CHAP. IX.

The rule of locality never prevailed in

the Prize Court.

ON THE JURISDICTION OF THE PRIZE COURT OF ADMIRALTY.

IN the former part of this treatise, relating to the Instance Court of Admiralty, it has been seen how rudely has the rule of locality which formerly prevailed as a limit to the jurisdiction of that Court, been disturbed, and in some instances destroyed. But as regards the Prize Court of Admiralty, to which our attention is now called, the rule of locality never prevailed; the nature of the question, the subject matter to be adjudicated upon, excluding the rule of locality. None of that jealousy which has been frequently the subject of remark in the preceding pages, as formerly existing between the superior Courts of Westminster and the Maritime Court of Doctors' Commons, was ever directed against the prize jurisdiction of the latter Court. The reason of this is obvious; namely, that the Courts of common law, being totally unable to try the question of prize, never attempted to confine the jurisdiction of the Admiralty Prize Court to the "high seas," nor to control it by any principle of locality. Totally unable, for first, they had no delegation from the king, "the fountain of prize," for such purpose; and secondly, from the very nature of their jurisdiction, they could not embrace adequately such questions, which depend upon the law of nations. No other Court, then, having jurisdiction over the subject matter, it is not very extraordinary that the Prize Court was never interfered with, and a further extension of this subject would be useless.

"In matters of prize, the rule which the civilians so

much, so justly, but so unsuccessfully, laboured to es- CHAP. IX. tablish in the Instance Court, is universally confessed

and admitted." *

prize.

"fountain of

Prize is the property of an enemy, taken in time of Definition of war; one of the elementary principles of prize law is, that all prize belongs to the state; in monarchies, to the sovereign. The king is the "fountain of all prize," and by the law and constitution of England the sovereign alone has the power of declaring war and peace; for it is held by all writers on the law of nature and nations, "that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in

The king the prize." In him alone the right of making war and peace.

the sovereign power." This right is given up by the The king's entire body of the people to the sovereign; he alone licence. has the power of removing the state of war in whole or in part, as by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. §

But, although the sovereign is the fountain of all prize, it has been for a long time a part of the policy

* Browne's View of Admiralty Law.

† Melomane, 5 Robinson's Admiralty Reports, 48.

Puff, b. 8. c. 6. s. 8. Barbeyr. Blackstone.

§ The Hoop, 1 Robinson's Admiralty Reports, 199. Hence, it being an established maxim, that no subject of this country can trade with the enemy, such trade being illegal by the general maritime law of the kingdom, independent of acts of parliament, the king's licence is requisite for that object. 1 Robinson's Admiralty Reports, 250., and Hoffnung, 2 Robinson's Admiralty Reports, 166. "No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state." Per Cur. 1 Robinson's Admiralty Reports, 200., and Angelique, 3 Robinson's Admiralty Reports, Appendix, it being "in the power of the Crown alone to declare war, so it rests with that authority, only, to dispense with its operations." Cases of nonconformity with the privileges and instructions contained in the king's licence, and condemnation in consequence, are frequent in the Admiralty Court.

216

The interest

in "prize," granted to

CHAP. IX. of government to part with that interest, and the benefit of prize has been granted out to persons of certain descriptions, how, to whom, and in what manner, we will now consider. A very ancient grant has given to the Lord High Admiral the benefit of all goods, &c., taken as prize by persons not commissioned.* The other

whom ;

grants from the Crown have been made by the Proclamations and Prize Acts, conferring the interest in prize on ships of war, on mariners on board such ships, on such armed ships as are hired in the public service, and also on those ships to whom have been granted certain public commissions called letters of marque.

