The Admiralty's standing exhortation to its captains, incorporated in every commission, was to ‘protect the trade and annoy the enemy’, and with a little help from private enterprise, they did succeed in annoying the enemy. This book is not about privateering activities. These were a way of employing private enterprise to assist in the reduction of the enemy's trade, as every prize taken by a privateer weakened the trading wealth of the enemy and reduced the number of men available to the French navy, at no cost to the naval administration. Instead the focus has been on the activities of the young men who were captains of sloops and frigates, and so involved in individual captures, rather than those in the larger ships, highly enough rated to fight in the line of battle as ‘ships of the line’. There were fleet actions during the war, and they play their part in the story, but John Elliot was not the only captain content to stay in a sixth rate frigate rather than receive the higher pay due to a captain in a larger ship. He was much more likely to win prize money. In the time of Queen Anne there had been restrictions on the behaviour of the captors, and these restrictions still applied. Furthermore, British ships of war or privateers were expressly forbidden to ransom any ship taken as prize, in order to reduce the men available to the French. The commander of a privateer who did so ‘shall forfeit his commission to all intents and purposes and shall, together with his bail, be proceeded against according to the Law, and be condemned in costs and damages’.

The Appeal Court consisted of at least three Lords Commissioners from the following list: Lord President of Council; John Carteret 2nd Earl Granville; Earl Cholmondeley; Earl of Kinnoul; Lord Berkeley of Strathclyde; Lord Sandys; Lord Mansfield; Robert Nugent Esq.; and Welbore Ellis Esq.

The Lords Commissioners were advised by two experienced Council, men of the standing of Dr George Hay, of Doctors Commons, or William Murray when he was Attorney General. Between 1751 and 1766 the Lords Commissioners heard and determined 234 Prize appeals. Of these, 44 came from the English High Court of Admiralty, 88 came from Jamaica, 23 from New York, 19 from Antigua, and the remaining 19 from the other nine Vice Admiralty Courts.

A shared capture took place before war was declared, when William Gordon, St Albans (60), Hugh Palliser, Eagle (60), and Mark Milbank, Romney (50), were detached in May 1756 by Admiral Boscawen to cruise off Cape Ortegal. They took La Fidelle and jointly took Thisbe before they separated to chase three other French vessels, Triton, St Mark and Venus, successfully capturing them all while the British ships were in company although not always in sight. There was no contesting the fact that the Admiral was entitled to his eighth share. At the appeal before the Court, the first question was whether the crew of Admiral Boscawen's vessel and the other ships under his command were also entitled to a share of the prizes.

This book draws on my long-term involvement with South African townships. Townships are from the perspective of the suburb, which I use as shorthand for the wealthiest fraction of the country's population, the “other” South Africa. Getting to know the lives of township residents has meant crossing boundaries. I am not alone in crossing from suburb to township, but, tellingly in a deeply divided country, we are few.

I started to visit townships after arriving in South Africa in January 1994. I wanted to know what life was like for people there. Curiosity is an important academic attribute, and without it I would not have collected much of the material in this book. But it does not explain why my engagement with townships now stretches to decades. This has been sustained not only by curiosity, but also by political belief and moral conviction, and because the township has become a home and people within it friends.

The book only partially answers what life is like in townships. The menyetla or opportunities described and analysed are only one facet of township life, but an important one. It illustrates the lex lokasi, or law of the township, that is the book's focus. It is, however, an uncomfortable topic to be delving into; mud raking in the lives of township residents, most of whom are poor. Reviewers of the manuscript have stressed the need for contextualisation. Paraphrasing, their concern is that describing how people hustle to make ends meet creates a picture of township residents as law breakers. In turn, this produces a racialised narrative that obscures the larger framework of South Africa's structural violence, historical and current.

