The Confederate Law of Prize

Compare CSA Const., art. I, § 8, cl. 11 with U.S. Const., art. I, § 8, cl. 11.

Compare CSA Const., art. I, § 10, cl. 1 with U.S. Const., art. I, § 10, cl. 1.

A letter of marque is one thing; a reprisal is something else altogether. The former is a wartime commission; it licenses what would otherwise be condemned in international law as piracy. The latter was once apt for times of peace, or at least periods of low intensity armed conflict. When granted a reprisal by his or her sovereign, a private citizen was authorized to pursue retribution from a foreigner by whom he or she had been wronged, typically by forceful seizure of property abroad.

The CSA Constitution followed the U.S. Constitution in assigning the power to grant both licenses to their respective Congresses in a single stroke. See Shavana Musa, Tides and Tribulations: English Prize Law and the Law of Nations in the Seventeenth Century, 17 J. Hist. Int’l L. 47, 47–48 (2015); Theodore M. Cooperstein, Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering, 40 J. Mar. L. & Com. 221, 222–24, 227–28 (2009); Ingrid Wuerth, The Captures Clause, 76 U. Chi. L. Rev. 1683, 1701–03 (2009); Arnold D. McNair, The Legal Meaning of War, and the Relation of War to Reprisals, 11 Transactions Grotius Soc’y 29, 35–36 (1925).

Separate and apart from the foregoing are “belligerent reprisals,” that is, acts unlawful in time of war by an aggrieved combatant designed to deter future violations of the law of war by the enemy. See Philip Sutter, The Continuing Role for Belligerent Reprisals, 13 J. Conflict & Security L. 93, 95 (2008); Shane Darcy, The Evolution of the Law of Belligerent Reprisals, 175 Mil. L. Rev. 184, 185–87 (2003).

President Jefferson Davis threatened a belligerent reprisal when he warned President Abraham Lincoln that if the crewmembers of the privateer Savannah were executed as pirates, he would order the execution of an equal number of Union prisoners of war. See Letter of President Jefferson Davis to President Abraham Lincoln, Richmond, Virginia, July 6, 1861, in 1 Messages and Papers of the Confederacy including the Diplomatic Correspondence 115–18 (James D. Richardson ed., 1906); 3 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 5–6 (2d Ser. 1902). See also William Morrison Robinson, Jr., The Confederate Privateers 133–51 (1928) [hereinafter Confederate Privateers].

See ch. 55, 3 Stat. 81. These bounties often are confused with prize money. They are earned by destroying a target, not capturing it. They follow engagements with warships, not encounters with merchantmen. They are payable from the national treasury, not from a court's registry. By its subsequent legislation, the Confederate Congress raised the stakes for private armed ships by promising an additional 20% of the value of any enemy warship destroyed, as assessed by a board of naval officers. See Act of May 21, 1861, ch. 50 (on letters of marque, prizes, and prize goods), in Matthews, supra note 7, at 150.

See ch. 49, 3 Stat. 75.

See Act of Apr. 23, 1800, ch. 6, 2 Stat. 45 (1800).

See 15 U.S. (2 Wheat.) at 81.

See Henry Wheaton, A Digest of the Law of Maritime Captures and Prizes 369 (1815).

See generally Jan Martin Lemnitzer, Power, Law and the End of Privateering (2014); Cooperstein, supra note 5, at 244–47; Parrillo, supra note 17, at 57–62.

Scant but not nil. The CSA District Court for the Southern District of Georgia entertained four cases of prize. See Ritchie Williams, Flotsam and Jetsam: Admiralty Cases in Confederate Georgia, 28 J. Mar. L. & Com. 617 (1997). The CSA District Court for the District of North Carolina dealt with nine libels for condemnation as prizes and one libel for salvage by recapture before Hatteras Inlet was sealed by the Union. See William Morrison Robinson, Jr., Admiralty in 1861: The Confederate States District Court for the Division of Pamlico of the District of North Carolina, 17 N.C. Hist. Rev. 132, 133–38 (1940). The CSA District Court for the Eastern District of Texas entertained libels for the condemnation of 13 Union vessels seized in Galveston when that port was retaken on January 1, 1863. See Nowlin Randolph, Judge William Pinckney Hill Aids the Confederate War Effort, 68 Sw. Hist. Q. 14, 20–21 (1964).

In one case reported on only recently, that of the Santa Clara, the CSA District Court for the Southern District of Georgia indulgently condemned a prize notwithstanding the failure of its captors to present witnesses taken from their capture for examination by the prize commissioner, leaving the court with testimony only from the captors. Taking guidance from two decisions by the U.S. Supreme Court and one by Justice Joseph Story while riding circuit at the U.S. Circuit Court for the District of Massachusetts, CSA District Judge Edward J. Harden was persuaded that this dereliction was excused by necessity. See Williams, supra, at 622–26.

On the other side of the blockade, in the Union prize courts, business was booming. “By the end of the war, the Union Navy had captured or destroyed approximately 1,500 Confederate blockade runners.” Chester G. Hearn, Gray Raiders of the Sea: How Eight Confederate Warships Destroyed the Union’s High Seas Commerce 4 (1992). U.S. Attorney Richard Henry Dana, Jr.'s exceptional grasp of prize law attracted Union captors to the U.S. District Court for the District of Massachusetts, and that court's active prize docket made Judge Peleg Sprague “one of the most respected maritime jurists in the nation.” Jeffrey L. Amestoy, The Supreme Court Argument that Saved the Union, Richard Henry Dana, Jr. and the Prize Cases, 35 J. Sup. Ct. Hist. 10, 14–15 (2010). “Relying extensively on Dana's brief and argument, Judge Sprague's opinion foreshadowed the legal theory that was ultimately to persuade a majority of the Supreme Court that the United States could invoke both belligerent and sovereign power against the Confederacy without a Congressional declaration of war.” Id. at 15. See The Amy Warwick, 1 F. Cas. 799 (1862) (No. 341), aff’d sub nom. The Prize Cases, 67 U.S. (2 Black) 635 (1862).

