Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 in nEnoRY OF JUDGE DOUGLASS B0ARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017830278 DECISIONS HIGH COURT OF ADMIRALTY, DURING THE TIME OF SIR GEORGE HAY. SIR. JAMES MARRIOTT, LATE JUDGES OF THAT COURT. EDITED BY GEORGE MINOT, COUNSELLOR AT LAW. VOLUME I. MICHAELMAS TERM, 1776, TO HILART TERM, 1779. BOSTON: LITTLE, BRO WN AND COMPANY. Entered according to Act of Congress, in the year 1853, By Little, Brown and Company, in the Clerk's Office of the District Court of the District of Massachusetts. RIVERSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. NAMES OP CASES* REPORTED Page Anna Christiana . . Swedish . . 1 5 1 i i; I Bee British 218, 221 Betsey British . 80 BONAVENTUEA Swedish . 235 Bonne Amitie French . 160 Bkita Cecilia Swedish 234 Commerce French 80 Concordia Affinitatis Swedish 16 9, 289 Concordia Sophia Hamburg 267 Dame Catherine de Workeem Dutch 243 Declaration of certain Eights 1 OF 1 HE Lord High Admiral . , 50 Dickenson American 1 Drib Gebroeders Dutch 270 Enckeit Danish 217 Friendship French 78 Goede Hoop . Prussian 215 Grand Terrein French 155 Gruel . English 147 Hendrick and Alida Dutch 95 Het Fortuyne Dutch 219 Hope . American 216 Hoppet . Swedish 217 Jeane Isabelle Swedish 185 Jean and Samuel Dutch 243 Instructions to the Eeceiver-Genera L of the Eights and Perquisites * 70 Joanne Jean Vanderleye . Dutch . 150 John . • • . English . 152 JONGE GERTRUYDA . . Dutch • . . 246 JONGE GUILLIAM Hamburg . . 220 JONGE JOSSLERS Dutch . 148 JONGE JUEFERS Dutch . 272 Juffrow Anna Gedtruth . Hamburg . . 221 Juffrow Gerard a v ' Dutch . 269 Jungfre Maria . , Danish . 273 Kronta Ancharet . Swedish . 258 Louisa British . 143 Lucretia American . . 227 Maria Magdalena . . Swedish ■ 247 IV INDEX. . . Page MlGNONE ; British . 221 Minerva ..... Portuguese . 235 Patent to Commissioners for Lord High 53 Admiral .... • " • Pere Adam . . . . French 141 Perlan ■ • . Swedish 235 Postilion ..... Lubeck 245 Prosperite or Welearen . . . French . • ■ l fi 1, 295 Prudentia . Swedish 246 Quatre Freres .... Danish 1.70 Rebecca . > American . 197 Renard , ■ . Reglement, 21 Octobre, 1744 British** . Frencnw ■ 222 311 PvEGLEMENT, 26 Julliet, 1773 . French 303 Sally . . , American 83 Santa Eeis Portuguese . . • 150 Sarah and Bernhardus Danish . i ..." ■ 174 Store Ships ..... Dutch 287 Theodoke . . French 258 Vander Leye, .... Dutch . . . 184 Veranderen ..... Prussian 180 Vrow Antoinette . Hamburg 142 Vrow Margaretta .... Hamburg 219 Vryheid - . . , Dutch 188 Wanderingsman .... Swedish 176 Warrant Appointing Receiver-General '• .. and Commissioners of Rights and Perquisites . 66 William and Grace Dutch 76 Wynberg ,.t. . . •' y,:,,,, ,- Swedish 234 Xavier .' . . :-.,/■ Hamburg . : 219 Yonge Helena . . '"i Dutch . 141 Zacharie and la Vigilantia Swedish 215 Zelden Rust .... Dutch 220 PREFACE, It has been long complained that there are no public reports of decisions in the Court of Admiralty, or Ecclesiastical and Testament- ary Courts among the civilians. Their jealousy of the common law- yers, and a concealment of what passes among the little knot of practitioners, seem to have occasioned that respectable and learned profession to be compared to the Talmudists among the Jews, who only dealt in oral traditions or secret writings. No persons were allowed to be professed practical conjurers but the Sanhedrim them- selves. That complaint is now in part removed, and, as it is an- nounced, will continue to be removing by a publication of Reports of Cases argued and determined in the High Court of Admiralty, com- mencing with the judgments of the Right Honorable Sir "William Scott, Michaelmas term, 1798. Those reports may tend, with former precedents, to convince the world that the government of Great Bri- tain has done and does justice, in the fullest and most open manner, to neutrals in war, as well as to its own subjects. It is to be hoped that, now the veil of the temple is drawn back, some advocate, equally accurate with Dr. Robinson, will publish reports of cases adjudged in the Ecclesiastical and Testamentary Courts, and under judicial approbation and sanction. Severe remarks to their prejudice have fallen from persons who know little of those courts. The printing these decisions of the High Court of Admiralty, be- ginning Michaelmas, 1776, previous to those of Sir William Scott, was at the desire and expense of government; and if they are shorter and less in a popular style than those lately published, they had the same motive. No motive but one purely national occasioned these former decisions to have been ever committed to the press. The jus- tification of the conduct and character of the British government upon public and avowed principles, so as to gain that most powerful weight in the machine of human affairs, universal confidence, was the great object ; to prevent, if possible, the ideas of neutral powers, founded on their own arbitrary modes of proceeding, from harassing the British ministers personally with unreasonable complaints, and with demands upon them of doing that which was impossible in a vol. i. — h. & m. 1 ii PREFACE. limited government, as it was unreasonable to do j and otherwise, from forming those coalitions which, long foreseen, have now taken place, so as to render by such coalitions, if possible, the naval power of Great Britain of little consequence ; from giving the utmost assist- ance to a frequently defeated enemy, under the pretence of neutrality, and of protected carriers of the weakest belligerent, and from pro- longing the war. If this could be permitted, it is to no purpose that the maritime commerce, wealth, and power of France seem almost annihilated, if, at the very moment of perishing, it shall be permitted to revive. A British minister, of very high authority abroad in the last war, expressed himself in the most pointed language, in one of his letters, that a judge "of the High Court of Admiralty of Great Britain must wipe away a notion which foreigners had adopted, that the court was composed of several men, that the judgments were according to the common law of England, that the court#yas but the little finger of the first Lord Commissioner of the Admiralty, or rather of the efficient minister, and that the judge himself was removable at his nod ; but that "the idea, on the contrary, should ba impressed upon foreign go- vernments, that a British judge of the admiralty was independent, in a certain degree, as much as the other, judges of England by the Bill of Rights, and amenable only, like them, to parliament ; that he must have a spirit of doing equal justice, " Tros Rutulusve" as if he were the chosen umpire of every maritime country of the universe, in the first instance of a litigated cause, appealable only to the supe* rior tribunal of state. The words of the sentence are singular in the style of this court, " Thrice calling upon the name of Christ, and having the fear of God alone before his eyes, the judge pronounces and decrees." This shows the original idea, that he might be a man of too pliant and practicable stuff; that he ougjg; to be a man not actuated by personal views of ambition and avarice, and courting by a mean adulation, for the purposes of the day, the smiles of a supe- rior, or the popularity of any set of men of,any sort of profession. He should be without narrowness of mind, or meanness of education. In short, a judge ought to be a man intrepid. It has been suggested that the powers of a judge of the High Court of Admiralty were too great to be intrusted to any one man ; but is it true that those powers are unconstitutional or unnecessary ? Have they ever been abused ? Are they unlimited? Let all this be first proved. For the answer to one question, we may refer to the decisions down to the period preceding the present administration of the national justice. To the second question, the jurisdiction in primo limine is limited by an appeal to the king and council. The lord chancellor of Great PREFACE. Ill Britain is limited by appeal to the House of Lords, although it finds him there as speaker. The lord chief justices are limited by- writ of error to the same august tribunal. The powers vested in the sovereign, and in his minister, the delegate of authority, however great these powers are, they are constitutional ; and, what is more, they are necessary. But putting all these powers into commission, and introducing republican despotism and summary proceedings, must destroy all confidence, both in British subjects and in foreign. If it could be supposed for a moment that justice were weighed in two different balances, of personal interest and impartiality of judg- ment ; that foreigners should even become judges of their own causes of prize ; that justice should have only one eye in one place, but two or more in another ; in a word, if this were so, the having a boot or a log for a judge would have answered best the interest and views of certain persons. What sort of men judges upon any benches have been, is best seen in British history. The faithful records of time when man- kind became more civilized, enlightened, and free, will transmit, their names to a disinterested and discerning posterity. Sir Julius Caesar, in the reign of Queen Elizabeth, Sir Henry Vane, in that of Charles I., Sir Leoline Jenkins, who was also secretary of state, Sir Thomas and Dr. Exton, judges in that of Charles II. and Sir Charles Hedges, secretary of state in the reigns of William and Queen Anne, all stand forth as prominent characters to an impartial public. If any opinions rather leaned to answer the purpose of the moment, it is not to be wondered that any person possessed of the exercise of royal power wished to draw them to his own will and pleasure, and to have the sole and immediate direction of those scales in which right and wrong were to be weighed, and concerning which he ought to have been instructed, rather than peremptorily to dictate. The cha- racters of James, Duke of York, Lord High Admiral, and of the king his brother, Charles II., need no comment. As to their succes- sors, those judges whom we have known, or know personally, nothing need be said. The latest decisions in the first instance have found their way, through the medium of the press, to the world. What will be the definitive determination, rests with the Lords Commis- sioners of Appeals in the privy council. In the war before last, the neutral agents in causes of prize, desir- ous, as it was natural, to enhance the merit of their own services, and every man to have his own activity, diligence, and sagacity taken notice of in preference to other agents, wrote to their correspondents abroad that nothing could exceed the expensiveness and delays of the High Court of Admiralty ; that no redress was to be obtained from the justice of that court, nor equity of the British government, but IV PREFACE. by force, or making all affairs of capture the subject of ministerial intervention and complaint, as between sovereigns. The practice was then (not so indulgent as since) to pronounce almost universally for just cause of seizure and. expenses, and for fur- ther pleading and proof on the part of the claimant. At all events, the capture was a prize to practitioners. Neutrals were, if not driven to compromise, harassed, and the minds of men in the mercantile, as well as the political world, were inflamed. Pleadings were introduced against pleadings ; expensive commissions were sent abroad to exa- mine witnesses ; and the simplicity of the process of a Court of Admiralty, which, particularly in causes of prize, ought to be as sum- mary as possible, and, as the style is, velo levato, (with full sail hoist- ed,) was changed to the resemblance of the long : tailed and incum- bered proceedings of a court of chancery. France, distressed, found it her interest, instead of enforcing her own rigid ordonnances, to' fling the carrying trade of all her domestic and colonial produce into the hands of neutrals, and particularly of the Dutch, which nation had by treaty the especial privilege of .free ship, free goods, but which France now encouraged all the Northern maritime nations to arro- gate to themselves as a matter of common right, as by a new law of nations ; and that although each nation was bound by its own particular treaties, yet the sea ought to be considered as free an element as the air, and every man's ship as his own castle, and the national flag and pass as sufficient to protect a ship and cargo from being stopped, and particularly from being searched and brought ir^ for adjudication. The British cruisers covered the ocean: the instructions of the British government were peremptory, and scarcely a neutral ship left a neutral or enemy's port without having the property of French subjects on board openly or covered. The activity of cruisers made them bold in a predatory war : merchants of all nations interested directly or indirectly, were loud in their cla- mors to the ministers of their respective countries ; all were anima- ted with the desire of making themselves of consequence, or gaining some profit. The doctrine of " free ship, free goods," and treaties, were ill understood or overlooked. " Free ship, free goods," is a short pithy sentence ; but the application is from misapprehension of the sense, or from taking for granted that the proposition is true uni- versally ; for all neutral ships are not free by the law and usage of nations, but only those that are privileged specifically by treaties ; and nations, although pretending to be non-belligerents, must make themselves actual parties in war when they assist oneof the bellige- rents. It can never be so much for their interest as to be simple car- riers. What would be the fate of neutral wagons attempting to 'go PREFACE. V through the lines and posts of a belligerent power? The British government was alarmed with a fear that all the northern maritime powers would form a confederacy, and enforce a free commerce, which would render a naval war and ascendancy of the fleets and armaments of Great Britain not only of no avail, but even give a preponderancy to those of France. Our own merchants, particularly the insurers, felt with the enemies of England. The question was actually debated in the committee of the States General of 'Holland, whether they should not declare war against England. The for- wardest of the foreign courts upon this occasion was that of Prussia, scarcely with a ship or a port, its flag was to be held up to protect the world. The Elector of Brandenburg had a personal dislike to the Elector of Hanover and King of England. A low man, with as low esta- blishment, was sent hither in a diplomatic character, to show con- tempt, to affront, and complain. The common lawyers of England, who are the great counsellors of its government, but who knew little of the Admiralty Court and the law of nations, arrogated all power and knowledge to themselves, but were, when called upon, unable to answer the memorial of the Prussian minister, Mons. Michel. To Sir George Lee, the archbishop's judge of the Prerogative Court, and Dr. Paul, the advocate-general of the king, two eminent civilians ; were added two great common lawyers, the attorney-general, Sir Dudley -Kyder, and the solicitor-general, Mr. Murray : who all of them drew up an answer and signed it. The latter, from the place of his birth, had a predilection for the imperial or civil law, which he quoted on many occasions, and piqued himself upon a superior know- ledge. He took to himself the principal merit of this performance, which was ushered into the world with great eclat, and by high au- thority. Notwithstanding all this, there is reason to believe, that the King of Prussia having threatened to invade Hanover, the whole matter was put to sleep by our government privately restoring the value of the ships and cargoes, protected, as it was insisted, by the Prussian flag, although the property of enemies of England. The pertinacity of the King of Prussia was Unfortunately increased by Lord Grenville, favorite of King George II., and the great adviser of his councils, having used a lively expression, " that he never heard of the flag of Berlin before, and should as soon have expected to have heard of the flag of Frankfort." 1* V1 PREFACE. The same notions of " free ship, free goods," were again revived in the last war by the late Empress of Russia, not understanding them, and putting herself at the head of what was called the armed neutrality. One Carlo Bereens, a Livonian, merchant, lawyer, and politician, in a furious memorial, informed the empress that he and others of her subjects were greatly obstructed in their commerce by the English cruisers ; that England could not command a ball of packthread without her, and that she had nothing to do but to speak the word. The immense profit of the balance of trade between Great Britain and Russia was never stated or considered. To her resentment, expressed too hastily on this occasion, the British go- vernment thought proper to submit, and a quantity -of sail-cloth, sufficient to have fitted out the whole Spanish fleet from Ferrol and Cadiz, was restored upon reversal of the decree of condemnation in consequence of an appeal, and the captor absolutely condemned in costs and damages. But the effect of the sentence in the first in- stance was the stopping the Spanish fleet. The idea of government was, that this great lady must not be put out of humor, and that in granting so much to the Russian flag for the moment, there was nothing very material granted in fact, because it was notorious that the Russians have but few merchant or carrier ships of their own, perhaps not half a dozen; and that the true doctrine of the law of nations is, that the ship confers the privilege on the flag, andnot the flag upon the ship ; and lastly with respect to the armed neutrality, , Denmark, Sweden, &c, must be judged in cases of capture by their own separate and several treaties, as well as they would be guided by their own particular, interests. It is no matter of surprise that the lowest of mankind who tiu, arrogated a name, too honorable for themselves, that of merchants, men who are the refugees of every country, bankrupts in property and reputation, and even traitors to the very government under which they were born, and have been and are protected, should be the low instruments of faction and hostile intrigues against it, wish- ing to advance themselves in wealth or consequence. It is no matter of surprise that men of very narrow ideas, such as masters and own- ers of -ships, accustomed to mesquinerie, and the feelings only of lit- tle profits and losses, should see so little of their own greater inte- rests, but that enlightened persons of education and reflection, sagacity and high rank in the cabinets of sovereign princes, whom they advise and direct,' should not discover the attempts of little busy intriguers to blind and seduce them, by giving way to false repre- sentations, and run counter to the most solid interests of the sove- PREFACE. Vli reigns whom they advise, and of the nations whom they guide, is astonishing. Sir Joseph Yorke, in one of his letters, calls the envoys of certain foreign states not ministers, but a harder name, humbly and ill-paid by their own government; bette* by the enemy as licensed spies : and their despatches home filled with articles taken from the newspapers of faction. If ever a fact were well known and established, it is, that the purchase of naval stores by the British go- vernment, the restitution of the ships, the payment of freights to the place of destination, and all reasonable demurrage allowed, was a most beneficial thing for neutral carriers. No credit being given by neutrals to the French government, for all cargoes laden oh its ac- count were paid for previously to lading or sailing, the carriers then sold these same cargoes to the British government upon capture and detention, and thus in fact derived the immense profit of cent, per cent. . double freights, short trips instead of long voyages, &c. &c. Not- withstanding all this, a privilege most systematical and problema- tical is now to be supported by blood ; all these profits are to be put an end to, and the theory of French politics and philosophical liberty of the seas to be announced and supported. "What a delirium" must have seized those persons who govern the world ! The masters and owners of ships almost in every neutral port, according to the letters of Sir Joseph Yorke, were perfectly satisfied,, and even delighted. Nothing more could be asked or desired, and nobody was discon- tented but the navy board for their contracts and contractors, the treasury felt for a very wise and political, but great expenditure, and the enemies of Great Britain were the sufferers. ,.,ld not be expected that the commissioners of the navy board siiimld be men of long and correct views ; their ideas were the nar- row ones of profit and loss of the immediate moment. They accord- ingly addressed themselves not to their proper principals, the Board of Admiralty, of Which they are but a subordinate and dependent branch, but to the secretary of state for foreign affairs, by two letters, one dated 29th September, 1779, the other on the ,28th of October following. The commissioners proposed, " as a method to avoid the expense of the long demurrage of neutral ships laden with naval stores, which upon examination they said they had found of too inferior a quality to be employed for the use of his Majesty's navy, and neither useful to us or the enemy ; that the demurrage is a ground for complaint of neutral subjects and a great increase of public expense;" and (that the expense might lose nothing in figure) they observed, " that accord- ing to the discount of navy bills for some time past, this expense was equal to 240,000/. That the valuation made by their officers amounted to no more than 135,000/. ; and they proposed that they should be Vlll PREFACE. furnished with specifications of -the cargoes of all neutral store-ships, before the Court of Admiralty takes any notice of them, and tha% they may have an option to purchase according to circumstances." The answer to this attempt of the navy board setting themselves up for independence was very obvious. That the assuming the jurisdiction in prima limine of the High Court of Admiralty was unconstitutional ; contrary to the instructions of his Majesty to his cruisers, who were to bring in all their prizes and proceed regularly ; that freights, demurrage, and costs were to be set- tled by two eminent unobjectionable merchants, named by the judge, and in the presence of his registrar ; that every difficulty was proposed to be flung upon the king's ministers, the captors and the claimants, the latter of whom had pledged to them the royal word by the decla- ration of the Earl of Suffolk of the 19th October, 1778, that in all. •cases of stores bona fide laden before the notification of the' war, and no prevarication or frauds of either oral or instrumental evidence, rea- sonable demurrage was to be allowed. If the navy board and their officers were to have their option to purchase or reject any sort of naval stores, let it be asked, who were to have paid the expenses of seizure, detention, and demurrage, or was the innocent neutral to take away ship and goods at an immo- derate loss ? Not a rope, a spar, or a board but was useful, contrary to the untrue suggestion of the navy board to either his Majesty, to this nation, or its enemies. It is well known who and what British merchants had contracts for naval stores at Petersburgh, and other ports in the Baltic, for the French arsenals and government ; and if at last neutral foreigners were induced to yield to the temptation of England and France out-bidding each other, and brought smaller naval stores in the way of British cruisers, it was no policy to reject them, under the invidious name of rubbish. A great man, so pur- blind as to read every paper with pain, found it easier to make a blustering speech or raise a laugh by a joke than to take trouble to be informed of the necessities of a nation which he had then plunged into a war, which has changed and is likely to change more and more every day the face of «the universe by its consequences. " If neutrals were to import punch and his puppet show, were they to be bought? " " Yes ; .and nobody so proper to show the puppets as himself," was the answer. This island was to be the depot of all the naval pro- duce of the north ; he was ashamed. The navy board was repelled • and all the honest neutrals highly gratified. Our high allies, the mas- ters and owners of ships and cargoes, were to be subsidized by the most ample justice being done to them ; the credit and integrity of this PREFACE. IX country was to be raised to the utmost pitch of honor, and our restless enemies both at home and abroad to be reduced by the want of more arms to lay down those they had in their hands, and thus leave the world in safety and repose. The insular position of Great Britain and Ireland, crossing the line of navigation of the northern nations, a narrow channel dividing these islands from the continent, give to the British empire the means of commanding the surrounding seas ; and to its western squadrons, passing across in. two divisions one one way, the other the other, t every power of self-defence and offence, and of controlling the com- mercial world; To prevent as much as possible the bad effects of this new doctrine of « free ship, free goods," under which it would be impossible for the British nation to carry on a naval war, it was judged proper by go- vernment that as soon as any decree of restitution, or of condemnation, or further proof should be pronounced in the Court of Admiralty, it should be published in one of the common papers, which should be most impartial and popular, and that a number of impressions from the very same press should be taken off, and sent immediately to the British ministers at all the neutral maritime courts, so that they might be masters both of the facts and; the reasonings, and ready to give an answer to the complaints of those courts before any misrepresen- tations should find their way from heated or interested persons in this or in any other country whatsoever. By this publicity, a confede- ration of all the northern neutral powers was, for that time, prevented, and the most active and furious agent of the Dutch claimants, in his correspondence, was contradicted and repressed, so that he was actually driven from his agency. Before this period, (1779,) the Memoire Justificatif de la Conduite de la Grande Bretagne, en arretant les Navires Neutres, was drawn up by the then advocate-general. 1 A man of eminence in Holland, could not help owning to Sir Joseph Yorke, the British minister at the Hague, who circulated the Memoire by order of the then govern- ment, and to the grand pensionary, the latter of whom said it was damned strong, that it was damned true. It paved the way, and laid a foundation for better sentiments ; if it were possible to satisfy commercial people, but that seems impossible. 1 Sir James Marriott. This has lately been reprinted, and is sold by K. Bickerstaff, Strand. X PREFACE. The French revolutionary government had no sooner got rid of the regal, than they seemed to be determined to change every thing ; so that there might be a new language and a new set of ideas among mankind, until all the old ones should be forgotten. That this altera- tion did not proceed from the frivolousness of the French character, merely, is very apparent. The policy is obvious, and it can be very little doubted what order of men have been and are at the bottom of this revolution, when we recollect under the monarchical government and influence of the. house of Bourbon the republic of a religious society. A republig independent of all other /political, commercial, and religious associations it certainly was, and consisted of more than 30,000 members of the first learning and abilities,' following flhe institute of a military founder and madman, scattered either openly or in various disguises in all courts, and over the whole face of the globe. The epithet of the French republic sufficiently marks its genius and origin, and to be taken from ecclesiastical language and doctrines, " One and indivisible." Among other innovations, nothing speaks more clearly the scheme and views of the new legislators to revolutionize the whole world, to pull down the old constituted authorities, and to draw all power to themselves, (in fact acknowledging their own weakness,) than by prompting neutral powers to come forward and act in, open defiance not only to their own treaties, but the usages and established law of nations. The stopping, searching, and seizing the ships and properties of neutral nations upon the high and open seas, has always been a mat- ter of great delicacy, debate, and agitation. But to what tribunal could the party who complains of the injury fly but to arms, and to appeal to heaven, if there were no interposition of a maritime jurisdiction of the aggressor ? * Courts of Admiralty were therefore set up in all civilized maritime countries, where both the subject and the foreigner might apply for redress, with an appeal to the sovereign power of the state, whose cruisers and subjects are supposed to have been guilty of infractions, either of the general law of nations, or of their own laws and instructions. This jurisdiction was of necessity ; and where the property was, in that place and country only could the judgment be. It is singular that in the patent of the judge of the High Court of Admiralty, there is no particular jurisdiction of prize of war or re- prisal expressedly given. From this circumstance an argument has been raised upon the insinuation of facts of delay, of impractica- bility of temper, and of want of experience of forms in a substitute. The power of substitution was given by all the former patents under the great seal to the judge, who is certainly the best judge of the PREFACE. Xi character of his own substitutes in his own court. The regular order of seniority could only influence him. A substitution, only as tem- porary, was intended, and not to take place constantly and in any great case, except with information and advice, ad referendum. Much also was said, more than was true, on the subject of ill health, and the impossibility of going on with business, so that with an omission of acquiring proper information, a distinct commission for judgment of prize was directed to be instantly prepared, without the least com- munication to the party of too high a rank and character to be treated with disrespect. The attorneys and practitioners of any other court who should dare, without presenting their complaints to their own judge, to pro- ceed to libel that judge, would never be permitted in a court of chan- cery or of common law without the utmost indignation. A memorial was secretly obtained to be signed and presented with many false complaints, which came not only from practitioners who were eager to oblige their clients, the neutral claimants, but they arrogated to themselves, as it were, the sole direction of all causes, and approba- tion and disapprobation of persons, both judges and substitutes. Foreign claimants were taught by some persons to suppose their proctors to be both advocates and judge. No wonder if complaints of expenses were and are encouraged, and the cry of excessive charges echoed and reechoed by foreign ministers and merchants, when public entertainments were given by certain persons to the maritime corps diplomatique and the agents and masters of neutral ships. Foreign consuls and vice consuls had assumed on the French principles a diplomatic character and privileges, denied to them formerly in M. de Passow's 1 case, by the whole body of the then foreign ministers. Foreign consuls have since thrust themselves into very lucrative agencies ; acting in a double capacity ; have been eager for commissions of appraisement and sale, and pressed for further time or further proof of title and documents, at the same time laying their own profitable prolongation of suits at the door of the judge ; enhancing the number of causes, (notwithstanding lists were ordered to be hung up publicly in court,) by saying, most equivocally, " that no causes were heard which were not finally heard ;" and as if among those causes there were not a prodigious number appealed from the Vice- Admiralty Courts abroad, to the infinitely harrassing his Majesty's ministers and the Commissioners of Appeals in the privy council ; and as if no time were to be allowed for production of the necessary evidence and papers, by a very small 1 The Danish consul, Xll PREFACE. body of men who attend and practice in many other courts, as well as in the High Court of Admiralty. In term-time, the courts at Doctors' Commons, with the by-week, (only unobserved in the short interval of Easter term) make sessions of five weeks ; there are five courts in a week, in which many causes of great length and importance, testamentary, matrimonial, and ecclesiastical, are heard. In periods of our history, when the fashion of putting all the great officers of the crown in commission was not introduced, as at the revolution, the Lord High Admiral devolved his authority to his lieu- tenant, under his own great seal ; and there is not a single instance in the history of our laws where the judgment of prize of war or reprisals was not exercised by his lieutenant according to the usage of such exercise, which usage was by the common law of the land, and the law of nations. It appears from Bymer's Fcedera, that in no special commission in any case of reprisal was his, lieutenant ever omitted to be named quorum unus. "What has since followed by putting the Lord High Admiral's authority, as well as that of almost all other great officers of the crown, into, commission, is well known; and thus every board, has become a little republic, and an imperium in imperio. "Where the concentration and power now rests is obvi- ous. Supposing, therefore, that the power of judging of prize of war and reprisal in peace rests in the crown, delegated by it and by the constitution to the Lord High Admiral, and by him to his lieutenant, in the same way as all judicial powers in the crown are delegated to the king's judges, by virtue of the commission of the great seal, of which the lord high chancellor is the keeper, and subject to no altera- tion or removal, otherwise than by the act of parliament called the Bill of Rights, it is certain that the judgment of prize is put in motion by the Prize- Act, and given to all Courts of Admiralty, the same being duly authorized : and this act of the whole legislature exactly corresponds with the existing treaties of the crown with all maritime states, who, refer by especial articles of treaties the claims of themselves and their subjects to tHis jurisdiction ; and if the court exceeds its jurisdiction, it is the business of the common law, para- mount to all others, to limit by prohibition. The omission of all regular proceedings for the discovering truth, and doing substantial justice, is assuredly wrong, under a popular idea of avoiding expenses, thought to be excessive, by commissions which let foreigners in to be judges in their own causes of complaint; PREFACE. Xiii but which in the regular course are always open to correction, when complaint is made to the judge, and are to be examined by him and his registrar. The case of the Oester Ems has been reported with inaccuracy. It made a most material part of that case, (but no notice is taken of it,) .that it came to the High Court of Admiralty for decision, in conse- quence of the consent and request of all parties. Assuredly nothing more can be wanting to establish a jurisdiction. The lord warden of the cinque ports, who claimed the droit, and was in possession of the treasure, his judge, who became an advocate, the Prussian master himself, who set up the demand of. privilege, all prayed to be heard by the High Court of Admiralty, rather than by the Court of the Cinque Ports. The proctor, who was defeated in the latter claim, was advised to appeal to the commissioners of appeal in council. They were of opinion against the lord warden ; pronounced for the appeal, and reversed the sentence of which Lord North was in posses- sion in the court below, and assumed and exercised themselves, by reversal, that very jurisdiction against 'which they pronounced. A ■ common lawyer was the mouth of the council, and refused saying to what other jurisdiction the cause belonged. The party, being 30,000/. at least the loser, sat down patiently, and never thought (orthought very little) of a prohibition to the court of appeal ; however, it has been said, from pretty good authority, that the affair was compro- mised ; whether before or after the final decree, is not clear. Omis- sions and additions are not much to be wondered at, when we know who furnish the materials and for what purpose. It is a common saying among all the pleaders of the long robe, "A bad precedent is worth two good ones." It is to be hoped that the final decision of the case of The St. Jago (that case had in it very particular circumstances and features) will never be quoted in the way it has been. Its policy and its justice have been doubted by some people. The history of it will probably one day or other be better known to the whole world. It would have answered every wise purpose of government if an eighth, instead of a tenth, agreed for by Lord St. Helens, (which latter was much less than is given by act of parliament to British recaptors,) had been decreed instantly to the recaptors, and so much of the decree below Confirmed, and the rest suspended and deferred for further consi- deration. Alliance and friendship with the court of Spain would not have been so readily" broken ; a knowledge of what each party had in their hands, (the court of Spain had immense sums of British vol. i. — h. & m. 2 XIV PREFACE. property,) and what each could constitutionally do, would have been obtained, Too many of the common-law reports, in general so celebrated for lengthening and adorning arguments by an affectation of much study and learning, and that sort of reading never to be read, as well as for justifying one wrong judgment by another, and giving the appearance of justice to injustice, are chiefly the productions of illiterate clerks who misunderstand, and which mark the low characters of the writers who perpetuate " much bad reasoning in much bad language." All arguments upon precedent deserve little to be relied upon. False principles or false consequences are to be found in many reports, and only show how much mankind are disposed to pervert justice under the appearance and pretence of doing it. It is by the principle, and not by the precedent of the decree, mat- ters should be adjudged :• " Non exemplis sed legibus judicandum est." 1. 13, cod. et inter. 1, omn. Judic. Licet is quiprovincias prse est omnium Romae magistratuum vice et officiis fungi debeat, iiontamen, spectandum est quid Roma factum est, quam quid. Romae fieri 1 debeat. I. 12, Dig. de Officio PrEesidentis. One should suppose that justice was one of the simplest ideas in nature, but how complicated must it appear w.hen we. travel from the tractafus tractatuum down to the latest publications on all sorts of law? Little ought to be our sur- prise, when we find that German and Dutch " magnificent " profes- sors, as they call themselves, and who in general are only school-mas- ters, are the numerous and principal writers on the laws ecclesiastical, civil, and of nature, and of nations. A Bynkershoek, a Huberus, a Vattel, a Hubner, a Schlegel, a Busch", a Heineccius, a Grotius, or Pufendorf are men who have written to serve a particular private per- sonal, or otherwise some public political purpose. Had the wife of Grotius published her opinion upon some certain subjects, said a rea- der of lectures upon the Roman and civil law in one of our own uni- versities, she would have been of a different opinion. • It is well known that inthe foreign universities that whosoever takes a degree (and degrees are mostly -taken in law) print and publish theses which they make or are made for them. Nothing can be more ridiculous, when it is as notorious that a thesis may be bought, as well as burghers, briefs, and false passes, for one or a few rix dollars, than to see such things dressed up with all the professorial pedantry of learning, and the authors as theatrically antiquated as if they appeared in trunk hose, jackboots, slashed doublets, great slouched hats and feathers, ruffs or bands. Well might a late fighting and writing monarch exclaim, " O droit de gens, comment ton etude est inutile? to which at PREFACE. XV the same time all sovereign princes appeal, and almost all violate it, as if they wished to be judged and approved by the rational and humane part of mankind at the very moment they are guilty of sophistry, cruelty, and deceit, and show how much they despise all other human beings over whom only a providential birth and generation have placed them. From this reflection, must be excepted the sovereign of this coun- try, as the most equitable upon earth, and who may well say, what was once said by a monarch of France, " That if truth and justice fled from all the rest of the world, they ought to find a refuge in the breast of princes." , DECISIONS IN THE HIGH COURT OF ADMIRALTY. SECOND SESSION, MICHAELMAS TERM, 1776. The Dickenson, William Merton, master. [Droits of Admiralty.] 1 Cargo — Flour, candles, wax, staves, belonging to the rebels of North America, calling themselves the Continental Congress. Ship — Property of Bayard, Jackson & Co., of Philadelphia. Voyage — Sailed February 16, 1776, from Philadelphia, bound to Nantz, in France, and from thence intended back to Philadelphia. On March 30th, in the voyage to Nantz, the master having opened his instructions at sea, that they were to load back with ammunition and warlike stores, Sands, the mate, and the rest of the crew, being acquainted by him with such instructions, resolve to take * the command from the master, and take possession of the [ * 2 ] ship and cargo in his Majesty's name. They accordingly do so, and sign a resolution, and on April 7th arrived at the port of Bristol, notwithstanding offers made by the< master to induce them to perform the original voyage, for a reward of six months' pay extraordinary. In Kingroad they are hailed by the merchantmen, and the king's tender, The Rose, " From whence ? " Answered, " From Phila- delphia." At ' a place called Pill, the surveyor and officers of the customs came on board. Surveyor puts two tide-waiters on board, and ad- 1 [For other decisions as to droits of admiralty, see The Aquila, 1 C. Rob. 43, and note; The Rebecca, 1 C. Rob. 230.] 2* DECISIONS IN THE The Dickenson, IE 41 vises Sands to set off for Bristol and deliver up his papers to the col- lector. He goes up half a mile higher, and then leaves the ship in the charge of the second mate and tide-waiters on board. After the ship had been moored head and stern at Bristol quay an hour, the lieute- nant of the tender came on board to make a seizure of the ship and cargo. She remained afterwards in the care of the crew, with the tide- waiters on board, and a person left by the lieutenant. [ * 3 ] * AH the material papers were brought in to prove the pro- perty of the ship and cargo, and the rest accounted for, being left (as said in the affidavit of Sands) in the hands of Lord North, not being proper to be divulged. Parties in the cause, claiming the ship and cargo to be condemned to them : — 1. The King's Procurator- General, appearing for William Cham* berlain, Esq., as his Majesty's nominee by warrant under'the king's sign manual, in his office of treasury, as for a forfeiture to his Ma- jesty, and receivable in his exchequer, against all parties. 2. Mr. Lushington, for Anthony Metherel, lieutenant of The Rose tender, claiming the forfeiture under the act of parliament, and his Majesty's proclamation, as captor. 3. Mr. Gostlirig, procurator for the king in his office of admiralty, as for a droit and perquisite of admiralty, being taken by persons having no commission from his Majesty, claimed the ship and cargo in opposition to the king's warrant, and the interests of Lieutenant Metherel. r * 4 ] * The judge of the admiralty had, upon a former court day, pronounced the ship and goods "to have belonged to inhabitants of the rebellious colonies in America, and as such, or otherwise, liable to confiscation, and cbndemned the same as lawful prize,. reserved to whom the same of right , belongs." Commission- ers were nafned on each side to appraise and sell the same. All facts being agreed, the cause came on upon the merits. Dr. Harris, Advocate of the Admiralty, insisted that the right of « beginning was with him, and that the act (or expositions of facts for the information of the court) was theirs. The King's Advocate: insisted that the act was as much one proc- HIGH COURT OF ADMIRALTY. The Dickenson. 