpet or, after raising the national colors, firing a warning shot). Firing a gun under false colors could lead to an adverse decision in prize court.
  14. 1. The Letter of Marque and Reprisal Non naval vessels could capture an enemy merchant ship only if they were commissioned by a letter of marque and reprisal by the competent authority. We already gave some info above in a former thread on privateer’s career (supra).
  15. Sea-Legends : the Prize Game Rules Hi everybody, As the privateer’s career was all about capturing prizes, I think it is interesting to give an insight on the rules of this quite dangerous cat and mouse game. We could imagine that such game was quite simple: capturing any unprotected enemy merchant ship anywhere and taking it back to a friendly port to sell it and its cargo. Actually, prize law was very complex and implied the intervention of specialized courts to enforce the prize game rules, the violation of which could lead a captain swinging at the yardarm – for piracy. Indeed, the difference between privateering and piracy was as thin as the paper of a letter of marque… In a simulation/RPG game like SL, introducing a simplified version of the most important rules would, imo, give not only an accurate representation of the privateer’s career but also an additional thrilling dimension to the gameplay, as there were many uncertainties about the legality of some prizes – especially with neutral nations, which played a double game with enemies – and heavy consequences for the captain and the privateer’s owners when a prize claim was rejected. I read a fascinating book on this topic: D. A. PETRIE, The Prize Game, Lawful Looting on the High Seas in the Days of Fighting Sail, Berkley Books, NY, 1999, 212 pp. The author summarizes in an annex all the most important legal rules of the prize ‘game’ and gives fascinating illustrations of various aspects of it, from the management of prisoners to the use of prize courts in foreign countries and the letters of marque and reprisal, using many contemporary sources including the proceedings of the trials. You can also find interesting explanations on prize law on a wiki webpage (with the usual caution as regards wiki sources) : https://en.wikipedia.org/wiki/Prize_(law) (this article refers often to Petrie’s book) https://en.wikipedia.org/wiki/Prize_money (this article is very well referenced, using many sources but does not refer to Petrie’s book) Here is a summary of the most interesting rules for SL, as they are presented in the annex of D.A. Petrie, that is in a chronological sequence, but with additions and changes of my own with informations from the main chapters or from other sources. Remember that those rules were applicable to both Navy ships and privateers, with minor differences. (HMS Blanche and French frigate Pique captured as a prize – source: Wikipedia/prize law)
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