under circumstances which do not occur in this case. I ought to add, that so far as appears, this ship was never out of the legal possession of the owners, Stewart & Smith. If, then, according to my view of this case if according to prize law there has been no legal transfer if that law requires, that to divest the title from the original owners the transaction should be bonâ fide, and there should be a legal and equitable title conferred, or other considerations, which I need not mention, what is there to prevent me decreeing restitution of the ship to the claimants? The first objection is, that this vessel is registered in the names of Wrongham and Brandt & Co. of Archangel that by statute law no other persons can have a legal and equitable title thereto. I state this proposition generally, because it is true generally. I apprehend to put it as shortly as I can, that by the law still at the present moment in force and operation, a bill of sale duly registered gives a title to those in whose favour it is registered, against any person who does not get a transfer under the clause in this act of Parliament. But there is no such case here; there is no one who claims under the registry, because the persons who claim are neither more nor less than Stewart & Smith, the vendors. Here, then, arise several questions whether I shall be successful in disposing of them I do not know, but at any rate I must have the courage to meet them. Nothing, in my opinion, is more undesirable than to put the case vaguely. If the Court is unable to come to a right conclusion, its judgment may be afterwards corrected; but if the Court gives a judgment, and the difficulty is never noticed, it leads to a supposition that the real point of the case never did arise. I will endeavour not to avoid the difficulties; I grant that they are not small. And, first, how far is it the duty of this Court to take cognisance of the municipal law of this country, sitting as a Court of Prize? And this head, I am sorry to say, may be again divided — first, as to a breach of the municipal law; and secondly, as to pronouncing a dicision which may be incompatible with it. As to the first point, it is settled by various cases, that property claimed by British merchants cannot be restored, if at the time of capture the trade is contrary to British statute law. (The Walsingham Packet, 2 Rob. 77, and the cases there cited; The Etrusco, 4 Rob. 262, note.) This rule of law cannot, I think, apply to the present case, for I am not aware that it has ever been contended that this ship was illegally engaged in trade. To whomsoever she belonged, she might lawfully bring this cargo to Great Britain. It is also fit to observe that I deem the protection of British property from hostile confiscation a lawful and praiseworthy object, and that this circumstance renders this case wholly different from those I have cited. Here, as any one can read the case of The Walsingham Packet who chooses to refer to it, I do not think it necessary to read it; but the principle on which it goes is, that you are not merely violating the law of the country in name and appearance, but doing an act held by the statute law to be injurious to Great Britain; you are endeavouring to obtain for yourself, for your own commercial purposes, the advantage of a trade prohibited by that statute law; therefore, as Lord Stowell very properly said, it was a breach of a great moral and legal principle. Stronger words I need not use; and the whole of that judgment proceeds on that ground. The Etrusco was a similar case: there the claimants of the Etrusco were carrying on a trade prohibited by the law. The second point is undoubtedly one of great difficulty, and of no ordinary magnitude, namely, that a decree of restitution would convey the ship to claimants not on the registry, and that this ship is a British ship. Yet upon this I will observe, that I do not recollect, and I do not believe, there has been any case in which a British ship has been claimed where any inquiry or question has arisen in the Prize Court as to the British register being in compliance with the bill of sale. Such formalities have not been entered upon, and, unless it was my bounden duty to do so, I should be reluctant to embarrass the Court with such questions — perhaps less embarrassing and perplexing now than they were in those days, but still quite sufficiently difficult not to induce the Court to volunteer to go into them unless it were distinctly a part of its duty. Then, again, it is a serious question how far the register alone would be binding in a Court of Prize; for could I condemn this ship as the property of Brandt & Co. merely because she was registered in their name, when I am of opinion that there was no transfer and that the selling was merely colourable? I apprehend I could not. I might condemn her for another reason, but I could not on the ground that she was the property of Brandt & Co., because the Court of Prize never goes on a mere formal instrument. Over and over again Lord Stowel, has said it is not the documents themselves which the Court goes upon; they must be true; they must be bona fide; it never goes on formalities. This is a broad distinction, which I consider not only indispensable to prize law, but to be one of the most honourable distinctions which exist between a prize and a municipal court — that a Prize Court looks to that which is bonâ fide true, while a Court of law is sometimes bound by formality, which prevents real justice in the case. But supposing this colourable bill of sale, and consequent registry, to be made to a neutral merchant, could I restore them? Raise the question in that point of view, on the ground that no one else had a legal of equitable claim, could I restore to the neutral merchant? Now, what would be the effect of a decree or restitution in the Court of Prize? The possession of the vessel would be given to the claimant. This Court does not decide that the vessel is entitled to a British register; it has nothing to do with that question. It does not say whether there has been a forfeiture according to statute law or not; that is the province of another Court. It is silent, as it ought to be, as to penalties. The vessel may have been forfeited twice over by municipal law, but the Court would act exactly as if no such thing had taken place. Now, are there any cases in which a Prize Court would restore, whatever might be the case with respect to a British register? There are no such cases on record- no such case have occurred, as I believe I know none. Take this case: suppose a British vessel sold abroad to a neutral subject-I apprehend a neutral subject might acquire a title which the Court must recognise, whatever was the state of the register. I apprehend it might give no title to a British subject, but it would convey a good title to a neutral, which I should be bound