1 H. & M. tor as another; that the style was " upon petition of both proctors.". But that, in a cause where the king is interested, his own advocate has the right of preaudience everywhere; but if the judge .thought otherwise, he should be obliged to submit, and sat down. Br. Harris then acquiesced, and the King's Advocate, at the assent of the judge, *rose again and opened the cause. [ * 5, ] The King's Advocate then threw out that, from every rule t of decorum, and the respect due to his Majesty's warrant under his sign-manual, he hoped the inferior officers of the crown, and of a subordinate board, did not come there to oppose it without also having a proper authority from the Lords of the Admiralty ; that it was no light matter for inferior officers of the crown to act of their own heads, and oppose the king's warrant and sign-manual ; that, at such a crisis of public confusion, and in questions of such a delicate nature, he thought it right to have his own justification, and should be always jealous of solicitors of boards and proctors taking upon them- selves to act as they thought proper in the king's causes; that subor- dination must be maintained, or every thing would be in complete confusion ; that his majesty, by the constitution, did nothing but by order in some board, and countersigned by its commissioners. To this, Mr. Seddon, the Solicitor of the Admiralty, and his deputy, Mr. Dyson, who were present, made no reply ; but Mr. Gost- Ung, jr., the Proctor of the' Admiralty, * said he had no [ * 6 ] orders from the Lords of the Admiralty to proceed, but re- ceived his instructions from the solicitor; and that there' was a letter from Mr. Stephens, Secretary of the Admiralty. The Judge said he did not understand these warrants from the treasury board. Such matters-wanted no authorization to be pro- ceeded in ; for that the King's Proctor on one side, and the Proctor of the Admiralty on the other, might appear as they pleased, and it was to be supposed always by the court that they are well warranted in what they do. Observation. It is usual and necessary, in many cases of common suits, for the proctor of a party to have a special proxy, under the hand of his principal employers, to do certain acts of moment in the Ecclesiastical and Admiralty Courts; but the judge not thinking such authority necessary here, only shows that the doctrine is suited to the justification of the judge himself ; but that, if any thing goes amiss, the king's law officers may be saddled with the blame, and DECISIONS IN THE The Dickenson. 1 H. £ M. perhaps with costs, and lay under the lash at the pleasure of the court. [ * 7 ] * The King's Advocate replied, that, as to the novelty of . the warrant, it was a new case ; that new cases and a new crisis required new forms; it was enough for him that his Majesty's warrant was his authority ; that he was ministerial, and to obey his superiors, and had nothing more to do than, as far as by law he might, to carry into execution the views of the king's government. He did not .pretend to say the warrant made law any more than a proclamation makes it, nor was it an authority binding upon the court; but it deserved respect, as in the Ecclesiastical Prerogative Court, in the case of the effects of bastards dying intestate, whose effects escheat to his Majesty, in his exchequer. However, he did not (after the court had expressed already its sen- timents) wish to push the matter further, and would suppose, on Mr. Gostling's assertion of some sort of letter from Mr. Stephens, that it was true that he had proper authority to proceed ; and he did not desire the question in general to be delayed on this account, as all parties were amicably before the court to take its opinion. [ *8 ] * He conceived the general question to stand upon the act of parliament, and the terms of it ; also upon the ob- jects described and in contemplation, whereby the Lords Commis- sioners (who are a board merely executive) are empowered to exe- cute the office of the Lord High Admiral, but without droits, as profits or emoluments to themselves, which are especially reserved in their patent to his Majesty's only use and. behoof; and lastly upon the particular circumstances of this case, in which there was a-revolt and coming in from the enemy. That it would be incumbent on the counsel for Lieutenant Methe- rel to show that he was taking within the meaning of the act, and that the ship was not already taken in his Majesty's name, and'a for- feiture to the crown. That if Metherel is not a captor, then it would be incumbent on the officers of the admiralty to show that the ship and, goods of the inhabitants o£ the colonies, declared rebellious by act of r parliament, and enacted to be forfeited to his Majesty, are droits and perquisites of admiralty, and as such are to be collected and received and [ * 9 ] accounted * for by the officers of the lords commissioners, by virtue of their commission. Lastly, they must show that the circumstances of the revolt do not vary the case, under the decision of the privy council in 1665. In regard to the general law of prizes taken from'the enemy, there HIGH COURT OF ADMIRALTY. 16 The Dickenson. 1 H. & M. fe no inherent original right in any person, but in the crown only, and from thence it flows derivative as from the fountain of all pro- perty; either by grant and usage, or by his Majesty's assent in par- liament, and by his royal proclamation for distribution in manner and proportion. It must be admitted that before parliament gave the whole of prizes to the captors, (rather imprudently perhaps,) the whole of such prizes as were taken -from justi hostes, (just enemies,) as the civilians , term them, and in hello legitimo, by persons not having public com- mission, was anciently granted by general words to the Lord High Admiral, by the king's patents, together with wreck of the sea, flotson, jetson, and lagon, and derelict, and goods * of [ * 10 ] pirates and rebels, by which must be understood convict. Some of these were granted by general words of divers droits, as well as others by special words. We all know that the Dutch wars were intended to fill the empty coffers of Charles II. and his brother, by prizes. The emoluments, however, occasioned a difference between the king and his Lord High Admiral, which it was thought proper to settle by a solemn hearing at the council-board, in March 6, 1665- 6. 1 It appears by Sir Lionel Jenkins's state papers and reports, that a dispute had arisen previous to the date of the decision. Dr. Budd, one of the advocates for the Lord High Admiral, drew up a repre- sentation of the droits of the Lord High Admiral. Sir Lionel (who was judge of the admiralty) reported in favor of most of them. For the Admiralty Board not only then, as they do still, wrote to the judge, who is styled their lieutenant ; they wrote to the judge for his opinion, beforehand, upon seizures, but he was even directed by the king's commissioners at that time of day how Ire should proceed, and he stopped or went .on * just as they ordered [ * 11 ] him, for political reasons. Sir R. Wiseman, the King's Advocate, and the rest of the civilians and common lawyers, as it appears, all varied in their opinions ; so no argument in respect to the present, case can be drawn from those opinions previously given, before the decisive' order of council drew the line, and thereby sepa- rated the interest of the king from that of the crown, in the person of his Lord High Admiral and his office. But it appears that soon afterwards the king felt gome inconve- niency arising politically from suffering these droits to go through the hands of the officers of the Lord High Admiral. [See post, p. 50.] 1'2 DECISIONS IN THE ; . . . * : ■■ . The Dickenson. 1 H. & M. The power of collecting and receiving only remains with the offi- cers, of the admiralty, accountable to the Lords Commissioners of the Admiralty, who are any three of them to give discharges ei quietus est to the collector. So far the grant goes : but by course of office the lords are accountable to the exchequer, and grants of the droits are made by the king's warrants in the treasury, upon petition. The commission of the collector of the droits from the Board of Admiralty is before the court ; but it has not been read by the other side. It extends to many things not consistent, with law, and the author- ity of the judge, such as making the collector agent and commis- sioner for all goods and ships taken, appraised, sold, &c, &c. The Board of Admiralty being merely executive, and as trustees for his Majesty, and. as an inferior board of revenue in the [ * 13 ] 'case of droits, is always subject to be superseded by the • superior authority. Sir Lionel Jenkins expressedly says,, vol. 2, p." 765, that the king's prerogative of seizing enemy's goods is concurrent with the Lord High Admiral's. It is established law, that all grants of any powers of the high pre- rogative of the crown are to. be interpreted strictly, and the things granted must be well supported by express words, and the usage. Nothing, therefore, can be held to be a droit, which never existed at the time of the grant, and therefpre could not possibly be in the usage, nor in the contemplation of it. Jt was justly observed by the court lately, in the case of The Aletta, that the goods of the rebellious colonies were the goods of no such enemies as were privileged on board of Dutch vessels, within Vide the words of the present commission. HIGH COURT OF ADMIRALTY. 14 Tlie Dickenson. 1 H. & M. the view of the treaty of 1673-4 with the States General, and that therefore it does not extend to the case of the Americans in arms against this country.' It is not asserted that there are no droits to the king in his office of admiralty, but that the ships and goods of the inhabitants of the rebellious colonies, being declared forfeited to his Majesty, are not droits. * The act neither takes away old droits, nor makes new [ * 14 ] opes. The word is forfeiture, and when the word prize is used, it is only a subsequent to the forfeiture being first adjudged. For the right of the king's officers, as captors, is ' only in expectancy, after being first adjudged lawful prize, not prize of war, but of forfeiture, first vested in the crown, and from that period, and not till then, in the commis- sioned officers, seamen, and soldiers, subject to such proportion and manner as shall be set forth by proclamation. A new crime arises unforeseen by the legislature. It is declared by parliament, and a new penalty is provided for restraining it. This escheat and forfeiture newly created is not given .to the Commission- ers of the Admiralty by the act ; nor could it have been in the pur- view of their commissions. The act is clearly, in its operation, a bill of attainder. It punishes without the forms of judgment, or convic- tion and evidence. All the inhabitants of the rebellious colonies, however innocent, are involved, who come not under the particular exceptions of the act, and their ships and goods are escheated to the king. * His Majesty's officers and seamen, being captors, have a secondary right, and none but they and his Majesty can [ * 15 ] have the property of the seizure ; the one by a direct, the other by a derived right. It is unnecessary to go into all the law of forfeitures. Royal es- cheats, says Lord Coke, 3 Instit. Ill, are those forfeitures which belong to the ancient rights of ■-the crown. So where a person com- mits treason, his estate shall escheat and be forfeited to the king. A rebellion is a confusion of all civil-rights, and differs much from the nature of a just war. The relative positions of persons and things, and consequently the reasonings upon them, are and must be entirely new in the singular and unfortunate state qf Great Britain and her colonies : And no new law can give new droits, which it has not expressed. ' It is to be bewailed, that the act is so far from being clear, that whoever drew it had no other idea than as of an act for prize of war, 16 DECISIONS IN THE The Dickenson. 1H.4M. j and formed it on the plan for condemnation of ships taken in the "Spanish and French wars. * [ * 16 ] * Hence the word prize is introduced in the end of the clause ; I mean the second clause, which vests the sole pro-j perty in the captors, after being first adjudged lawful prize. The first clause declares the ships and goods of the enumerated colpnies in .rebellion, to be forfeited to the king. But giving that word prize , all its force, it must be understood to be prize of forfeiture, for cause of rebellion, not of war ; that the word prize follows, not leads the proposition in the act of parliament, and that in order to be adjudged prize, a ship must "first be adjudged to be forfeited. Cases have been searched for in vain, owing to the confusion of our admiralty office, for the information of the court; but if any had been found, the precedents of the Lord High Admiral's ancient droits would not have fitted the case of this singular state of hostility, and of the terms of the act of parliament. Whatever cases there are upon private notes of authority, they should be fairly stated. Before the cruisers' act of Queen Anne, in 1708, all prize - [ * 17 ] of war taken in port * were condemned to the Lord Hig' Admiral, although taken by men-of-war. The St. Nicholas du Tot, taken by a man-of-war, Nov. 15,, 170,. , was condemned to the Lord High Admiral. The John, Royt, master, 25 Nov. 1702, had the same decision. But after the act took place^ in 1708, giving the sole property to the captors, although the prizes were by an order of council settled to be condemned to the Queen, in her name, and proceedings to be' as usual, the Lord High Admiral had no droits of vessels seized in port by the Queen's men-of-war. .,„. % The Voorsighteyheight, first seized in the harbor of Ealmouih by The Pembroke man-of-war, was condemned to The Pembroke man- of-war, July 30, 1709. This case would have been strong in favor of Metherel, if the ship Dickenson had not been already seized by others in the king's name. In the case of The Adventure, Brother, 'master, May 17, 1709 the custom-house officers seized for the king'; and the officers of the add ' ;. ralty also seized in port, and prayed condemnation * in ,.|*.-18] admiralty. * But the custom-house officers prayed a proh •.:*.'• . bkion on the 3d and 4th of Queen Anne, as being an im- portation contrary to law; it was argued; and the prohibition was granted, Lord Chief Baron Ward averring, that the importation, which was of prohibited goods, was a forfeiture'to the crown, antecedent to the seizure for the Lord High Admiral. Determined June 3, 1709. HIGH COURT OF 'ADMIRALTY. 19 The Dickenson. - " 1 H. & M. On appeal to the Lords, of cases of forfeiture, on account of tor- ture, they were not condemned as droits to the Lord High. Admiral. The Hope, Ostram, Nov. 13, 1710; Anne Galley, Patton, April 4, 1712; St. Nicholas* Neal, Oct. 15, 1712; were all condemned by the Lords to the queen. But as this case ought to be argued with candor ; although these notes are taken from great authority, they do not mention the parti- culars, and we have searched the register-office to no purpose, as it is in great confusion. The drawer of the act of court in favor of the admiralty has ven- tured to define a revolt, and says it is a departure from duty, and that the seizors did not revolt from their duty, being already good subjects. The * admiralty proctor, who drew the act, forgot [ * 19 ] the old law maxim, that omnis definitio juris est periculosa,- every legal denfiition is dangerous. The nature of all human language, (so inadequate to our ideas,) and of our ideas (so inadequate to things) is such, that it is almost impossible to define any thing so exactly, but , too much will be added, or too little will be expressed. : It is indeed a very convenient way for counsel to raise an argument, ; by giving a definition, or by stating a false principle to hurfy on to a conclusion. Thus you may argue forever, and draw conse- ! quences from false premises ad infinitum. A revolt means not a departure from duty, as Mr. Gostling defines it; but it is a coming over from the party to whom a person has ac- tually belonged, adhered, or was in the pay and service of; as these men were in the pay and service of the congress, "and of rebel officers ; who freighted their ship for rebellious purposes. It would be very difficult indeed to fix the idea of revolt, if the idea of duty is to be joined to it ; we must then go into all the * questions of religious, moral, or civil duties. But the words [ * 20 ] of decision by order of council, in 1665, clears the point. What are the words ? All such ships as shall voluntarily come in, upon revolt from the enemy, do belong to his Majesty. It is clear, that a coming in voluntarily from the enemy, in whose power the parties were, is a sufficient cause for establishing the king's right distinct rfrom the Lord High Admiral's. 1), The coming in from the enemy is a revolt. Any such definition, fas stated by the other side in their act, as mere chicaning upon the plainest Words imaginable. This argument cannot be concluded, without saying something upon sentences in causes of condemnation under this act. The sentences of the - court must conform themselves in their style to the terms of the act of parliament. vol. i. — h. & m. 3 21 DECISIONS IN THE The Dickenson. 1 H. & M. The style upon the War Act will not suit this subject, nor the times which have given birth to it. The War Act only said, that prizes taken shalKbe the property of the captor. But here this act expressedly says, that all the [ * 21 ] ships and goods of the inhabitants of the * rebellious colonies shall become forfeited to his' Majesty ; they must therefore be adjudged forfeited accordingly. And when the act goes on saying, " as if the same were the goods of open enemies, and shall be so adjudged, deemed and taken in all Courts of Admiralty," if there is any grammar in the world, the word forfeited is the antecedent, and the term to which every thing that follows is relative. It means also that they shall be .proceeded in by monition, and by other modes pre- scribed by the act ; y and where the act does not mark the line, then the proceedings are to be in such forms, as if the same were in a law- ful war, according to the usual course of admiralty proceedings ; but still as" forfeited to the king, simply and plainly; and the act of itself establishes no droits in the office of admiralty, because it, declares none. In such way, therefore, and in such style as the act of parliament declares, the'forfeiture, we pray this ship and cargo to be condemned to his Majesty, absolutely and simply ; the prize or its amount, to be delivered to the nominee of his Majesty's warrant, and consequently to be accounted for in his Majesty's exchequer. Arguments. [ * 22 ] * Arguments on the part of the Admiralty. Dr. Harris. The warrant of the crown on which the king's advo- cate relies, is no authority to, the court, and the prayer that the ship and cargo should be condemned id the exchequer is equally strange. There can be no condemnation here to the king in his exchequer. Every prize must be condemned either to the king in his office of admiralty, or to the king as taken by his officers, since the act has granted the prize to them. The King's Advocate is called upon to show any precedents, where ships of the enemy, taken by persons not commissioned, have ever been condemned -to the king absolutely and simply, In regard to the claim of Metherel, he is no taker. In the case of The Brilliant, which came into the port of Kinsale, and a midship- man tbwed her in, it was condemned as a droit of admiralty. , In regard to the patents of the Commissioners of the Admiralty and of the Lord High Admiral, Sir Lionel Jenkins says in his report^ HIGH COURT OF ADMIRALTY. 23 The Dickenson. 1 H. & M. that among other droits there * were conveyed to the Lord [ * 23 ] High Admiral casualia. It is agreed by all the advocates who reported at the same time, that ships, taken in time of war by persons not commissioned, were to be adjudged as perquisites of the Lord High Admiral. The act of parliament plainly considers the present case as a case of war, and the clause (declaring the ships and goods of the inhabit- ants of the colonies enumerated to be forfeited, as if they were the ships and goods of open enemies, and shall be so adjudged, deemed and taken in all Courts of Admiralty, and all other courts whatever) plainly considers such captures as prize of war, and to be proceeded upon in the same course ; and so the commission to the judge directs him to proceed according to the course of the admiralty. In regard to the distinction taken of a revolt, it will not hold ; for it must be a revolt from the enemies; now these persons were not enemies, and did not revolt from their allegiance. Dr. Harris pressed for costs against Metherel, as having obstructed the proceedings. * Dr. Wynne, on the same side, went over the same ground. [ * 24 ] Although no droits, no profits, or emoluments are vested in Lords of the Admiralty, yet the power of collecting them is in the commission of the Lords, they accordingly appoint their own collector by their own commission. The prayer in the act on the part of the crown is very strange ; that the ship and -goods should be condemned as the effects of the inhabit- ants of the rebellious colonies, forfeited to his Majesty, absolutely and simply, pursuant to law, and by virtue of the said act of parlia- ment, and receivable immediately in' his Majesty's exchequer, agree- able to his Majesty's warrant under his sign manual, countersigned by the lords commissioners. Here is a puzzledom in the act; and as to the authority of the war- rant as binding upon the court, that is given up. It is said, this ship is not prize of war, but prize of forfeiture ; but it is certHly prize of war. The act of parliament uses the word lawful prize in general, and the act is a declaration of war. It is his Majesty's prerogative solely to declare war ; and this act *for prohibiting all trade and commerce w^th the inhabitants [ * 25 ] ' is, although awkwardly and obscuredly drawn, the very counterpart in general of the old act of prize of war. There is not a word of the exchequer in the whole act, and the commission to the judge speaks only of proceeding according to the course of the admiralty. The sentence of condemnation already has condemned the ship 26 DECISIONS IN THE The Dickenson. 1 H. & M. and goods, not as a forfeiture, but as a confiscation and as lawful pfize,'reserving to whom the same of right belongs. The King's Advocate has carried up too high the, inherent right of the prerogative of the king, to all prize of war. Anciently fleets fitted out were the ships of the subject; the king had one fourth of the prize, the Lord Admiral had two fourths, and the rest was divided ; and so it is laid down in the black book of the admiralty. But from the time ' there has been a royal navy, it has been other- wise. In Queen Anne's time, at the beginning of the war, the queen had half, the Lord Admiral had his tenths ; but privateers had [ * 26 ] the whole. Upon the Cruiser's Act, which gave the * whole to the captors, matters were altered, and by the American Act the prize offices were suppressed. Now the present question may be put on this issue, Can they pro- duce a case in seventy years, where there has been any condemnation to the king of prize, taken by persons not commissioned,, but in the office of Admiralty ? Is there any new right, or will it not be very inconvenient that the course of business, should be altered from its Usu&I mode of pro- ceeding ? In regard to the revolt, there was no coming over of rebels from rebels, no change of allegiance. Dr. Wynne pressed costs against- Lieutenant Metherel, and said that the service would be ruined if commanders of king's ships were to have ships of the enemy in port; for that they were given too much to sleep in harbor. Dr. Calvert, for Metherel, contended, that neither the king abso- lutely, nor in his office of admiralty could have the prize, if there was a taker being a commissioned officer. [ * 27 ] * That neither the revolters were takers, nor the custom- house officers, and therefore the king's officers of the navy, who seized after the ship was moored, had the sole property by virtue of the act ; for nobody has a right to take under the terms of the act, but the officers, seamen, and soldiers, on board the king's sflfp. AH the cases of ships taken in port, condemned to the Lord High Admiral, were before the Prize Act of Queen Anne in favor of the ■ navy officers, and quoted the case of The Voorsighteyheitb, con- demned to The Pembroke. This case, was decided by the Lords after the act had given away the queen's right of prize to the captors; ,. This case he said the King's Advocate had furnished him with. That the superseding Mestherel's claim would be a, great discouragement to the king's service. The King's Advocate replied, that he was astonished to hear the HIGH COURT OF ADMIRALTY. 28 -» The Dickenson. 1 H. & M. Advocate for the Admiralty, and the gentlemen with him press for costs against Lieutenant Metherel, and wondered Who had instructed them to push such a point. He would not say a word for his part to hurt the officers of *the navy, although in this"[ * 28 ] case he could not admit Lieutenant Metherel to be a taker within the act. As to the king's warrant, he thought the meaning of that being used on this occasion was already well understood by the court, and explained by himself, not as an authority binding on the court, but an authority to himself to appear before it, and assert the king's right. That there was too much reason to think from the late de- cisions here, and from other reasons, that every thing relating to the seizure of the American ships was upon tender ground, and in coming before the court no more was meant than to have a proper justification for the king's first law officers themselves ; to take the opinion of the judge in an amicable way, with which opinion, what- ever it may be, he should be satisfied, if his superiors shall be so ; and therefore in such a cause every matter should be treated with the utmost delicacy and decorum. He was therefore infinitely surprised to hear any misrepresentation of his words, or a want of candor on the other side, by counsel concerned for any subordinate part of the king's * government, upon a question of prerogative claimed [ * 29 ] by both sides. He had ever made it a rule of conduct ever since he had been at this profession, in no cause whatsoever to repre- sent a gentleman's words with the least perversion, or to state false facts, or false quotations. Nothing is so easy as by misstating the expressions of the opposite side to raise an argument and to reason on forever. There is no ingenuity in all this, but it is a practice too common at another bar, and beneath every man who would have the character of a lawyer supported, as it assuredly may be, on the foot- ing of a real gentleman and a man of honor. He would answer the arguments seriatim of both the learned gentlemen. The word puzzle- dom was a new word ; he could neither find it in the dictionary, nor in any part of the prayer of the act ; and he neither loved puzzledom or quibbledom, nor declamation. He would meet the gentlemen on fair grounds of arguing in a cause where every thing was to be laid before the court, so as to aid it in forming a judgment ; and in which all parties would most probably acquiesce as perfectly satisfied. To the * assertion, that there is no distinction [ *30 ] between the right of the king to prize simply, and to prize in the office of admiralty, is clearly answered. There is such a dis- tinction, even when there is a Lord High Admiral ; a much greater creature of royal prerogative, than the mere executive board of com- 3* 31 DECISIONS IN THE # *— The Dickenson. 1 H; & M. missioners ; and this is proved to a demonstration, by the decision of the order in council in 1665. There the line is drawn between the king and his admiral; and although in the dust of ages, and the confusion of office, precedents on all sides lie buried, yet condemna- tion to the king of his rights must necessarily have ran after that decision, in a different style to the condemnation of the Lord High Admiral's rights. The style in the case of ships taken by the king's men=of-war is, " condemned to our sovereign lord the king, taken by such and such persons, commander, &c." so far is the proposition from being true asserted by the. council on the other side, that no prize to the king is condemned in the admiralty, but only in the style of con- demnation to the king, in his office of admiralty. [ * 31 ] * The chain of precedents, to show that the droits of the king in the office of admiralty are condemned there, is admitted ; but it proves nothing against the forfeitures to the king under the present act of parliament. Because this is our proposition, " The ships and goods of inhabitants of the rebellious colonies, com- ing and going from thence and forfeited to the king, are no droits, bu$ are forfeitures." You cannot reason from the War Prize Act to this act, prohibiting the trade of the American rebellious colonies, and making all their property in their ships and cargoes to be escheats to the crown. All escheats and forfeitures are not confiscable in the exchequer ; these which arise out of a new crime and a new law made to punish that. crime are made confiscable here ; we do not pray to have them condemned in the exchequer, but we say, when condemned jbey will be receiv- able there. I do not mean the Court of Exchequer : when I speak of the receipt of the exchequer. Sir Lionel Jenkins, in his re- port to the king and council, does not say that casualia 1 [ * 32 ] are * conveyed to the Lord High Admiral, but bona casw fortuito reperta, and even there he says expressedly, that the king has a concurrent right, with the Lord Admiral. He speaks of only two precedents being to be found of the Lord Admiral having ships in port, and then he says it did not appear by whom taken ; and he gives the preference to the king's ships before the Lord Admiral. But after all, in. regard to his report, (although he was judge,) and Sir R. Wiseman's, the King's Advocate, and Sir William Turner's, the Lord Admiral's Advocate, and Dr. Budd's r representations of the Lord Admiral's rights, they were all mere opinions till the point was 1 Vide argument of Dr. Harris. HIGH COURT OF ADMIRALTY. 33 The Dickenson. 1 H. & M. finally decided at a subsequent period, by the order of council in March, 1665 - 6, and all those opinions varied upon the subject of the Dutch war, as much as ours do upon the present subject of the American rebellion ; in which every. thing is novel. Sir Lionel's opinion was an extra-judicial report ; and it is some- thing .singular, even in these times, that the Lords of the Admiralty- call upon their judge for reports. ^P * I very much doubt, in the present case, whether the Ad- [ * 33 ] vocate of the Admiralty has reported this ship to be a droit; and I am exceedingly jealous of solicitors and proctors of any boards carrying on suits without a sanction and authority from their supe- riors. But we are told it would be improper and inconvenient to change the course of proceedings. The answer is, you must change the pro- ceedings ; they must fit the subject-matter. .There is a strange dis- position in many men to start at every thing that is novel ; the argu- ment is, ab ignavid ad ignaviam, from the idle to the indolent ; and who would.fit every l§g, however sore, to the same boot. If the act of parliament had been better and more carefully drawn, it would have saved much confusion, by being better fitted to the business of this peculiar rebellion, which is very different from a'war with Spain and France, and has very different consequences, both legally and politically. But here a new crime is declared, a new law is made, new proceedings must be had, of course, to carry it into execution, unless we mean to embarrass government, * and [ **34 ] add to the confusion. It is a saying in some civil law bboks, very just, Mutatis hominibus quid obstat mutari sententiis ? Change the state of men and the laws, and their decisions must change with them. In other words, new men, new measures ; new principles, new consequences. There is no wisdom in opposing a violent stream ; and the man who does so, under an idea of avoiding difficulties and remaining at his ease, will only increase his uneasiness and perplexities in the end. I love not novelties in religion, law, or politics more than any man here ; but there is a time and tide of human things, which bears down all before it, like a flood. The king's warrant in this cause is new, it is said ; but is that any reason to alarm a court? Is not the judge's warrant in all. these causes of 'forfeiture for rebellion new ? The commission by which this cause is heard ? and from the terms of which they argue ? But show, precedents, it is urged with an air of triumph ? I answer, show thirteen colonies of British subjects in arms against the mo- ther country; a naval force* and immense army on the [*35] 36 DECISIONS IN THE The Dickenson. 1 H. & M. part of the colonies, "who have declared themselves independent, and assumed sovereignty. A new scene is this, astonishing to all Europe ; such as if any man had predicted twenty years ago, it would have been thought a suffi- cient reason for a statute of lunacy against him, and for his confine- ment. Yet the counsel on the other side argue against novelty in proceedings upon an ac^pitended to restrain this rebellion, which is of a species never known in the history of the whole globe, (for I do not admit the case of the Netherlands, which, were not colonies of Spain, to be analogous,) and to which evil we hardly know how to apply the remedy of the laws, but that of force, with which the con- stitution is armed. The warrant of the crown in the case of prizes, not granted away to the subject by royal declaration or act of parliament, is not a no- velty. But where are the precedents on the other side of admiralty droits of the goods of inhabitants of the rebellious colonies forfeited to the king ? ^ It is true the act uses the word prize, and does not use [ * 36 ] the word exchequer ; it is answered * by us, it does not use the word droits of the admiralty, nor of perquisite, when any ship is forfeiture to the king : then, and not till then, it becomes law- ful prize. Under this act, if there were a Lord High Admiral, he ought not to have this forfeiture™, and as to the king's officers under this act against rebellion, as under the late act for war, the captor has no right' immediate to the capture till after it shall have been adjudged, that is, until it shall have been finally adjudged lawful prize to his Majesty; and all the interest of the captor is/ only a secondary right, dependent and in expectancy, the primary right being to his Majesty, and the capture being first, according to the usage and style of the court, condemned to our sovereign lord the king, and moved and prosecuted by the king's own advocate and procurator general, in his Majesty's name ; and the monition citing all persons having interest to appear, being taken out by the latter from the proper office of -the court. As " lawful prize " follows consequential of forfeiture, so escheat receivable in the exchequer follows consequential of forfeiture. • [ * 37 ] * I meant the receipt of the exchequer, not the judicial court of the exchequer ; I do not mean to infringe the juris- diction of the Admiralty Court: though I must add it' derives its whole authority in matters of prize of war and forfeiture from an. occasional act of parliament ; otherwise doubtless the Court of Ex- chequer might interpose judicially which has a standing jurisdiction in all matters touching the king's revenue* and all profits acquired to the - crown. HIGH COURT OF ADMIRALTY. 38 The Dickenson. 1 H. & M. There has been something quoted, but not truly, from Sir Lionel Jenkins, about casualia. If we look into the books, we shall find that there is in the constitution of this country an officer at the exchequer called the king's escheator, of very ancient establishment under the lord treasurer, whose.business it is to inform of escheats and casual profits of the crown, and to seize them into the king's hands, and who accounted to him', Co. Litt. 92, and concerning the deference to be paid to the nominee of the crown and the king's warrant, see 1 Salk. 37. I am- not very fond of pedantic dissertations, but as a very learned gentleman has "quoted the black book ,of the [ * 38 ] admiralty, I shall put him in mind of the red book of the exchequer. I believe there is^also a black book of the exchequer as well as a red one ; so they have two to one against the admiralty. And if we dispute about the prior authority and antiquity of them, we may dispute till the day of judgment, and find no end of the ques- tion. But when he says I carry too high the inherent right of the high prerogative of the crown to prize of war, I am clear that I am not wrong in it, at least nothing that he has quoted from the black book of the admiralty has proved me wrong. I sat out with saying,.that all per- sons derived their right to prize either from the king's grant or from his assent in parliament. "When the Lord High Admiral had his share of prize, before the fleets were any thing more than ships and men, pressed by the admiral's warrants by the king's orders, for the de- fence of the realm, he had this share by grant from the king. He had wreck of the sea, and so have some lords of manors ; but -they have it by grant, and they must have these things by espe- cial words, and not by general * ones ; for otherwise the [ * 39 ] crown would be stripped of every prerogative. The crown being trustee for the subject, the alienation of its rights and powers by general words is, by law, strictly to be guarded against. It is well known in our law that the king is universal occupant, and that all property is derived from the crown ; that under circumstances it escheats and reverts to it ; and that the goods of the enemies of the state are acquired to the head of the state, for the benefit of the state, unless a particular law or royal grant otherwise gives a second- ary interest. As all property is the child of society and of public consent, so by every law of nature and civil compact it reverts and concentres in the head, who represents the whole association. The learned gentleman, who says there is a puzzledom in the act, has puzzled himself, and has fallen into a like contradiction. I like the act as an embrrassed obscure performance as little as he does, and never was consulted about a syllable in it. But I suppose we 40 DECISIONS IN THE The Dickenson. 1 H. & M. shall understand it all of us better one day or other. I said the act was a bill of attainder in its operation, call it what you [ * 40 ] * will in its title ; because it involves all the inhabitants' of the rebellious colonies in penalties of forfeiture for the crime of many. It was so understood both by administration who defend- ed it and by those persons who opposed it in the House of Com- mons. One party said it was unjust and inhuman ; the other said it was necessary, and that distinctions in the moral and natural world were in many cases in this life impossible, till Providence shall close the whole, and discover the great end of all things. That the innocent have a^emedy to form counter associations ; they must rise against the authors of their calamities. The learned gentleman insists the «act is a declaration of war, Which the king, he says, can only declare ; what is this, but to get uponthe ground of argument used by the rebels,~that this war is not the king's war, but the parliament's war ? The argument drawn from the terms of the last provisional inter- locutory decree, which reserved the question to whom the ship and cargo of right belong, and condemned the same " as prize," without using the form in the act forfeited, is very uncandid and [ * 41 ] * unbecoming in a cause where we are all to inform the court ; to be clear, and not subtle. In the first place, the drawing up of that interlocutory decree was not attended to at the time, and of course not objected to in point of words; for if it had been objected to then, we must have gone at that time into the whole of the present question. 2d. If the inter- locutory decree is ill worded, it may be and must be reformed and adapted to the final sentence. 3d. Any registrar's manner of taking down any order, according to his own language and ideas, as in a matter of course, Will, not bind down the judge upon a final hearing. The law calls the registrar of a court oculus judicis, but he is nei- ther the ear nor the head ; and it is well registrars are not, for other- wise, under the idea of easing a judge, they might determine many a cause ; at least, might have a bias. It is said that here is no revolt from the enemy. It is so far from being true, that the mate, to the ninth interrogatory, expressly swears that Bayard & Jackson, the owners of the ship, came on [*42 ] board, and *were officers in the rebel army, and in regi- mentals, which he describes, the cargo belonging to the con- gress. He, therefore, and the rest of the crew who revolted, were their servants ; and the master adhered so perfectly to them that he offered Sands, who was the mate, and the crew, six months' wages, to change their resolution again and to complete the voyage. To HIGH COURT OF ADMIRALTY. 43 The Dickenson. 1 H. & M. say, therefore, that here is no voluntary coming in from the enemy upon revolt, is a false assertion in the teeth of evidence, and, the defi- nition of revolt being a desertion of duty, is a wretched quibble to avoid the article of the decision of council, in 1665-6, which says that not the Lord Admiral, but the king, shall have a ship coming in from the enemy voluntarily upon revolt. Did not Sands; the mate, revolt from his adherence to his master and the congress ? As to arguing out of the paper, or act of court, it is equally un- candid. This is merely a paper stating facts, drawn up and signed by both parties, for the information of a court previous to a hearing of their respective petitions. This act is handed about and sent from one proctor to another. "It is ornamented some- [*43 ] times with flowers more than is fit, by practitioners who delight in them ; but no counsel ever argues properly from the deduc- tions or reasonings of proctors, but from substantial facts. As to the prayer, it is to be adhered to ; there is no puzzle in it. The words forfeited to the king were never in any prize act of war before. To that style of forfeited we pray that the sentence of the court may be conformable. Upon this word the whole argument turns; as in this special act of parliament the whole question is concentered. We pray that the ship and cargo in questibn may be decreed for- feited to his Majesty, and of course, by law to be received in his ex- chequer. Mr. Chamberlayne appears not as solicitor of the board of treasury, but as nominee of his Majesty. The deputy register, Mr. Bishop, arose. He said the King's Advo- cate had bore very hard upon him, for the office of the registry being in great confusion ; that it never was in such good order as it had been since his time, and that he had taken great pains in * searching for precedents, and had been always ready to [ * 44 ] communicate every thing that was called for. The King's Advocate replied, that he had not the least idea of reflecting upon the deputy register himself, whom he knew to be a very good officer; but that his predecessors were not equally careful of the records^of office, as everybody there knew ; and when he spoke of precedents not being to be found, the precedents named were of near a hundred years ago, and no wonder if they were buried in the dust of ages ; that every public officer ought to be paid for his trouble, and that it merited highly the attention of government, that an office of record, in so important a department as the admiralty, should have its registry put into due regulation and kept in a proper 45 DECISIONS IN THE The Dickenson. 