The Confederate Law of Prize

I. Introduction

In this special issue of the British Journal of American Legal Studies, Professor Robert M. Jarvis documents the effort of the Confederate States of America (“CSA”) to establish a prize court at Key West. 1 Although this initiative failed, the CSA did have a prize law system.

II. Copying the Federal Blueprint

On paper, there was nothing special about the CSA's prize law system. 2 It was adopted wholesale from that of the United States, from which the Southern states were attempting to secede. Its constitutional foundations were taken verbatim from the Constitution of the United States, both assigning the power to grant letters of marque to the national legislature 3 and explicitly foreclosing member states from issuing their own. 4 Both constitutions treated as one-and-the-same the sovereign's power to grant letters of marque and the sovereign's power to grant reprisals. 5

The statute that endowed Confederate courts with prize jurisdiction reflected the same presumption that cases of prize were cases of “admiralty and maritime jurisdiction,” as the Supreme Court of the United States had made clear in 1794. 6

The act of the Confederate Congress delegating the power to issue letters of marque to the Confederate president; regulating privateering; and governing the sale of prizes repeats practically verbatim the antecedent federal statutes on the same subjects. 7 Section 10 of the same act, offering to the officers and men of any private armed ship a reward for the destruction of an enemy warship, appeared first in the Act of August 2, 1813, 8 and section 14, discounting import duties on goods captured by private armed ships, appeared first in the Act of August 2, 1813. 9

Five days after the Confederate Congress established the prize court at Key West, it passed an “Act to provide for the organization of the Navy.” Section 9 of that act adopted all the federal laws pertaining to the U.S. Navy in force at the time. 10 Thus, the federal law assigning most of the sovereign's claim to prize money to the officers and men of a capturing warship of the U.S. Navy, 11 dictating its distribution, and directing the rest to a disability pension fund, also became law for the Confederate Navy.

The general directions to Confederate privateers issued by President Davis were identical to those that had been issued by President James Madison during the War of 1812. 12

Counterparts to the 14 standing interrogatories for use in cases of prize before the CSA District Court for the District of Georgia 13 are to be found among the 32 standing interrogatories for use in such cases in the U.S. District Court for the Southern District of New York. 14

Likewise, counterparts to the 22 rules for use in cases of prize and capture in the CSA District of Georgia 15 are to be found among the 25 rules for use in such case in the U.S. Southern District of New York. 16

III. The Prize Law of the United States

At the outbreak of the Civil War, the prize law of the United States was what it had been for 46 years, that is, what it had been at the end of the War of 1812. 17 It (and the prize law of the Confederacy) differed in one important aspect from that shared by many European powers. The prize law common to both American antagonists reserved a sovereign's discretion to grant letters of marque. At a conference held in Paris in 1856, several European powers had agreed to refrain from the future issuing of such letters, thereby withdrawing their endorsement for war at sea by private armed vessels, or “privateers.” 18 Many other nations subsequently signed on. Still others renounced the practice without formally becoming a party to the declaration. Among the few holdouts with appreciable stakes in the matter was the United States.

IV. The Prize Law of the CSA

When war broke out, the Union, possessing a considerable fleet of warships, declared a blockade and renounced privateering. The Confederacy, lacking such a fleet, condemned the blockade and recruited privateers. Meanwhile, having forsworn privateers of their own, neutral sovereigns closed their ports to prizes captured by either side. 19 Once the Union blockade became effective, Confederate courts were left with little opportunity to try prize cases, 20 stunting development by the judiciary of case law peculiar to the Confederacy. 21

Without access to the only courts from which prize money could be won, Southern privateers lost their incentive to hunt Union shipping. Thus, they soon turned to the more lucrative business of running the blockade. 22 As privateering ebbed, guerre de course (“commerce raiding”) was left to a handful of sea-going cruisers of the CSA Navy. 23

What prize law peculiarities did emerge from Confederate practice may be found in what might be called “captain's law,” implied by capture decisions of the CSA Navy's cruisers. Without judicial review ashore, a Confederate captor's summary judgment on the spot became the final say on the prize's legality, contrary to the rule then universally observed. 24 Error exposed those responsible to personal liability, albeit at some indefinite time and place.

Confederate commerce raiders burned most Union ships caught laden with cargo for Union shippers. They ransomed most Union ships found laden with cargo for neutral shippers, as well as most neutral ships laden with Union cargo (save for that qualifying as contraband). 25 A few captures were released as “cartel ships,” which relieved the CSA's cruisers of mariners and passengers evacuated from earlier captures that had been put to the torch. 26

For its release, a ransomed vessel provided a bond. This was a promise in writing by the capture's master, both personally and on behalf of the ship's owners, to pay a sum of money in the future in exchange for the ship's release and safe conduct. The ship served as collateral. The captor retained the original bill; the capture's master took a copy as evidence of the captor's promise of safe conduct. 27 In view of the alternative, the price of release was more or less whatever the capturing captain dictated. 28

An action to collect on a ransom bond might be brought in personam in a common law court against the capture's master, who would then implead the shipowner. 29 But it might also be brought in rem in any admiralty court, foreign or domestic, 30 provided that the pledged ship was within the reach of the court. Duress was no defense; 31 indeed, to be enforced by an admiralty court, such bonds had to be necessary for the vessel's voyage to continue. 32 The rebellion's suppression left these ransom bonds unenforceable. 33

V. Conclusion

Sensibly derivative but virtually stillborn, the Confederate law of prize nevertheless contributed to the strategic success of the Confederacy's guerre de course. It supplied the rules of engagement. The global threat from ranging privateers and cruisers it governed squeezed the market for marine insurance everywhere and directed shippers to neutral hulls, all too often permanently. 34 But it could not secure the South's secession.