The whole subject matter of prize, then, is in the hands of the Crown, as well in point of interest as in point of authority. Prize is altogether a creature of the Crown: "No man has, or can have, any interest in it," said Lord Stowell, "but what he takes as the mere gift of the Crown; beyond the extent of that gift he has nothing. This is the principle of law on the subject, and founded on the wisest reasons. The right of making war and peace is exclusively in the Crown; the acquisitions of war belong to the Crown; and the disposal of these acquisitions may be of the utmost importance for the purpose both of war and peace. This is no peculiar doctrine of our constitution; it is universally received as a necessary principle of public jurisprudence by all writers on the subject, bello parta cedunt reipub

* For, although it may be, according to the law of nations, lawful for any subject to seize upon the goods and ships of enemies in time of war, still, they can have no title or claim to appropriate to themselves the ships or goods of the enemy so taken; they belong to the Crown as droits of Admiralty. It lies on the individual captor, in every case, to show the authority by which he is entitled to take for his own benefit. "The title deeds," said Lord Stowell, on which only, claims of this kind can be constructed, are the Prize Act and the Proclamation." All title to sea-prize must be derived from commissions under the Admiralty.

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lice. It is not to be supposed that this wise attribute CHAP. IX. of sovereignty is conferred without reason; it is given for the purpose assigned, that the power to whom it belongs to decide on peace or war may use it in the most beneficial manner, for the purposes of both. A general presumption arising from these considerations is, that government does not mean to divest itself of this universal attribute of sovereignty, conferred for such purposes, unless it is so clearly and unequivocally expressed." Captors have, by the different grants from the Crown, a general right to seize; but with this right a duty has always been enjoined, an obligation has always been imposed on the captor to proceed to adjudication. Captors have generally a right to seize, subject to subject to this duty of bringing to adjudication; a duty enjoined, that they may not make seizures without bringing the ships and goods seized to the notice of the proper tribunal, in order to prevent the right of seizure from degenerating into piratical rapine.Ӡ

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no

adjudication.

And until after adjudication no

It

beneficial inthe terest attaches.

So that although captors have a right to seize, beneficial interest attaches until after adjudication. was judicially determined by Lord Stowell in Elsebet, that the Crown has, in all prize grants, reserved to itself the right of controlling the whole proceeding till final adjudication. In the case of captures made by the king's own ships, the authority of the Crown is most marked upon the face and in the substance of every part of the proceedings in the most emphatical manner. The Crown officers are the prosecutors in the name of

* The Elsebe, 5 Robinson's Admiralty Reports.

† Per Lord Stowell, 5 Robinson's Admiralty Reports, 185., and before proceedings of condemnation have been taken or commenced, the Court of Admiralty will refuse the aid of its jurisdiction. See post, p. 248, 249.

CHAP. IX. the Crown; in seizures made by private ships of war, the hand of the sovereign authority is less visible in the mode and style of proceeding, but the right of the Crown is sufficiently guarded by the repeated declarations, that the interest shall vest in such captors "after final adjudication," and not before.*

Such adjudication devolved on the High Court of Admiralty.

Having thus seen to whom, and subject to what limits, principally, namely, subject to the duty enjoined therein, that they must proceed to adjudication, the Crown has granted the interest in prize, the following question naturally suggests itself:- Upon what tribunal has the authority of adjudicating these questions been devolved? From time immemorial the adjudication of these questions has devolved upon the High Court of Admiralty. How, or in what manner these ques

* The practice of the Crown to direct the release of ships before final adjudication is unquestioned.

Lord Stowell said, in the Elsebe, "I cannot but think that an expression which is reported to have fallen from Lord Mansfield in a case (Lecras v. Hughes) relating to the insurable interest of captors, namely, that the Crown does not interfere,' must have been founded in some error of the fact. Such instances will appear less numerous, because the fact that they have been so released is not necessarily, nor very distinctly entered in the books. All that appears is, that the proctor, then proceeding for the Crown, as he must do, declares that he proceeds no further, on which the Court issues an order of restitution, as a matter of course, and of necessity; for what party can interpose and pray a condemnation to the Crown, when the Crown has declared that it prays no such thing, but consents to the restitution? I take this, therefore, to be the first case in which the effect of such a consent on the part of the Crown has been called in question. ***** When it is alleged that all former cases have passed by consent, the fact itself, that the power was not questioned in those cases, affords a strong proof that the power was considered as unquestionable, and I must add, that though I have suffered a party to stand before the Court for the purpose of arguing the question, I do not know the party who can legally stand before it, praying a condemnation to the Crown, which the Crown itself publicly renounces." As to a dictum by Lord Kenyon in the argument upon the St. Jago, upon this point, see vol. V., Rob., p. 189.

*