1 H. & M. place, that indexes should be made, and the deputy register be paid for his trouble. Sir George Hay. This act is a declaration of war, 1 and the Courts of Admiralty are to proceed to confiscation under it. The act does not affect the rights of the admiralty — says [ * 45 ] nothing about them ; and * so the Prize Act in time of war said nothing about them, yet they remained to the admi- ralty. As to the particular word forfeited, in the act, it is an ill-founded imagination that this makes an escheat. The course 2 of [ * 46 ] admiralty * proceeding is to be observed ; and as to the ope- - ration of the act, my opinion is, that it would be very hard to understand by it that all the American subjects trading to and from America, innocently intending, or smuggling with other na- tions, in the way usually connived at, are to be deemed rebels, and their ships and goods confiscated. Before you can condemn, you must prove that the parties have been actually concerned in some act of rebellion. In this case, the crew did not agree in anyact of rebellion ;.they seized the ship as American, and confined the master, and delivered her up to the officers of the customs. The captain is an enemy, and so being dispossessed it brings it within 'the case of the doctrine that an enemy's ship, taken by per- 1 The parliament cannot declare war. . 2 The only course of admiralty cannot have been to pronounce prize to the king in the office of admiralty, or to the captor, because in Charles II.'s time there must have been condemnation to the king of his own share, independent of the Lord High Admiral's ; and, in Queen Anne's, time, to herself, of , the moiety which was the queen's, from 1702 till the act in favor of captorsj in 1708; and then by an order of council, dated IVJarch, 1 708, it was settled that all proceedings for prize were to be in the queen's name, as formerly. . Before this act the queen doubtless had her commissioners. The crown does every thing and receives every thing by commission. Charles II. had his commissioners of prizes, to whom the king's prizes were con- demned. Lord Ashley was first commissioner ; and it was owing to the duke's com- missioners complaining that they were obstructed by the king's commissioners, that the matter was referred for a solemn hearing before the privy council, in 1661, when the regulations were made on which the King's Advocate now insists. The instructions of the collector of the admiralty droits at this day square exactly with these regulations.' The cases of the king's own prizes, which are distinguished in the decision'of the coun- cil in 1661, make no part of his instructions. And so far is the king's warrant from being a novelty in the present age, that his late Majesty had commissioners of prizes for those which were taken when hostilities began before the declaration of the late HIGH COURT OF ADMIRALTY. 47 The Dickenson. 1 H. &. M. sons non-commissioned, is a droit to the king in his office of admi- ralty. The men were liege subjects of the king (and, not to be considered as rebels) ; they * did not consider themselves so, [ * 47 ] and for that reason they never revolted from the enemy.' There is a great difference when there is a Lord High Admiral, and when the king acts as Lord High Admiral himself. These men were not revolting enemies, but the ship came in by good subjects' means, and they deserve their reward. Doubtless government will give it them. Rebels' goods have always been condemned as droits of admiralty, when taken by non-commissioned persons. Many cases of this sort were adjudged in the last rebellion. 1 There was a case of the ship The Duke de Vendome^ determined in 1716. The dispute was then the same as now, and it was said that bona rebellatorum belonged to the king, independently of the office of admiralty. .The cases of the confiscation of the goods of rebels in the Duke of Monmouth's rebel- lion, decreed to King James II., and. moved by Dr. Oldys, the * King's Advocate, Were then quoted ; but the court ob- [ * 48 ] served that, at the time of Monmouth's rebellion, there was neither any Lord High Admiral nor was the office in commission ; the king exercised it himself. Had there been a clause in the present act, as there should have been, reserving all forfeitures taken by persons non-commissioned to the king immediately, it would have done. The non-commissioned takers have always been allowed salvage 'by the court, and I have known half given. I condemn the ship and goods as a droit of admiralty. The King's Advocate then moved that the sentence might be with- out prejudice to the right of the salvors. I have very good reasons for this on the part of government. Judge. For what reason ? Doubtless you must have good reason. Answer. For the reason just now given by the court itself, because they deserve it. I'At that period, there was no special act of parliament declaring that rebellion, or enacting forfeiture to the king of the goods and effects of persons only virtually rebels, that is, as inhabitants (merely) of rebellious colonies. VOL. I. — H. & M. ' 4 49 DECISIONS IN THE 1 H. & M. • [ * 49 ] "Judge. I will not give it now ; let the king's govern- ment reward them as it pleases. 1 [ * 50 ] . * At the Council held at Worcester House, the 6th of March, 1665-6,. PRESENT, The KING'S most Excellent Majesty, His Royal Highness the Lord Eitzahding, Duke of York, Lord Arlington, His Highness Prince Lord Berkley, Rupert, _ Lord Ashley, Lord Chancellor, Mr. Sec. Morice, Duke of Albemarle, . Sir William Co- Earl of Lauderdale, ventry. > Whereas, through the long intermission of any war at sea by his Majesty's authority, several doubts have arisen concerning certain rights of the Lord High Admiral in time of hostility, the determina- tion whereof appearing very necessary for the direction as well of his Majesty's officers as of those ,pf the Lord High Admiral ; upon full hearing and debate of the particulars hereafter mentioned, the King's counsel, learned in the common law, and likewise the judge of the High Court of Admiralty, and thpse of his Majesty, [ * 51 ] &c, his Royal Highness the Ldrd High Admiral's * counsel, in the said High Court of Admiralty being present, his Ma- jesty, present in council, 'was pleased to declare, 1st. That all ships and goods belonging to enemies coming into any port, creek, or road, of this his Majesty's kingdom' of England or of Ireland, by stress of weather or other accident, or by mistake of port, or by ignorance, not knowing' of the war, do belong to the Lord High Admiral; but such as shall voluntarily come in, either men-of- 1 Sir George Hay afterwards declared privately to the King's Advocate, that he was mistaken in this general decision, and was very sorry for it. The case of The Voorsighteyheyt, quoted by Dr. Calvert as cited by the Advocate - General, and that it was condemned to the admiralty, was not so cited, for it was cited as condemned to The Pembroke man-of-war* though taken in port ; and so de- creed by the lords of appeal, 30th of July, 1709 , after the act of the Queen in 1708 had passed, giving all right of prize tp the captors. HIGH COURT OF ADMIRALTY. 52 1 H. & M. war or merchantmen, upon revolt, from the enemy, and such as shall be driven in, and forced into port by the king's men-of-war, .and also such ships as shall be seized in any of the ports, creeks, or roads pf this kingdom, or of Ireland, before any declaration of war or reprisals by his Majesty, do belong unto his Majesty. 2d. That all enemies' ships and goods casually met at sea, and seized by any vessel not commissionated> do, belong to the Lord High Admiral. 3d. That salvage belongs to the Lord High Admiral for all ships rescued. 4th. That all ships forsaken by the company belonging to them, are the Lord High * Admiral's, unless a ship commis- [ * 52 ] sionated have given the occasion to such dereliction, and the ship so left be seized by such ship pursuing, or by some other ship commissionated then in the same company, and in pursuit of the enemy. And the like is to be understood of any goods thrown out of any ship pursued. * Extracted from the Registry of his Majesty's High Court of [ * 53 ] Admiralty of England. , George the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, &c. To our right trusty and right well-beloved cousin and counsellor John, Earl of Sandwich ; our trusty and well-beloved John Buller, Esq.; our right trusty and well-beloved cousin Henry Viscount Palmerston, of our kingdom of Ireland ; our trusty and well-beloved Charles Spencer, Esq., commonly called Lord Charles Spencer ; our right trusty and well-beloved cousin Wilmot, Viscount Lisburne, of our kingdom of Ireland ; our trusty and well-beloved Henry Penton, Esq. ; and Sir Hugh Palliser, Bart., greet- ing : whereas we did by our letters patent, under our great seal of Great Britain, bearing date at "Westminster the thirtieth day of De- cember, in the fifteenth year of our reign, nominator constitute and appoint you the said John, Earl of Sandwich, John Buller, Henry Viscount Palmerston, Charles Spencer, commonly called Lord Charles Spencer, Wilmot, Viscount Lisburne, and Henry Penton ; together with our right * trusty and well-beloved counsellor [ * 54 ] Augustus John Hervey, to be our commissioners for execu- ting the office of our High Admiral of our kingdoms of Great Britain and Ireland, and of the dominions, islands, and territories, thereunto respectively belonging ; and of our High Admiral of New England, 55 DECISIONS IN THE 1 H. & M. , Jamaica, Virginia, Barbadoes, St. Christopher, Nevis, Mountserrat, Bermudas, and Antigua, in America ; and of Guiney, Binny, and An- gola, in Africa, and of the islands and dominions thereof; and also of all and singular our other foreign plantations, dominions, and territo- ries whatsoever, and places thereunto belonging, during our pleasure, as by our said recited letters patent, amongst other things therein contained, relation being thereunto had, may more fully and at large appear. Now know ye, that we have revoked and^determined, and by these presents do revoke and determine our said recited letters patent, and every clause, article, and thing, therein contained. And know ye further, that we, reposing especial trust and confidence in the approved wisdom and fidelity and experience of you the [ * 55 ] said John, Earl of Sandwich, John * Buller, Henry Viscount Palmerston, Charles Spencer, Wilmot, Viscount Lisburne, Henry Penton, and Sir Hugh Palliser, of our especial grace, certain knowledge and mere motion, have nominated, constituted, , and ap- pointed, and by these presents do nominate, constitute, and appoint you to be our commissioners for executing the said office of our High Admiral of our said kingdoms of Great Britain an8 Ireland, and of the said dominions, islands, and territories, thereunto respectively be- longing ; and of our High Admiral of New England, Jamaica, Vir- ginia, Barbadoes, St. Christopher, Nevis, Mountserrat, Bermudas, and Antigua, in America ; and of Guiney, Binny, and Angola, in Africa, and of the islands and dominions thereof; and also of all and singular our other foreign plantations, dominions, and territories whatsoever, and places thereunto belonging, during our pleasure ; giving and by these presents granting unto you our said commissioners, or any three or more, during our pleasure, full power and authority to do, execute,' exercise, and perform, all and every act, matter, and thing which do belong or appertain to the office of our High Ad- [ * 56 ] miral of * our said kingdoms of Great Britain and Ireland, and of the dominions, islands, and territories thereunto re- spectively belonging; and of our High Admiral of New England, Jamaica, Virginia, -Barbadoes, Saint Christopher,- Nevis, Mountser- rat, Bermudas, and Antigua, in America ; and of Guiney, Binny, and Angola, in Africa, and of the islands and dominions thereof; and also of all and singular other our foreign plantations, dominions, and ter- ritories whatsoever, and places wheresoever to them or any of them belonging, as well in and touching all those things which concern our navies and shipping, as those which concern the rights and juris- dictions of or appertaining to the office of our High Admiral afore- said. And we do further by these presents give and grant unto you our said commissioners, or any, three or more of you, full power and HIGH COURT OF ADMIRALTY. 57 1 H. & M. authority to make such orders and issue such warrants, for the repair- ing and preserving our ships and vessels already built and to be built in harbor, with all things belonging to them and every of them, according to your best directions, and for the well building, repairing, fitting, furnishing, * arming, victualling, and set- [ *57 ] ting forth such ships and fleets as you shall receive direc- tions for, either from us or, from our privy council, and also to esta- blish and direct such entertainments, wages, and rewards, for and unto all and every such person and persons as are or shall be em- ployed in those our services, or any thing appertaining thereunto, • and further to give discharges for those services, or any of them, as to you, or any three or more of you, in your wisdoms and good dis- cretions, shall be thought fit, in as ample manner and form as any our High Admiral or Admirals of our said kingdoms of Great Bri- tain and Ireland, and of the dominions, islands, and territories there- unto respectively belonging, or any of them, and as any our High Admiral of New England, Jamaica, Virginia, Barbadoes, Saint . Chris'topher, Nevis, Mountserrat, Bermudas, and Antigua, in Ame- rica, and of Guiney, Binny, and Angola, in Africa, and of the islands and dominions thereof, or of any other our foreign plantations, do- minions, and territories whatsoever, and places thereunto, or to any of them belonging, might have done, by virtue of his or their office or * place of our High Admiral, or by virtue of. [ *58 ] any commission granted in that behalf, might do or perform the same. And our further will and pleasure is, and we do hereby strictly charge and command all our officers and ministers of or be- longing to our navy or ships, and every of them, now and for the time being, and all others in their several places, whom it may in any wise concern, that they and every of them be, from time to time, attendant to you pur said commissioners, and do carefully and dili- gently observe, execute, and perform all such orders, warrants, and commands, as you our said commissioners, or any three or more of you, shall make, give, and direct, touching the premises, in such man- ner and sort, as if our High Admiral of Great Britain and Ireland, and of the dominions,, islands, and territories thereunto respectively belonging, or of New England, Jamaica, Virginia, Barbadoes, Saint Christopher, Nevis, Mountserrat, Bermudas, and Antigua, in America, and of Guiney, Binny, and Angola, in Africa, and of the islands and dominions thereof, or of any other foreign plantations, do- minions, and territories * whatsoever, and places wheresoever [ *59 ] thereunto, or to any of them belonging, had made, given, or directed the same. And to the intent you, our said commissioners, may be the better instructed how to perform this great and weighty 4* 60 DECISIONS IN THE 1 H. & M. service to our best advantage, and we and our privy council may be the better informed what orders and directions, from time to time, to give therein, our will and pleasure is, and we do hereby of our more especial grace, certain knowledge, and mere motion, give and grant unto you, our said commissioners, or any three or more of you, power and authority, not only by yourselves, but also by any other fit , per- son or persons whom you, or any three or more of you, sh all make choice of and appoint, with all convenient speed, to make a true and perfect survey and account of all such ships, pinnaces, and ves- sels of or belonging to our navy, and of all the munition, tackle^ and furniture belonging to them, or any of them, and of all stores, ammu- nition, and furnitures prepared for them and every of them ? of all sorts, and also of all courses now held in managing, order- [ *60 ] ing, and governing of our navy, and "to deliver the same, so made and taken, unto us in writing, and to propound such ways and means for the establishing such orders and instruc- tions for regulating the same as shall be , found agreeable to our ser- vipe, and as may increase our power and forces by sea, and remove such corruptions and abuses as may prejudice the same, and espe- cially may reduce the mariners and seamen, and sea service, to better order and obedience than is now found amongst them, that thereupon we may take such speedy and effectual course for the supplying of all defect.s and reforming of all abuses, as shall be necessary to make and continue our navy serviceable and powerful for our honor, and for the honor and safety of our realms and dominions. And whereas all wrecks of the sea, goods, and ships taken from pirates, and divers droits, rights, duties, and privileges have been, by express words or otherwise; heretofore granted to our said High Admiral, and to for- mer Admirals, for their own benefit, as duties appertaining to the office or place of our High Admiral aforesaid ; now our further will and pleasure is, and we do hereby charge and command, [ *61 ] *that all casual duties, droits, and profits be taken, cqllect- ed, and received in all places where they shall happen, by the Vice- Admirals, and 6ther officers of or belonging to the admi- ralty, in such sort as they formerly were or ought to have been taken, collected, and received by them, and every of them respectively, when there was an High Admiral of Great Britain ; and the said Vice- Admirals and others, so taking, collecting, or receiving the same, shall account for the same, and every part thereof, unto or before you our said commissioners, or any three or more of you, or unto such other person or persons, in such manner and form as you, or any three or more of you, shall to that purpose appoint, but to our only use and behoof, and not otherwise. And whereas we conceive it just and reasonable that those who have or shall HIGH COURT OF ADMIRALTY. 62 1 H. & M. truly and faithfully account for what they receive, should have sufficient discharges for the same, out will and , pleasure is, and we do therefore by these presents give and grant to you our said commissioners, or any three or more of you, full power and authority to issue forth discharges, releases, and quietus * ests [ * 62 ] upon such accounts, for all duties, droits, and profits what- soever, received or to he received by the aforesaid Vice- Admirals, or other cpllectors, receivers, or any commissioners authorized by the Court of Admiralty to receive any droits or profits of admiralty, or any register or registers, or his or their deputy or deputies exercising the office of register in the High Court of Admiralty itself, or in any other inferior court of the Admiralty, as you our said commissioners, or any three or more of you, shall approve of the said releases, dis- charges, or quietus ests, to be under the hands of you our said com- missioners, or any three or more of you, and the seal commonly used by you for things appertaining to the said commission, which we will shall be and remain of record in the High Court of Admiralty, under the custody of the register there, to the end that the parties concerned in such accounts, and discharges, may, according to their occasions, (if they desire it,), receive the same exemplified under the great seal of our admiralty. And our further will and pleasure is, and we do hereby declare, that the said releases, discharges, and quietus ests, so signed * by you our said commissioners, [ * 63 ] or any three or more of you, and sealed with your seal aforesaid, or the duplicates thereof, recorded in the High Court of Admiralty, shall be held, deemed, and taken, and be a full, sufficient, and lawful discharge, release, and quietus est to every such account- ant, his executors, or administrators. And whereas, all offices, places, and employments belonging to the navy or admiralty are properly in the trust and disposal of our High Admiral of Great Britain and Ire- land, and of the dominions, islands, and territories thereunto respect- ively belonging, and of our High Admiral of New England, Jamaica, Virginia, Barbadoes, Saint Christopher, Nevis, Mountserrat, Bermu- das, and Antigua, in America, and of Guiney, Binny, and Angola, in Africa, and of the islands and dominions thereof, and also of all and singular our other foreign plantations, dominions, and territories whatsoever, and places wheresoever thereunto belonging for the time being; and such High Admirals have constituted Vice- Admirals under them, our will and pleasure now is, and we do hereby of our further especial grace, certain knowledge, * and mere [ * 64 ] motion, declare and grant, that all such offices, places, and employments as shall fall void during the vacancy of the office^ or place of our High Admiral aforesaid, shall be given and disposed of by you our said commissioners, or 'any three or more of you; and 65 DECISIONS IN THE l.H.&M. . you our said commissioners, or any three or more of you, shall and may constitute Vice-Admirals for such places where Vice- Admirals have been usually appointed ,by our said High Admiral for the time being. Lastly, our will and pleasure is, and we do by these presents grant to you our said commissioners, that these our letters patent, or the exemplification or enrolment thereof, shall be and remain in and by all things good, firm, valid, and effectual in the law, notwith- standing the ill reciting, or not truly or not fully reciting the said former letters patent, or the date thereof, and notwithstanding the not reciting, any other letters letters patent or commission concerning the said office and premises, or any of them, heretofore made or granted by us or any of our ancestors or predecessors, or any other omission, ^perfection, defect, matter, cause, or thing what-' [ *65 ] soever to the contrary thereof * in any wise notwithstand- ing. In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster, the twelfth day of April, in the fifteenth year of our reign. By writ of privy seal, Yorke. Godf. Lee Farrant, Registrar. [ * 66 ] * Extracted from the Registry of his Majesty's High Court of Admiralty of England. -By the Commissioners for executing the office of Lord High Admiral of Great Britain and Ireland, &c. To John Jackson, Esq., Whereas, all Wrecks of the sea, goods and ships taken from pirates and enemies, and divers tenths, and other droits, rights, duties, and privileges, which have been heretofore granted to former Lord High Admirals for their own use and benefit, as duties appertaining to the office or place pf Lord High Admiral, are, by his Majesty's commis- sion to us, appointed to be taken, collected, and received, in all places where they shall happen, in such sort as they formerly were or ought to have been taken, collected, and received, when there was a Lord High Admiral of. England, but for his Majesty's only use and behalf; and, we having a good account of your experience and integrity, [ * 67] *in which we very much confide, we do, according to the power granted unto us, constitute and appoint you the said John Jackson, Esq., to be our receiver-general of the revenues arisen, HIGH COURT OF ADMIRALTY. 68 1 H. & M. or to arise, by all or any of the rights and perquisites of admiralty, under what denomination soever the same have arisen, or shall or may arise, in the room of Burrington Goldsworthy, Esq., deceased ; and we do hereby nominate and constitute you to be our commis- sioner to ask, demand, recover, and receive, to and for his Majesty's use, all and all manner of rights and perquisites that have been or shall be seized and taken in time of war, or otherwise, and also all other such sums of money as have been usually paid, or shall be ordered by decree of court to be paid into the hands of Godfrey Lee Farrant> Esquire, or the register for the time being ; and we do hereby appoint, that all commissions for restitutions, and such decrees and orders as have been formerly directed by the judge of the admiralty, shall, from the date hereof, be directed to you as our commissioner ; and we * do hereby appoint you to get duly and justly executed [ * 68 ] ' all commissions for appraisements, as well of ships and goods rescued, 1 as of ships and goods taken by privateers, and all other ships and goods wherein his Majesty has any rights or perquisites of admiralty, as likewise all commissions, for the sale of such ships and goods, as also to have all commissions duly returned into the registry of the High Court of Admiralty ; and in the execution of this employment^ you are to observe and follow such instructions, orders, and directions, as you shall from time to time receive from us ; and we do likewise appoint, that you the said John Jackson shall have the yearly salary of three hundred pounds for your own care and pains in the due execu- tion of this employment, the said salary to commence from the date hereof ; and we do hereby empower and direct you to deduct out of the said perquisites, from * time to time, your afore- [ * 69 ] said salary, and to make such an allowance to your clerk as any other your predecessor did ; and this our commission is to conti- nue in full force till further order. Given under our hands and the seal of the office of admiralty, this 24th day of January, one thousand seven hundred and seventy-four, in the fourteenth year of his Majesty's feign. ' i By command of Sandwich. their Lordships, J- Buller. Ph. Stephens. Palmerston. C. Spencer. Godp. Lee F arrant, Registrar. 1 When the Lord High Admiral had salvage of all ships rescued by the king's ships, and the crown had tenths of prizes taken by privateers, this clause operated ; but since the rights of the King and Lord High Admiral have been granted to the captors, this part of the commission, excepting as to droits, is void. 75 DECISIONS IN THE The William, and Grace. 1H1E, disposing, or meddling with any ships, vessels, goods, merchandise, or any admiralty droits, and to take such course for the reformation thereof as may best conduce to the bettering and advancing [ * 75 ] the due rights and benefits * of the Lord High Admiral ; and you are to acquaint us with any neglects, abuses, cor- ruption's, and encroachments, that either have or that you shall find may be committed by any person whatever, to the prejudice of the office and perquisites of the Lord High Admiral. 10th. You are at all times to have your accounts in a readiness, and to give up the same whenever required by us ; and from time to time, to pay such sums of money as shall be remaining in your hands, to such persons as shall be appointed ; and you are by yourself Or deputy diligently to 'follow all causes and matters to our Advocate and Procurator-General, as often as there shall b§ occasion; and you are in general to attend, promote, and prosecute his Majesty's interest in all places and in all causes whatsoever, where either the rights or admiralty jurisdiction are concerned. Given, &c. [-*76 ] * The William and Grace. " September 4, 1777. [Trade with American colonies. Excuse of necessity not admitted.] A Dutch Jew merchant, who had resided at Surinam and Eustatia, claimed the ship and cargo as his property, which he swore it'to be; and among other things set forth, that he had bills due to him, drawn, by persons at Philadelphia upon merchants in Holland ; that they were returned protested ; on which he went to Holland, and gave bail to his creditors, and then went to Philadelphia, where he was obliged to ' take Congress money, and with that purchased the ship and cargo, and was returning in it to Holland when taken. The ground of his claim was, that this was a trade of necessity, and not such a trade with America, as was prohibited by the act. , But the court, was of ' opinion, that the act left no discretion to the judges of the admiralty; that all ships and goods, whether Americans or others, going to or coming from the rebellious colonies, after a limited time, [ * 77 ] were a forfeiture to his * Majesty ; that even cargoes remit- . ted to subjects in England and Ireland, after a certain time, were confiscable; and that this Dutch Jew could not expect to be HIGH COURT OF ADMIRALTY. 78 The Friendship. 1 H. & M. upon a better footing than British subjects; that no sort of trade was admissible; besides it being against the colonizing laws of all Europe, for foreigners to traffic for and carry away the produce of their colonies ; that, in a letter annexed to his affidavit, there was a proof that part of the cargo belonged to some other persons. A dis- tinction was taken between the case determined on the 29th of July last, in favor of a Mr. Baird, a king's officer, who came away with a few casks of indigo for his support, being banished by the pretended government of South Carolina, for refusing to swear allegiance to them, and abjure the king, which was in evidence; as also the case of the Rev. Mr. Angus Macaulay, under the same circumstances; also the case of The Polly was noticed, for that was a ship repur- chased from the rebels by an English master, who had been taken by them ; he loaded her with rice, &c, was in the midst of Hopkins's fleet at Rhode Island, when the king's fleet appeared ; he * did not sail up the river with Hopkins, or try to escape ; [ * 78 ] and swore he intended, after carrying his cargo to Portugal, in order to save his bail, which he had given at the congress custom- house to carry it thither, and not to any port in Great Britain, to have come home to England; yet the ship and cargo were con- demned, because the setting tip an intention would be liable, if ad- mitted, to great collusion. The Friendship. 1 Me. Wells, late marshal of the Superior Court of Admiralty at Charleston, was a claimant of some indigo. He came away in 1775, being driven from thence by force, because he would not join an association against government, leaving his daughter and family ; she left the colony a few months ago, and came on board this ship, having two barrels of indigo for her support, and the ship was bound to Nantz. The court restored the indigo claimed, as also one barrel in favor of a Mr. Millegan, late chief surge-on of the king's garrison, in that colony, who was forced away at the same time. This indigo was brought over by his wife. Millegan came over with * government despatches in 1775. The court said, that it [ * 79 ] should be careful how it gave ear to petitions, from which large consequences might follow to defeat the act. Here were two. officers of the crown compelled to leave the province ; their families i [For other cases where property so shipped was restored, see post p.. 80 -83.] VOL. I. H. & M. 5 80 DECISIONS IN THE The Betsey. 1 H. & M. made part of themselves, aud the quantity brought over was very- small, and for immediate maintenance of the ladies. It was proved, by the examination, that there were ladies on board ; it was reasona- ble, therefore, to take this case out of the rigor of the law; for as the congress governor permitted British subjects to take away their pro- perty with their persons, it would be injustice in friends to rob them of what foes had spared ; but all depended upon circumstances, and ho one case can be a precedent for another. On the other hand, in the case of The Belle-Savage, the court condemned one cask of in- digo, claimed by the said Mr. Wells, which was under the care of a passenger, and said to be remitted by some persons not named, his attorneys at Philadelphia, to some persons at Nantz; and in the pre- paratory examinations, his claim was contradicted by the [ * 80 ] witnesses swearing that * the whole cargo belonged to per- sons resident in America. The danger of admitting these sort of claims was animadverted upon ; as the act might be entirely defeated ; and all sorts of people, under one pretence or other, let in to cover the trade of the rebel Americans. The Commerce. Governor Bull, late the king's governor, was claimant of sixteen casks of indigo, which he brought with him ; the court restored the indigo. The governor had an estate in the province, and this indigo he swore to be the produce of it. He staid there some time after the congress had deprived him of all authority. The Betsey. This ship was taken by the Americans, and afterwards retaken by a king's ship. It was laden with government stores, and the navy- board contested the demand of Sir James Wallace for an eighth sal- vage; because the act of parliament only expressed, that salvage should be given to the officers and mariners of any of his [ * 81 ] Majesty's ships * of war, or vessel, or boat, under his Ma- jesty's protection, for ships and good's of his Majesty's sub- jects retaken from the enemy. It was insisted that the officers of the king's ships, having their pay, it was sufficient, and they did no more than their duty in retaking the king's goods ; but the court held, that of common right salvage is always due for recaptures ; that it would be very illiberal to construe the act of parliament narrowly, which HIGH COURT OF ADMIRALTY. 82 The Sally, l H. &' M. was meant, by the policy of the legislature, to encourage all the king's officers to do their duty, by coupling the. principle of interest with the principle of honor ; that the pay was not, in most cases of the service, adequate to the risk, danger, and fatigue ; that private merchant ships, who never fought but where something was to be gained, would be better off than the king's ships, if the latter were denied salvage ; that in Queen Anne's war, The Winchelsea man-of- war being retaken by The Chester, the King's Proctor claimed the recaptured ship, and salvage was decreed to The Chester, in these especial words, " According to law and custom." It was said by the King's Advocate, Dr. * Marriott, that the king's [ *82 ] stores are the public stores, voted and paid for by the pub- lic, of which his Majesty has the application ; that salvage had always been allowed, where any thing was recovered from an enemy ; and that although the quantum of salvage had been floating, as to what the Courts of Admiralty allowed, at different times, before the prize acts of parliament had fixed that quantum, yet it was always settled, that reeaptors were to be rewarded according to their merit. The case of The Rising States was quoted ; a transport ship retaken by a king's ship, and adjudged about a month ago, when the admi- ralty proctor prayed restitution of the king's stores, paying the sal- vage ; so it seemed singular and reprehensible, that it now should be made a question by the navy board. * The Sally, [ * 83 ]. Taken by the Letter of Marque Sarah Golborough. Thursday, October 2, 1777. The court restored to the Hon. Edward Savage, Esq., three casks of indigo. He was on board with hisjson, and had been one of the assistant judges at South Carolina, and was driven away in conse- quence of his refusing the oath of abjuration of the king and parlia-. ment, tendered to him by the New Carolina pretended government, the indigo being sworn to be for his subsistence and not for trade. Restitution was also decreed to Colonel Probart Howarth of four casks of indigo. This gentleman had been commander of Fort Johnstone, appointed by Lord Amherst, and was under the same cir- cumstances with Mr. Edward Savage. The claim of a Mr. Came 84 DECISIONS IN THE The Sally. 1 H. & M. for seven casks of indigo, and some beeswax, was rejected. It ap- peared that the oath had never been tendered to him. He [ *84 ] only set forth his apprehensions, and *it was in evidence that he was to return to Carolina in twelve months. One of his bills of lading he had made "out under cover in Colonel How*- arth's name, which showed that he thought his adventure might otherwise, if taken, be condemned. He had also left orders for it to be insured for 500Z. sterling by the Carolina Insuring Company. The claim of the rest of the ship and cargo, by a Mr. William Savage, was rejected. The oath was never tendered to him. He •only set forth his intentions and apprehensions of being pressed with the oath ; but he had a clearance from the rebel custom-house, and ihad given security to the congress by one Mr. Baker, resident at Carolina, to perform the voyage to Nantz and back. A foreign sea- man swore that he was shipped by the master for that voyage out and home ; and farther, Mr. William Savage had insured both ship and goods with the American company for 20,000^ currency. His whole family were resident at Charleston. One Thompson, a Scotchman, resident at Charleston, was said by the seaman [ * 85 ] to have been reputed to be a part-owner of the ship. * As it clearly appeared, therefore, that Carne's and Savage's con- cern was a trading concern, strictly within the prohibitory act, the judge condemned Carne's and Savage's property. The rebel ordi- nance threatens the king's. officers, after their being tendered'with the oath, and being gone out of the province, with the charge of treason' and the punishment of death, in case they return ; so that Came and Thompson had it in their power to return, not being officers, and no oath having been tendered to them. There were claims of the king's officers on board, to whom oaths of abjuration had been tendered by the rebel government at South Carolina, and by two other claimants, who swore they came away under apprehensions. It was argued by the King's Advocate-General, Dr. Marriott, for the captors, that the question turned on the admissibility of these claims under the prohibitory act. If it stood upon the letter, it Was clearly to be answered in the negative ; for that it was a general sweeping law, and made no distinctions, except in a few cases arid [ * 86 ] circumstances of time and place, none of * which were ap- plicable to these claims. That it was impossible to draw the strict line when the act was made ; the spirit of which was to stop the whole of the American trade. That, indeed, some few cases had been since adjudged, in which lenity had been shown to the officers of the crown, in consequence of the American ordinance HIGH COURT OF ADMIRALTY. 87 The Sally. 1 II. & M. having afforded a ground for some sort of equity and latitude, in regard to the damnatory clause of the act. That if any thing could be found to justify the Court of Admiralty, in taking the liberty of expounding, or rather contravening, the terms of the act, in discrimi- nating the innocent from the guilty, and relieving the numberless unhappy persons suffering for their loyalty, and from their situation, under the general calamity of a civil war, he should see the distinc- tion with pleasure. But the great danger to be guarded against was collusion. A flood of claims and litigation must follow, and the door once opened, it would be like letting out a weight of water, which would run nobody can tell whither. It was therefore necessary that the court should regard such * claims, even [ * 87 ] as Mr. Savage's and Mr. Howarth's, with circumspection : although king's officers, they were to be believed only upon their own affidavits of the oath of abjuration being tendered to them, and no other witness proved that fact. Indeed, their properties were small, and they swore it to be for their subsistence. It was not very likely that any of the king's officers would falsify their honor to cover rebel property; yet it was well known, that many, very many of the crown officers who had been appointed in America, were landholders, and had families and connections there. How great soever their public duty was, yet the ties of nature, self-preservation, and interest might get the better. The language is obvious, " If you will preserve my effects, I will cover yours." Colonel Howarth's name is absolutely use,d by Carne in a bill of lading ; whether with the Colonel's know- ledge, or without it, does not appear. "Whatever the cqurt might think to do with the claims of Howarth and E. Savage, on the ground of the decisions lately in favor of Millegan, ,Mr. Angus, and Governor Bull's * cases, yet Carne's and Wil- [ * 88 ] liam Savage's claim could not be allowed. They were clearly trading concerns, and both insured as such, by a public com- pany of insurers (not of merchants on the Royal Exchange of London) set up by the rebel government, to encourage their trade with other countries, to the prejudice of this ; so that the claimants could be no great losers by the sentence of condemnation ; and the insurers, in- habitants of the rebel colony, would be the true sufferers ; otherwise a restitution of the ship and cargo, in favor of Carne and William Savage, would be, in fact, a restitution to rebels. These two men might return ; for by their own affidavits it appeared, that they had taken no oaths, and only set up apprehensions and. intentions, a ground not to be admitted : besides, they were contradicted by the ship's papers^ and preparatory examinations. Without being colla- terally supported by them, no affidavit of a party interested can 5* 89 DECISIONS IN THE The Sally. 1 H. & M. establish his claim ; it is the rule. William Savage was to return in a twelvemonth, as appears by a letter from one connected [ * 89 ] with his family ; a resident * Carolinian was security to the congress for his performance of this voyage, and the seamen were shipped accordingly. A person resident in the colony was also reputed to be a part-owner of the ship. In the case of The Polly, a master of one of the king's transports, taken by the rebels, bought his ship again, and having given bond to the congress to return, he set sail with Hopkins's squadron ; when they stood away from Sir Peter Parker's fleet) he remained at anchor, and claimed protection, setting up his intentions to have only secured his own property, and to have evaded the enemy ; this claim was however rejected. On the whole, the Advocate- General concluded, that if such latitude were to be allowed^ the prohibitory act would be defeated completely. Dr. Bever went over the same ground, and observed, that Came and W. Savage stayed some months after the publication of the ordinance, and that the fact of the oath not being tendered to Came and W. Savage only showed that the congress wished to see them again ; and that if this sort of proceeding were to be al- [ * 90 ] lowed here, * people might come as spies into this kingdom with safety. Dr. Harris, Dr. Calvert, and Dr. Wynne, insisted, as counsel for the claimants, that the principle was now established, that notwithstand- ing the words of the statute, there is a favorable exception for claim- ants under circumstances. That according to the late decisions, if this. ship should be condemned, Carne's and Savage's wives might, on recovering the insurance, safely bring home the insurance-money. That Howarth's and Edward Savage's cases resembled exactly the cases of Governor Bull, 1 Millegan and Angus. That the affidavits, so far as related to their property, were supported by the ship's papers and examinations ; and as to their being banished for not taking the oaths, the ordinance proves, that all the king's officers were to be driven out of the province, if they refused the oaths. [It must be observed, that the oath had been tendered to them, and the evidence that they had refused it stood only on the proof of their own affidavit.] There , being no standing interrogatory to this case of tendering [ *91 ] the oath, nothing* of that, could come out as to this fact : they had sworn it, and even that is not necessary in some cases; for Millegan, deputy-marshal of the vice-admiralty, had been in England two or three years ; his property was brought over by his [The Commerce, 1 Hay & M. 80.] HIGH COURT OF ADMIRALTY. 92 The Sally. 1H.