* *

*

legal prize; at the same time it may be considered as a CHAP. IX.' grant of the nature of prize. It is to be distributed as prize money is distributed among the officers, petty officers, seamen, and mariners, and being referred to this Court, which is a Court of Prize, I apprehend that it was the intention of those from whom that reference proceeds, that it should be considered upon the principles of prize.

"It does not belong to this Court to interpret grants; this Court cannot wander into general interpretations of the kind; but if it be a grant of the nature of prize, it comes naturally under the consideration of this Court, which leaves the general interpretation of grants to a jurisdiction of another nature."

In this case, as it was a case of construction of a grant of money from the Crown in the nature of prize, there was no previous condemnation as prize, for prize it was not: but where the proceeds of capture are to be distributed as prize, it is clear that there must be sentence of condemnation.*

a

In case of con

such grant, no previous condemnation as prize is requi

struction of

site; but before other proceeds can be distributed there

must be a sentence of con

* See Anglo-Sicilian Captures, 3 Haggard's Admiralty Reports, demnation. 192. See also the Marianna, Ibid. 206., where a decree of condemnation in the Vice Admiralty Court at Sierra Leone had been rescinded on a claim by the Brazilian consul in behalf of Brazilian subjects as to some goods on board at the time of seizure, and a decree of one-eighth as due on recapture (the remaining seveneighths to be droits, if unclaimed) was substituted; a further decree of condemnation, upon a new libel at the instance of the seizors, was made in their favour of those seven-eighths, but still with a reservation as to the goods claimed. There was no appeal nor suit in this Court on respect of these decrees; but the proceeds of the seven-eighths having been paid into the Registry here by a Treasury warrant, an application for payment of this money to the seizors, founded on the processes from Sierra Leone, an affidavit of the seizors' navy-agent, and the non-intervention of the Treasury rejected, there being no legal title in the seizors. "As," said Sir John Nicholl," this money has been transmitted into the Registry of the Court, I cannot direct it to be paid out, except upon a proper title. That it should have got here seems rather strange,

CHAP. IX.

For where proceeds have been distri

buted without

the interven

tion of a Prize

Court, the

Court will not lend its uris diction.J

Questions of

head money.

In the same manner, where captors have proceeded to dispose of prize without the intervention of a Court of justice, and before condemnation have converted the property, the Court will not even consider such property to be the proceeds of prize, so as to be subject to the prize jurisdiction. "Over proceeds lawfully or justifiably converted, the Court has jurisdiction, the property in that case continues prize; but if the parties have departed, without any justification, from their instructions, and have been carrying on a commerce voluntarily assumed, and to any extent, the Court will not continue to property so acquired, the character and favoured rights of prize property in their behalf."*

Another species of grant from the Crown, which the Court of Admiralty has frequently been called upon to interpret, are those of head money; for in cases in which doubts have arisen whether parties claiming head money are entitled thereto, the same have been determined by that Court, by the authority of the legislature. ↑ "The legislature, probably, thinking that the history of this particular subject being more familiar to this Court, a question of this kind might probably receive a readier illustration, from its knowledge of the history of the law, than might possibly be within the immediate view

for there has been no proceeding in this Court, either original or
by appeal in the matter, and I am at a loss to discover that the
Court has jurisdiction at present to make any order regarding the
money at all events, as it has been sent here by the government,
there must be a grant from the Crown, or some authority produced
to which the Court is bound to attend before it can be taken out;
and it might have been expected that some directions would have
been given to the law officers of the Crown upon the subject, but
here is only the ex parte application on behalf of the seizor. * * *
I reject the motion.”

*Per Lord Stowell, the Eole, 6 Robinson's Admiralty Reports,

† The 54 Geo. 3. c. 72. and the several Prize Acts.

of those judicatures which are the more regular and CHAP. IX. constitutional interpreters of statutes.” *

By the 3 & 4 Vic. cap. 65. it is enacted, that the High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning booty of war, or the distribution thereof, which it shall please her Majesty, her heirs and successors, by the advice of her and their Privy Council, to refer to the judgment of the said Court; and in all matters so referred, the Court shall proceed as in cases of prize of war, and the judgment of the Court therein shall be binding upon all parties concerned.

of letters of

bail bond re

feiture of such

of a ship of the depriving such letters of

marque by the

It is not necessary to repeat, that title to sea-prize On the grant must be by commission. On granting letters of marque, marque; the it is required that the captain † and two sureties appear quired in such and give security that nothing will be done contrary case; the forto the instructions which are issued with the said letters bail bond and of marque; and the Court of Admiralty has the power of decreeing such bail recognizance to be forfeited, and also of proceeding against a privateer ship, to deprive it of its commission or letters of marque, when a forfeiture of the same has been incurred; as by acts of cruelty, for instance, or for any offence, which, by the Prize Acts, and by the ancient law of the Admiralty, is a ground of forfeiture.‡ A privateer ship, when thus A privateer duly commissioned, represents public authority.§ We public authohave seen that the Court of Admiralty has jurisdiction rity.