Once the prize had been condemned, the agents were responsible for applying for the Bounty or Head Money due to their clients. They had to provide copies of the necessary documents:

• • The proof of condemnation

• • The proof of the number of men involved in the prize

• • The Power of Attorney from both crews

• • The certified muster lists from both crews

• • A reminder of the Act by which Bounty was to be paid

• • A statement by Samuel Seddon, the Admiralty's Solicitor, that the documentation was complete

• • The Treasury confirming that no flag officer had claimed a share within the fifteen days’ grace allowed

• • The deposition by the master of L’Heureuse that there had been seventysix men on board at the time of the capture

[On the cover of the little parcel of papers] Received the 22nd April 1757 No 395 extra William Redstone, James Bensley, Charles Brett and Philip Stephens Bounty to the Tartar and Happy sloop for taking the Heureux a French privateer £380 0s 0d

The state of the case of William Redstone, James Bensley, Charles Brett and Philip Stephens Esq claiming payment of Bounty Money at £5 per head for 76 men taken in the L’Heureuse a French privateer by his Majesty's ship the Tartar Captain John Lockhart Commander and the Happy sloop Captain Thomas Burnett Commander on 16th September 1756.

This is an example of the hundreds of documents stored from the legal proceedings involved in the High Court of Admiralty decisions. The two stamps of sixpence each which make this a legal document are imprinted at the top of the one sheet of paper, folded in half with the text on two and a half sides. The first page always has as an introductory two sets of text separated by a line, which is represented below.

The amount of detail disclosed by the interrogations of the three individuals is testament to the clever transition from personal data to revealing background history. This set of interrogations also highlights the fluidity of ownership. The vessel changed hands three times, and the London-born Thomas Oldfield was probably grateful to have been captured yet again.

The Five Axes

In the poetry of many cultures, there is an enduring image: of a shore that recedes even as you move towards it. If transformative constitutionalism's metaphor of the bridge expresses confidence that the chasm between the past and the future will be bridged, then the language of poetry warns us about the ‘essential cruelty of hope’. Transformative constitutionalism may be a bridge, but a bridge to a horizon that is always receding.

The chapters in this book trace the journey of transformative constitutionalism under Kenya's 2010 Constitution, between the bridge and the horizon. These chapters – each dedicated to a constitutional dispute that was brought before the Kenyan courts between 2010 and 2025 – correspond to five axes of transformation.

The first axis is that of constraining the executive and empowering the People. This was at issue in the BBI Case, where an executive-driven attempt to make large-scale changes to the 2010 Constitution was rebuffed by the courts. The ball was set rolling by the High Court, which reached into history to hold that sweeping constitutional change could not be done without a correspondingly deep participation of the People. In doing so, the High Court offered to the world a new – and distinctively Kenyan – articulation of the famous basic structure doctrine. While the Supreme Court disagreed with the High Court on the applicability of the doctrine to the Kenyan context, its own interpretation of the Constitution affirmed – in substance – the document's commitment to public participation in constitutional change.

After the sale or sales of the prize the agent had to make two public notifications of the distribution of shares in the London Gazette or, if in a Vice Admiralty Court, in the newspaper of most authority in the island or place where the condemnation had taken place. The notification had to be made at least three days before the initial distribution and contain the address of the agent, and the precise day of the month and year in which the further distributions would take place. If these conditions of advertisement were not met, there was a penalty of £500 payable to Greenwich Hospital.

The prize agent had further responsibilities: if the captured ship was thought fit to be brought into the navy once it had been condemned as a prize, a bill for her value, together with that of her ‘stores, apparel, guns, and furniture’, had to be made out within fifteen days ‘according to the course of the navy’ to be distributed and divided as laid down. ‘And for the further encouragement of such officers, seamen and others who shall actually serve on board’ the distribution was made without fee or reward. The amazing number of deductions for legal fees and charges had of course already been made, but the morale of the men concerned was maintained.

Admiralty and Parliament were anxious that the Prize Acts after 1739 achieved their goal of encouraging seamen, and that payments of prize and bounty money were made promptly, accurately and publicly in order to do so.

In the previous chapter, we examined the role of the People as an external counterbalance to Presidential power, and as a check upon the Imperial Presidency. Classical constitutional theory, on the other hand, has always focused on what Gargarella labels a system of internal checks and balances: that is, the different institutions of the State checking and constraining each other. This is the ‘separation of powers’: originally between the legislature, the executive, and the judiciary, and, in recent times, a more complex distribution of public power involving fourth branch institutions such as independent commissions, and other bodies.