&M. ' daughter, and was restored : the oath was never tendered to her. Whereas a cask of his on board another ship, bound to France, and by way of remittance, was condemned. The argument drawn from insurance is not fatal to a ship ; because, in the last war, ships were not condemned, merely because the insurers were enemies. Yet every French ship almost that was condemned, was the con- demnation of the underwriters of the city of London. There were great parliamentary debates about this ; and the insurers of each nation reciprocally protected each other's commerce, in spite of the politics of their respective courts. Besides, William Savage proves himself indebted to this country ; and Carne's family have been con- stantly resident here, in Bartlet's Buildings, Holborn : he only went over to collect debts, himself a Middlesex justice, and a trader * only by necessity, from having unfortunately his pro- [ * 92 ] perty in America, which he wished to withdraw. The sea- man swore only to hearsay about the property of the ship, an Italian, not acquainted with the English language ; and the captors were in default not to have examined the master, mate, and other mariners, according to the kirig's instructions and the regulations of the act of parliament. On these grounds they prayed restitution. Sir George Hay, in giving his sentence, said that the act of par- liament was the rule to walk by ; and the precise line being there drawn, some judges might have thought it for their own ease and jus- tification that they should admit of no exceptions but such limitations only as were expressed in the act ; yet, cases had arisen which seemed to call for a humane interpretation of such a general law. The prohibition was clear, that all ships and goods of the inhabitants of the enumerated colonies, declared to be rebellious, and all other ships going to trade and coming from trading there, were to be con- fiscated ; that wherever there is trade, there is confiscation. * The violent ordinance of the pretended colony govern- [ * 93 ] ment, coming after the making the prohibitory act, has now afforded a ground for lenity in certain cases. The king's own offi- cers are all proscribed by the ordinance. But it behoved a court to be very circumspect on the ground taken by the Advocate-General ; the great danger of collusions, and the difficulty of knowing where to draw the line ; that such officers as Governor Bull could not be supposed to have lent their names for the purposes of screening the property^f rebels ; and as to other officers, the smallness of the quan- tity of goods for their support, as well as the quality of the persons, merited consideration ; and ,that he wished the decisions in the late cases, as well as this, to be well understood in the world, that it 94 DECISIONS IN THE < The Hendrio and Alida. 1 H. & M. might not be wrote over to America, " Only tender your abjuration oaths to the old crown officers, or to persons you may call suspicious, they and their property may go safe to England, and yours too, if they will but swear to it. The judge of the High Court [ * 94 ] of Admiralty will restore." * This must not be. In- tentions, apprehensions, will not avail, nor even the oath being tendered, in all cases. Where parties certainly cannot re- turn on pain of death, it differs much from the case of those who can return, and probably will. Carne's and W. Savage's cases are already determined to be trading transactions in the view and object of the statute. They are not governors or officers driven from their establishments, but American inhabitants and merchants, insuring with American inhabitants. Why insure, or why borrow another name, if no consciousness of being liable to condemnation? — and therefore I must condemn them. Perhaps some people may think 1 have gone too far already, in restoring any thing. I wish to be rightly understood, and I shall be glad to have "the assistance of the King's Advocate. In fixing the sense of an act of parliament, open to many new circumstances, arising every day in the course of this uncommon kind of war and rebellion, it is not easy to draw the line between equity and humanity on one side, and strict law and a severity meant to crush the progress of rebellion, and , [ * 95 ] cruelties, * on the other. If intentions and apprehensions can be admitted on the part of claimants, upon their own oaths, and in their own favor, then the act, prohibiting all trade and inter- course with the American colonies in rebellion, will be a piece of waste paper. [*96.], *The Hbndric and Alida. A Dutch ship, [bound to St. Eustatia,] laden with powder and guns', with foreign officers, going to the provincial army, taken by the Right Honorable Lord Mulgrave, restored by the court. / The King's Advocate, Doctor Marriott : Sir, — The question is, whether the claims given for the ship and cargo are well proved, as being the property of the persons claiming for themselves and others, subjects of their High .MigHBhesses? The points which I shall insist upon for the captors are, that, in the present state of the evidence before the court, the ship cannot be restored to the claimants. I do not say it is to be condemned upon HIGH COURT OF ADMIRALTY. 97 The Hendric and Alida. . 1 H. & M. this evidence ; but with submission that the court cannot restore to the claimants, because there is proof from the mate himself, and from the declarations of Rousman, the late master and part-own- er, to Count D'Attems, * that the ship was the property of [ * 97 ] loyal British subjects, taken off Antigua by an American privateer, and carried into St. Eustatia ; there it was sold, as it is to be supposed, to some persons ; but the transfer of property, either at Eustatia or even in Holland, does not appear by any bill of sale on board. It is a recapture, to the restitution of which a British subject is entitled whensoever the original owner shall appear. It follows, therefore, that the ship must remain in usum jus habentium, as a de- posit for the party who shall appear finally to be the real owner ; and the claimants must go into farther plea and proof of their property, as claimed according to the directions of the act whenever the court has a doubt. I think if it should come out that the Dutch claimants have bought the vessel, even for a fair and adequate price, (which is much to be doubted,) yet it would be a great question, whether, by the law of nations, and by treaties subsisting between the two countries, such a transfer is valid. This question is a considerable one ; I shall not go into it till it comes to be agitated. * I shall [ * 98 ] only adhere to the proposition with which I set out in the opening, that the ship is not now proved to be Dutch property. I have said, in a former case, that it is necessary to prove strictly trans- fers of property; because the position arises out of the nature of this uncommon war and rebellion. Many of our subjects at home, with almost allthe other mercantile people in Europe, combine to render abortive the act of legislature for stopping all trade and intercourse with the British American colonies in rebellion. Colorable and pre- tended sales are the principal means whereby the trade of the colo- nies is protected. Without strict proof the prohibitory act will be waste paper. In the first stage of the present confusions, this court was lenient ; a very little proof of a transfer was admitted, and it considered the prohibitory act of parliament as made rather in terro- rem, to bring back the colonies to their duty, than for a rigid execu- tion. You thought, sir, that you did not sit there to consider ships papers with the strictness of conveyances and title deeds. But the prohibitory act has failed hitherto in the expectation of the framers, "to bring about an early submission, and this con- [ *99 J , test seems to run on ad internecionem. It is time, in my humble opinion, thai a less gentle doctrine should be adopted, lhe decisions and forms of law should meet the. necessity of the case, and the greatness of the object. 100 DECISIONS IN THE The Hendric and Alida. 1 H. & M. The matters which are to be judged of in every jurisdiction among civilized nations give shape to the forms of proceedings ; it is for this reason I object to the present claim for its! uncertainty of personal description. , I admit it to be in the forms hitherto used in a lawful war; but in order to prevent collusive and fraudulent pretensions at this singular crisis, I submit it to the consideration of the court, whether instead of the claim being for A and B, and others, subjects of their High Mightinesses, it ought not to be for A and B, the true and sole owners, &c, &c. For who are others? Englishmen, Americans, any persons unknown, settled here and there, for the purpose of carrying on the American commerce, in defiance of every prohibition. Others may [*100] be John Hancock and Samuel Adams, if they have *but Dutch burghers' briefs, according to the ideas of Dutch writers on the law of nations, who have formed it to their own commercial principles, and in derogation to the jus gentium of all the rest of the maritime powers, as I shall observe more particularly. But as this observation upon the defect of the claims looks forward to the neces- sary reform of the practice in the future, rather than to any, objection fatal to the present claim, I shall not press the observation farther than to insist, that there arises upon the face of this claim, compared with the evidence in preparatory, a strong internal presumption against its own veracity. Rousman, who came in this ship from Eustatia to Amsterdam, is proved, by Captain Klok himself, to be a third owner of this ship, with Rittenberg & Schimmel of Amsterdam. He does all acts of ownership, and ship's husband ; yet why is his name omit- ted in the claim of the ship ? Why did so great an interval of time elapse as from the seventh of August, when the ship was taken, and the fourth of November, when the cause was ready to be [ * 101 ] heard ? At ten at night, on the third of * November, the agent of the claimants Schimmel & Bittenberg, entered their claim. Is it not natural to suppose, that Rousman was conscious that he was himself a British- American, and not a true Dutchman, and that his and his partners' title to the ship could not be finally maintained ? btherwise why were they so difficult to be persuaded by their counsel to appear at last, and claim ? and even then Rousmaln was omitted in the claim. It is easier for claimants to present blus- tering memorials to the king's ministers, than to advance true facts ; but it is very unjust to complain in a court of justice of delays,, which the claimants themselves occasion. When I look at that chair, and recollect how it has been filled in former times, and.howitis filled now, I wish the world to know that the rapidity with which causes of prize and forfeiture have been heard in this court is without HIGH, COURT OF ADMIRALTY. 102 Tho Hendric and Alida. 1 H. & M. an instance in any former wars, not another principal contested cause remaining lfpon the registrar's books ; at the same time the serious- ness, the deliberation, and rectitude, I may say, too, the htfmanity of the decisions, does honor, sir, \q that chair, and to a profes- sion * more or less misrepresented frequently elsewhere, in [ * 102 ] proportion as it is little known or regarded. We were ready to have heard this cause ex parte long ago ; instead of submitting to a legal proceeding, every way has been tried by the Dutch claimants in another place to obtain restitution. However, they are now at last induced to enter into a discussion of their rights in the proper place. As I object to the restitution of the ship, so I agree to the restitu- tion of the cargo, so much as is innocent merchandise ; and in this v perhaps there is very great lenity on the part of the captors, because the consignors and consignees are not proved to be the real owners, and we only except to the swivel guns and powder, and whatever arms and other military stores may be found on board ; we pray that the court will decree in the same manner as was done in the late case of The Twege Broders, that they shall be sold to his Majesty's governr ment at a fair valuation, by merchants, to be named on each side ; and lastly we pray, (what indeed will follow of course,) that just cause of seizure and expenses *may be pronounced [* 103 ] against the claimants. I know of no situation of responsi- bility in the public service' more disagreeable than that of the officers of the navy, if when according to. the best of their ideas, and so far as they can be supposed to understand acts of parliament, treaties, and the jus gentium, actuated by the principles of honor and of duty for the service of their country, and in obedience to his Majesty's instruc- tions, they seize ships of any foreign subjects, under the strongest sus- picion of being either the property of enemies, or going to their assist- ance, the'y are liable, in a court of justice, to heavy expenses, damages and demurrage, as insisted by the claimants to-day. In arguing, therefore, this cause, I cannot do better than to follow what I conceive to have been the ideas of the noble lord, at the time of the capture, upon his detaining this ship, and bringing her in for adjudication. As he is a man of bravery and honor, so he has too much prudence, and too distinguished an understanding, to have detained a ship and cargo belonging, as it is asserted, to the subjects of the Dutch states, if he had not found the * most suspicious circumstances [ * 104 ] of rebel property and hostile intentions towards this country. There can be very little difference (although the difference was urged in the late #ase of The Pandora) between detaining a ship and bringing her in for adjudication ; the latter follows necessarily from 105 DECISIONS IN THE The Hendric and Alida. 1 H. & M. the first. For how can the stopping, searching, or detaining for any time, be justified, but by preserving the justificatory evidence, in a judicial way? The appearance of the vessel, her arms and crew, the passengers and powder, together with examinations taken on board by Lord Mul grave, were reasons to him for seizing and detaining; but he can only be legally justified according to act of parliament by the examinations taken in^prcejparatorio and by ships' papers judicially brought in, and which papers every captor is bound by the act of parliament and the king's instructions to send in with their prizes. The first object which struck the attention of the captor was the built of the ship, confessedly, upon evidence, British-American. [ * 105 ] That the being American built is a reason * at large for seiz- ing and detaining a ship, on that ground merely, we do not contend; but in the present state of American commerce it is a very suspicious circumstance, which justifies the stopping and inquiry. It is very true that American ships are a common object of trade over all Europe, but it is equally true and well known by all persons acquainted with Holland, that the Dutch are the great ship-builders, as well as they are the carriers for the rest of Europe. They build for them- selves, and never buy, except the Bermudas built swift sailing sloops to carry on their trade to the Spanish mainland to escape the guarda costas. This ship, it is, agreed, as one says, is Boston built ; another more generally says New England built. But th« great suspicion was, that she was armed ; and had on board not only powder, guns and naval stores, but five military officers on board; one a Dutch cornet, with commissions doubtless, and despatches but now destroy- ed. Dutch officer and all going avowedly to serve in the provincial army. Count d'Attems speaks out like a man of honor, without [ * 106 ] ceremony, and says, that * this vessel had been met with by his Majesty's ship Foudroyant ; that the master, Klok, was in a great fright, and told Draveman, another officer, in his hearirlg, that he (the master) had some papers which he did not choose should be seen ; and'if Draveman would give him his papers he would conceal them, where neither the seamen nor any one else should find them out. No such papers were found by Lord Mulgrave, nor the despatches which the master had, and for the taking of which on board, leave appears to have been granted by the Dutch West India Company to the masters and owners. Here then is a clear proof of spoliation. In this case the jus gentium is condemnation ; but the lenity of a British Court of Admiralty, in. its usage hitherto, has never gone that length ; although the Dutch HIGH COURT OF ADMIRALTY. 107 The Hendric and Alida. 1 H. & M. submitted to it in regard to France, when the Dutch States published themselves in their Gazettes, by their own authority, the famous French Memoire Instructis, of the 8th July, 1756, in which regula- tions (which the neutral powers were called upon to observe) this, and many other like causes of * condemnation, were [ * 107 ] laid down as the law of nations; and the Dutch States never remonstrated against that famous piece. But, sir, this ship was an armed ship ; and for what purposes it is plain; against this country. The size of the ship deserves animad- version ; for, by the Dutch sea-brief, it appears that the vessel was entered at forty-three lasts, that is, about sixty tons : we will, how- ever, admit 100 tons. Fifteen tons of powder is avowedly part of the cargo, about a sixth part of the whole cargo, besides the twenty- one swivels. But this small vessel was mounted with eight carriage guns and four swivels, 100 shot for those guns* and two barrels of powder. Every body who knows the least of shipping must know that such a weight of metal upon deck must render the situation of so small a vessel extremely hazardous in tacking, or in a gale of wind. Here were but four seamen, two boys, the mate, and a mas- ter, to twelve pieces of ordnance : who can doubt but they were to have been served by the five officers and their two servants, with Franklin's commission in their pockets? These men, adventurers, who make a trade of war, and are ready to cut throats * for any side that will employ them, would have made their [ * 108 ] fortunes by a prize of some weak English vessel : but they were unlucky in meeting with such a ship as The Ardent, and with a commander as good as his ship. The very reasons given, by the master and mate, for arming the ship'in this manner, are too ridicu- lous not to see against whom these arms were intended. To defend themselves against the Turks ? they might as well have said, to de- fend themselves against the Marattas, near the island of EustatiaT The words of Rittenberg, in his letter to Jan Schimmel, are, " "We have mounted our brigantine de Hendric and Alida with six three or four pounders, English cannon, as also sixteen swivel guns; by reason that it being summer time, we are afraid of the Turk. Praise God this day." He does not seem to know the number of guns on board a ship he calls his own, and they are English. The master and evidence fix a larger number. But these guns were also pre- tended to be for salutes. Seven pieces were to be fired at the castles of St. Eustatia. ( There is an etiquette about salutes : and Governor De Graaf is famous for his politeness *to rebel [ *109 ] American vessels ; he receives and returns their compli- ments* I hope, in return, no credit will ever be given in this country vol. i. — h. & m. 6 110 DECISIONS IN THE The Hendric and Alida. I H. & M. to any papers or documents, with the signature of a man so publicly an enemy of this country. I am sorry that he appears, by some of his letters, to be supported by the Dutch government, in defiance of the representations of ours. One may truly say of him, and the rest of his fraternity at St. Eustatia, purchasers of British ship's, they are receivers of stolen goods, knowing them to be stolen. Although one set of instructions, dated 19th July, orders Captain Klok to salute the fort with seven guns, yet another set, dated 18th July, orders him to be very careful of the gunpowder and cartridges in saluting castles, and not to fire any guns except upon places where it is necessary. It is usual for foreigners to salute forts, and they are complimented in return with much ceremony ; but it is not usual for the subjects of the same state to salute their own forts, or to be salu- ted. Can it be supposed that a Dutchman, in a ^hip or a fort, would waste an ounce of powder upon a Dutchman ? They [ *110 ] * are better economists. As to the pass, it is not a true one. The master is plainly a prevaricator. When examined upon the first set of interrogatories, he swears that he never before took any oath, or deposed that the ship was the property of Dutch owners. Upon the second set of interrogatories, he swears that the pass, or sea-brief, was obtained upon his oath or affirmation. But the mate speaks out, and says that he signed his name to the passport by the captain's orders, (he does not say whether by Cap- tain Kousman's or Klok's orders,) but that he cannot say whether the said passport or sea-brief was obtained upon the oath or affirmation of the persons therein described, or whether it was delivered to or on •behalf of the person or persons who appear to have sworn or affirmed thereto, without their having "ever in fact made any such oath or affirmation. This is wonderful! he swears that he signed the sea- brief, and yet does not know the contents, nor upon whose oath it was obtained. But, on the face of the sea-brief introduced, neither the mate's nor Klok's name is to be found. This is the common trick ; [ * 111 ] * one man swears and signs, and another uses the passports; so that the Dutch collude even against their own govern- ment, and defraud it of its duties by taking out false passports and false admeasurements. In regard to the cargo ; here is a very large quantity of powder and swivels ; other arms are suspected to be concealed. It is true some Jews appear interested, but it is only in part,, and the rest of the powder, as well as the guns, for what appears to the contrary, may be for the account of the congress : unless it can be established that the cbnsignees are the owners : but what is laden tp order can- HIGH COURT OF ADMIRALTY. 112 The Hendrio and Alida. 1 H. & M. rio,t be theirs ; it is more likely to be the property of the consigners and laders. But if the cargo is not expressed to be laden on their account and risk, considering the present nature of the commission trade, a further proof of property must be expected, if the claimants Will not agree that there was just cause of seizure and expenses against them, for defect of documents. Whatever may have been the rules of admiralty courts, formerly, on this subject, those rules were founded on the state of commerce at that time. The * middle-man, (the factor, the seller, buyer, and lader by [ *112 ] commission,) was not so well known a character as it, is now. All business is now transacted by a third man ; and more than three parts out of four of the persons who are styled merchants on the Royal , Exchanges of London and Amsterdam, are agents for other men settled on different sides of the water. You see by the letters in this and other causes, so frequently read in this place, how greedy people are after a commission business, even to get it away from one another, because in this species of commerce ithere is all profit and no risk ; and the same men can contrive to be the buyers and sellers at their own prices, and set the market. No wonder then that all the mercantile people of Europe push for the agency of the American commerce, by commission. There is not one person exa- mined who will swear to the property of the claimants of any part of the cargo ; nor one paper to prove their property, excepting an inte- rest in a share of the powder with the Lobos and Mendez, and a let- ter of Crommelin and sons to Messrs. Milnef and Haynes at St. *Eustatia, that they had shipped, on their account and [ *113 ] risk, goods on board this ship, amounting to Dutch money 22,891-15. But this is not so described as to be capable of being distinguished from the rest of the cargo ; and who are Haynes and Milner but Englishmen now at Eustatia, for the occasional, purpose of carrying on the American trade, in defiance of the laws of their country, which they would evade if possible? Who is Donaldson ? Who is Curzon 1 Who are the rest of the Eustatia correspondents of the traders in Holland, but upon the same plan of adventurers ? The only argument we mean to draw from this uncertainty of the general property of the cargo is, that under the declaration of the Dutch West India company, viz., that nothing on board was for the use of the island, and all the crew swearing that- none of the powder or .guns on board were for the use of the garrisons or for- tresses of the States of Holland, a., presumption justly arose in the mind of Lord Mulgrave, and must arise in the breast of the court, that this whole cargo had a destination beyond Eustatia, where the ship * only was intended to touch ; for it is clear, [ * 114 ] 115 DECISIONS IN THE The Hendric and Alida. 1 H. & M. from the evidence of Draveman, the Dutch military officer, that Captain Roussman, a principal owner, and late master, declared to him, that the vessel was to go on to New England, and there lade with tobacco, rice, and indigo, and then return to Amsterdam. In these cargoes it is universally known the congress make their remit- tances. And will any body say this is not a contraband trade to his Majesty's, colonies, against the law of nations and treaties, whereby alLthe other maritime powers have shut up the trade of their respect? ive colonies, and endeavored to confine it to themselves ? But the Dutch, possessed of a barren rock, and authorized by their directors to take whatever goods they shall find there, avowedly set their faces against this compact of all the other powers. From this place, as a general entrepot, they invade the commerce of France,. Spain, Eng- land, and Denmark, and are as often condemned as the Spanish guarda costas catch them. All that the Dutch States say, is, that merchants cannot be hindered ; they are a set of people in- [ * 115, ] dependent of all * the world, and they trade in this way suo periculo, at their own risk ; and so we say they do now. It will be asserted, that the Dutch have -a right to carry what they please to their own island ; but it may be answered to that, " the Dutch company certify, that none of the articles on board this ship were for the use of the island." I deny the proposition of right taken in its largest extent,, and insist that they cannot aid the king's rebel- lious American subjects through the medium of their own island. The condition of the island of St. Eustatia is notorious to all the world ; and the letters on board this ship, and every other Dutch ship that has been brought in for adjudication, prove the use that is made of the island. Our own merchants, as well as the Dutch, are con- cerned. The spirit of commercial adventure has seized all the world. The business of the colonies, and the assistance with arms and ammunition, is not only confined to Dutchmen, Portuguese Jews, and Smouches; all Europe traffics through the medium of St. Eu- statia ; and its barren rock is become, under the direction of [ * 116 ] a governor who is an enemy to this country, * a magazine of arms for enabling the American colonies to support their asserted independence. Spain has vast territories, fortresses, and gar- risons. France has very valuable islands ; they must have troops and garrisons. . The Dutch have a rock, and a castle for salutes ; by this they would monopolize the trade of all America, and, though allies of this country, do every thing they can to its ruin. The Dutch West India Company, at this crisis, look with greedy eyes upon all America as their own. Their directors are chiefly members of the States. The Amsterdamers take the lead in the council, and HIGH COURT OF ADMIRALTY. 117 The Hendric and Alida. 1 H. & M. they are the great manufacturers of gunpowder for all Europe, I may say for the world; yet a true Dutchman must lament this conduct, inconsistent with the true interests of Holland ; such a one regarding, the permanency of his own state,- «w a vis all the neighboring powers at home, who can crush it in a moment, must think that the avarice of mercantile adventurers is not to be gratified while the very exist- ence of Holland may be in danger. For whenever Great Britain shall lose her weight in the scale of Europe, Holland must fall. *It appeared in the case of The Twegee Broders, that [*117 ] 150- per cent, was made by trading with the British colonies. Can a nation of merchants resist 150 per cent. ? We have already laid before the court the letters which are addressed, under cover, to Russel, to Levinus Clarkson, of Charleston,, South Carolina; Chupp & Bourdoin, at Virginia. What need we mote to show the course of the trade, where it centres, and the necessity of checking it ? But flaming memorials are dictated by American agents, and presented to the States ; and his Majesty's officers, of the first character as men of honor, of probity, are charged with having broken bulk. If memo- rials only stated true facts, they would be duly considered ; but let those merchants who deceive their own government, and try to raise the spirit of dissension between two friendly powers, whose great interests are inseparable, look well to their conduct. This court has power to punish offenders against the king's instruc- tions and the law. I can take upon myself to say that very uncom- - mon care has been taken to prevent an undue rummaging and search- ing of foreign ships. * Instructions were never before, in any war, carefully [ * 118 ] drawn and printed for the conduct of his Majesty's com- manders, that they might not be led, from ignorance of their duty, into an injury of themselves and others ; and it is in the power of every foreigner upon this head to do himself justice. In this court there is a special interrogatory, the fifth and the first set of additional ones, as follows : — " Was bulk broken during the voyage in which you were taken, or since the capture of the said ship ? and when, and where, and by whom and by whose orders, and for what purpose, and in what manner 9" If this interrogatory were not sufficient, claimants may make affi- davits of the fact ; but to this interrogatory the master and mate an- swer, "that bulk was not broken during the voyage in which he was taken, nor after, to his knowledge." The answer was the same in the case of the Dutch ship The Pan- dora, which was lately adjudged to be restored. 119 DECISIONS IN THE The Hendric and Alida. 1 H. & M. In the last war there were Dutch masters who pilfered [ * 119 ] themselves, and laid it upon * English cruisers, and Holland echoed with cries of the injustice of our proceedings, as they pretended. Who are the men who dare to circulate, to affirm these falsities at this time of the day ? For the honor of this court and its practitioners, for the honor of this nation, I wish all the world to know what our proceedings are ; they are such as are authorized by the most equitable usage of the law of nations. The principle of condemnation in the Court of Ad- miralty is in favor of every claimant ; it is the language of the divine law of scripture: — " Out of thine own mouth' will I condemn thee, O mine enemy." By your own testimony you shall stand or fall ; prove your real property, take it, and have it. Yet, if you will sail the seas in a riavire masque, in the breach of the peace of the law of nations, and cannot produce upon the first view true unequivocal documents, you shall be stopped ; you shall be brought in for a more strict judicial examination ; and if you shall be found deficient, as a warning for your future conduct, the seizure and detection \vill be justi- [ * 120 ] fied, * and you will' be condemned in the expenses. It is on these grounds, therefore, sir, I renew my first mo- tion against the Dutch claimants, to detain the ship for further proof, as there is reason to\ believe her to be a recapture, the property of his Majesty's own subjects ; to restore so much of the cargo as shall ap- pear harmless, ordering the guns, powder, and military stores, if any, to be sold to his Majesty at a fair valuation and appraisement, by commissioners, merchants to be named on both sides, and approved by the court, as was done in the case of The Two Brothers, and to decree expenses in favor of the captor, and justify Lord Mulgrave. Dr. Harris, Advocate for the Admiralty, went over the same ground as the King's Advocate. He insisted that the ship could not at present be restored, but must remain till the property should be clearly made out ; that the powder should be ordered to be sold, and consequently the whole cargo unladen under the act of parliament, so , that the contents might be known, and probably the true pa- [ * 121 ] pers appear. He particularly * observed, that the treaty of 1674, which altered the principles of infection, and derogated in all respects from the common usage and law of nations, is now ad- . mitted not to extend to the privilege of carrying freely the goods of enemies, in the case of hostilities between .Great Britain and her colonies, which could not be an object in view of that treaty ; there- fore, whenever the subjects of any powers in friendship with Great HIGH COURT OF ADMIRALTY. 122 The Hendric and Alida. 1 H. & M. Britain now attempt to carry contraband goods, the law of nations reverts to the old footing, previous to the treaty, and the doctrine of contraband infecting the rest of the cargo may take place ; to which the exporters make themselves liable by their own act ; the only true and effectual way to stop such a commerce, and to punish so much perfidy, being a confiscation without distinction of the cargo, when- ever warlike stores are found on board ; that all the books of the writers upon the public law of Europe — Dutch, French, Italians, Germans, and others — are all full of the doctrine of infection. • To these arguments on behalf of the captors, it was answered, on the part of the claimants, by Dr. Calvert, that the claimants * looked upon their case to be so clear that the court would, [ * 122 ] on the first face of the evidence, restore ex officio, although no formal claim was made ; that Rousman, Rittenberg, and Schim- mel, having done acts of ownership, must therefore be presumed to be owners of the ship ; besides, it had been sixteen months in their possession ; that in many cases, determined since the present troubles, bills of sale had been constantly called for by the advocates for the captors, and as often had it been said by the court that they were not necessary to be produced. He trusted that the determination would be the same again ; for that as a bill of sale is the title-deed of a pur- chaser, so it is natural and prudent that he should keep it in his own possession, and not hazard it on board a ship. As to the voyage, all that Rousman said was that he was to have gone to New England to bring back tobacco ; but it must be sup- posed that, after Klok was appointed master, his design was changed. But will anybody pretend that this country has a right to stop the commerce of all the rest of Europe, and to say, you shall not buy the goods of our enemies ? The subjects of other nations * have a right indirectly to sell arms and gunpowder, which [ * 123 ] are merchandise as well as any thing else that is an object of commerce. There was no question of that ; that nothing ap- peared upon the whole face of the evidence that there was any property of the rebels on board this ship, or that any of the cargo was to be delivered for their account. Dr. Wynne. The claim is objected to, with a view rather to the future practice which is proposed to be reformed, than with any solid objection for the present. It is in the form always usual in former wars. If any other owners, not named in the claim specifically, appear in the evidence, they shall have the benefit as the subjects of a foreign state. The court must not go out of the way on the ideas of reformation. Others in the claim mean Rousman, or any others 124 DECISIONS IN THE The Hendric and Alida. 1 H. & M. who may turn out owners upon a view of the whole evidence.; for a master, who is commonly the claimant, or an agent, may not know all the owners ; so Klok dip! not know all the owners of the [ * 124 ] cargo ; he could not swear to any of them, for the plainest "rea- son^ because he did not take the command until eight days, before he sailed. As -to the delay of giving in the claim not till the night before the cause was ready to be heard, it was indignation ; just resentment on the part of the Dutch subjects : they said, What usurpation is this ? Are we not to trade to our colonies ? It was fought the captors would not dare to make a point of an assertion to the contrary. Consignees and consignors to order, have always in former wars been held to be owners ; but here is a clear presumption in favor of Schim- melin and the Crommelins, Hopes, and others, Dutch subjects. Domi- cility has ever been held the rule to regulate the character of citizenship all over the world. It, is true, on the first appearance the bills of lad- ing do not mention on whose account and risk ; but the gentlemen on the other side have not attended to the letters (which have been since brought in by the claimant, opened.) These letters make so many of the goods as are therein named to be for the account of per- sons who are Dutch subjects at St. Eustatia. As to the voyage to New England, it is only the hearsay evidence of Draveman. [*125] The * crew were too few to man so many guns. Could they, or those who were on board, have hostile intentions ? Clearly not. The ship was built in England ; but will the built justify a seizure ? If so, we may seize half the ships that swim : for ships are as much an object of trade as any other commodity ; the gunpowder is for the, account and risk of The Lobos and Mendez. The law of stopping Dutch ships on any account must be denied ; for, by treaty, if they do but show their passports, they are not to be detained, much less to be brought in for adjudication, and rummaged to find evidence out of their own. papers. As to St. Eustatia becoming a general mart at this crisis, it cannot be otherwise of necessity. It is a port open for all the world. If you refer to your gazettes, 162 rebel ships have been taken by the king's cruisers; many have been taken by your letters of marque: they and their cargoes must be disposed of somewhere ; it is impos- sible to bring them home. Do you not buy powder of the Dutch in Europe ? Do not we use a great deal, and consequently want a great deal in America ? It is true, that powder carried [ * 126 ] to * a market may ultimately get to the rebels ; but in the last war an ultimate possible declaration never was a ground HIGH COURT OF ADMIRALTY. 127 The Heudric & Alida. 1 H. & M. for condemnation. If you can catch the ship Jalousia, and that is loaded, as it is said, with arms for the Americans, take her if you can, and try whether she will not be confiscable. As to carrying letters or passengers, a foreign ship is not liable to confiscation for that ; the owners know not the contents of letters, nor the characters and intentions of mere voyagers. The case of The Two Brothers was a case very distinct from this of The Hendric. Here the powder is laden by permission of the Dutch West-India Company ; there it was laden on board after the ship had cleared out from the quays,* and had fallen a great way down the river, and was entered in the ships under the colorable name of merchandise. Here the lading is public, and the gunpowder is expressed in the permit and in the invoice. [Reads a paper, part of the depositions in the cause of The Twegee Broders.] Bills of sale have never yet been insisted on by the court. In the case of The Three Sisters, lately, the argument of the want of a *bill of sale was urged, and rejected. [Reads a paper, [ * 127 ] part of the depositions in the cause of The Three Sisters.] Clandestinity and defiance of the Dutch placart was the ground of ordering the powder to be sold in the case of The Twegee Broders. But as to the doctrine of infection, it is too antiquated to be revived, and too dangerous to be put in practice. The master, speaking to Draveman about concealing the papers, when The Foudroyant ap- peared, is only swore to by D'Attems. Draveman himself swears, that no papers were torn or thrown overboard, concealed or at- tempted to be concealed. Lastly, the master's denying that- he appeared personally, and swore to the pass when it was obtained, is a matter which must arise from his misunderstanding the interroga- tory, for his name is to it, and the engagement to observe the rules. And he positively swears, on a second examination, that he did per- sonally appear and take the oath requisite for obtaining the pass. Therefore, on the whole, the captor has been very rash, and ought to be condemned in costs, damages, and demurrages. The King's Advocate, Dr. Marriott, in reply. Sir, if this [ * 128 ] trade is not stopped, it is in vain that we contend with America. We may use the words of the classic, Tu pulsas : ego baculo tantum. You hit hard blows ; we only (in the, schoolboy phrase) send off, and bully. Then it is but too true, that we are at war openly with America, and secretly with all the world besides, to very little pur- pose. , 129 DECISIONS IN THE The Hendric and Alida. 1 H. & M. My learned neighbor has adopted the indignation of a Dutchman. I have heard of indignation making , an invective, a poem, or a speech ; but I never yet heard of indignation making a claim for a ship and cargo after three months silent acquiescence. I thought a Dutchman had no passions, but that sort of feeling which arises from knowing the difference of profit and loss, and the vexation of being crossed in their mercantile interests. It was not indignation, but contempt for this court, I do not say for this government, that [ * 129 ] made the claimants wait so long before they would * submit to appear judicially. They were advised by somebody to hope for restitution by bullying ; but could they reasonably hope for success ? When^they came to talk with their counsel, they learned a better lesson. " Claim nothing, have nothing ; prove every thing, , have every thing." Did they expect, sir, that you were to restore nobody knows what, to nobody knows whom ? and to hear the whole cause ex parte ? As for the pretended acts of, ownership, on which so much stress is laid by the counsel for the claimants, -th'ey must be denied to be proofs. A man who steals my watch, wears it as his own ; he pawns it, or he sells it. These are acts of ownership ; do they prove him to be the real owner? and what are these Dutchmen who deal in the purchase of the ships of the king's subjects piratically taken ? " Bills of sale are the title-deeds, of the purchasers," said one gen- tleman ; for that very reason, we say, produce them; Plead them, prove them, is the answer. But, it is said, " the bill of sale is in the custody of the buyer." Does not every one know* that in mercantile transactions [* 130] and correspondences, there are always duplicates? If places are at a great distance, there are triplicates. "Why was not this document on board The Hendric? " They have never been required by the court yet," says the other gentleman. It is high time they should. It is said, the ship was known by the mate these sixteen months, under no other name than the present. It is not public what arts are used to cover these purchases ? Ships are new-named, altered by paint- ing, papers changed, and crews discharged, and the ships sold with rapidity by American captors. In the present confusion of things and , persons, the British merchant and loyal subject in America or in Eu- rope, often knows not where his ship is carried, nor in whose hands she i's. He himself may be in the power of the rebels : yet, whenever he shall appear, he will be entitled to his property. Time cannot avail against the jus postliminii, any more than against the treaty ; and more especially when his ship falls again into the possession and is under the protection of the laws of Great Britain in the HIGH COURT OF ADMIRALTY. 131 The Efendric and Alida. 1 H. & M. * High Court of Admiralty ; the British owner has a right [ * 131 ] to reclaim her as a recapture. In regard to the voyage, the gentlemen avoid that ; because they say Rousman only was to have gone with this ship to New England. If Rousman was to have gone to New England, does it not fol- low clear that Klok was to do so too, whom Rousman, a third part- owner, appointed master in his own room, but eight days before the ship, being completely laden and armed, sailed from the port of Am- sterdam, with a master instructed " to behave as a brave captain ought to do," and to take farther orders from Burch and Haynes at St. Eustatia. We deny the whole property of the powder to be proved. The Jews, Foa at Bordeaux, Lobos at Amsterdam, and Mendez at Nantz, are interested in part. For the owners of the rest there is a dead silence. As to the evidence of hearsay, it is good. The auditus ex auditu is the weakest sort. But evidence to a declaration of a master, of an owner, of a party concerned, is an evidence of a fact: and it is conclusive, if it is not controverted ; and Count D'Attems, * though a soldier of fortune, is a man of honor, and his [* 132 ] evidence incontestable. In regard to the cases mentioned, it is very unfair, in this case, as was done in The Pandora last court by the same gentleman, to bring a scrap of paper out of old briefs into a court in another cause. If this is allowed, we must read the whole context, and all the evi- dence in those causes ; fight all our battles over again ; and so we may talk down that clock. But if my memory will serve "ie, in The Twegee Broders, although some part of the powder was put on board clandestinely, yet the general cargo, and a very great part of the powder and arms especially, were entered and cleared out as merchandise, at the West India Company's quays and at the cus- tom-house ; and part of the powder was put on board when the ship, was in the stream of the river, the rest when she was fallen a great way down : I am sure that was the evidence. The Dutch placart is very artfully worded, and calculated for evasions, and being made only for a year, and not being renewed for an interim of two months, the Dutch, at the time of lading The Twegee Broders, seized the opening for their trade, *and lost no time to supply the [ * 133 ] call for powder and arms in America. The Admiralty single passport, No. 1, is the common passport which grants no special permission for the powder. The bill of lading for this powder, No. 10, is only made out in the name of merchandise ; and so are the freight lists, No. 5, signed 134 DECISIONS IN THE The Hendric and Alida. 