In the U.S. District Court for the Southern District of New York, Judge Samuel Betts fashioned “the basis of the great revolutionary prize law which has reached such a height in our own day.” Thomas Baty, Judge Betts and Prize Law, 11 Transactions Grotius Soc. 21, 21 (1925). The leading American treatise on prize law during the Civil War was Francis Henry Upton's The Law of Nations Affecting Commerce During War: With a Review of the Jurisdiction, Practice, and Proceedings of Prize Courts (1862), written in response to a request by Judge Betts. See Powell, supra note 17, at 63–64.

Even in Key West, a Union port in a Confederate state, prize cases dominated the court's docket. In his autobiography, U.S. District Judge William Marvin recalled:

President [Lincoln] authorized [William H. French] the officer in command of the troops at Key West to declare martial law whenever he thought it best to do so. As soon as the existence of this order was made known, the leading secessionists left the Island and went to the mainland. The Unionists were now in the ascendency and quiet and good order prevailed. I soon had an immense amount of work to do in deciding Prize cases. The most of the vessels captured for attempting to break the blockade of the Ports in the Gulf of Mexico and at Charleston and Savannah were brought to Key West for adjudication, and I had plenty of work to do up to the time of my resignation in 1863.

See generally Angus Konstam, Confederate Raider 1861–1865 (2003); Hearn, supra note 21; Mark Mello, “A Compact with the Whales: Confederate Commerce Raiders and New Bedford's Whaling Industry 1861–1865” (unpublished honors thesis, Bridgewater State University, May 9, 2017), available at http://vc.bridgew.edu/honors_proj/216.

On December 23, 1862, for example, in the Windward Passage (between the islands of Cuba and Hispaniola), Raphael Semmes, the captain of the CSS Alabama, intercepted the SS Ariel, a large Union mail steamer en route to the Isthmus of Panama on a war department charter. Once aboard the Ariel, the Alabama's boarding party found 500 passengers bound for California, as well as naval officers and 120 U.S. Marines ordered to the U.S. Navy's Pacific Squadron. With no room aboard his cruiser for so many persons displaced by the Ariel's destruction, Semmes paroled the enemy combatants and took a $261,000 bond from the Ariel's master before allowing her to proceed on her way. See Raphael Semmes, Memoirs of Service Afloat During the War Between the States 532–35 (1996) (1868); Spencer C. Tucker, Blue & Gray Navies: The Civil War Afloat 282 (2006).

See Higgins, supra note 27, at 164. Because the practice might tempt British masters to relax the diligence with which they attempted to evade capture, it was outlawed in the time of George III. Id. Neither the United States nor the CSA followed suit.

Semmes's bonds, see supra note 26, called for payment to be made to the president of the Confederate States within 30 days of the war's end. See, e.g., Ransom Bond of the U.S. Ship Bethiah Thayer, Captured by the C.S.S. Alabama, March 1, 1863, in 1 Official Records of the Union and Confederate Navies in the War of the Rebellion 686 (1st Ser. 1894).

See Tabarrok & Nowrasteh, supra note 29, at 57. Thirty of the captures burned by the CSA cruisers Alabama, Shenandoah, and Sumter were whaling ships out of New Bedford, Massachusetts. See Mello, supra note 23, at 33. Whalers were poor candidates for bonding because they visited foreign ports infrequently and unpredictably. Union whalers, therefore, were practically judgment proof.

See Petrie, supra note 2, at 18–20; Tabarrok & Nowrasteh, supra note 29, at 55, 56.

See George F. Steckley, Bottomry Bonds in the Seventeenth-Century Admiralty Court, 45 Am. J. Legal Hist. 256, 259–60 (2001); R.G. Marsden, Two Points of Admiralty Law, 2 L.Q. Rev. 357, 363 (1886).

See Jonathan Spencer, Hull Insurance and General Average—Some Current Issues, 83 Tul. L. Rev. 1227, 1263 (2009).

Regarding the $261,000 ransom bond extracted by Semmes, see supra note 26, the owners of the Ariel declared general average and sought contribution. Adjustors apportioned both the bond and the expenses of its adjustment, taking security from one “Hyneman” among other cargo owners. The bond itself was never enforced, but before the Court of Commissioners of Alabama Claims Hyneman challenged the $78.73 he had paid for the adjustment expenses. The commissioners ruled that the bond was adjustable as general average, validating the adjustment expense charge. See 2 Rob Merkin, Marine Insurance: A Legal History ¶ 13–141, at 491–92 (2021); Frank W. Hackett, Geneva Award Acts: With Notes, and References to Decisions of the Court of Commissioners of Alabama Claims 31–32 (1882); U.S. Dep’t of State, Report from the Secretary of State, with Accompanying Papers, relating to the Court of Commissioners of Alabama Claims 45 (1877); Decision in the Case of the Ariel Steamer Boarded by the Alabama, N.Y. Times, Mar. 20, 1875, at 10. For the establishment, structure, and composition of the Court of Commissioners, see Merkin, supra, ¶ 13–130, at 485 (discussing the Act of June 23, 1874, ch. 459, 18 Stat. 245).