The separation of powers has always been more ideal than reality. To start with, in parliamentary systems, there is no clean-cut separation between the legislature and the executive. The latter is drawn from the former and while, in theory, is meant to be answerable to it, in practice, often dominates it. Besides, the complexity of modern governance can no longer sustain (if it ever could) the bright-line division between law-making (the legislature), implementation (the executive), and adjudication (the judiciary). This complexity has, in turn, seen a mid-twentieth-century drift towards greater executive power, whether in parliamentary systems (beyond their inherent tendency of executive domination), or presidential ones. Courts have grappled with doctrines such as ‘excessive delegation’ (where the legislature passes vague laws, giving the executive so much discretion that the line between implementation and law-making dissolves), the executive abuse of temporary rule-by-decree powers, and so on.

The Bank of England, established on the Dutch pattern in 1694, made possible the loans to the government which financed the war. Millions of pounds were instantly subscribed whenever the bank needed it, at 3½ per cent for a fifteen-year loan. There was no such financial security in France, where the Marine suffered from the lack of finance available to the King, who was the ultimate arbiter in the case of Prize appeals. The Admiralty remained averse to spending money to the last, but despite their caution, government funds kept being supported by the public, and the Treasury never ran out of resources. The huge sums dispersed by the Treasury as Head Money were testament to the vigour with which both private and Royal Navy vessels obeyed the injunction to ‘protect the trade and annoy the enemy’. Testament, too, to the incentive ‘the service’ had been given.

Trade between nations created wealth, on which the stability of the government depended. As we have seen, the question as to whether the vigorous activities of protection and annoyance on the ocean were legal or not was addressed by the leading law lords of the day. Insurance was expensive but essential and brokers at Lloyd's were informed of merchant vessels which took themselves out of convoys, and therefore into the hands of French privateers.

Palpable fear

In July 2021 a wave of looting, targeting shopping malls and retail distribution centres, erupted across KwaZulu Natal and Gauteng provinces following the imprisonment of former President Jacob Zuma. The death toll reached 350, many trampled underfoot as looting crowds panicked, some killed by community members defending their neighbourhoods. The economic damage was eventually estimated at R50 billion. The July Unrest, as it came to be known, was on a far larger scale than the looting of the Metrorail during the COVID-19 lockdown of 2020. Whereas the looting of the Metrorail went largely unnoticed in the media, the July Unrest convulsed the nation.

News24 journalists documented this in their book Eight Days in July. Burning tires, rocks, and hijacked lorries blocked major roads in KwaZulu Natal on Friday 9 July, the day after Zuma's incarceration. The government's initial response was to play down events, but by Monday 12 July there was palpable fear that social order was teetering. Supply chains were disrupted and there was panic buying. My abiding memory of that morning is two elderly ladies driving at dangerously high speed out of a suburban shopping centre, the back seat of their car piled high with loaves of bread.

That afternoon I joined a citizen's crisis committee in Sophiatown, a predominantly coloured neighbourhood next to my own, to defend the local shopping centre. Describing it as a committee implies a level of structure that was absent. It was based around those who took the initiative and took a stand.

Queen Anne would have been deeply gratified by the long-term benefits to the Royal Navy and to Britain as a whole of her ruling on legal prizes in 1708. The fact that all the profits of success at sea went to the men responsible, and not into her coffers, provided motivation for enterprise and daring during conflict at sea, and made morale the key word throughout the century. Admiral Boscawen's letters to his wife reveal the thinking in the fleet:

The French will not be pleased at this cruise of mine. We have insulted their coasts, destroyed their home trade, and made some little impression on their foreign trade, whilst their squadron at Brest, (though ready for the sea) has not dared to stir out. By the letters I have seen their trading towns are in great distress, many of their merchants bankrupt, their manufacturers idle, and the wives and families of their seamen starving, whilst I believe our trade never was more flourishing. I don't yet hear they have any privateers at sea.

The motivation provided by the money which accrued to those who had taken part in the engagement boosted morale, and in battle, morale is everything. Every man on board would know that victory could result in his sudden acquisition of wealth beyond the limits of his pay. The status of a man who had won prize money is graphically illustrated in Cruickshank's cartoon (see Figure 3).

The attraction of naval service in wartime was the chance of prize money, although reality rarely matched expectations.