1 H. & M. by the West India Company's' clerk, upon which the permit was afterwards obtained, and the word powder foisted in. As to reasoning's taken from cases in the last war, gentlemen who delight in being case-mongers, and string their precedents as boys da birds' eggs, (and we all know that for an argument's sake, one bad pre- cedent is as useful as a good one,) may go burn their memorandums. The case of the Dutch was very different trading with the subjects of France and Spain, and now with the king's rebel subjects. They were upon an equal footing of friendship with France and Spain as with Great Britain, France and Spain were acknowledged friendly, powers by the Dutch, and had a right to trade indirectly with them ; though even then they were condemned when adopted [ * 134 ] by special license * and a direct trade. But will the Dutch say, " the Americans are as much our friends and allies as Great Britain ?. They are independent ; they are like ourselves ; they mean to form themselves on our model ; and we will take them under our protection." Let words speak out, or let facts, stronger than words, announce the doctrine ; this country will not bear it. It will have indignation, too. We refer to treaties, to prove, in case of either party purchasing the prizes taken from the other, that the prize, although bond fide bought, shall be restored to the true owners. Reads the article : Article XX. Treaty of Bredah, 1667. The King of Great Britain and the said States General shall not receive into their ports, cities, and towns, or suffer that any of the subjects of either party do receive any pirates or sea-rovers, or afford them any entertainment, assist- ance, or provisions; but shall endeavor that all such pirates and sea- rovers, and their piratical accomplices, sharers, and abettors, be found out and apprehended, and that they suffer condign punish- [ * 135 ] ment for a terror to others ; and all * ships, goods, and com- modities, piratically taken by them, and brought into the ports of either party which can be found, even although they are sold, shall be restored to the right owners,- or satisfaction shall be given. Is there not an indirect assistance given to the open and declared rebellious enemies of Great Britain' ? yet what says the treaty ? Article of the treaty of Westminster, Feb. ft, 1673 -4. Neither of the parties shall give, or consent, that any of their subjects or inha- bitant shall give any aid, favor, or counsel, directly or indirectly, by land or by sea, or on the fresh waters, nor shall furnish nor consent that the subjects and inhabitants of their dominions and countries shall furnish any ships, soldiers, mariners, provisions, money, instru- ments of war, gunpowder, or for any things necessary for war, to the enemies of the other party of any rank or condition whatever. HIGH COURT OF ADMIRALTY. 136 The Hetidric and Alida. 1 II. & M. And as to the ordering cargoes to be sold for the service of the state, in cases of extraordinary necessity, that is clear from another article. * Article XXVI. Treaty of Bredah. Merchants, masters, [ * 136 ] and mariners, of either party, or their ships, goods, wares, or merchandises, shall not be arrested or detained in the lands, ports, roads, or rivers of the^other, to serve in war, or for any other service, unless upon an extraordinary necessity, and then just satisfaction shall be made. This shall be- no prohibition or hindrance of any em- bargoes or arrests duly made, and in the ordinary course, according- to the laws of either country. "Will any body say that this extraordinary necessity does not ex- ist at this crisis ; or that just satisfaction will not be made to the claimants, by paying them a good price for bad gunpowder ? for such was the last said to be, which was sold to the Board of Ord- nance by order of the court, in the case of The Two Brothers. As the gentlemen are fond of quoting; in the last war we all remember how naval stores were ordered by act of parliament to be sold for the use of government ; nobody talked of treaties against it. The king's government do not wish to injure Dutch own- ers, if such there are, but * only to insure the military part [ * 137 ] of^the cargo not going to the American rebels for their sup- ply in the very heat and midst of a campaign. The lenity of the same decree again, (as in the case of The Two Brothers,) will bring all the Duch gunpowder to a British market, and indemnify the Dutch owners by a high price, and the hurt pf our own manufacture. In regard to claims, as well as transfers, I repeat again, they cannot be too specific to avoid collusions ; and e„very ju- risdiction must adopt new forms from time to time, as every country in the state of human affairs and commerce takes a new face, and as fresh objects arise for the control of the legislative or executive powers. Sir George Hay. It would be too high for any such court of jus- tice as this, to assert that the Dutch may not carry in their own ships to their own colonies and settlements every thing they please, whe- ther arms or ammunition, or any other species of merchandise, pro- vided they dp it with the permission of their own laws ; and if they act contrary to them, I am no judge of the * laws of [ * 138 ] Holland. I cannot enforce them ; but their last placart per- mits such exportation, with the permission of the College of Admi- ralty. vol. i. — h. & m. 7 139 DECISIONS IN THE The Hendric and Alida. 1 H. . &' M. I cannot judge politically, nor have I any discretionary power but on legal grounds. The king's ministers must treat with the Dutch states, and enter into a negotiation on this subject. The treaties with foreign powers are best known and understood by his majesty's privy council ; and his Majesty has power to make further rules for proceedings in his courts of admiralty ; a representa- tion must be made by persons of much more consequence than I am ; and when a notice comes to me from the council, I will obey it. What the Dutch would do, I will do as far as I can. The Dutch placart, in cases of exporting without permission of the College of Admiralty, under which the loading is to be made, subjects io confis- cation and fine foreign and Dutch ships ; and when the Dutch have a permit, then say they, we will carry what we can. [ * 139 ] * Under these permits, I cannot prevent. The gunpowder cannot be proved to be going directly for the use of the re- bels. In regard to the ship it is claimed, as to the form of the claim hitherto usual, properly enough ; and the ship has been in possession of the Dutch claimants sixteen months,as sworn to by the mate. The master could not give much account of the owners of the ship and cargo, as he took the command but eight days before she sailed. Every presumption arises in point of law from possession and acts of ownership. But the condition of the ship, being armed, and having officers going to the provincial army, is a great point, against the claimants for costs, and must have struck Lord Mulgrave. If it, was clear that she was going to New England, touching at St. Eustatia, that would never do. All ships trading thither are confiscable; and the act of parliament is notice to all the world, and so was the former act, in the case of naval stores. The declaration of Rousman, the former master, and part owner, as to this illicit destination, is well proved ; [ * 140 ] and the strong suspicions arising *from that, and the armed state of the ship, and the character of the passengers, are all circumstances that concur fully to justify the seizure. Lord Mulgrave did his duty to stop this ship, and bring her in. I cannot direct any part of this cargo to be sold. In the case of The Twegee Broders, there was clandestinity in lading the powder ; besides, there the agent consented to a sale of the powder and arms. I restore, therefore, the ship and cargo, and decree just cause of seizure and expenses in favor of the captor. A representation must be made by some proper per- son to government as to cargoes of this sort. HIGH COURT OF ADMIRALTY. 141 The Vrow Antoinette. 1 H. & M. * The Pere Abam. [ * 141 ] November 13, 1778. Sir James Marriott, Judge. A Claim was given for a Frenchman, owner of this ship, seized before the declaration of reprisals ; the court rejected the claim, be- cause a commission of general reprisals is stronger than even a decla- ration of war, authorizing to seize the goods of the foreign subjects every where, and immediately; whereas by treaty, in case of declara- tion of war, there are six months allowed to remove their persons and properties; besides this, the king of France publicly declared, on the 10th of. June last, hostilities against England, so that the claimant had no persona standi in judicio, or no civil right to plead 1 ; the two countries being engaged in an actual war. The Yonge Helena, A Dutch ship, was restored, having French goods on board, laden before declaration for reprisals, bound from one port of France to another. The cargo, * being an innocent cargo of oil and [ * 142 1 soap, Was also restored ; but as the ship had no Dutch pass- port, and the master swore that his own bill of lading was false, the captor, the commander of his Majesty's cutter The Kite, was declared justified in stopping her ; but each party to pay their own costs, the goods being privileged by treaty. The Vrow Antoinette, A general carrier, with goods on board, laden by various persons at Hamburg, consigned to Frenchmen at Bordeaux ; but the bills of lading for the most part not specifying on whose real account and risk the goods were laden, and the carrier master very honestly not undertaking to swear to the real owners, the court ordered that the 1 [As tq suits by alien enemies, see The Rebecca, 5 C. Rob. 102 ; The Charlotte, 1 Dod. 214 ; The Eliza Ann, 1 Dod. 245 ; Seamen (enemies) who sail in a licensed ship may sue for their wages, The Frederick, 1 Dod. 266 ; The Maria Theresa, 1 Dod. 303. 143 DECISIONS IN THE The Louis*. 1 H. & M. claimants should specify the real owners, and that the several parts, of the cargo, which were planks, hemp, sail-cloth, and sheets of copper for sheathing ships, should be sold for his Majesty's use, to persons to be authorized, on a fair valuation by merchants ; the carrier to be paid his freightage, and all incidental charges, by the buyer; [ * 143 ] * and the money to be paid to the claimant or captor, whoso- ever should finally have the property. The Louisa. 1 A case of a very singular kind. She was taken by Captain Win- der, commander of a Jersey privateer. It appeared by the evidence of Macurdy the master, and himself a part-owner, that he, imagining Captain Winter to be an American, produced from under his stock a passport and certificate signed by Franklin, Deane, and Lee, the American agents at Paris, certifying that he, Macurdy, was the mas- ter, and Joshua Johnson, Esq., an owner; that the ship was cleared out from London in ballast, intended for Portugal, there to take salt, Jesuits bark, &c, for the United States ; that the English papers were only color, and that the American cruisers were to let them pass. This ship and her stores were claimed by Matthew Ridley, Esq., of London, merchant, for himself and his partner Joshua Johnson, and for Macurdy. All the papers were fair, and letters addressed to [ * 144 ] his correspondents at St. Ubes and New * York, and made as if the ship was to carry salt for New York, or the head- quarters ; and the American passport was antedated a few months before Macurdy swore that he and the other bought the ship, which was a prize-ship sold at Jamaica ; but he swore that Johnson gave him up the passport, and one Mr. Williams procured it. Johnson is out of the kingdom; Macurdy was a British born subject, but had resided a good while in America. There was another man on board, who declared himself a subject of the American States. The claim- ant not only demanded his ship, but costs ; and the King's Advocate, Dr. Wynne, argued very strongly for the claimant, that it was a fraud put on the Americans ; that the Americans had a shop here for pass- ports in blanks, to sell for the- benefit of the commissioners; ancKt was fair to buy of them' protections ; that it did not appear the ship was^ to go to the rebels. Dr. Harris on the other side contended, that though, it did not appear, that Mu Ridley was conusant of the fraud [See note to The Hoop, 1 C. Kob. 198.] ' HIGH COURT OF ADMIRALTY. U5 The Grael. 1 H. & M. * of his own country, yet he was affected by the act of his. two partners ; that the ship must be considered as an adopted rebel ship ; * that the transaction was treasonable, and costs should [ * 145 ] be given, although it is not usual in general to give costs againsts the claimants, where a ship is condemned; as condemnation is held punishment enough, although the prize-acts require the claim- ant to give security for double costs ; which is usually in 60Z., the sin- gle costs being but 30/. The Judge [Sir James Marriot] declared the ship and stores to be condemned as rebel. He made very strong remarks on the conduct of merchants and others supporting the American rebellion from the very centre of this country, and on the offices and correspondence car- ried on by rebel agents. That this nation (now fighting for its domes- tic preservation, as well as empire") had its crudest enemies within its own bowels ; that he would not be bound by the act in regard to costs. The American prohibitory act regulated, like other prize-acts, the modes of proceeding, but did not take away the general powers of the court ; that the act required bail for double costs from claim- ants ; but there were other costs besides those upon bail. He would not * condemn the claimants upon their bail, but [ * 146 ] he would condemn them in treble costs generally, ex officio, and as much as the proctors could swear to ; that it was his duty to do as much justice as he could to the whole kingdom in this instance, in putting a check to every sort of support and encouragement from home of a system involving the ruin of all good men's lives and pro- perties ; a system treasonable and traitorous. That here was a clear fact proved from the evidence of the guilty party, of aiding, abetting, and having intercourse with the 1 self-established and declared enemies of the king and nation ; and he only wished his court had a longer arm to reach such a sort of treason ; that if Mr. Macurdy, Mr. John- son, and Mr. Ridley, were dissatisfied with the decree, they might appeal if they dared. *The Gruel. [ * 147 ] November 23, 1778. An English transport, taken by the Americans, and fitted out by the congress, and laden with ma,sts and yards, and bound to France: the masts and yards were claimed by John Durand, Esq., as con- 7* 148 DECISIONS IN THE • The De Jon'ge Joslers. 1 H. & M. tractor with government for selling trees fit for masts in the province of Massachusetts Bay, and as proprietor of the same ; and it was endeavored to prove, that these masts were felled by his agent, and deposited in his agent's mast-dock, the only one at Sheepscut, upon Kennebec river, and there seized by the rebels, and laden on board this ship. But it appearing that the congress had had possession of this dock for two years, from 1775 until 1777, when the masts were put on board ; that the name of the claimant was not upon them, but that of the congress' agent ; and that the masts on board were thicker in diameter, and shorter in length, than the masts claimed in the schedule ; and that the agent reducing his claim from fifty- [ * 148 ] three masts, which * were on board, to nine, showed plainly • . that many other masts were felled by private proprietors, or by the congress, and were actually on board ; the court rejected the claim, upon the face of the claimant's own evidence, as not identi- fied ; and remarked on the danger of collusion, if such sort of claims^ were admitted. The ship was restored to the commissioners of the navy (paying salvage) they appearing to have paid the value of her to the original owners. De Jonge Joslehs, Reetsma. A Dutch ship, bound to France, cargo iron, hemp, and sail-cloth ; the naval stores were ordered to be sold to the commissioners of the navy, for his Majesty's use, on a fair valuation by merchants ; the buyer to pay the incidental charges, so that the privateer might be at no expenses ; the money to be paid into court, for the use of such persons who should hereafter prove their property. As the master would not swear that the loaders were the owners, and it appeared that the consignees were Frenchmen ; and as no claim was given, either for ship or goods, the ship was decreed to be restored [ * 149 ] * to the owners, whensoever they, or their agents, should claim, and make the usual affidavits of their property. It was observed by the court, that there was something very mys- terious in the conduct of the Dutch captain, who refused to claim ; that it called to mind the refusal of the French supercargo, in the case of The Koulikan ; that it was well known there are many people very busy to blow up a quarrel between us and Holland ; that this conduct was a contempt of jurisdiction not to be borne in any Court of Admiralty in the world ; that it was a dereliction of the in- terest of the owners, for whom every master is a trustee, and at the same time a weakening of all the rest of the evidence in their favor ; HIGH COURT OF ADMIRALTY. 150 The Anna Christiana. 1 H. & M. for one can hardly believe that cargo any man's real and sole pro- perty, which he or his agent refuses to claim, and swear to. That a court can supply the defection of a master, ex officio, and will do so, when owners are at a great distance, so as to know nothing of the capture, and, when a master may have colluded and deserted them ; that here the Dutch owners had time enough to know ; the capture having * been made the 13th of October. That if [ -* 150 ] there was any latent meaning in all this singular kind of stubbornness, it would lose its effect; for the consequence of any neutral refusing contumaciously, after a monition to appear and claim, is a certainty to obtain no costs or damages. That a French Admiralty Court would have condemned such a ship, for want of a claim, without ceremony* The Jeanne Jean Vanderleye, A Dutch ship, with French innocent goods oh board, bound from Nantz to Ostend, was restored by Consent, the captor engaging to pay all the expenses on his part, which are the most considerable, unless the claimant shall insist on costs ; which question is reserved for the claimant to declare. The Santa Reis, Majos Roderigo Vidal, master. A Portuguese ship and cargo, French property on board, was re- stored, as privileged, and the privateer is to pay costs and damages, by consent. * Anna Christiana. [ * 151 ] A Swedish ship, restored ; British merchants, claimants, assigned to prove their property of the cargo, being houses in London, trading to France; the bills of lading all false made out, as if at Ostend for Nantz, with steel ware and India goods, copperas,' and pimento. La- den before the declaration of reprisals. The bills of lading did not specify for whose account and risk ; made out in false names as laders living at Ostend ; and the master swore, that he believed the consignees (who were all Frenchmen at Nantz) to be the owners, and that the goods were for their account ; and that the bills signed by him were false ; and that he had destroyed his clearances when he sailed 152 DECISIONS IN THE The John. 1 H. & M. out of the river Thames. The claimants did not. all of them say in their affidavits, that they should be the only losers in case of condem- nation, and others only claiming for themselves and co-partners, with- out specifying those partners, and where they reside. The court said, that although the claims of masters of foreign carrier ships, [ * 152 ] taking in goods upon general * freight, might be admitted in a general way, not knowing the owners, yet the collusions practised here with the rebels and -natural enemies of this country were so notorious, that specifical claims must be required now of all British subjects claiming any goods on board neutral ships destined for the enemies' ports. That on the other hand, some tenderness was due to merchants lading their property before reprisals were declared ; and therefore the question of the cargo to whom belonging, and when laden, should be reserved until the next court for further consideration. The John. An English ship, retaken from*the French by a privateer, and hav- ing been in possession of the enemy near ninety-six hours, although not carried into any port; a question was made, whether, there being no act of Parliament to regulate the proceeding in cases of French captures and recaptures, the old rules should not be observed in favor of privateers retaking, to give a salvage according to the time in the possession of the enemy. That larger salvage has always [ * 153 ] been allowed to *the privateers than to the King's ships, in all former acts, until the American act, which now equally confined both to one 'eighth salvage. That it must have been a slip in the legislature, in the American act; as the King's ships are doing their duty, fitted out at the public expense, but privateers at the ex- traordinary expenses of particulars. The court said, that whether it was a slip or not, in the drawers of the American acts, yet it would be very awkward to have two different rules ; one for American, another for French, recaptures. That as in this case the court was not bound by the acts in former wars, which expired with them, so it was not bound in this case of French repri- sals, 1 by the American act of letters of marque'. That the divisions of point of time for more or less salvage, was always a bad rule, bor- • rowed from the oldest Dutch placarts, and seemed calculated for in- creasing litigations and disputes. The simplest rule was the best in every thing, and that the decision in French cases of recapture should square with the clause in the American act; therefore pronounced for an eighth salvage, yet not so as to preclude the discretion HIGH COURT OF ADMIRALTY. 154 The Le Grand Terrain. 1 H. & M. * of the court to give a greater, and even a very great [ * 154 ] salvage, in other cases, where there should Jbe very great merit in retaking. There was no resistance in this case on the part of the enemy ; but when the action should be attended with loss of lives and blood, and damage of recaptors, they might expect a proportionable salvage ; observing that this country owed much at this time to the activity of private armaments; and while privateers observed strictly the law, and the King's instructions, in doing no injury to British or neutral innocent subjects, they would meet with every suitable and just encouragement. * Le Grand Terrein. [ * 155 ] November 27, 1778. [Capture by a private vessel which had petitioned for a letter of marque, and which obtained it the next day. Held to be a droit of admiralty.] A French ship, taken by The Tartar privateer on the 9th of Au- gust. This ship appeared to have sailed from Martinico with a cargo of cotton, rice, indigo, and tobacco ; and it came out in evidence that the cotton, rice, and indigo were laden on board on French account. The tobacco was not expressed in the other bills of lading, but men- tion was made of' sugar and coffee. The master swore that this to- bacco was put on board by Serres and Sargetson, at Martinico ; but he would not undertake to swear who were the true owners and con- signees ; and that the reason of substituting the words sugar and coffee in the bills, was, that the laders were afraid it would be seized by the English, because it was the produce of North America. The captors prayed the court to condemn the prize to them, on the ground that they had a commission of marque to seize American property, and that this tobacco * might turn out [ * 156 ] to be so, upon further proof being allowed ; that they had petitioned the Lords of the Admiralty for a letter of marque against France, on the 5th of August, the day before the ship was taken ; kept possession of the vessel (which was carried first into Torbay, and afterwards to Jersey) after the date of the commission being actu- ally granted ; that the French ship fired first, although not knowing of hostilities, as an American enemy would have done, and that there was an engagement of half an hour. 157 DECISIONS IN THE Le Grand Terrein. 1 H. & M. This being opposed by the Advocate and Proctor for the Lords of the Admiralty, it was contended that, the ship and goods being French, and taken by a ship- not in possession of an authority to cruise against the French, the same were droits of the crown in the office of admiralty, and that the takers must lay their petition, and state the circumstances of the capture to the crown, in the usual manner, who would then (as had been done in all similar cases, be- fore the act for granting letters of marque against the Americans) refer the petition to the judge, to reward them in such proportion as they should appear to merit. [ * 157 ] * The Court [Sir James Marmot] gave its opinion that the collector of admiralty droits was right in this case ; that to suppose a ship well commissioned, merely because the fitters have petitioned for it, although they have not obtained it, would be a doc- trine attended with dangerous consequences to the national honor and public service; that there is no act of parliament now in being in the case of the French hostilities, to oblige the Board of Admi- ralty to grant letters of marque upon petition of any parties. The policy of that obligation was not to be admired in former prize^cts ; and it is better there should be a discretionary power left in the Ad- miralty Board, considering the times; for very improper persons may apply, commissions may be wanted by smugglers and rebels; and there is too much reason to fear that some such have obtained them. Every thing is become full of collusion ; and traders with our ene- mies may be armed, and commit piracy and depredation on all the world, with dishonor and danger to this country. The king's decla- ration for giving the prizes to the captors is far from support- [ * 158 ] ing the proposition of the advocates of the captors, *that a petition is a commission by intendment, or so to be under- stood ; for the king's declaration sets forth, first, " the inherent right of the crown in all prizes ;" and then that "prizes taken by ships, having letters of marque, may be sold and disposed of by the mer- chants, owners, and fitters, and others to whom such letters of marque are granted, for their own use and benefit, after final adjudication, and not before." There is no retrospect in the king's declaration for \>xi- vate ships ; but there is for the officers of the navy, they being already commissioned, who are " to have the neat produce of all prizes which are or shall be taken." The argument of the tobacco being possibly American property does not alter the case ; it would do the captors no good for the court to order the parties to go into farther pleadings and proof of the tobacco, which, besides, made only a part of the cargo. The argument drawn from possession, after the grant- HIGH COURT OF ADMIRALTY. 159 La Bonne Amitie. 1 H. & M. ing the commission, is not in favor of the captors ; for the property of prizes vests or not at the time of taking. The holding on that which is another's acquires no right ; and the carrying away * from Torbay to Jersey did not help the captor's claim, but [ * 159 ] otherwise; for prizes, being once brought into any safe port of his Majesty's dominions, are there to be kept, and not shifted about, unless in case of necessity. In regard to encouragement, that was a matter of petition and reference. , The court (under a former judge) had rewarded amply, two clear thirds \to uncommissioned cap- tors ; but more inight and would be given by the court, under circum- stances of greater merit, as in cases of fighting, and extraordinary bravery. The court will adhere to no one general precedent, but all the king's true subjects, who shall engage the actual enemy, although without commission, shall be amply rewarded ; and it is, therefore, only now a contention, not on the part of the Board of Admiralty, tending' (as w T as said) to discourage the public service, but a struggle of the agent of the privateer, attacking the collector of admiralty droits, who shall have the agency. The captors seem to. go out of the way to get that which they might have in the common road, at a less expense. The court, therefore, pronounced that the ship and cargo be * condemned as a droit of admiralty. [ * 160 ] The proctor, however, declared he appealed from this sen- tence as a grievance. La Bonne Amitie, Taken the 11th of August, by The Speedwell and Swallow pri- vateers, being under the same circumstances, excepting that the whole car<*o was French produce, the court made the same decree. The proctor, however, did not appeal — only prayed that the court would decree the captors to be rewarded immediately, or that the captor's right to salvage might be reserved. The Judge [Sir James Marriot] said that he could not take upon himself to grant away the droits, which are a public right acquired to the crown, till he was authorized by a reference from it. When- ever it came, the captors would have reason to be satisfied. He was sorry whenever they were absurd or ill advised ; and as to the right of salvage, it is a right of common maritime law in all cases of ships retaken, and should be reserved (if prayed) so as that, in case the crown should not grant the prize, (which never could be doubted, and he wondered *to hear it doubted now,) the [ * 161 J captors might come into court and insist upon salvage. 162 DECISIONS IN THE The Anna Christiana. 2 H. & M. Anna Christiana A Swedish ship, (a general carrier,) bound from London to Nantz, with false bills of lading for Ostend.' The ship was restored to the Swedish claimants the last court, but the question as to the cargo reserved for consideration. Ordered, that the claimants of the cargo (British merchants) shall prove (from the custom-house books) the date and contents of the clearance, which the master swore he de- stroyed as soon as he got out of the river ; also the date of the day on which the ship took her departure from Gravesend ; whether before or after the king's declaration of reprisals; and that the five claimants, (French houses in London,) Messrs. Reboule, Thelusson, Holtot, Jacquery, and Haman, shall prove their property. The par- ties assigned to prove are, at all events, to pay all the expenses of proceedings, as their own false documents, defective bills of lading, and the destruction of their clearance, were the occasion, and [*162 ] are a justification, of the captors' * seizing the vessel, which appeared never to have touched even at Ostend, for which place it was cleared out ; that the reason of putting in the name of an Ostender, Mr. Hoys, in the bjflls of lading, and the colorable cover- ing which was given by the claimants, (namely, that it was in order to introduce English East India goods, pimento and steel, into France, which could only be admitted, by the laws of France, as from a neutral port,) may be a true or false reason, but the court can- not enter into it. The claim of Thelusson is not specifical. It is for self and copartners ; but it does not say who those partners are, and in what country they reside ; and the cargo would have been con- demned in France clearly, if it were not on French account ; so that it is highly necessary to show that the claimants laded not only on their own account, but real and sole risk- It is observable that the master has sworn that he was hired by a broker, but he does not know who. The connections of merchants, as insurers, actual or employed partners, having joint concerns and accounts, are such, in [ *163 ] the commercial world, that this * court will find it very diffi- cult to prevent the avowed enemies of Great Britain receiv- ing assistance from her own subjects ; for the spirit of commerce, in all countries, rising beyond a certain degree, absorbs all public duties and spirit, and almost every moral and natural obligation. All na- tions are alike in this, as they are more or less corrupted by commerce and riches. Merchants resident in England must plead as well as prove their property, if the captors insist upon it; otherwise affidavits may be admitted by consent. The captors have a right to plead con- HIGH COURT OF ADMIRALTY. 164 La Prosperity or Welfaren. 1 H. &. M. trary, and to cross-examine ; and the great object of the court will be to reach the least treachery or collusion of British subjects, with, as long an arm as it can. In regard to the freight due to the Swede, the court will allow all neutral carriers their full freightage, even as to the farther port of destination. That is their right, and a charge hypothecated on the goods of enemies, of which they should have the full benefit, pro- vided masters of neutral ships are guilty of no falsities or prevarications in their evidence or conduct. The * party to [ * 164 ] to pay the freight will be the party to whom the goads shall be adjudged, and demurrage will be considered in some special cases. La Prosperite, or Welfaren, A ship claimed by the master, for the inhabitants of Lubec, (one of the free imperial cities of Germany,) who also claimed the cargo generally, ori~ behalf of the several persons who should appear to have interest therein : bound from Nantz to Dunkirk : taken by the Tyger privateer ; had a French pass and cocquet. Claims were given for Martinus Tak, a Fleming resident in Flanders, and Dutil, a Dutchman, resident at Amsterdam ; the first for ten bales of hand- kerchiefs. The laders were French ; and the bills said they were for Tak's account, but not risk; and the brandy claimedby Dutil was expressed in the same equivocal defective manner. There were also goods, coffee, and cotton-wool, entered for the account of one Racha, who did not claim at all : and it was three months after the capture, on the 25th of August, before Mr. Amsinck, (a merchant * in London, and agent for Tak and [ * 165 ] Dutil,) entered a claim for their goods. The court restored the ship to the Lubecker, and directed the claimants to verify the bills of lading, observing that the master swore that he did not know the owners ; that he believed the brandy was French, and referred to the bills of lading. It was suggested to the court, that an order should be made to prevent claims being given in this general way, on behalf of the several persons who shall appear tb have interest, that is to say, persons unknown ; for that it gave the master and agents a right to inspect all the papers, and then to set up and introduce fresh claims, (as Mr. Amsinck had done,) at a distance of time, and to adapt them so as to support the defective titles on board. The judge [Sir James Marriot] said, he had no doubt but claims should be as specifical as the nature of things would admit : that claims for British subjects, as he had already said, should be very VOL. I. ' H. & M. 8 166 DECISIONS IN THE La Prosperity or Welfaren. 1 H. & M. specifical ; he would settle the official form with the registrar ; and if he had any doubts, he should ask and have the advice of [ * 166 ] all the advocates, and * most able and respectable practition- ers, to settle a form, if any real doubt should arise. That it was much easier to see an inconvenience, in all modes of human society, than to find a remedy, which may not, on trial, produce a greater evil. That the established practice of courts was not to be altered, without great danger. It led, sometimes, to injure general justice, by endeavoring to do a particular one. It was true, that by the ancient rules of admiralty, as observed by the King's Advocate, all the separate parcels of goods were specified in claims, and the parties themselves were required to claim personally. ■ But that prac- tice, whatever it had been here formerly, and whatever it s may be in the French, or other foreign Admiralty Courts, at this day, was changed in the late war, with great justice, in favor of neu- tral general carriers, upon freight ; who have r it not in their power to specify, otherwise than by referring to their bills, of lading ; and cannot therefore be full in their affidavits annexed to their claims of cargoesj but which must be for persons generally, who shall appear to have interest. [ * 167 ] * Affidavits annexed to claims are, in all cases, only the vehicles of claims, to bring the parties interested into court. It is the master's duty to claim for them, till they can come and claim specifically for themselves. As to his obtaining the advantage of seeing the papers and depo- sitions, the master could see nothing but what he had seen before ; so no great danger from that: and as to honest neutrals, the judge said, he would be the last man to alter any practice now established, which might give them a. fair running in the course of a cause. That whenever the scales were even, a neutral was to have the turn in his favor ; for that this court was to judge uprightly between this nation and all others ; and it must lean, for the honor of English justice (as well as bravery) against every possible charge or suspicion of any selfish national prejudice. He would not therefore shut the office against neutral general carriers : they are in the case of all common- carriers at land, who cftn only tell, from their entry-books, what per- sons delivered goods to be loaded, and from the directions [ * 168 ] on the parcels to * whom they are to be delivered on arrival. But when parties themselves come to claim> then it is rea- sonable that they should swear that they shall be losers in solido, that is, solely and wholly, and that the cargo was and is for their entire account and risk from the beginning ; that it would have been so, if the cargo had been, or were to be delivered at the port of destip HIGH COURT OF ADMIRALTY. 169 The Concordia Affiuitatis. 1 H. & M. nation ; and not only they must swear affirmatively to their property, but negatively, that none of the king's enemies have, or will have, any property or interest in the same, in case it shall be restored, or arrive at its destined port ; and, in short, that the 12th article of the standing interrogatories wilL be a good model for the claims. That if deficient claims shall be brought by any, and particularly by any British subjects, the registrar shall, on their bringing them tothe office;' refer himself to the judge, who would be ready to hear any objections upon them. That if it was once understood in France, tha£ slight claims, and bills of lading, merely on account, or consignments to order, or to bearer, would protect a French cargo, or * American, under neutral or British names, there would be [ * 169 ] coloring and covering without end. He said, much regard would be paid to what sort of ports ships were bound. The nature of the trade at Dunkirk and Ostend was well known ; all the world smuggled there ; English and East India ships and others (it was well known) dropped their goods off there, in order to have them run into England to escape the king's duties. He was afraid that the brandy and handkerchiefs would turn out, if not enemy's property, a smuggling concern. No neutrals, unpri- vileged, can protect the goods of th% king's enemies, without, being such. To allow the privilege without strong grounds, would be to ruin this kingdom. CONCOEDIA APFINITATIS, A Swedish ship, and general carrier on freight, taken by his Ma- jesty's ship The Quebec, bound to France from Hamburg, where she took in a cargo of hemp, pewter, copper, staves, hogsheads, and small casks. The master claimed the cargo generally, and swore that he received the goods from * a broker at Ham- [ * 170 ] burg : that he did not know the owner ; and that his orders from the Hamburg broker were to apply to a broker in France. Out of twenty-seven bills of lading, one named upon whose account, but no risk ; and one other named, account, and risk. Court restored the ship to the Swedish owners ; decreed farther proof of the property of the cargo, whensoever it should be duly claimed, and ordered the hemp, and such copper sheets as should appear to be fit for sheathing ships, to be sold -for his Majesty's use at a fair valuation by mer- chants ; the freight and expenses of proceedings to make a part of the price, and the money to be brought into the registry for the use of the parties who should finally obtain the property upon a further hearing. 171 DECISIONS IN THE Les Quatres Freres. 1 H. & M. Les Quatres Freres. [Claim to carry enemies' goods free under treaty of Copenhagen, overruled.] * A Danish ship, taken on the 7th of August by his Majesty's. ship The Helena, bound from St. Vallery in France to Marseilles ; a claim was , given by the master for the ship, as Danish property, and for' the cargo, as being on board, a Danish ship. [ * 171 ] * The master and two more of the crew, who were exa-, mined, swore, that they believed the cargo (which was soap, liquorice, oil, cotton, brandy, and syrup) was French property. The question therefore turned upon the privilege of carrying free the enemy's goods, which was strenuously contended by the advocate for the claimants, on the ground of the treaty of Copenhagen, July the 11th, 1670, art. 40. The words are, " If the Hollanders, or any other nation whatever, have, or shall obtain from his Majesty of Gfreat Britain any better articles, agreements, exemptions, or privi- leges, than what are contained in this treaty, the same, and like' privileges, shall be granted to the king of Denmark and his subjects also, in a most full and effectual manner." So that the consequence followed, as it was argued, that the Dutch treaty, and Danish must be considered as one. It was admitted, however, that the Danish passport on board was not such as the treaty prescribes, but of a very different tenor. It was contended, on the other side, that, for above a century, the privilege had never been allowed, and no [ * 172 ] * requisition ever made of it ; and that the treaty not only requires a very special passport in terms as there described, but it is expressed in the 40th article, leading to the passport, (the form of which is inserted,) that the very end of the passport is, " lest goods, merchandises belonging to the enemy, may be fraudulently concealed, under color of amity ; for preventing fraud," &c., &c. Therefore it clearly showed, that enemy's goods were not to be con- cealed, but may be (as in the 12th article of the treaty of Sweden, Whitehall, October 21, 1661, where a particular passport is required for the same purpose) taken out, and the goods of the enemy found in the ship of the confederate, but not the confederate's goods, made prize. . The judge [Sir James Marriot] said, that there is but one way [For treaties as to " free ships make free goods," see 1 C. Rob. 52.] HIGH COURT OF ADMIRALTY. 173 The Sarah and Bernhardus. 