* Per Lord Stowell, La Bellone, 2 Dodson's Admiralty Reports, 346.

† But on considerations of convenience, when the captain is absent, it appears that the Court has permitted some other person to appear and be bound for him. Such person is then himself responsible. See the King v. Fergusson, Edwards's Admiralty Reports, 84.

See the Mariamne, 5 Robinson's Admiralty Reports, 9.

§ Cannot therefore be dispossessed of a capture by king's ship.

Admiralty
Court.

ship represents

CHAP. IX. over all injuries which are consequent to an illegal or

по

unjustifiable seizure; and, where there has been " probable ground of seizure," costs and damages seem incident to a sentence of restitution.* The actual wrongdoer is the person who must be made liable in by unjustifiable that Court. But it is not for damages alone, which

Actions for damages, costs, &c., incurred

seizure; or by justifiable seizure where loss has been

occasioned by the want of

are consequential to an unjustifiable seizure in which the Court of Admiralty has jurisdiction (although those are necessarily the most frequent cases in which a capskill, diligence, tor is liable in that Court); but also where the seizure has been held to be justifiable, some part of the cargo, for instance, having been condemned, in case loss or

&c., of the

captor.

* See Barossa, 1 Haggard's Admiralty Reports, 75., in notis. But where restitution has been accepted by the ship originally seized, without reservation of any question, such a suit was not sustained. See the Maria Powlona, 6 Robinson's Admiralty Reports, 236. "In this case," said Lord Stowell, "the claimant has, I think, put himself out of all possibility of obtaining relief. The vessel was a Russian ship, carrying a cargo of masts from Riga to Nantes. This is all which I am able to collect of the circumstances of the case, and that only from the protest of the master, since the original evidence is withdrawn. How the vessel was documented, or under what particular circumstances the seizure was made, is entirely removed from the view of the Court. It is, therefore, impossible for me to pronounce, that the person making the capture was so in fault, as to be liable to a sentence of costs and damages. From what has passed, there is reason to presume that the seizure was perfectly justifiable. On the papers being brought in, a proposal was made to the master that he might proceed on his voyage; and it must be understood to have been an absolute and unqualified proposal, and meant as a general acquittal on both sides. If there had been any intention to prosecute a demand for damages arising from the seizure, the offer should have been accepted sub modo; instead of that, the restitution was accepted in the manner in which it was proposed, and as such must be understood to include an act of amnesty on both sides. It is not for the parties then to come again before the Court, after all the papers have been withdrawn, and charge the captors with an unjustifiable seizure, when they have, in consequence of the restitution, lost the opportunity of defending themselves."

† The Mentor, 1 Robinson's Admiralty Reports, 179.

damage has been sustained by want of due diligence on CHAP. IX. the part of the prize master.*

We have seen that the sentence of condemnation by a competent tribunal is always necessary to transfer complete possession of goods taken as prize; in no case is the property changed in favour of either a vendee or recaptor till there has been a regular sentence of condemnation; and to be regular, this sentence must be pronounced by a Court of competent jurisdiction in the country of either belligerent, but never in a neutral country †; neither will the Court of Admiralty of

* See the William, 6 Robinson's Admiralty Reports, 316., and the following case in notis. "On questions of this kind, there is one position sometimes advanced which does not meet with my entire assent, namely, that captors are answerable only for such care as they would take of their own property. This, I think, is not a just criterion in this case; for a man may, with respect to his own property encounter risks from views of particular advantage, or from a natural disposition of rashness, which would be entirely unjustifiable in respect to the custody of the goods of another person, which have come to his hands by an act of force. Where property is confided to the care of a particular person, by one who is, or may be supposed to be, acquainted with his character, the care which he would take of his own property might, indeed, be considered as a reasonable criterion. But in cases of capture, there is no confidence reposed, nor any voluntary election of the person in whose care the property is left. It is a compulsory act of justifiable force, but still, of such force as removes from the owner any responsibility for the imprudent or incautious conduct of the prize master. It is not enough, therefore, that a person in that situation uses as much caution as he would use about his own affairs, the law requires that there should be no deficiency of due diligence." See also for other cases of compensation, the Concordia, 2 Robinson's Admiralty Reports, 102., where a cargo on restitution being found deficient, compensation in value was allowed. Der Mohr, 3 Robinson's Admiralty Reports, 129., compensation in value for a prize ship, lost by the negligence and misconduct of the prize master. Betsey, 1 Robinson's Admiralty Reports, 92.; and the Nicolas and Jan, therein cited. Hendrick and Jacob, Ibid. Mentor, Ibid., 181. Two Susannahs, 2 Robinson's Admiralty Reports, 132. Lucy, 3 Robinson's Admiralty Reports, 208. † See the Flad-Oyen, 1 Robinson's Admiralty Reports, 134.

Sentence of condemnation tribunal neces

by a competent

sary to transfer complete possession of goods taken as prize; the tribunal of

a neutral coun

try incompetent.