to respect; for the Court restores not as a British ship, but simply as a ship bona fide sold. I should not generally inquire and this is a delicate question by what law a vessel has been sold. See what the consequence would be if I did. If I were bound, in case a vessel was claimed by any neutral subject of any one of the states at present neutral, to ascertain precisely what was their law, whether the purchaser had acquired a good title by their law, I should be under the necessity of becoming, what I am sure I never shall be, master of the navigation laws of all these countries. Supposing I could by possibility get a glimpse of them, I never could ascertain whether there had been a fraudulent use made of them, if they had a register answering to something like our own, or whether all the formalities had been strictly complied with. True, the Court does sometimes make the inquiry. But why? For the purpose of ascertaining if the sale was bona fide. For that purpose, I confess, it might be considered important. But supposing you take the case of a neutral subject claiming a ship, and supposing the neutral in possession of the ship and I was satisfied that the possession was a bona fide possession, I certainly should not inquire if he had obtained his title through all the formalities of the country, both of the vendor and the vendee, because both would necessary to be inquired into. Again I say I should not enter into that inquiry, provided I was satisfied that he was the bonâ fide owner. I am well aware, with respect to English law, that the obligation upon this Court may in some respects be different, but still, I think, according to the best of my judgment, not to the extent of requiring me minutely to examine the title not contested by any other claimant. I am of opinion, therefore, that I am at liberty to make a decree restoring this vessel to the claimants, not as a British ship entitled to a British register, for of that I do not judge, nor do I say, I repeat it again, that there has not been a forfeiture or penalty incurred: with that I have nothing to do. Before I come to a conclusion, I must consider what are the other objections so properly raised, and so very ably supported, on the present occasion. One, I think, I may dispose of, though not unimportant, in a few words. It was argued, in opposition to the bona fides of this transaction, that the claim was made by an agent, and ought to have been made by the parties; and I entirely agree with the truth of that observation, and think it was a circumstance of some suspicion, but I cannot say it was really anything more. I cannot suppose, as it is the commencement of the war, that the parties who are concerned in this matter, or their advisers in Scotland, were so well aware of the ordinary practice of this Court as to render it absolutely incumbent on them to be possessed of a knowledge of this course of proceeding, or that it was an error not of venial importance; at the same time, it would be of importance, unless the other facts removed the suspicions that arose from this circumstance, and which have not been explained, as they might have been upon further proof. It is said, secondly, that I might restore the ship, and condemn the enemy's interest in it, if he has any. But what is that interest? A bottomry bond is admitted in the memorial that fact never was kept back. As to the master not having mentioned the circumstance of a bottomry bond, I was originally struck with the argument as to his silence; but I have had reference to the interrogatories, and I do not see that the interrogatories pointed to a bottomry bond at all. I do not see that there was an intentional concealment, and it comes out from the mate. I do not see that the interrogatories distinctly called for the master to allude to it, or indeed at all. I may here observe, it is not improbable-though I think I might have had more information on the subject, but some of the parties did not choose to give it-that Messrs. Brandt & Co. having a bottomry bond, and knowing they could not enforce it here, or believing they could not enforce it, that was another reason why they offered to restore the ship on the condition of their advances being paid. They said, first, "We have got a mortgage deed of doubtful validity." Again, "We have got a bottomry bond of still more doubtful validity: we cannot enforce it; but we will not transfer the ship-we will not be active unless we get our money back again." That I believe to be the real condition of the deed of the 8th July. Then how can I follow the course suggested of condemning this interest? If the bond be considered as given to an enemy, it is a nullity-it could not be enforced; if it is not given to an enemy, then I could not condemn such interest. Again: it is wholly contrary to the usage of this Court to take notice of either a mortgage or bottomry bond. I believe there is no instance in which it has been done, and all the cases and principles and decisions are to the contrary. I should be very unwilling so to do, in the present state of the law with reference to mere declarations and Orders in Council; and if I do not restore this vessel to the claimants, I have no alternative but to condemn her to the Crown. And how? Not as taken by a non-commissioned captor, but I must condemn her as The Etrusco was condemned, for a violation of British law, to the Crown. I could not condemn her on any other grounds; and so to condemn her I think I could not do. First, because I have no proof of a violation of British law which by British law would entail such consequences as condemnation. Secondly, because there has been not intention to commit a mala fides act in violation of British law. Lastly, because the whole transaction is a deception on the British customs for the purpose of protecting British property, not for the purpose of deceiving British authorities; not with the intention of violating British law, but for rescuing property supposed to be in the grasp of the enemy. I do not say that this course of proceeding, even for a laudable purpose, is quite a correct proceeding; but I think I ought not to stay my hand in pronouncing a decree condemning this ship. I trust, in coming to this conclusion, whether well founded or not, I have at least fairly stated and met all the difficulties of the case. This inquiry has been most properly instituted. Neither the officers of the Customs nor the officers of the Crown would in my opinion have been justified in releasing this vessel without the judgment of this Court. It has had to steer through many difficulties, of a perfectly novel character; and where there are difficulties, according to my view of the case, a ship never ought to be restored except a competent jurisdiction. The judgment of the Court will be to restore the ship on payment of the expenses which have been incurred by the Crown. |