1 H. & M. of expounding all grants and contracts; private or public. The an- cient and uninterrupted usage, for above a century, is the best inter- preter of the sentiments of the contracting parties ; and grants of an especial privilege, deviating from the general law of citizens, or na- tions, are stricti juris. In the history of treaties, it does not appear * that the Danes have ever been allowed, or ever ex- [ * 173 ] ercised this privilege. An invariable series of precedents, in all former wars, and decisions of the king and council, showed the contrary, and the sense of both nations. At the first breaking out of hostilities, such as the present, it was natural enough for Danish sub- jects to feel the pulse of this country. But there is an obvious answer concerning the fortieth article of the treaty of Copenhagen, however strong it may seem in its expressions at first view. All the better articles, agreements, exemptions, or privileges therein mentioned, refer only to such as are or shall be granted to any other nation, [Sweden is excepted specially : for two nations, like other near neigh- bors, are very apt, to envy and hate each other,] in regard to tariffs, and duties upon imports and exports. Had the article stood alone, the argument might have been more powerfully supported in favor of free ship, free goods ; but all articles in a treaty must be taken, both in the letter and spirit, as one stipulation and contract. The spirit of the treaty, which forbids all aid of the enemy, * would be defeated by the privilege claimed, and the let- [ * 174 ] ter of the fortieth article totally overthrown ; which article shows, that the enemy's goods are not to be concealed. All that can be drawn from this treaty is, that the ship and goods of the friend shall not be infected by the goods of the enemy, and so made prize according to the old practice of the law of nations, before the treaty. That besides the master and crew swearing that the cargo was French property, the claim itself was an evidence of it, that it was enemy's goods, because it insisted they were privileged by the ship. The judge said, he would never open a door for a new precedent, enabling Danes to protect the commerce of France. He would %llow freight, and all reasonable incidental charges, as between merchant and merchant. Restored the ship as Danish, and condemned the cargo as French property. The Sarah and Bernhardus Was a Danish ship, taken on the 2d of September, by The Active private ship ; claimed as the prdperty of the widow Ancker *and sons, Danish subjects; also the cargo of deals, four- [ 175 j teen guns mounted on carriages, and 8,000 iron shot, (not 8* 176 DECISIONS IN THE The Wandringsman. 1 H. & M. for the ship's use,) bound from Christiana, in Norway, to Havre de Grace. The papers appeared to be false ; the manifest was of goods consigned to Portsmouth ; and the bills of lading were for the' deals to be delivered to Azenberg and Freres, at Havre de Grace, for their own account and risk, but the cannon and balls at Portsmouth ; and that bill of lading appeared, by affidavit of the captain, to have been found since the capture and delivery up of the rest of the papers* The master swore that he was to deliver the deals at Havre ; and if he met with a good market there, to>sell the cannon and balls, being the rest of the cargo, otherwise to bring it back ; but if he met with con- trary winds, he was to put into Portsmouth, and there to dispose of it. The counsel for the captors pressed hard with the third article of the treaty of Copenhagen, in regard to warlike stores as contra- band, and confiscable : and that the cannon and balls of course were so. [ * 176 ] , * But the court said, that as the stores were clearly Da- nish property, and destined for a market, either French or English,, and as hostilities were not notified, and the concealment, if any, (for it was not fully proved,) was necessary to preserve the can- npn and balls from confiscation in France, on account of Portsmouth being named, it showed no mala fides in the Danish widow and her sons ; the court restored the ship, and ordered such of the deals as should be fit for the navy, and ordnance stores, to be sold for his Majesty's use, as in the other cases. Justified the seizure. The pri- vateer to be at no expenses. Such cargoes for the future would be condemned, now hostilities were fully known and understood. The Wandringsman Was a Swedish ship, taken the 2d of September by The Resolu- tion privateer ; bound to Udwalla, from Croisic, in Brittany ; ship and cargo claimed as Swedish property ; the "fatter for] Coch & Sons, residing at Udwalla, in Sweden. There were three bills of [ * 177 ] lading ; laders all Frenchmen. Letter * A was a bill for wine and vinegar, expressing to be on account of Coch & Sons, but risk not expressed. Letter B was of divers goods, of. which there was no evidence in the bills of lading, that it was for their risk as well as account. Letter C was for salt on account and risk of Coch & Sons. E was. coffee, expressed to be for the account of merchants at Bordeaux ; and there was an acquittance on board in French ; set- ting forth, that Weltners & Co., French merchants there, the laders, HIGH COURT OF ADMIRALTY. 178 The Veranderen. 1 H. & M. had pat the coffee on board for their account and risk, and that it was the produce of the French islands. The master endeavored tg get rid of this, by saying, that this acquittance was obtained in Weltner's name, as his property, because French natives obtained a drawback upowcoffee exported. The master expressed in his claim, that himself was one of the proprietors of the cargo, and his deserting this in his deposition was urged against him by the counsel for the captors. The court restored the ship, but thought it unnecessary . to oblige the claimants to make, at a great expense, farther * proof of the property of the wine and vinegar in letter A, [ * 178 ] the captor having made free with the wine : but directed farther proof of the different goods in letter B, consigned by the bills only to order. Restored the salt, letter C, as claimed ; but the judge said he was struck with the consequences, and with the collusion which would follow, if a single witness, standing alone as the master did, were to be permitted in any case to aver against ship papers and public instruments. That if it were true that the Swede, as pretend- ed, had personated a Frenchman, in obtaining the acquittance and drawback, he had made himself an adopted Frenchman, and was aiding the commerce of the produce and revenue of France. There- fore the coffee, E, must be condemned as the property of the person expressed to be a French merchant in the French acquittance ; but it should be subject to freight ; and the captor appearing by the evi- dence of the master, though not to have broken bulk, yet to have tapped and drank up a hogshead of wine, which was the master's private adventure, should pay the Swedish * mas- [ * 179 ] ter for it. 1 That the master had not deserted his claim for himself, as was insisted, for every master of a ship has something on board of his own. Little inaccuracies are not to be minded ; his pro- perty must be restored with the ship. * Veranderen, otherwise Le Changement. [ * 180 ] December 2, 1778. A general ship upon freight, taken the 17th of August, by the privateer The Two Brothers, bound from Bordeaux to Dunkirk. [As to master's adventure, see The Calypso, 2 C. Kob. 298, note.] 181 DECISIONS IN THE The Veranderen. 1 H. & M. The master gave a claim for the ship as belonging to himself, a jjart owner, and Dutch subject, as he called himself, and to others residing at Embden, subjects of the King of Prussia ; but he gave no claim of any sort for the cargo, and declared, in evidence, that he knew nothing of the true owners and consignees ; andreo deposed all the rest of the ctew, who were all Prussians. There were some goods on board, which were' laden by Frenchmen, ( Amand & Sons,) and consigned to Frenchmen on their account and risk. The master swore, that the cargo was laden by a French broker, for account of the persons who were the laders. A claim was given in for Berto and Lazarus Valid, of the Haymarket, London, for two [*181] tons of French vinegar; and* another claim was given in by Mr. Leidts, of Ghent in Flanders, (an Austrian subject,) for fourteen bales of coffee, and five bags of anniseed, as privileged on board a Dutch ship, according to treaty. It did not appear, by the bills of lading, that these goods were for the account and risk of the claimants ; the whole cargo was put on board in June and July last. There was a pass, but it was not, as prescribed by treaty, truly granted to the master upon oath, appearing before them personally ; but it was procured (as the master deposed) by a French and Dutch broker, for him, from the burgomasters of Appingedam ; that the ship had never been in any port of Holland, but she was built in Embden, and her first voyage was from Embden to Bordeaux ; and her last voyage from thence was destined to Dunkirk, in which she was taken. That he was born himself at Embden, a subject of the King of Prussia, but had obtained a Dutch burgher's brief of citizenship in the same way as he had obtained what he called a pass. Together with the bills of lading were several acquittances [ * 182 ] from the French * custom-house, corresponding with num- bers and goods described in the bills ; by which acquittances it appeared, either that the goods were for the account of the French laders, or that they had given bond to export them to the French colonies in America. The court decreed restitution of the ship, as a Prussian ship ; and that the freight and all expenses should be paid to the master, and be a charge upon the whole cargo.' Condemned all such goods as appeared, either by the bills of lading, or acquittances, to be for the account and risk of French laders or consignees, or for which they had given bond at the French custom-house, to export to the French colonies. The court admitted the claims of Berto Valle and Leidts, and assigned them to prove the same ; and allowed time till the first day of the next term for any neutrals to claim and prove the rest. HIGH COURT OF ADMIRALTY. 183 The Vander leye. 1 H. & M. The court observed, that after the ship's papers had been brought in, and examinations were public, the very late introducing of claims carried a suspicious appearance. The ship was taken the 13th of August ; * Lei'dts did not claim till the 2d of , Octo- [ * 183 ] ber ; and Berto Valle's claim was not heard of till the 3d of November. Berto Valle, as a resident British subject, could not be allowed, to claim, but under the favor of the circumstance that all the cargo was put on board before the declaration of reprisals. That Leidts had almost confessed that the goods claimed by him were the effects of French enemies, since he claimed the privilege of the treaty for them ; which was more than the Prussian master would do, who knew very well his ship was not a true Dutch ship, but a Prussian. Now a Prussian ship has no privilege by treaty, nor by the custom of nations, -to carry free the goods of enemies. In case a ship appears not to have been in the neutral port, or the master to have obtained his passport in person, upon oath, of the ship being true neutral property, the French Admiralty Courts, by the late reglement, as well as by all former ones of that nation, confis- cate both ship and cargo. . Neutrals will do well to turn their eyes towards those severities, and make the comparison, * in point of lenity and [ * 184 ] justice, between England and her enemies. The Vander Leye, "Was clearly a Dutch ship upon freight, with a Dutch pass, or sea- brief, and all other proper documents ; the goods of an innocent nature, the property of Frenchmen, and bound from Amelsfort to Morlaix, taken by The Resolution privateer, and carried into Rye on the 9th of September. The master claimed the ship as Dutch property, and the cargo as privileged on board a Dutch ship, according to treaty. The court decreed both to be restored, with all costs and damages. The judge added, that if it had appeared in evidence, that the priva- teer had been guilty of any breaking bulk, or had misused the ship's crew, he would have punished the commander of the privateer in a more exemplary manner ; ordered the costs to be settled by the regis- trar of the court, and the damages, (taking to his assistance for the latter two merchants, to be named" by the parties, and approved by the court) ; and he recommended it to the parties, that the 185 DECISIONS IN THE The Jeane Isabella. 1 H. & M. [ * 185 ] * English captors should name a Dutch merchant for them- selyes, and the Dutch claimant an English one for himself; so that the parties might be certain to have the two most reasonable men, and best arbitrators ; and it was the more necessary to be recom- mended at this time, as national prejudices, and private passions and interests could not be too carefully guarded against in all such causes as these are, in disputes between nation and nation ; for there are violent people everywhere ready to inflame matters for their own advantage, although the ruin of both countries might be the conse- quence of private vehemence. He would do his best to prevent it. The Jeane Isabelle, Taken the 4th of August, by his Majesty's ship The Kite cutter, a Swedish carrier ship upon general freight, bound from Alicant in Spain to Dunkirk ; a claim was given by the master for his ship, and for his freight and charges ; claims were also given for part of the cargo, chiefly wine and brandy, by P. De Bucher, an Aus- [■* 186 ] trian subject ; by Mr. John Devette, of Ostend ; *by Messrs. Walther & Pate, of Alicant, Spanish subjects; and by John "Wombwell and Sir George Wombwell, of London, merchants, for themselves ; and Peter Arabet & Co. their partners, at Alicant. But these claims not corresponding with the titles of property, the ship's papers, and the master not swearing to them, the judge ordered the neutral subject to make farther proof; and that the British subjects should prove in a manner still more strictly. Restored the 1 ship to the Swedish subject, with freight and all his expenses ; justified the seizure ; all expenses to be charged to the account of the whole cargo, it was made a question, as in Berto Valle's case,"whether the Womb- wells, as British, subjects, trading to an enemy's port, could claim. But the court observed, that the goods were all laden before the king's declaration of reprisals ; and the master's instructions were, in the contingency of his finding war declared,, and that he could not go to Dunkirk (which instructions plainly looked as if the goods were Bri- tish property) that he should go to Ostend. The judge also [ * 187 ] observing, that there was a bill of lading for eleven * pipes and four half-pipes of brandy, for the account of Bellon & Son, Spanish subjects, but not saying for risk, and there being no- body appearing to claim for Bellon, or to make proof of his property, the court allowed time for Bellon & Sons to claim and verify. Con- cerning British claims, the judge said, he expected to have heard from the counsel for the captors of the case of the Spanish register ships, HIGH COUET OF ADMIRALTY. 188 The Vryheid. 1 H. & M. on bonrd which, in the war before last, the property (although proyed) of British subjects, laden before the war, was condemned ; that the principle of that decision, by the Lords Commissioners of Appeals, was not only the danger of collusion in covering the property of the enemy by British claims, but that the British laders were adopted as Spaniards ; for, by the laws of Spain, no merchants can bring over bullion, &c, in the Spanish flota, unless in the names and as for account and risk of Spaniards, for which they pay an indulto, or duty to the king of Spain. But the judge said, he thought the case of Berto Valle and of Messrs. Wombwell very different from that; and the extraordinary and sudden nature of the present hostilities * required some lenity to be shown to British merchants. [ * 188 ] Vryheid. [A treaty defining contraband held not to protect enemies' property.] A Dutch ship, taken on the 26th of August by his Majesty's cutter The Kite, Lieutenant Trollope, commander, bound from Riga to Rochfort, the cargo seventy-one masts of above ninety feet in length, fit for the first rate ships of war, twelve small ditto, four hundred and sixty boat masts, one hundred spars, two thousand nine hundred deals, laden by Blanchenhagen of Riga, who ordered the master to touch at Elsineur, in Denmark, and to apply to the Frenc hconsu lfor orders in regard to the destination. The master deposed to this fact, and that the French consul directed him accordingly to carry the naval stores to Rochfort ; and that a broker there would instruct him to whom they were to be delivered. The Dutch master claimed his ship as Dutch property, having a sea-brief from the states, and duly documented ; and the cargo as privileged under the treaty of Decem- ber 11, 1674; with all costs and damages. The advocate for the captor consented to restitution * of the ship with [ * 189 ] freight, but prayed condemnation of the stores as for the account of the French king. He strongly pressed, that the privileges had never been yet allowed that the Dutch should carry the^naval stores of the enemy's government; that the privilege in such an ex- tent as claimed was never in contemplation of the contracting*parties, who were at the time of this treaty entering into an alliance offensive and defensive, and understood as engaging to have always the same friends and the same enemies ; that the great federal union between England and Holland had since then been established, if possible, in a firmer manner. On the part of the Dutch claimant was urged the 190 DECISIONS IN THE The Vryheid. 1 H. & M. fourth article of the treaty as explicit, that " masts, planks, boards, and beams of any kind of wood, and all other materials requisite for building or repairing ships, shall be wholly reputed free goods, so that the same may be freely transported and carried by the subjects of the states, to places under the obedience of the enemies of his said Ma- jesty, except only to places besieged, blocked up, or invested." [ * 190 ] * The Proctor and Advocate of the Admiralty moved, that the stores might be sold on a fair valuation to the commis- sioners of the navy for his Majesty's use. The freight, the expenses of proceeding, and all other charges due to the Dutch claimant, to make a part of the price. The judge, [Sir James Maeeiot] gave his opinion nearly in the following terms : This question, of the highest national importance, turns, in my opinion, upon a great extent of comprehensive argu- ment. To give the utmost force to the treaty of 1674, relied on by the claimants as the fort of their pretensions, the fourth article must be admitted to be in terms as stated. The first article stipulates, " Freedom to exercise all manner of traffic." Article 2d, " This free- dom of commerce is not to be interrupted by reason of any war as to any kind of merchandise, but shall extend to all commodities which may be carried in time of peace; those only excepted which are described under the name of contraband." There follows the third article, affirming what shall be contraband, specifically nam- [ * 191 ] ing the sorts of * arms and ordnance, and lastly, in general words, " All other instruments of war." The fourth article is negative of contraband ; and masts, &c, are excepted from being contraband. By the general law and usage of nations (treaties and extraordi- nary stipulations out of the question) there are two sorts of things confiscable, first, all those, generally, which belong to an enemy, found on board the ships of a friend: secondly, those which belong to a friend, but which will aid the enemy to maintain war. These lat- ter are contraband ; so that one of the ideas inseparably annexed to contraband, and to the exception of contraband, is, that the goods excepted or not excepted belong to a friend ;: from which it is clear that the* goods of the Dutch subject, specially or generally enumerated in article third, are contraband ; and that masts, &c, &c, and all other materials requisite for building and repairing ships, excepted in article fourth, do mean such masts, &c, which do also belong to the friend, and are going in the ordinary course of trade as ordi- nary merchandise and for mercantile purposes. This must be the HIGH COURT OF ADMIRALTY. 192 The Vryheid. 1 H. & M. natural sense * of the stipulation. For to admit a right of [ * 192 ] being the privileged carriers of the enemy to the royal docks, would work such an adoption of a hostile character, would defeat every idea of alliance and confederacy of the contracting par- ties, and transfer the federal union over to the other belligerent. The great argument is, that all subsisting treaties of commerce and alliance offensive and defensive, are to be taken as one contract, uno contexlu, and the spirit of the federal union is to interpret the letter so that no one treaty, or article of the treaty, is to be taken substan-. tive, or standing alone and single from the rest. The secret article of "Westminster, 1673-4, is as strong as possi- ble. The words are, " Neither of the said parties shall give nor con- sent that any of their subjects or inhabitants shall give any aid, favor, or counsel, directly or indirectly, by land or by sea, or on the fresh waters, nor shall furnish nor consent that the subjects and inhabitants of their dominions and countries shall furnish any ships, soldiers, ma- riners, provisions, money, instruments of war, gunpowder, or any other things * necessary for making war, to the [ * 193 ] enemies of the other party, of any rank or condition what- soever." It is very clear that ships may be furnished by piecemeal as completely as if they sailed out of the Texel with all their furniture. If one Dutch ship carries masts, another anchors, another cordage, another sails, another a ship's frame (and such there is now taken, of size for a seventy gun ship) a whole fleet may go by detail from Holland for the King of France's service. It could never be the intention of the contracting parties, that Dutch ships, or English, vice versa, should become the transports of an enemy's government, for carrying free its stores of war either for sea or land. Besides all this, the usage of nations is the best interpreter of all contracts ; and it always has been the usage to pay the Dutch carrier for the enemy's stores, and for his freight ; and the precedents of the usage universally acquiesced in during the last wars are worth all the reasonings of Grotius and Pufendorf. * By decreeing naval stores to be sold to the public, and [ * 194 ] the freight and all incidental charges, as between merchant and merchant, made a part of the price, the carrier has the benefit of the treaty ; the great object is his cabotage or carrying trade ; given him that, the spirit of the treaty is fulfilled. As to necessity, by the twenty-fourth article of the treaty of Bredah, " the persons of mer- chants, masters, and mariners of either party, their ships, goods, wares, and merchandises may be arrested or detained in the port of the VOL. I. H. & M. 9 195 DECISIONS IN THE The Vryheidi 1 H. & M. other, to serve in war, or for any other service upon an extraordinary- necessity, and then just satisfaction shall be made." Holland, in case of such necessity, may press English ships and seamen; and England may do the v same vice versa. The casus foe- deris exists ; the dominions of Great Britain in America a.nd her commerce on the ocean are invaded by France. The necessity is and can only be judged of by the party who claims the assistance; because if it rested with the other confederate to judge of the neces- sity, he would judge in his own cause, and elude the contract. [ * 195 ] * Whenever it comes to that, it may be urged with equal reason and plain sense : — "I say I am in necessity, and want your assistance." You say, " I am not in necessity, and you will not give the assistance." The reply is obvious : — "I know best my own wants and necessities, which I feel, and not you. If, there- fore, you will not allow my demand, I will not allow yours. All is reciprocal. As you do not admit my necessity, I am under a neces- sity to refuse your privilege." As to England -having enjoyed the privilege of the treaty, it was but once (above a century ago.) But Holland, on the contrary, has used it so often as almost to wear it out. In the present state of things, England, in a most extraordinary position, never possible in contemplation in the utmost range of the imagination of the contracting parties, engaged in a civil war with her own subjects of the whole continent of British America, and assailed, first privately, and. then publicly, by France, cannot admit of the privilege of carrying the naval stores of the enemy, in [ * 196 ] the extent claimed by the States,' * without opening her breast to all her enemies, without defence. She is obliged, by every principle of self-preservation, to snatch the sword from the hand of her assailants, let who will interfere and afford arms to that restless and malig'nant nation, who, in the weak- ness or destruction of Great Britain, will most assuredly involve the fate of Holland. The Judge decreed the ship to be restored to the Dutch' claimants, together with the value of the cargo ; the naval stores to be sold, ac- cording to former precedents, for the use of his Majesty ; all freight, expenses, and charges, both of the captor and claimant, to be paid by his Majesty. From this sentence, the proctor of the captor appealed, but the court ordered the execution of the sentence not to be suspend- ed, and the captor to give adequate security to answer the appeal. HIGH COURT OF ADMIRALTY* 197 The Rebecca. 1 H. & M. *The Rebecca. [ * 197 ] December 5, 1778. An American ship, taken the 23d of August, 1778, by The Duchess of Kingston and Triumph, privateers, bound from Charleston, in South Carolina, to Bordeaux. A claim was given for the ship, as a recapture, on the part of Mr. John Strettel, who, in the affidavit an- nexed to his claim, swore that he bought her on the 8th of October, 1776, of George Catton, the then master, and of Benjamin and Cal- verly Bewick, Esquires, merchants of London, for 5002., described to be of 180 tons burden, and then lying in the River Thames, with the ordinary clause of warranty, that they had good right, full power and authority to sell ; that he sent her afterwards, under Catton's com- mand, to St. Kitt's, about June, 1777 ; that in the very voyage she was taken by an American rebel privateer, and carried into Bed- ford, in New England. Claims were given in by the following persons for the several parcels of the cargo : — * Mr. William Creighton, for forty-three casks of indigo, [ * 198 ] W. C. ; Mr. Robert Ray, for twenty-six casks of indigo, two hogsheads of tobacco, R.; Mr. John Moncrief, for three hogsheads of tobacco, J. M. The ground of their claim was that they were all compelled to leave Carolina in consequence of an act of state, (as it is called,) passed on the 28th of March, 1778, by the rebel government, obliging all persons to abjure his Majesty, King George III., to take an oath of allegiance to the pretended States, otherwise to depart the colony in sixty days ; to sell all their estates, on pain of being apprehended, and committed to prison on refusal, upon tender of the oath. Under the further penalty, upon neglect or refusal, to be made incapable of exercising any profession, trade, art, or mystery ; buying, selling, ac- quiring, or conveying any property, such property to be forfeited, one half to the informer, the other half to the state ; obliging them to sell their estates, and their attorneys to remit the amount within twelve months ; and on failure in point of time, to pay the same into the treasury of the state ; persons * so withdraw- [ * 199 ] ing, and returning, to be adjudged guilty of treason against the state, and, on conviction, to suffer death as traitors. These claims were opposed by the captors on the ground of the danger of admitting collusive claims to avoid the prohibitory act ol parliament, under pretence of being exiled loyal Americans, with 200 • DECISIONS IN THE The Rebecca. 1 H. & M. ' — | \ respect to the cargo ; and in regard to the ship it was objected that its identity was not proved by any affidavit (as is usual in the like cases) of any person having inspected the ship, and that the tonnage differed, this ship being deposed to be of 300 tons, and Strettel's affi- davit and bill of sale, annexed to his claim, setting forth that the ship claimed was only of 180 tons burden. The counsel for Strettel urged that he ought to be allowed farther time to prove his property, and that variations of tonnage in pass- ports and depositions were frequent in almost every contested cause, particularly the Dutch. It was argued, in favor of the claimants of the cargo, that in seve- ral decisions" by the late judge in the cases of Governor [ * 200 ] * Bull, Mr. Angus Macauley, Mr. Telfair, and others, Ame- ricans, coming over with their property for their support, and not for the purposes of trade, their properties had been restored, not- withstanding the prohibitory act. The court decreed that Strettel. should prove the property and identity of the ship ; was of opinion that an affidavit of inspection is always necessary ; that the difference of the tonnage, between 180 tons in the bill of sale and 300 tons in the depositions, was too' great not to make the identity very suspicious; that the warranty in the bill was not sufficient evidence of the property ; for persons may have (as it is there said) good right, full power, and authority to sell, and yet they may be only the attorneys of the seller. E ver ybody knows that almost all trade is now, and has been' for many years, car- ried on in this kingdom, and, indeed, in almost all Europe and the colonies, by commission. There should be some proof of the ship's register, and evidence that the sellers did not act by letter of attorney. Collusion is very obvious in the transferring of property of [ * 201 ] * ships ; and though this idea was often urged in several causes determined at the beginning of the rebellion, and soon after the prohibitory act, as a reason to show the necessity of merchants, purchasers of American ships, strictly proving that they were bonS, fide transferred, yet the argument was pressed in vain ; and it was said, " We do not sit here to determine upon title deeds ; " however, it is now high time to require strict proof of the titles of ships claimed as British property. ' An attempt was made by the counsel for the captors to read an affidavit made' by Chase, the master of The Rebecca, to show that the ship belonged to Quakers at Philadelphia ; that Catton, being an eighth part-owner of the ship, and the remainder being the property of the Quakers, on the first news of the prohibitory act, the ship being then at Falmouth, set off for London, and there made a false HIGH COURT OF ADMIRALTY. 202 The Rebecca. 1E.4M. bill of sale, with a view to prevent the ship being seized by govern- ment, and then sailed with false papers for St. Kitt's, where he took in a lading of sugars, when he was met by the American privateer, and the cargo was condemned * at Dartmouth, in [ * 202 ] Massachusetts Bay, as British property, and the ship as having carried on trade with Great Britain, and for having fired upon two American privateers. This affidavit was dated the 9th of Sep- tember last, and sworn before the commissioners at Guernsey ; and the judge, observing that the preparatory examination of the master and crew bore date the same day, rejected the affidavit as exceedingly irregular, and ordered the commissioners to be severely reprimanded for taking it, and to adhere strictly to the standing interrogatories for the future ; for that every kind of subornation must be expected, if a witness, after giving his evidence upon the interrogatories, is suffered to swear again to the same matter, upon affidavit ; that the master, Chase, declared himself a subject of the States of America, and seemed to bear no good will to the claimant of the ship. It was very remarkable that the captors should obtain and bring in such an affi- davit, especially as the master had already sworn upon interrogato- ries that the ship was condemned by the Judge of the Ad- miralty of Massachusetts Bay, as a prize on * account of [ * 203 ] her having English property on board, although she was then the property of some Quakers at Philadelphia. In respect to the claims of Creighton, Ray, and Moncrief, the Judge [Sir James Maeriot] gave his opinion, in substance nearly as follows : The precedents quoted show plainly that there are cases out of the view of the prohibitory act. , I hear of precedents with pain, as well as this audience, when it is recollected -by whom those precedents were made. The utmost respect is to be paid to great names, but I must judge in every case for myself, according to my own conviction and ideas. It is easy to decide, when an act of parliament marks the line by which a court is mechanically to be guided. When there is no act of the legislature, or where it does not extend to the subject in dispute, his Majesty's commission directs the judge of this court to proceed in a summary manner, and according to the equity of the case. The late judge, in the cases of Governor Bull, Angus Macau- ley, Millegan, Carne, and Savage, said he would be bound by no precedents ; I say the * same ; but I will be bound by [ * 204 ] the principle of a precedent, and not by the letter. In the cases of Governor Bull, Angus Macauley, and Millegan, it was agreed, that the ejecting and abjuring acts of the pretended American States being subsequent in point of time to the prohibitory 9* 205 DECISIONS IN THE The Eebecca. 1 H. & M. act of the British legislature, the cases of the American exiles under certain circumstances are out of the view and line of the prohibitory act ; consequently their effects when taken as prize, may be restored. Savage's case has been quoted to show that the effects of Americans coming over may be condemned. Though counsel do not misrepre- sent cases, yet they are apt to stop half way. In Savage's case, 1 there was the fullest evidence from a family letter that Savage was to return to America again. His property and Carne's were also in- sured by a rebel insuring bank set up by public authority. It is ad- mitted to be in proof that Creighton had the abjuring oath tendered to him, and refused it ; and that he has a bill of lading to verify'his indigo. It is objected to Ray, that it does not appear that [ *205 ] the oath was tendered to him; and *the same objection is made to Moncrief. It is also said, that neither Moncrief nor Ray came under any description as being public officers of the crown, or being of any religious or liberal profession. Now, as to Ray, he is a schoolmaster, which in the colonies is a very important and reputable profession ; he brings with him his wife and children, which proves he has quitted all domicility in the colony. He has a bill of lading of his property. Moncrief has the same. And as to Moncrief, the letters from Mr. Ancrum and Mackenzie sufficiently show him to be exiled forever from the colony. Ancrum's letter is from a sensible^ cool man. It refers his correspondence to Mr. Mon r crief as 'having left the country, and merits notice as a picture of the miserable state of it. Mr. Andrew Mackenzie, in his letter to Mr Redhead, at Nantes, says, " this goes by my worthy friend, J. Mon- crief,, who leaves this place, J am afraid, for ever." It is urged that the several permits to the master, issued from the pretended Secre- tary's office, to take on board these unfortunate passengers, [ * 206 ] show that they have complied with the law of * the pre- tended government, and therefore, it is said, -they are its friends. It is crue.1 to draw so false a consequence. The fact proves the contrary. For what is the law which they have complied with ? It is this, " abjure your king, your country, curse God and them," or do what ? Depart ! begone ! Depart is the law referred to by the permits ; and this law of departing from all that is dear to man have the unhappy exiles complied with. " Those who are not with us are against us," is the principle of this act of state : " Return not again hither ; if you dare, you die." Death is the alternative, whether you stay or return, " for you shall exercise no means of living here." It 1 [The Sally, Hay & M. 33.] HIGH COURT OF ADMIRALTY. 207 The Eebecca. 1 H. & M. matters not whether the oath is tendered or not. The words of the act are, " Every person neglecting or refusing to take the oath within the time limited by this act, and remaining in the state more than sixty days thereafter, shall be incapable henceforth of exercising any profession, trade, art, or mystery, or of buying, selling," or acquiring, or conveying any property whatever ; and all property so bought or sold, acquired or conveyed, * shall be forfeited, [ * 207 ] and disposed of, one half to the informer, and the other half to the state, and the person or persons so buying, selling, acquiring, or conveying, as aforesaid, shall likewise forfeit the sum of one hun- dred pounds current money to the state, for every act and thing which he or they shall do, which he or they is or are hereby disquali- fied from doing. The very time to collect their debts, to dispose of their effects, and for their attorneys to remit, is limited to a very short period of a year, on failure of which also is a forfeiture of the effects to the state ; and to this limitation is added another law, that no cargoes, although as remittances, shall be permitted to go to Great Britain. This abominable law, if law it can be called, is equal to that of the ■ Romans, when they banished a citizen by the interdiction of water and fire, and all the necessaries of life. The wit of man could not * have devised a more cruel, penal ordinance, to'gratify the purposes of the vilest of passions, ambition and avarice, in their utmost extent. No man is to be allowed capable * of any civil act, [ * 208 ] unless he carries the mark of the beast of rebellion in his forehead. It is wonderful that their religious enthusiasts have not found out the completion of the prophecy in the book. If the multi- tude had sense enough to reflect, they might easily discover the real principles and intentions of their leaders in framing this ordinance, which is dipped in blood. Their purpose is plain, that of getting rid of every opposer ; but this madness will cure itself, we may venture to pronounce, with a very little foresight ; whatever is contrary to all natural justice, and the general feelings of mankind, can never last long. This ordinance confounds all civil rights, and tears asun- der the dearest ties of human kind ; and the true tendency of it, in its fury, is either to uncolonize America, or it will occasion a sense of general distress, with the connections of families, to bring back a restitution of the former government. There is a wildness in this law, that marks strongly the real cha- racter of the Americans; it is perfectly savage; and breathes the spirit of persecution, impressed with which, (as having been persecuted *or persecuting,) the last settlers from hence [* 209 ] went forth to sow the seeds of that civil war which they left behind them, and of which now Great Britain reaps the harvest ; 210 DECISIONS IN THE The Rebecca. 1 H. & M. it is among the many proofs we find in the history of mankind that conquerors and new settlers in all ages have adopted, in a very great degree, the manners of the ancient inhabitants,, and taken even the features, colors, and temper of the climate. The picture of American misery, drawn upon those people by their new modellers of government, has been strongly painted in many letters read in this place, as well as in those now before the court : and it is for this tyranny that the curse in the book, denounced upon the Jewish nation, which drove out others for their crimes, and plant- ed itself in their room, seems to be completing fast on the British rebellious colonies. It is for this cause (the imitation of like cruel- ties) " that the land shall vomit forth its inhabitants." This is the sacred language, which may appear coarse to modern and refined ears, but it is strong and expressive. At this moment Ame- [ * 210 ] rica is sick ; she is in agonies. When therefore the * eject- ed, unhappy children fly to the mother country for protec- tion, shall she not open her arms to receive them ? or shall they be the prey to their fellow-subjects the captors, naked, exiled, and de- fenceless ? To be driven out from all that is dear, and to be the sa- crifice by turns of both friends and foes, is the fate of the best of men in the midst of civil dissensions. A civilwar is a dreadful scene, too much for human nature to bear, or to express. Can this court want" any better ground for a restitution to the unhappy sufferers in this case, than the evidence of the master, (who is himself a declared sub- ject of the pretended States, and appears no friend in this cause,) he says, that all these poor people were finally destined to England, and that that they are all subject to King George the Third. This being so, what must be their fate if they return ? Death. The rebel act of the state has pronounced the sentence ; they are to suf- fer death as traitors. The unhappy men have positively sworn, that the property claimed by them is not for the purpose of trade, but for their necessary sustenance, and that they have left all [ *211 ] the *rest of their effects behind them, to the mercy of a ty- rant government, in order to live under the milder one of the parent country. Shall this court then condemn them ? Will this nation 1 be equally merciless with the American government? Shall we not leave them a drop of water, and a bit of bread ? It is no such great disadvantage to their cause, as in Governor Bull's and Telfair's cases, that they do not bring certificates of oaths tendered, and their refusals, from members of the rebel States. It was argued, in those cases, that such certificates looked like an obvious method of evading the prohibitory act, and carrying on a rebel trade. Their families, their estates, their trading concerns, it was said, are connect- ed, and they will cover for one another. Governor Bull brought HIGH COURT OF ADMIRALTY. 212 The Rebecca. 1 H. & M. over great property, and left a large estate behind him. Telfair brought over a cargo of 20,0002. value in tobacco. He was 'docu- mented by certificates from the members of the congress, that he had refused to swear. He had General Howe's license ; it was thought a weak part of his cause ; but he brought over his property (he swore to it) and his * person together. "Whenever the [ * 212 ] < person and the property have not come together, the court, in former cases, condemned the effects which came k in a different ship, although claimed as a remittance, after a period limited by the act. Distinctions of quantity were set up in the first instances, but these were afterwards overruled : for how was it possible to draw the line ? If a man brought his all with him, and was ejected from America so as not to be able to return, it was held enough to ground a sentence of restitution^ It is very true, the prohibitory act is a very severe law. It was meant in terrorem, and it was expected to have had a happier effect, to produce submission ; it unfortunately produced an increased resistance. The declared independence of the American congress took the first lead, and gave birth to a law here£ that carried with it an actual attainder of all the enumerated colo- nies in rebellion. The effects of all the inhabitants, without distinc- tion, and their ships going to and from thence, were declared confis- cable as the goods of open enemies. It was said, that nothing could be more unjust than to confound the innocent and the guilty. It was replied, "that *it was impossible to make [ *213 ] distinction ; that in the government of the moral and natu- ral world, the just ruler of the universe suffered storms and lightning to fall equally on the good man and on the sinner ; the end justified the means, and the' sufferers must turn their resentment upon those men who are the causes of their misfortunes." A time, however, has come, when a distinction may be made. No one, at the instant of passing that act, could foresee, what has since happened ; an event out of the contemplation of the legislature, that the American con- gress would afterwards enact an abjuring and ejecting law. If the captors think this court has done too much in former pre- cedents, or that I do too much in adhering to the. principle of those precedents, which, to my conviction, are founded upon justice and mercy, the captors must appeal. Supposing that, by the prohibitory act, there is any power of ap- pealing from this court (which is not expressed) ; and if the pro- hibitory act is insisted upon in its utmost severity, the sense of that law will be best explained in another place. I hold this * case to be out of the act. After all, if I am mistaken, [ * 214 ] I shall be happy in the error ; and I can only refer, so far as 215 DECISIONS IN THE The Hope. 1 H. & M. regards this court and my own opinion, to the expressions and feel- ings of the old Roman, Si pugnent sententise, valeat mitior. " When opposite opinions are equal, humanity should prevail." The judge accordingly pronounced the ship to have belonged to British subjects, condemned the rice on board as the property of rebel Americans, but restored the several quantities of indigo and tobacco, claimed as the property of Creigton, Ray, and Moncrief, who were destined to England, not being for the purpose of trade, but for their necessary support, and not being within the view and penalties of the statute. : [ * 215 ] * Le Zacharie and La Vigilantia, December 9, 1778. Swedish ships, were restored with freight, and all expenses charged on the cargoes. Condemned the cargo of tobacco freighted for the farmers-general in France. Further proof of the rest of the cargo. The Goede Hoop, A Prussian ship, was restored' with freight, and all charges to be placed to the account of the cargo. Two hundred barrels of potash, on account and risk of Messrs. Fizeaux & Sons, at St. Valery in France, and thirty-six casks for Mons. Hoquet, were con- demned. Time allowed, till the first day of next term, for any neu- tral subjects who should be entitled to the rest of the cargo, to claim, specify and prove their property, the bills of lading being defective. [ * 216 ] * The Hope, Friday, December II, 1778. An American ship, with pitch, tar, indigo, and rice, and deer skins, taken by The Surprise, an uncommissioned vessel, of Folkstone. HIGH COURT OF ADMIRALTY. 217 The Bee. 1 H. & M. The ship was claimed by Sir Edmund Head, Mr. Hest, and Mr. Kincaid, who had bought the same to convey themselves and their properties from South Carolina, being driven from thence by the abjuring ordinances. It was also claimed by a merchant of London, Mr. Bell, as having been his property, under the name of the True Briton. There were also a great number of unfortunate sufferers who claimed their properties. This ship, after beirfg taken by the Folkstone cutter, fell in with The Griffin and Speedwell ships of war, who assumed a right as captors of ship and cargo. An appearance was also for the Lords of the Admiralty, as for a droit. The judge rejected both the pretensions of the king's ships, and of the Lords of the Admiralty ; * restored the several parts of the cargoes [ * 217 ] claimed by the American British subjects refugees ; and ordered Mr. Bell to prove his property in the recapture more fully. Salvage to the cutter. The Hoppet, A Swedish ship, bound to Nantz, was restored to the Swedish claimants, with freight and all reasonable expenses to be charged to the account of the cargo ; and the neutral claimants, on account of the property not being verified by the master and the ship's papers, and particularly the clearances, not mentioning but a very small part, farther proof was decreed ; and the naval stores on board, cannon balls, pitch, tar, sail-cloth, and copper-sheets for sheathing, were ordered to be sold for the use of his Majesty's navy, on a fair valua- tion by merchants, to be named on each side, chargeable on an average with the expenses of both captor and claimant. The Enekeit, A Danish ship, restored, with freight and all reasonable charges placed to the account of the cargo, which, being French, was con- demned. *The Bee. [*218] The judge refused to hear affidavits to justify a captor from costs, who had not examined his witnesses, and pretended to have lost the ship's papers, yet offered restitution without costs, which the other 219 DECISIONS IN THE The Zelden Rust. 1 H. & M. party would not accept without costs. The court said, the unity of a prize cause ought not to be divided. When the ship's papers and examinations came regularly before the court; it would judge of costs, wno instanti; and immediately ordered the witnesses, the crew of the captured vessel, ,to be produced, and the judge administered the oath himself. He said, there was strong suspicion of collusion on both sides from the captor's own opening, and he would make parties pro- ceed regularly ; much danger lurked sometimes under proposals of consent, and every thing grew suspicious when parties go out of the way. In American cases, in particular, it was obvious how many contrivances are used to supply the enemies of this country. [ * 219 ] * The Het Fortuyne, December 18, 1778. A Dutch ship, was restored, bound from Port Maurice to Havre de Grace, taken the 20th of September, 1778, by the privateer ship The Molly. The question as to costs and damages was reserved till next court on petition of both parties. Vrow Margaretta, A Hamburgher ship, bound from Hamburg to Bayonne, a general carrier ship. The ship was restored with freight, and all expenses charged on the cargo, (and the master's own adventure was also restored,) neutrals assigned to prove their property not verified by the master. The Xavier, A French ship, taken by The Swallow and Speedwell, private ships, before the date of their letters of marque, was condemned as a droit of Admiralty, and the takers are to petition the Lords to refer them to the court to be rewarded. [ * 220 ] * The Zelden Rust, A Dutch ship, with a cargo laden at Marseilles for Havre de HIGH COURT OF ADMIRALTY. 221 The' Bee. 1 H. & M. Grace, was a very particular case. On 'the 17th of July she met with a Spanish man-of-war, the captain of which obliged the Dutch- man to take on board gold and silver to the amount of eight hundred thousand dollars, with a Spanish supercargo, and to carry them to Havre. This ship was taken by The Fortune "privateer. The Dutch captain claimed his ship and the cargo as privileged by treaty, and several Spanish subjects claimed the gold and silver. The judge restored the ship and cargo to the several claimants, and condemned the captain in full costs and damages. JONGE GuiLLIAM, A Hambubgheb, taken by the private ship Active. Ship was restored with freight, and all expenses charged on the cargo. Neu- trals to prove their property not verified by the depositions. Copper sheets to be sold to his Majesty. *LaMignone, [*221] A recaptube. Restored the ship to British claimants, with salvage to the captors. Cargo condemned as a droit of admiralty ; the cap- tains of the private ships Defiance and Conway not having letters of marque. Juffeow Anna Gedteuth, A Hambueghee, general carrier ship, restored with freight, and all expenses charged on the cargo. Neutral laders to prove their property, not verified by depositions or the master. Sail-cloth, deals, and cop- per sheets to be sold for his Majesty's use. The Bee, Restobed to British subjects on hearing the examination, and the question of costs and damages reserved by petitions of both parties, and the captor to bring in the ship's papers. VOL. I. — H. & M. 10 222 DECISIONS IN THE The Kenard. 1 H. & M. [*222] * The Rented. 1 December 9, 1778. This was a vessel first taken by the French, carried by them into Havre de Grace, condemned judicially, and by them fitted out as a privateer ; retaken by The Lark privateer. A claim was given by one Mr. Lad, and others, as their property. The French witnesses de- posed, that she waiB an English prize ; objection was taken, by the coun- sel for the captors, to the identification, there being a variation of ton- nage between the French papers and the affidavit of the claimant. But the great question was, whether (this vessel having been com- pletely in the enemy's port and possession, and condemned in France) the property of the original British owner was not entirely defeated ; and if not, that the quantum of salvage to be allowed was to be considered? because there is no prize-act, in the present case, of hostilities with France ; and that the American privateer act gives only one eighth even to privateers, which in former prize-acts, in time of war, used always to give to privateers a salvage [ * 223 ] * proportionable to the number of hours any ship, retaken from the enemy, shall have been in the enemy's possession ; although men of war had never more than an eighth salvage. In sup- port of the argument, that no salvage was due, quotations were made from Grotius, who considers occupancy by the enemy for twenty-four hours as a divesting of the original property, and as good a transfer, by the, law of nations, as bargain and sale by the civil law. Bynkershoek, a modern Dutch writer, now much in esteem and fashion, opposes the sentiments of Grotius, and says, that an occu- pancy of twenty-four hours is not sufficient ; but there must be such a bringing into port, as that all hope of recovery is lost with the ship. This idea of Bynkershoek was said to agree with the common law of England, as laid down in Brooke's Abridgement, Tit. Property, forfeitute 38 : — " If an enemy takes an Englishman's goods, the for- mer owners (says he) shall loose his property ; and it becomes inde- feasably vested in the first taker, unless it shall be retaken [ * 224 ] the same day, and the first owner puts in his * claim before sun-set." From whence a conclusion is to be drawn, that a [See L'Actif, Edw. 185.] HIGH COURT OF ADMIRALTY. 225 The Renard. 1 H. & M. possession of a certain time, even without a sentence, defeases the first owner. The court observed, that there is something ridiculous in the deci- sive manner each lawyer, as quoted, had given his opinion. Grotius might as well have laid down, for a rule, twelve hours, as twenty-four ; or forty-eight, as twelve. A pedantic man in his closet dictates the law of nations ; every body quotes, and nobody minds him. The usage is plainly as arbitrary as it is uncertain ; and who shall decide when doctors disagree ? Bynkershoek, as it is natural to every writer or speaker who comes after another, is delighted to contradict Gro- tius ; his rule is, that the prize must not only be brought, infra prm- sidia, into the port, and under the guns of the enemy, but so that all hope of recovery is lost. But this rule will not do, it is plain ; because the fact is, the ship is recovered. As to Master Brooke's rule, there is neither sense nor justice in it. The property, he says, is lost between an Englishman and Englishman, unless it is retaken in twelve * hours ; and be- [ * 225 ] sides that, it must be reclaimed before sun-set. What ! when the original owner at land knows nothing of his ship being taken by the enemy at sea ? and how, and where, and from whom, can he reclaim her? From the enemy? The rule is nonsensical, for it is impossi- ble. I take the general law to be, and it is equity, that a British sub- ject has always a right to his own again, when found in the hands of another British subject and can maintain his suit for it, paying a sal- vage proportionable tg the expense and danger, and other circum- stances. This doctrine is just, in the relation in which one British stands to another British subject, and does not at all controvert the principle that a lawful enemy in war may acquire property by occupancy, and may transfer it to a third party, who is not forbid from such purchase by any especial treaty. In the present case, the state of hostilities is more favorable to the claimant than a declared war. What is declared then ? Reprisals upon the French king, his subjects, and the inhabitants of his * territories. But British subjects generally, (the case of [ * 226 ] the Americans being out of the question) are not to make reprisals upon one another ; there is no authority for that. Clearly the American act does riot extend to the present question of salvage. There is no act relative to recaptures from the French. It rests then with the court. By what rule can it direct its discretion ? The old war prize-acts have pointed out a rule, which the court may adopt, not as binding on the judgment of the court, but as declaring the practice. A man-of-war being paid by the public, and fitted out at the national expense, had, by the act, only an eighth of the recapture, 227 DECISIONS IN THE The Lucretia. 1 H. & M. if a merchant ship ; but a privateer retaking, after a ship had been in the possession above ninety-six hours, was to have a moiety ; and a man- of-war, as well as a privateer, retaking a British ship, the same being fitted out for war by the enemy, had a moiety. In this case the recaptured vessel appears to have been fitted out as a privateer, and therefore I have no doubt to decree a moiety as salvage, and restore the ship to the original owners ; the variation of the tonnage [ * 227 ] is accounted for by * the difference of the French and Eng- ' lish computation, and admitted by the counsel. The Lucretia. [Salvage. "Vessel captured, recaptured while at sea, and afterwards again captured.] This was an American ship, first taken in her passage from Charles- town to Surinam, by The Thynne packet-boat, having a commission of marque. The commander of The Thynne put six or seven men on board, and a prize-master. They kept possession ten days, and were afterwards taken by an American privateer, who kept possession thirteen days ; when being met (The Thynne' s people still remaining on board in her) were directed to Boston by The Seaford, Cygnet, and Speedwell, his Majesty's ship's ; they recovered her again from the enemy. It was insisted on their part, that they were to be considered as the only captors, and that The Thynne packet-boat had been divested by the possession of the enemy. It was also observed, that the American act, which restores all British ships to their own ori- ginal owners, and gives to the takers, whether men-of-war, [*228] or other vessels under his Majesty's * protection, only one eighth for salvage, relates only in terminis to such ships which shall be proved to have belonged (that is originally) to any of his Majesty's subjects of Great Britain and Ireland; therefore this ship, The Lucretia, having been an American ship taken by a com- missioned packet, and lost again, being recovered on the 3d instant, was not a recapture within the statute. Many of the same arguments were used again, as in the case of The Renard. The case of The Magdaleine, in the last war was quoted ; it was a French ship, taken by The Beckford privateer near Jamaica, and retaken by a French ship, The Hereuse, on the 6th of April ; but eight days after was re- covered again by The Cornwall privateer. Sir Thomas Salusbury, the then judge, decreed the whole to the recaptors ; and this he did upon the strength of the same opinion given by Sir George Lee in the cases of The Notre Dame and Sarah Smith, referred to him as HIGH COURT OF ADMIRALTY. 229 The Lucretia. 1 H. & M. counsel in 1747. It was argued, that no property vested in the first taker, because the possession was not complete ; the prize having never been brought infra prasidia, much * less con- [ * 229 ] demned ; and the counsel quoted the case of Goss v. Withers, in Burrow's Reports, volume 2, p. 90 ; in which an English ship, hav- ing been eight days in the hands of the French, the insurers claimed the whole again, upon a recapture ; and the question was, whether eight days' possession had divested the original owners? But it was the opinion of a very great man, that no property of an Englishman is changed till after condemnation ; but this doctrine was, as of com- mon law, sublato statuto, the. prize-act concerning recaptures being laid out of the case. The court thought this case of The Lucretia a new and refined one, and that the arguments were equally refined. It was agreed on all sides, that this kind of recapture was out of the prohibitory sta- tute. The argument used to prove that a complete property did not vest in The Thynne packet, the first taker, is two edged. It cuts both ways ; for if a complete property did not vest in The Thynne, because The Thynne did not carry the prize into port, the same reason held against the Americans divesting The Thynne; for they * never carried the vessel they retook into port. The ques- [ * 230 ] tion is not, whether a complete property vested in The Thynne upon the taking, but whether a property vested enough to have entitled The Thynne upon condemnation whensoever. In all former prize acts several limitations of time were established with a singular nicety scarcely capable of proof, to ascertain the quantum of salvage. If a vessel was retaken after being in possession twenty-four hours, the salvage was to be one eighth of the value ; if above twenty-fou#hours, and under forty-eight, a fifth ; if above forty-eight, and under ninety-six, a third part ; if above ninety-six, a moiety. All this was borrowed from a placart of the Dutch States, dated 6th June, 1702, and the same rule is laid down by their coun- tryman, Voet de Jure Militari, p. 299. One should imagine that the inventors of these distinctions and divisions, who doubtless were very sagacious persons, expected cap- tors to have stop-watches, and to be the honestest people in the world in producing them. The divisions of time in those acts to mark the quantity of salvage seem as absurd, as in the acts which some * years ago established the jurisdictions of our new [* 231] Vice- Admiralty Courts in America, and limited their juris- diction, not where the prize should be brought in, but by minutes of longitude and latitude where the prize should be taken. One should imagine, that these nice distinctions were only meant to increase liti- 10* 232 DECISIONS IN THE The Lucretia. 1 H. & M. gations ; so that so far from the court agreeing with the counsel, that it was an oversight in the framers of the American act to omit the distinctions of time, it should seem that they wisely omitted these distinctions, and that the simplest rule is the best and most equitable. Now in regard to the general law, no property of any prize vests in the captors until condemnation. All prize of war vests originally in the state, or in its great representative, wherever representation re- sides ; till it is granted to the captor. And the possessory right, as was observed by one of the advocates, is only sub modo. TKis inhe- rent original right of prize is clearly in the crown, and so by the king's proclamation after adjudication to the king in his Majesty's name, and not otherwise. Ships and goods taken by the [ * 232 ] king's ships, being * finally adjudged lawful prize are granted to the officers, seamen, &c. ; and vessels taken by private ships having letters of marque are granted to be sold and disposed of by the merchants and fitters for their own use and benefit, after adju- dication, and not before. Among the ancient Romans the amount of all captures in war was brought into the public treasury. If we look into the American letters of marque act, the words clearly give an interest in the captors on board ships with letters of marque, which interest is vested upon the taking. The words are " Such ships, &c., so to be taken by, or with such ship, according to such commission, being first adjudged lawful prize, shall wholly and en- tirely belong to the owners of such ships and persons on board the same ; " and then follows an exclusive clause in very strong terms, to take away all right of the crown, Lord .High Admiral, and commis- sioners, to any share or part therein. The great object of the legisla- ture was to encourage taking, and this principle, will easily decide the present question. There is also ano(|er reason in favor [*233]of The Thynne packet-boat, which has not *been taken notice of, which is, that The Thynne taking The Lucretia was the primary cause of The Lucretia being also taken ultimately by the king's ships. The Lucretia was bound from Charleston to Surinam, when taken by The Thynne, her voyage then being changed for Falmouth, by order of the commander of The Thynne, in her way thither she was retaken by the Americans, and then by them destined for Massachusetts Bay, in which course she fell in the track of the men of war. This was a very proper case to have been settled by private agreement between parties ; but as they have determined to apply to this court for a decision, we must endeavor to square the decree by the equity of the case, and yet conformably to the style of the court. Let the officers and crew of The Thynne be pronounced to be the captors of The Lucretia, recovered by the Americans. Let the officers and crews of the king's ships, The Cygnet, Swallow, and HIGH COURT OF ADMIRALTY. 234 The Bonaventura. 1 H. & M. Speedwell, be pronounced to be the recaptors ; but, under the circum- stances of this case, I am of opinion the latter are entitled to a sal- vage of the ship and cargo, equal to the share of joint captors. *Brita Cecilia. [*234] January 8, 1779. A Swedish ship: the ship restored, and the cargo of iron, tar, pitch, and deals, for the account of Messrs. Du Jardin Prusse, of Paris, con- demned. Destined from Elsineur to Brest and Nantz. Freight and all reasonable charges allowed to the Swedish carrier. Wynberg, A Swedish ship, bound from Bordeaux to Stockholm ; ship re- stored, with the master's adventure, and all expenses charged on the cargo ; the greatest part of which being coffee, indigo, sugar, and pa- per, laden on board for the account of persons resident at Bordeaux, as well as tobacco, with acquittances from the French government, entitling the laders, as French subjects, to drawbacks, together with tobacco, in like manner, was condemned. Le Perlan, [*235] A Swedish ship, restored : cargo, deals and pipe-staves, claimed by- Swedes, and pitch and tar for the Berlin Society, were ordered to be sold for the use of his Majesty's navy, upon a valuation by merchants named on each side, for the profit of the claimants ; all expenses on both sides to be charged to the buyer. The Bonaventura, A Swedish ship : the cargo being in a perishable condition, the court,' by agreement of both parties, ordered the cargo to be sold and deposited. A 236 DECISIONS IN THE The Minerva. 1 H. & M. The Minerva Was claimed as a Portuguese ship, and the cargo as being privi- leged on board a Portuguese vessel. It was clear in evidence, both from Portuguese and Frenchmen, that the lading was British Ameri- can tobacco, and British package, and the ship came with it to Fayal from St. Domingo, and the cargo was never unloaded at [ * 236 ] Fayal, although searched, and duties were paid there. * The ship was French built, and there was no Portuguese pass- port for the ship. Several Frenchmen came in the ship from St. Do- mingo to Fayal, and one of them was on board at the time of the capture, Mons. La Confourgue. This man, on his examination, gave in his name as Jean Augur, and it appeared he had been travelling in British America ; and his giving in a false name was sworn to by the Portuguese master and mate. His identity was also proved by a verbal process, and by an inventory of a deceased person's effects on board the ship, made in the French language, and signed by Jean La Confourgue, and Pierre Queiron, another Frenchman. The de- ceased person was a boatswain, who was drowned after the capture, and for whom as a seaman, agreeable to the French laws, the owners of the ship were answerable to the French government, which enre- gisters all seamen. Although La Confourgue, otherwise Auger, swore positively that he had no interest in the ship at or before her arrival, or during her stay at Fayal, it was said that this very same La Con- fourgue, and another Frenchman, with the assistance of the [ * 237 ] * French consul, sold the ship to one Joseph de Macedo, a Portuguese, for 800 millrees, equal only to 2001. sterling; yet, it appeared by a bill drawn on Wandewal, of Amsterdam, that the very freightage to be paid was to be 1600 millrees, and that he produced an order from the rest of the French owners to sell the ship. The charter-party was for a freight double the value of the ship made at Fayal, and was signed not only by the French, but the English consul, Graham. There was a certificate of the sale of the ship, by a Portuguese judge, for this very inadequate price, which they also legalized, that is, certified to the judge's signature, but no proof of the sale or transfer of the cargo ; and the master swore that the sale of the ship only was truly made. It was very remarkable that there was a Portuguese passport for the persons on board as passengers, and not for the ship. Jean Auger was there described under the name of Joas (abbreviation for Joannes) La Confourgue. There was not a single Portuguese paper on board upon oath, and the ship and La Confourgue were destined for Amsterdam. On board HIGH COURT OF ADMIRALTY. 238 The Minerva. 1 H. & M. * this ship was a very extraordinary letter by the Eng- [ * 238 ] lish consul, Graham, addressed to Mr. Sykes, a merchant in London, recommending the master, Caneoto, to him. This letter, notwithstanding the above destination, was underwritten, " this goes via Lisbon." It recited that this ship had put into Fayal for water and biscuit only ; that the tobacco was taken as a debt. Cartage was an article of the charges at Fayal, although it was never landed. It was said in the letter that the Frenchmen who came in her were frightened at the report of a war, and had sold ship and cargo to the Portuguese at Fayal. In case the ship should be taken by any hot- headed captain of a privateer, he recommends Caneoto, the master, to Sykes ; so that Graham clearly apprehended the hazard of the ship being made a prize, and meant to protect it as well as he could. By this letter it did not appear, or by any public instruments, or other evidence, that Macedo or Ribeiro had purchased the cargo, nor who Ribeiro's partners were ; and the letter of Graham appeared clearly to have been fabricated very early, as for a Lisbon voyage, * although it was afterwards declared to be for Amsterdam [ * 239 ] or Dunkirk. The fraud, indeed, was so palpable, that there was no way thought of for overturning the evidence of the master, but by attempting, after the examinations had been taken on the 19th of September, 1778, and were published and seen, to offer an affidavit and complaint of the master, Caneoto, so late as the 29th of Decem- ber ; and after a second claim had been given, November 11, by Am- sink, for Macedo and Ribeiro, objecting to the interpretation of his deposition to three interrogatories only ; not, however, denying the truth of all the rest of his depositions, or that the whole of the inter- pretation was false ; nor charging . the commissioners, or interpreter, or actuary, with undue influence or corruption, nor even the interpreter with not understanding the Portuguese language ; and the master prayed that he might be examined over again on the standing inter- rogatories. In this complaint the Portuguese master was not joined by his mate, or any one of his crew who were examined ; nor did even La Confourgue join with him; but, on the contrary, *the commissioners reported to the court that the evidence [*240 ] was regularly and carefully taken, and affidavits were made by the interpreter and the actuary. By these it appeared that the de- position of the master was carefully and distinctly read over to him by an interpreter, in the presence of the commissioners and actuary, and as carefully .explained to him before he signed it; that the inter- preter was, as it is always done, sworn faithfully to interpret; that he was a native of Spain, and perfectly well acquainted with the Por- tuguese language (which is a dialect of the Spanish) ; that Caneoto 241 DECISIONS IN THE • The Minerva. 1 H. & M. declared he thought himself happy to have met with a person who understood the Portuguese language so well, and actually employed him in several little affairs of his own, after the depositions were made ; that the deposition was read by him him three times over to Caneoto, before he signed it ; and that he heavily complained of the conduct of La Confourgue, as the cause of all his misfortunes ; lastly, that the interpreter, Mr. Harris, was a man of character and reputation, and a clergyman of the Romish church, and con- [ * 241 ] sequently * a false interpretation of the depositions of fo- reigners of his own persuasion, must have been ruinous to his interests and reputation. It was also remarkable that Caneoto's depositions, owning the cargo to be French property, were exactly fitted to the first claim given in the cause for the cargo generally, as privileged on board a Portuguese ship ; implying it, therefore, primti facie to be French. The case of the Monte Christi ships, which is a Spanish port near the French one of St. Domingo, was urged, in which the ships and cargoes were condemned upon appeals last war, whenever it appeared in evidence that there was a French supetcargo on board. The whole, therefore, of this affair, appearing a fraud practised upon the Portuguese government, and intended to impose upon the British, and a manoeuvre of La Confourgue, otherwise Jean Auger, assisted by the French and English consuls at Fayal, the judge condemned the ship as a French ship, and the cargo as French property ; recommended it to the cap- tor's generosity to let the mate, Lopez, who had given a very [ * 242 ] fair and honest evidence, have * his chest and property, and to Pereira, the boatswain, his adventure of a little wine and a few fur skins. The master had been confined as a prisoner of war, under the idea of a person serving on board a French ship, but had been released by the favor of government. The judge remarked how necessary it was become for the Court of Admiralty to look very strictly into the part taken by British mer- chants, when even a British consul had disgraced himself so much as to make a part of the machinery in this fraud ; and that foreign ministers would do well to be very cautious how they suffered them- selves to be teased and imposed upon by the false representations of the low people, masters of vessels, who resort to them, and who en- deavor to make the most respectable characters in the corps diploma- tique instruments of attempting to protect frauds upon both govern- ments. Memorials are presented, ministers are drawn in to be agents ; and instead of the decisions of causes in the regular course of justice being forwarded, as they otherwise would be, they become, \ * 243 ] by the interference of ambassadors * and envoys, delayed, HIGH COURT OF ADMIRALTY. 244 The Postilion. 1 H. & M. perplexed, and subjects of mutual complaints and distrust between courts the most friendly disposed to each other. It was clear that Caneoto, the Portuguese master, was tampered with by La Con- fourgue, after the depositions were seen. There is reason to believe that the masters of many neutral ves- sels, when they get home, will be severely punished by their own governments, for having made representations deceiving their minis- ters at*this court. The Jean and Samuel, A Dutch ship, bound from Nantz to Ostend, with innocent goods of French subjects; the privateer who took and detained her, on no better pretence than that there was an erasure in the French pass, was condemned in full costs and damages, and restitution decreed of ship and cargo. The Dame Catharine De "Workeem, A Dutch ship, laden with tobacco, from Bordeaux to Dieppe. Ship and cargo restored, *and the privateer con- [*244 J demned in all costs and damages. The judge observed that the duty of the captors was to produce the master of the captured, and others of the crew, agreeably to the articles of the king's instructions, immediately on coming into port, to the judge's commissioners, and to bring in all the ship's pa- pers at the same time ; and that if any master of a foreign ship is absurd, and refuses to deliver up all his papers, or will not be exa- mined, then the captors are at the same time to make complaint of that fact to the commissioners, who are to report to the judge, and a monition is to be prayed against the neutral to compel the delivery of the papers, and his undergoing the examination preparatory to adjudication, agreeably to the common law of all Admiralty Courts in Europe ; and such refusal being contumaciously persisted in, attachment and commitment to prison will follow for a contempt, with a loss of costs and damages, in case ships or cargoes should be restored to the owners, who must look to their own master for the loss of their expenses in that case. * The Postilion, [ * 245 ] A Lubec ship, was restored to the Lubeckers, and the cargo to M. 246 DECISIONS IN THE The Maria Magdalena. 1E.&M. Lienau, the owner, who, though a Frenchman, was domiciled at Hamburgh ; and it appearing by evidence, and by a certificate of the magistrates on board the ship, that the cargo was his sole property, though consigned to his brothers in France, the cargo was also re- stored, and the privateer condemned in costs and damages. The ground of the decision was, that a native of Hamburgh, resident in France, would have his property condemned by the law of nations as an adopted Frenchman, pro hdc vice ; and so the king's declara- tion of reprisals expresses it, that the ships and goods of persons in- habiting the territories of the French king shall be subject to reprisals ; and therefore the same equity operates the other way, that a French- man, resident at Hamburgh, should be considered as a Hamburgher, and have the advantage of protection, if he is the sole proprietor. JONGE GeETEUYDA, A Dutch naval store ship; the court restored ship with freight, and all reasonable expenses of the captor and claimant to be paid by his Majesty, and the cargo to be sold to his Majesty for the benefit of the claimant, on a fair valuation^ by merchants to be named on each side. [*246] The Prudentia, A Swedish store ship, the same decree. '[*247] The Maria Magdalena, January 11, 1779. [Claims disallowed on facts.] [What state of hostilities will make trading illegal.] 1 Was a Swedish ship, taken by his Majesty's cutter, The Kite, upon the 26th of August, bound from the port of London to Nantz; she was laden by several merchants of French houses of eminence i [The Eliza Ann, 1 Dod. 244.] HIGH COURT OF ADMIRALTY. 248 ■The Maria Magdalena. 1 H. & M. in London, and the cargo put' on board between the 7th of July and the 21st of August ; cleared and sailed out of the river Thames on the 24th of August, as appeared upon the evidence of the Swedish master and mate. Separate claims were given, and one of the claimants very honestly in his affidavit confessed, that if the goods got safe to Nantz they were to be French property, but if taken upon the high seas, then they were to be British property. This shows the artful manner in which merchants cover their trade with the enemy, and the necessity of parties being required to • prove a continued and complete property for their own account and risk, at the time of their lading, at the time of their being taken, and at the time of their * unlading at the>f>lace of their final [ * 248 ] destination. One of the claimants had made an affidavit, that his goods were shipped the beginning of August ; but being deceived, as his counsel said, by his broker, he now made another affidavit, that they were shipped in July, on a day before his Ma- jesty's declarations of reprisals, which was on the 29th of July. They all of them swore roundly, that their respective cargoes were shipped for Ostend, and it appeared by the evidence of the master, that the ship was never intended for, nor did it touch at Ostend ; that he flung overboard all his English custom-house papers the moment he got out of the river. All the bills of lading were made out in the French language, and as of goods shipped at Ostend in foreign names of Arnoldus Hoys, and others. The counsel for the claimants urged, that the present state of hostilities was not such a state of war as to make British subjects liable to confiscation, or any other legal inconvenience, for holding correspondence with France ; that nothing but a declaration of war could restrain the subject ; but a declaration, of reprisals went no * farther than to con- [ * 249 ] fiscate the goods of enemies, and of others residing within their territories, under their protection and government, and not those of British subjects ; if there was meant to have been a prohibition of that kind, it ought to have been expressed, to have put British mer- chants upon their guard ; that it was well known in the commercial world, that by the laws of France British manufactures cannot be imported directly into France without an extraordinary duty, which duty is avoided by carrying them to Ostend, and from Ostend to French ports; that this trade, by connivance, is greatly for. the ad- vantage of England, and as such to be tolerated, being like to the profits acquired by insuring the goods of the enemy, and the balance in favor of this kingdom. That it appears by Rymer's Fcedera in the time of Edward the third, that commerce was allowed between English and. French subjects, although the two kingdoms were VOL. I. H. & M. 11 250 DECISIONS IN THE The Maria Magdalena. 1H.&M." in a state of war ; and that no prohibition can legally take place till there is a declaration of war, which, like that in 1752, forbids the subject t 2 i Dougl. 615. 3 3 T. R. 3. *5 Maule & Sel. 406. 5 Notes of seven cases, including The Adventure, 3 Rob. 290, and John, 3 Rob. 288, were furnished by the proctors to the Judicial Committee. The five unreported cases were : — The Wharton, January, 1761. — The ship was sold at the suit of the surgeon, and after the proceeds had been paid into the registry, and he paid thereout, two actions were commenced against the remaining proceeds by material men. The judge, on motion supported by affidavits, decreed the following sums to be due to the parties, with costs j Messrs. Bedd, Ede & Co., as furnishers and fitters out, 183Z. 8s. Id. : Messrs. Ede & Co., ditto, 68Z. lis. 5d. The remaining proceeds were paid out to the assignees of the owners, who had become bankrupts. No appearance was given for the owners or assignees. The Barbara, 1761.— The ship was sold at the suit of the mate. Afterwards, Messrs. Ede & Co., the furnishers and fitters out, on motion, arrested and received the whole balance remaining, of 82Z. 4s. No appearance was entered on the part of the. owners. BEFORE THE PRIVY COUNCIL. Ill The Neptune. 3 Knapp. * The chief judge of the court of bankruptcy : [ * HI ] In this case, the ship Neptune was, in May, 1832, arrested under warrants in different actions in the High * Court of [ * 112 ] •Admiralty, at the suit of the mariners, for their wages. At the time of the arrest, the ship was in the possession of the appellant, William Hodges, who had previously taken possession of the ship and her register, by virtue of two several deeds of mortgage, exe- cuted by the owner while the vessel was at sea, as a security for debts due to Hodges to the amount of 8,000Z. ; and on the 1st of June, Hodges procured an indorsement of his mortgages to be made on the register, according to the provisions of the registry acts. No appearance, however, was given in the Admiralty Court, either for the owner or the mortgagee, and the ship was therefore sold in the usual way, under the directions of the court, and the proceeds of the sale were deposited in the registry. After payment of the wages and costs in the several actions, there remained, in the registry a balance of about 4,000Z., which was arrested at the suit of Messrs. Sims & Co., rope-makers, who claimed a lien thereon in respect of a debt of 361Z. lis. 3d. for cordage sup- plied by them for the use of the Neptune while lying in the port of London, prior to her last voyage from England in 1831. On the The Harmonia, 1817. — This was a Russian-built ship, and although the sole pro- perty of a British owner, she was not entitled to a British register. The owner hav- ing become bankrupt, she was arrested for wages and sold with permission of the Rus- sian consul, and the proceeds paid into the registry. After the wages and costs had been paid, a provision merchant applied to the court to arrest the proceeds for the amount of his account for provisions furnished to the ship, of 491. 5s. id. The as- signees of the owner opposed the motion by counsel, and the judge decreed to hear both parties on petition, but the assignees were advised by their counsel to abandon their opposition, which they accordingly did. Two bills, one to a provision merchant, for 497. 5s. id., and another to a brewer, for 50Z. 13s. 6d., were then paid out of the proceeds, and the remainder was paid to the assignees. The Bombay, 1832. — This ship was sold for wages, and after payment of them and costs, various applications were made by material men. A proctor appeared, on behalf of the owner, but after advising with counsel the opposition was abandoned, and different claims of material men for ropes, for carpets, and floor cloth, for copper- ing ship, for repairs of ship, for painting ship, for ironmongery, and for shipwright's work, amounting altogether to 5401. 0s. 3d., were paid out of the proceeds, the remainder of which were taken out by the owners. The Unity, 1830. — This ship was sold for wages, and after payment of them and costs out of the proceeds paid into the registry, a ship-builder, who had repaired the ship, arrested the remaining proceeds, and the judge ordered him the whole of them, amounting to 6821. 10s. 2d., in satisfaction of his claim. There was no appearance by the owner. 113 CASES ARGUED AND DETERMINED The Neptune. 3 Knapp. 8th of January, 1834, Mr. Hodges, in his character of mortgagee in possession, appeared in the suit instituted by Messrs. Sims against the proceeds, and denying their right, as material men, to payment of their claim out of the proceeds, prayed that the warrant issued at their suit might be superseded. The learned judge of the Court of Admiralty, after hearing the parties, decided in favor [ * 113 ] * of the material men, and pronounced the sum of 361?. lis. 3d. to be due to Messrs. Sims & Co., and condemned the proceeds remaining in the registry in such sum and costs. Against this sentence, Mr. Hodges has appealed to his Majesty in council ; and other demands having been in like manner preferred before the Court of Admiralty by other material men, for supplies furnished in England, their claims have, by agreement between the parties, been suspended, and made to depend upon the result of this appeal, in which the appellant seeks to have the decree in favor of Messrs. Sims & Co. reversed, and also to have the proceeds remitted, with a view to their being paid out to him. Two questions, therefore, were raised and argued ; first, whether these material men are entitled to any lien upon the proceeds remain- ing in the registry ; and if not, secondly, whether Mr. Hodges, as mortgagee, is entitled to have the balance paid out to him. The case was very ably argued before their lordships on the 12th of February last, when, in deference to the high character and long experience of the very learned judge who decided the cause below, and in consideration of the extensive importance of the ques- tion under discussion, not only to the parties interested in this suit, but also to the commercial world at large ; their lordships postponed their judgment, that they might give the subject the deliberate atten- tion it deserves, and carefully examine the several authorities that were brought under discussion in the argument, or that might be discovered upon further search amongst the records of the Court of Admiralty. Their lordships have been since furnished with extracts [ * 114 ] from those records which they have fully * examined ; and I am now commisioned by the members of the judicial committee, who were present at the argument, to declare their lord- ghips' unanimous opinion, that the decree appealed from ought to be reversed, and that the appellant, as mortgagee in actual possession at the time of the seizure, is entitled to have the balance of the pro- ceeds paid out to him. It is conceded to the appellant by the judgment of the court below, and was admitted at the argument by the learned counsel for the respondents, that as the law now stands, material men without BEFORE THE PRIVY COUNCIL. 115 The Neptune. 3 Knapp. possession have no lien upon a ship itself for supplies furnished in England, and that Messrs. Sims & Co. could not have prosecuted their suit in the Court of Admiralty against this ship in specie. But a distinction has been taken and relied upon between proceedings instituted by material men against the ship in specie, and proceed- ings after lawful arrest and sale of the ship, at the suit of the mari- ners, against the proceeds remaining in the registry. The principles upon which the learned judge of the Admiralty Court rested his opinion in favor of the material men, appear from the printed report of this judgment to be these, that when a ship has been arrested, and sold under process from the Court of Admiralty, that court, after satisfying the immediate object of the sale, holds the balance of the proceeds in usum jus habentium. That the jus habentes are to be ascertained according to the law of the court in which the fund is administered ; that the law of the Court of Admiralty is the^ civil and maritime law, except in those points in which it has been expressly controlled by the municipal law of England ; that, by the civil and maritime law, material men have a lien on the ship and proceeds ; and that, although the municipal courts of Eng- land * have restrained proceedings in the Court of Admi- [ * 115 ] ralty, at the suit of material men against the ship itself, for supplies furnished in England, yet that no prohibition has ever issued, with respect to suits against the proceeds, after lawful sale ; that such suits have, on the contrary, often been instituted, and sen- tence pronounced in favor of material men, without either prohibi- tion or appeal; that the reasons upon which the right of material men to arrest the ship in such cases has been repudiated by the law of England, are not applicable to the arrest of the proceeds after a lawful sale ; and therefore that, as The Neptune was lawfully arrested at the suit of the mariners for their wages, and as the appel- lant did not intervene, as he might have done, to bail the ship and prevent the sale, he had, by his own default, acquiesced in the sale, and allowed the proceeds to come into the registry of the court, and thus, according to the rules and practice of the court, to become sub- ject to the lien of the material men, from which the ship in specie would have been exempt ; and the counsel for the respondent endea- vored to support the decree upon the same grounds. It seems to have been assumed, in the argument of this case, that, prior to the reign of Charles II., the law of England, as adminis- tered in our Admiralty Court, with respect to the rights of material men, corresponded with the civil and maritime law, as adopted and acted upon by the other nations of Europe ; and that it was in the reign of Charles II. that the enforcement of those rights had, from 116 CASES ARGUED AND DETERMINED The Neptune. 3 Knapp. motives of commercial policy, been first limited and restrained by the interference of the municipal courts, in prohibiting all proceed- ings against the ship itself. And the whole fallacy of the [ * 116 ] respondent's arguments lies in this assumption ; * for it must be conceded to them that, if, by the maritime law of England, persons furnishing supplies to ships in this country had, prior to the reign of Charles II., a lien on the ship for the amount of those supplies, not only would their right to arrest the proceeds of the sale remain unaffected by the prohibitions issued by the munici- pal courts, in suits against the ship itself, but such prohibitions would themselves have been indefensible upon any known principle of law, for no authority but that of the legislature could alter the law, or destroy the existing rights of the material men, by taking away their remedy. But the common law courts assumed no such power ; they did not affect to alter the law, or control the exercise of acknowledged rights, but they declared that the maritime courts had erroneously applied the doctrine of foreign maritime law to contracts made in this country, and denying that material men ever had, by the English maritime law in respect of such contracts, any lien upon the ship, or any preference over other simple contract creditors, they prohibited those proceedings which could only be justified by the existence of such a lien. It is unnecessary to enter into any detail of the cases upon this subject, the substance and result of which are concisely, and, in the opinion of their lordships, correctly stated by Lord Tenterden, in his admirable work on Shipping, and from which he deduces this summary : — " That a shipwright who has once parted with the possession of the ship, or has worked upon it with- out taking possession, and a tradesman who has provided ropes, sails, provisions, or other necessaries for a ship, are not, by the law of England, preferred to other creditors, nor have any particular claim or lien upon the ship itself, for the recovery of their [ * 117 ] * demands ; 1 and the reason of this, as the learned author states in an earlier passage, is, because the law of England never had adopted the 1 rule of the civil law, with regard to necessaries furnished here in England. 2 If, then, material men never had any lien on the ship itself, in respect of supplies furnished in England, how could they ever acquire a lien upon the proceeds of the sale of the ship ? The language of Lord Har4jvicke, in Buxton v. Snee, 3 seems to 1 Abbott on Shipping, part 2, cap. 3, p. 134 of 4th edition. 2 Ibid. 8 1 Ves. sen. 154. BEFORE THE PRIVY COUNCIL. 118 The Neptune. 3 Knapp. be decisive upon both branches of the proposition. In that case, the ship had been sold under the authority of the Court of Chancery, and the proceeds were in the hands of the registrar of that court. A party, by bill, claimed to be paid out of those proceeds a debt due to him, for repairs done to the ship in England ; but Lord Hard- wicke, though he began by saying that it was undoubtedly a harsh defence, dismissed the bill, so far as it sought any remedy against the body of the ship, or the money arising from the sale of it ; and in the course of his judgment, after declaring that he knew of no case where the repairs, &c, had been held a charge or lien on the body of the ship, and citing the case of Watkinson v. Barnardiston, 1 as a direct authority to the contrary, he proceeds : — " If, therefore, the body of the ship is not liable or hypothecated, how can the money arising by sale be affected or followed, the one being consequential of the other ? " But it has been argued that, inasmuch as the Court of Chancery only proceeds in personam, and the Court * of [ * 118 ] Admiralty in rem, the decisions in. the former court do not necessarily conclude a similar question in the latter. It should, howr ever, be remembered, that this is not a question of jurisdiction but of right ; that the question is, whether material men have, by the law of this country, any lien or preferable claim, in respect of their debt, over other creditors, not in what court or by what means that claim is to be enforced. And besides this, in the case of Buxton v. Snee, the fund was in the hands of the registrar of the Court of Chancery, and was, therefore, as much under the direct and immediate control of the lord chancellor as the proceeds in the registry of the admiralty are under the dominion of that court. The cases of Ex parte Shank 2 and Wood v. Hamilton, 3 are also authorities for the same position, that material men have no better claim against the pro- ceeds of a ship, when sold, than they had against the ship itself in specie. But it is said that the right of material men to be paid out of the proceeds in the registry has been established by a series of decisions in the Court of Admiralty, which have never been called in question, either by prohibition or appeal ; and several cases were cited, some from printed reports, others' from manuscript extracts from the ori- ginal records in the Tower ; and their lordships have been furnished with copies of those extracts. The result of all these cases, upon. i 2 P. Wms. 367. 2 1 Atk - 234 - » Abbott on Shipping, part 2, cap. 3, p. 140, 4th edition. & M. 4 119 CASES ARGUED AND DETERMINED The Neptune. 3 Knapp. examination, appears to be this. There are seven cases, between the years 1760 and 1833, in which the material men have arrested the balance of the proceeds remaining in the registry, and have [*119 ] received payment *of their claims by order of the. court. In five cases out of the seven, there was no appearance on the part of the owners or their representatives ; but in one of the five the assignees of the owners, who had become bankrupt, afterwards claimed and received the residue of the fund still left in the registry, after satisfying the demands of the material men. In the other two cases there was an appearance : in the one, by the owner himself ; in the other, by the assignees of the owner, who had become bank- rupt ; and in both these cases the material men were first paid their claims, and the balance only was paid out to the owners and the assignees, but this appears to have been, in both cases, with the con- sent of parties, under the advice of counsel. * In the case of the solvent owner, who would be personally respon- sible for the debt, the course pursued was the most prudent he could adopt, whatever might have been his rights ; since he only paid what in law he was liable for, and saved himself all further litigation on the subject. The other case, that of The Harmonia, in 1817, is the only case where the representatives of the owner appeared, and sub- mitted to the claim of the material men contrary to their interest ; but still this was but a sentence by consent, and rests upon no intel- ligible principle, and cannot, therefore, be put in competition with the chain of decisions by which the contrary doctrine has been esta- blished in other courts. And there is one case in the Admiralty Court, namely, that of The Maitland, reported in 2 Hagg. Adm. R., 253, in which Sir Christopher Robinson places the decisions above refer- red to in their true light. After some preliminary observations, he says, in p. 255 : — " There does not seem to be any solid [ * 120 ] distinction between original suits and suits * against pro- ceeds, in cases that are opposed ; whereas, in cases unop- posed, the exercise of a judicial discretion by the court, in permitting bills of this kind to be paid out of unclaimed proceeds, instead of being indefinitely impounded, may be a sound discretion, and capa- ble of being justified to that extent, notwithstanding the general pro- hibition." > The only other argument suggested for giving to material men a lien against the proceeds, which they would not have had against the ship, is, that as the appellant had omitted to bail the ship, as he might have done, he must be taken to have acquiesced in the sale of it, and the application of the proceeds, according to the course and practice of the court. How far this inference may afford a justifica- BEFORE THE PRIVY COUNCIL. 121 The Neptune. 3 Knapp. tion of payments made to material men whose claims are unop- posed, it is not necessary in this case to decide ; but here the appel- lant intervened, to deny the right of the material men, and it would be rather a strong measure to infer a man's acquiescence in a pay- ment which he expressly resists. Their lordships are therefore una- nimously of opinion, that the claim of Messrs. Sims & Co. to pay- ment out of the proceeds cannot be supported, and that the sentence pronounced in their favor must be reversed ; and then, adopting the principle correctly laid down by the learned judge of the court below, that the proceeds remain in the registry in usum jus habentium, ac- cording to the law administered in that court, their lordships are of opinion, as there is no further claim by any person having a lien upon the proceeds, that the balance should be paid over to the appel- lant, out of whose possession the ship was taken, and who, for the purpose of rendering the ship available for the payment of his debt, must be considered as the owner. * But as the payment of the proceeds to himself formed [ * 121 ] no part of the appellant's claim in the court below, it will not be necessary for his Majesty to direct the transmission of the proceeds. It will be sufficient for their lordships to recommend that the decree in favor of the respondents should be reversed, and that the cause should be remitted to the Court of Admiralty, where the appellant may apply to have the proceeds paid out to him. The appellant, accordingly, after the report had been confirmed, applied to the registrar of the Court of Admiralty, who paid out the proceeds to him. 375 CASES ARGUED AND DETERMINED The Clifton. 3 Knapp. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY OF ENGLAND. [ * 375 ] * The Clifton. Richard Nugent Kelly and others, Appellants ; and John Bushby and others, Respondents? July 2, 1835. The appearance of counsel, who had been previously engaged at the hearing of a cause, on the cause coming on again upon the reserved question of costs, the proctor who originally instructed him being present, and not objecting to his taking part in the proceedings^ and' the opposite party being thereby led to suppose he was properly instructed to agree to a final decree, held binding on the party for whom he originally appeared, so as to perempt an appeal previously lodged against the former decree. This was a question respecting the appellants' right to appeal* under the following circumstances. The cause was originally one of salvage, promoted by the appel- lant, who was commander of the Coast Guard station at Cairn Ryan, Stranraer, N. B., against the ship Clifton, of which the respondents were the owners, for services rendered to the ship and cargo in the month of April, 1832. The suit was brought in the High Court of Admiralty in England, and the action entered on the 24th of November, 1832, endeavors having been previously made to effect an amicable arrangement of the salvors' claim, but without effect ; and on the 22d of January, 1834, the cause came on for hearing, when the court, by interlocutory decree, pronounced the tender of 50Z. theretofore made, on the part of the owners to the salvors, for their services to the ship, [ * 376 ] to * be sufficient, and at the petition of Fielden, the sal- vors' proctor, reserved the question of costs to the next court. On the 15th of February, (the first by-day after Hilary Term,) Clarkson, the owners' proctor, by his counsel, prayed the court, in the presence of Fielden, to condemn Fielden's parties in costs. Fielden's counsel objected ; and the judge having heard the advo- 1 Present, Mr. Baron Parke, Mr. Justice Vaughan, Sir John Nicholl, and the Chief Judge of the Court of Bankruptcy. BEFORE THE PRIVY COUNCIL. 377 The Clifton. 3 Knapp. cates on both sides, condemned Fielden's parties in the sum of 501., nomine expensarum; and, at the petition of Clarkson, decreed the tender of 501. so theretofore made, and then remaining in the regis- try of the court, to be paid out to him, in part discharge of such costs. In the month of October following, Fenton, who acted with Fielden as the salvors' proctor, informed Clarkson that he had interposed an appeal from the decree of the 22d of January, 1834, and requested him to accept service of the inhibition and citation on behalf of the owners, which he, supposing the appeal to be regular, agreed to do ; and accordingly, shortly after, Fenton called at Clarkson's office, and produced a minute admitting the service of the citation and inhibi- tion, which, at his request, Clarkson signed. The prceseriim of the appeal, from the decree of the 22d of Janu- ary, 1834, dated as interposed on the 24th of the same month, was as follows : — " And more especially from the aforesaid interlocutory decree, whereby the said judge pronounced the said tender of fifty pounds, theretofore made by the owners to the salvors, for their services to the said ship, to be sufficient, and from every thing therefrom." No reference was made by either party, on the 15th of February, to the pendency of any appeal from the * decree [ * 377 ] of the 22d of January, which was treated by the counsel on both sides as having been submitted to, and the question of costs only discussed. In conformity with which an entry was made in the registrar's book, and the cause considered as concluded. On discovery of these circumstances, and that, by the proceedings of the 15th of February, the appeal, if pending, had been preempted, Clarkson demanded the minute for his appearance to be delivered up. This Fenton refused, and having brought, in his petition of appeal to the Judicial Committee, Clarkson appeared under protest, and filed his act on petition. To this Fenton replied, and a rejoinder, rebutter, and surrejoinder, were respectively filed and supported by the attestation of both parties. From these it appeared that, in the declaration of the 22d of January, the- question of costs was the only question reserved ; and on the 15th of February, 1834, all the parties, both counsel and proc- tors, being in court, the salvors' counsel brought that question under the consideration of the court, and having stated certain special grounds, which had been suggested and were admitted by Clarkson, induced the judge, instead of awarding the costs against the salvors, to condemn them in the sum of 502. nomine expensarum, and, on the application of Clarkson's counsel, to decree the tender of 50Z. there- 4* 378 CASES ARGUED AND DETERMINED The Clifton. 3 Knapp. tofore made and then remaining in court, to be paid out to him, in part discharge of his parties' costs. It was insisted, however, by Fenton, that, at the hearing on the 15th of February, the owners' counsel inadvertently, and through error, stated that the judge had, by the decree of the 22d of January, condemned the salvors in costs, or to that effect ; and that [ * 378 ] thereupon one of the advocates, who had been counsel for the salvors at the previous hearing, did, without instruc- tions, correct such erroneous statement, by informing the judge, as the fact was, that the question of costs had been expressly reserved, and that, too, as both Fenton and Fielden expressly made oath, without instructions to appear as counsel for the salvors, or without communication with them, (though it was admitted that they were both in court at the time,) took further part in the discussion, in pursuance of which the final order respecting the costs was made. , The appeal now came on for hearing before the Judicial Commit- tee of the Privy Council. Dr. Lushingion, for the appellants. Dr. Addams, for the respondents. , Me. Baron Parke. Their lordships have considered this case, and they think, under its peculiar circumstances, and after what passed on the 15th of February, in the presence of Mr. Fielden, that the appellants must be held to have perempted their right of appeal. It is their opinion, that what is stated by a gentleman appearing as the advocate of a party, in the presence and uncontradicted by the proctor of that party, must be considered as if it had been stated by an advocate instructed by the proctor, or by the party himself; because it would have the effect of inducing the other party to believe that such advocate was properly instructed in making that statement. The judge must have formed a similar opinion ; and, under these circumstances, and a judgment given as to costs, and agreed to on the part of the owners, upon the supposition [ * 379 ] that the definitive sentence already pronounced * is acqui- esced in by all parties, their lordships are of opinion that the appellants ought to be considered as bound by it, and thereby precluded from appealing. It may be the case, that Mr. Fielden had no intention of doing any act by which his right of appeal should be perempted, ; but he has so conducted himself as to induce the court and the opposing BEFORE THE PRIVY COUNCIL. 379 The Clifton. 3 Knapp. party to believe that he had no intention of appealing, and to act upon that supposition, and by that conduct he must be bound. He is in the same situation, therefore, as if he had done an act in court acquiescing in the decree, and his right of appeal is therefore taken away. Their lordships believe that, under the circumstances of this case, the most merciful course for both parties is, that the cause should be thus put an end to, but they do not think proper to award any costs. CASES SELECTED FROM YOLUIE I. MOORE'S PRIVY COUNCIL REPORTS. [THE CASES SELECTED ABE THOSE IN ADMIRALTY.] 1836-1837. CASES ARGUED AND DETERMINED BEFORE THE JUDICIAL COMMITTEE AND THE LOKDS OF THE PEIYY COUNCIL. APPEAL FROM THE HIGH COURT OF ADMJRALTY OF ENGLAND. * The Eliza. [ * 5 | Joseph Lidwell Heathorn, Appellant; and Andrew Darling, Re- spondent. May 30 and July 2, 1836. The party taking a bottomry bond from the master of a vessel, requiring supplies for the further prosecution of her voyage, is bound to ascertain whether such supplies can be pro- cured on the personal credit of the owner, before resort is had to a bottomry bond as security for their amount. Semble, where a party has the means of knowing the fact, he is bound to show that he exer- cised reasonable diligence to ascertain it. This was originally a cause of bottomry, civil and maritime, pro- moted and brought in the High Court of Admiralty, by Andrew Darling, of St. Helena, merchant, the legal holder of a bond of bot- tomry on the ship Eliza, her tackle, apparel, and furniture, bearing date the 8th October, 1833, for 5201. 8s. 6d., and maritime interest thereon, at seven and a half per cent., making together the sum of 5591. 9s. id., which bond was given by Henry Thomas Marshall, the master of the ship, to Saul Solomon, of St. Helena, merchant, for provisions, stores, and other supplies furnished, and advances of money made by him, to enable the ship to proceed- on her voyage from St. Helena to the port of London ; Saul Solomon having after- wards indorsed over the bond to the respondent, Andrew Darling, who became and was the legal holder thereof. The circumstances of the case were as follows : — The ship, be- 6 CASES AEGUED AND DETERMINED The Eliza. 1 Moore's P. C. Eep. longing conjointly to Joseph Lidwell Heathorn, the appellant, and John Samuel Groves, the former master, left London in the month of March, 1832, with convicts, under the command of Groves, on a voyage to New South Wales and Singapore, and back [ * 6 ] * to London, Marshall, the late master, being at such time chief mate. Having landed the convicts at New South Wales, in the month of September following, the vessel proceeded in ballast to Singapore. On the 27th of November, whilst -at sea, Groves, the master, died, and Marshall then took the command ; and, having arrived safely at Singapore, on the 5th January, 1833, the names of the said Henry Thomas Marshall were duly indorsed on the ship's register. An assorted cargo of merchandise and three passengers having been then taken on board, on the 3d June following she sailed from Sin- gapore, on her return to London, and, on the 4th October, arrived at St. Helena. Being in want of some provisions and stores, for the further prosecution of her voyage, Lewis Gideon, the agent at St. Helena of Heathorn, the then sole surviving owner of the ship, had an interview with Marshall, the master, and stated his readiness to supply the requisite provisions and stores, and to draw a bill on Heathorn for the amount, as he had been accustomed to do. It appeared, however, that Saul Solomon, of St. Helena, persuaded Marshall that, as master," he had a right to make his election, and further persuaded him to employ him, Solomon, to supply the stores, and give him a bottomry bond for the amount. Gideon protested, but in vain ; and, in the result, Marshall gave Solomon a bond of bottomry on the ship, freight, and passage-money, for 5201. 8s. 6d. Gideon immediately sent information to Heathorn of the transac- tion, who thereupon refused to pay the bond. It appeared that, after the bond had been given, Solomon assigned it to the respondent Andrew Darling, of St. Helena. It appeared, also, that [ * 7 ] there was some question * as to the nature and quality of the stores not corresponding with those agreed to be sup- plied ; and it was also alleged that the quantity shipped was short of that charged for. The ship arrived in the port of London on the 23d December, 1833 ; and, as Heathorn had refused to pay the bond, proceedings were instituted in the High Court of Admiralty, to en- force payment thereof. The circumstances and particulars of the above transactions were duly set forth in the act or petition, and subsequent pleading in the court below, and were supported on either side by affidavits. In support of the validity of the bond, the affidavit of Solomon stated that, at an interview between him and Marshall, at his, Solo- mon's, house, the day after the arrival of the vessel in the port of St. BEFORE THE PRIVY COUNCIL. The Eliza. 1 Moore's P. C. Rep. Helena, having repeated an offer of his services made on the day previous by Moss, his clerk, he stated : — " That the late commander, Captain Groves, had been a very old acquaintance and good friend of his, and that he, Solomon, had transacted Grove's business, when he called at that island, in command of the ship Ferguson, in 1836 ; that Marshall replied, that a Mr. Gideon had come on board the evening beforej (after Solomon's clerk had left the vessel, with his, Marshall's, order, for refreshments,) and having represented himself to be a friend of Heathorn, had offered his services ; that a Mr. Car- roll had also been on board the evening before, for the purpose of tendering his services, and had represented that he had likewise a recommendation in his faVor, from or on the part of Heathorn ; but that he, Marshall, not being aware of any instructions from the own- ers to apply to any particular individual as their accredited agent, but, on the contrary, knowing and being * well aware [ * 8 ] that the late Captain Groves had intended to address him- self, for the business of the said ship, to him, Solomon, had he lived until the arrival at St. Helena of the vessel, he, Marshall, preferred following the same plan which he knew the late commander would have adopted, and would therefore take from. him, Solomon, what he might require for the vessel ; that thereupon Marshall ordered from him, Solomon, such stores and provisions as the vessel stood abso- lutely in need of, to complete her voyage, and which accordingly were sent on board at various times, during the stay of the vessel in the roads of St. Helena." His affidavit also further stated : — " That the supplies and provisions furnished to, and the cash ad- vanced for the ship, having amounted to a considerable sum, namely, 5001. and upwards, he informed Marshall that, under the peculiar cir- cumstances of the case, that was, of his, Marshall's, having only suc- ceeded to the command during the voyage, in consequence of the original commander's death, and of the considerable quantity of stores and provisions which he had stood in need of, for the use of the crew and passengers on board, and of the many disbursements it had been necessary to make on account of the said ship, he, Solo- mon, would be under the necessity of taking a bottomry bond, unless Marshall should be able to raise sufficient funds to defray the amount due, by drawing a bill upon the owners of the said vessel." The affidavit then stated : — « That, at the time of the arrival of the ship Eliza at St. Helena, the said Lewis Gideon was not known to Solomon, or to any person else, as far as he, Solomon, had been able to ascertain, to be the authorized and accredited agent of Heathorn. K. & M. 5 9 CASES ARGUED AND DETERMINED The Eliza. 1 Moore's P. C. Kep. [ * 9 ] * Moss, the clerk of Solomon, confirmed this statement of the interview with Marshall, the day after the arrival 1 of the ship. The respondent, Andrew Darling, a resident merchant of St. Helena, also made an affidavit, stating : — " That though he had been in the habit of cashing ship bills for several years, in the in- stance of the ship Eliza, from the dea1,h of Captain Groves, whom he understood to be part-owner of the ship, and from the ship being in a leaky state, he would not have given cash for a bill drawn for supplies, &c, without the further security of a bottomry bond being handed over to him." Several other affidavits were put in, in sup- port of the transaction, confirming the statement of Solomon and Darling. Against the validity of the bond, Marshall made an affidavit, in which, after stating the circumstances of Groves, the master's, death, and the ship's arrival, on the 4th of October, at St. Helena, he pro- ceeded to detail the circumstances of obtaining the supplies in the following manner : — " That the said ship being in want of provi- sions and stores, he, Marshall, had an interview with Gideon, the agent of Heathorn, the owner of the ship, in regard to supplying her with the requisite stores, for the further prosecution of her voyage to England, who stated his readiness to furnish the same ; that he, Mar- shall, was also applied to by Solomon, to furnish the requisite provi- sions and stores ; and Solomon sent on board the ship one tierce of Irish beef, and another of Irish pork, as samples ; that, conceiving he had a right, as master of the ship, to make his election, and that he was not compelled to employ the agent of his owner, he agreed with Solomon to furnish such provisions and stores as were [ * 10 ] requisite ; * and he also agreed to give Solomon a bottomry bond on the ship, as security for the repayment by the owner for the stores and provisions." Lewis Gideon, the agent of the appellant, swore : — " That the ship being in want of provisions and stores, as the agent of Hea- thorn, he immediately (on the ship's arrival) personally applied to Marshall, the master, for an account of what was wanted, at the same time informing him that he was ready and willing to supply the ship with every requisite, and to draw a bill, as usual, for pay- ment, on Heathorn ; that, notwithstanding the premises, Marshall declined to permit him to supply the requisite stores and provisions, stating that, as master, he had a right to employ what agent he pleased." The affidavit then stated the dealing with Solomon, and " That it was well known at such time to Solomon that he, Gideon, was the accredited agent of the owner at St. Helena, he having him- BEFORE THE PRIVY COUNCIL. 11 The Eliza. 1 Moore's P. C. Rep. self assured Solomon that, if he insisted on a bottomry bond, the payment thereof would be resisted by the owner, or words to that effect." Heathorn, the appellant, confirmed Gideon's statement of his being his accredited agent at St. Helena. On the 30th January, 1835, the cause was heard in the court below, when the judge (Sir John Nicholl) pronounced for the validity of the bottomry bond, and condemned the appellant to answer the action against the ship, in the amount of the bond and in costs. From this decision Joseph Sidwell Heathorn appealed. The case was argued on the 30th May, and reargued, at the desire of the court, by the senior counsel on either side, on the 2d July, 1836. 1 * Dr. Adams and Bere, for the appellant. The allega- [ * 11 ] tions in the act or petition in this case are not supported by the evidence. The respondents make out no case of necessity for hypothecating the ship. Such necessity must absolutely exist ; it is the principle upon which alone a bottomry bond can be supported. In the case of The Rhadamanthe, 2 Lord Stowell says : — " Such bonds are considered valid upon the ground of necessity only, and it is upon the same principle of necessity that a later bond is entitled to priority of payment over a former one." In the case of The Nel- son, 3 the same learned judge lays down the principle of their allow- ances more fully. " It is certainly the established principle of this species of bonds, that they shall have been taken where the owner was known to have no credit ; no resources for obtaining necessary supplies. It is that state of unprovided necessity that alone sup- ports these bonds ; the absence of that necessity is their undoing. If the master takes up money from a pers*on who knows that he has a general credit in the place, or at least an empowered consignee or agent willing to supply his wants, the giving a bottomry bond is a void transaction, not affecting the property of the owner, only fixing loss and shame on the fraudulent lender; but where honorably trans- acted, under an honest ignorance of the fact, an ignorance that could not be removed by any reasonable inquiry, it is the disposition of this court to uphold such bonds, as necessary for the support of commerce in its extremities of distress, and, as such, recognized in the maritime codes of all commercial ages and nations." The first 1 Present on the second argument, Lord Lyndhurst, Mr. Baron Parte, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy, Sir John Nicholl, and Sir Herbert Jenner. 2 1 Dodson, 203, 204. 3 1 Hagg. Adm. B. 175. 12 CASES ARGUED AND DETERMINED The Eliza. 1 Moore's P. C. Rep. question is, did not Solomon know that Gideon was the [ * 12 ] accredited * agent of Heathorn ? The expression in his affi- davit is, that, at the time of the arrival of the ship at St. Helena, Gideon was not known to him to be such accredited agent. The expression runs through the affidavits of the respondent's wit- nesses. Solomon's interview with Marshall was not till the day after the arrival of the ship ; that is the period from whence the absenqe of such knowledge should be proved. But, in order to sup- port the bond, they must go further, and show that the owner had no credit. Marshall's affidavit negatives such an assumption ; it is nowhere contradicted. No one swears that Gideon was not fully prepared to advance on the personal credit of Marshall. Moss says only that he did not know Gideon was the accredited agent of Hea- thorn. Gideon himself says he applied personally, and offered to supply the necessary stores. It would be impossible to support this •as a bottomry transaction, without sending to inquire whether the stores were advanced on the credit of the owner. That, however, is unnecessary ; for it appears, on their own showing, to have been an advance on personal credit. That is fatal to such a bond. The Alexander ; 1 The Sydney Cove. 2 In The Augusta, 3 Lord Stowell says : — " Hypothecation bonds are founded on the security of the ship and freight ; and, according to the law of this country, are resorted to only where there is a failure of personal security, in order to enable the master to supply himself in a foreign port with neces- saries, which he would otherwise be unable to procure ; from that necessity they spring, and on the ground of that necessity alone are they supported." [ * 13 ] * The supplies were not such as the ship stood in abso- lute need of; and, therefore, the agent was not justified in taking a bottomry bond. All the authorities concur, that the sup- plies must be necessary supplies. It appears, by the affidavit of Dar- ling, that he took the bond because the ship was in a leaky state, yet knowing the ship to be in such a state, he gives the full value for the bond. Is that a credible state of things ? The King's Advocate (Sir John Dodson) and Dr. Ourteis, for the respondent. It is clear that the vessel was in a state of necessity when she entered the port of St. Helena. It is nowhere stated that Gideon was the accredited agent of the ship ; it rests upon the absence of a contrary statement ; how then could Marshall be aware 1 1 Dodson, 278. z 2 Ibid. 1. 3 i ibid. 283, 286, 287. BEFORE THE PRIVY COUNCIL. 14 The Eliza. - 1 Moore's P. C. Eep. of such fact? No supplies could be obtained but on a bottomry- bond ; the necessity of the ship justified the resort to such a security. The stores supplied were such as the vessel had immediate need of; they were, for the most part, sea stores. In The Duke of Bedford, 1 the judge of the Admiralty Court (Sir Christopher Robinson) says: — ""With respect to sea stores, I see no reason for distinguishing them from any other supplies that may be necessary for the service of the ship." " Pour les depens de la nef, s'il y a besoin de vietuail- ler," — "in causa necessitatis pro servanda nave et bonis," according to the general definition given of these bonds by writers on maritime law. Solomon's ignorance of Gideon being the accredited agent, if he were such, is an honest ignorance, and not disproved by any evi- dence on the other side. As to the stores being supplied * on a personal credit, there is no pretence for such an as- [ * 14 ] sumption. A bottomry bond may be valid, though a bill of exchange were given at the same time by way of collateral security. 2 The resistance of the bond is an unrighteous act ; the court below held it valid, and condemned the appellant in costs. Lord Lyndhurst. We do not think this bond dan be upheld. The question is, whether Solomon (for the respondent has no better right than he had) used due diligence to ascertain if Marshall, the master, could procure the necessary supplies without resorting to a bottomry bond. It appears to us that he was bound, in this case, to inquire if any person was willing to supply the goods upon personal credit. He had no right to fix the owner with a bottomry bond until he had made such inquiries, and had good reason to believe its absolute, and, therefore, its legal necessity. If he knew that Mar- shall might obtain the necessary supplies on the personal credit of the owner, there is an end to the case ; and, having the means of knowing that fact, we think he is bound to show that he exercised a reasonable diligence to ascertain it. We do not think, from the evi- dence in this case, that he did use such diligence ; and we are, there- fore, of opinion that the judgment below must be reversed. 1 2 Hagg. Adm. K. 301. 2 1 Dodson, 466. CASES SELECTED FROM VOLUME II MOORE'S PRIVY COUNCIL REPORTS. [THE CASES SELECTED ARE THOSE IN ADMIRALTY. ] 1837-1838. CASES HEARD AND DETERMINED BY THE JUDICIAL COMMITTEE AND THE LORDS OF THE PREYY COUNCIL. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF GIBRALTAR. The Cazador. William Sherwill, Appellant ; a and our sovereign lord the King, and Ilted Nicholl, Esq., his Majesty's Procurator-General, Respond- ents? June 2 and July 11, 1836. In order to render a party liable to the penalties for shipping goods to be employed in the slave-trade, he must be shown to have had a guilty knowledge of the object of the vessel. A person, though convicted of felony under the Slave Abolition Act, 5 Gep. IV. c. 1 13, s. 10, is capable of prosecuting an appeal against a sentence in the Vice-Admiralty Court for penalties, though his conviction in the Criminal Court was previous to the civil sentence, and he is, at the time of the appeal, undergoing the punishment awarded him by the former. A protest, on the ground of such conviction, overrnled. This was an appeal arising out of a cause of forfeiture promoted in the Vice- Admiralty Court of * Gibraltar, by [ * 2 ] Lieutenant- General Sir William Houston, the lieutenant- i This and the two cases following being decisions upon the same statute, it is thought advisable to place them together. 2 Present : Lord Wynford, Mr. Justice Bosanquet, the chief judge of the Court of Bankruptcy, and the Eight Honorable Sir Herbert Jenner, D. C. L. CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C. Rep. governor, against the brig Cazador, whereof Pedro Felipe del Campo was the sole owner, and part owner of the cargo laden therein ; and also against Pedro Martinez, likewise part owner of the cargo ; and against Miguel Riera, the master ; whereby the said ship Cazador, her tackle, goods, wares, and merchandise laden therein, were declared to have been, at the time of the seizure thereof, fitted out, equipped, and despatched in the port of Gibraltar, to accomplish the object of shipping, embarking, receiving, obtaining, or confining on board the said brig, slaves or other persons, for the purpose of their being car- ried away or removed as, or in order to their being dealt with as, slaves ; and was decreed, with her tackle, apparel, and furniture, together with all goods and effects of the owners, or part owners thereof, to be forfeited to his Majesty : and against the further judg- ment of the court pronouncing for the penalties, and condemning Pedro Felipe del Campo, the owner, and Miguel Riera, the master of the brig, respectively, in the sum of 10,000Z., and Peter Martinez, and the appellant, William Sherwill, each in the like sum, being double the value of the goods and effects shipped by them respectively on board the said vessel, and condemning them also in costs. The cause arose under 5 Geo. IV. c. 113, for amending and conso- lidating the laws relating to the abolition of the slave-trade. It appeared from the evidence in the cause, that the brig Cazador arrived from Cadiz during the night of the 29th of March, 1835, in the port of Gibraltar, and reported herself as being bound to the island of St. Tome, (on the coast of Africa,) and subsequently to [ * 3 ] * the Havana. Having taken various goods on board, com- prising, amongst other things, thirty-two cases of muskets, and six hundred barrels of gunpowder, which appeared by the bill of lading to have been shipped by the appellant, William Sherwill, for' the account and to the order of Pedro Martinez ; and being about to sail, she was seized on the 1st of April, 1835, by order of the lieuten- ant-governor, for having been illegally fitted out and equipped in the port of Gibraltar for carrying on the slave-trade. The seizure was made in consequence of the affidavit of Duncan Frederick Campbell, the acting captain of the port of Gibraltar. Immediately upon such seizure, a minute inspection of the vessel, her cargo, and- ship's papers, was made ; when it appeared that the vessel was in every particular fitted and equipped as a vessel for the transport of slaves, and that her fitting and equipment were not com- patible with her employment in any other trade whatever. This was deposed to, with the facts and circumstances which had occurred in the port, and which led to the seizure of the brig, and unlivery of her cargo, by the further affidavit of Mr. Campbell. BEFORE THE PRIVY COUNCIL. The Cazador. 2 Moore's P. C. Rep. Various affidavits were also put in by the appellant, Mr. Sherwill, both on behalf of himself, and also as attorney for Pedro Martinez, accompanied by the bills of lading, and amount of the ship's provi- sions, claiming the restitution of such goods as had been supplied by them respectively, the seizure of which they insisted was illegal ; and denying, both on behalf of himself as well as Pedro Martinez, that they had done any acts to render their goods liable to forfeiture. In consequence of these proceedings, a monition was issued on the 2d June, against the appellant, * calling on [ * 4 ] him to appear personally before the surrogate on the third day after service, and "then and there to show and allege, in due form of law, a reasonable and lawful cause, if he have or know any, why he, the said William Sherwill, should not be pronounced to have knowingly and wilfully shipped, laden, or put on board, or to have knowingly and wilfully been procuring, counselling, aiding, or abet- ting in shipping, lading, or putting on board the said brig or vessel called Cazador, money, goods, or effects, to be employed in accom- plishing certain objects by the statute in that case made and pro- vided, declared to be unlawful ; that is to say, in accomplishing the object of dealing or trading, in purchasing, selling, bartering or trans- ferring, or of contracting for the dealing or trading in purchase, sale, barter or transfer of slaves, or persons intended to be dealt with as slaves, or of shipping, transshipping, embarking, receiving, detaining, or confining on board, or of contracting for the shipping, transship- ping, embarking, receiving, detaining, or confining on board the said brig Cazador, slaves or other persons, in order to their being dealt with as slaves, contrary to the statute in such case made and pro- vided, and for such or other reasons subject and liable to be adjudged and condemned to pay the penalties due under the provisions of the said statute ; and why the said penalties should not be accordingly pronounced for." On the 9th of June, the advocate-general brought in the libel, set- ting forth the several charges for the offences alleged to have been committed by Mr. Sherwill, as well as the other parties, in breach of the act of parliament ; and concluding by praying that the brig "and cargo might be pronounced to be forfeited to the [ * 5 ] king, and the penalties due by law ; that is to say, the sum of 10,000^. from each of the said parties, Pedro Felipe del Campo, Miguel Riera, William Sherwill, and Pedro Martinez, being double the value of the goods and effects shipped by William Sherwill and Pedro Martinez, and received or contracted to be received on board by Pedro Felipe del Campo, and Miguel Riera, the master. To this libel the defendants severally appeared and put in their 6 CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C. Eep. personal answers, which were sworn to, and in which, after stating the various circumstances showing their connection with the vessel, they expressly denied all knowledge of the objects for which it was fitted up, or of the matters charged against them, from which such knowledge might be inferred. Witnesses were examined in support of the libel and the answers of the several defendants, on behalf of whom further allegations' in answer were brought in, the last of which on the part of the appellant denied all the^ circumstances deposed to, by which it was attempted to fix him with a guilty knowledge of the object and destination of the vessel; and in reply to a statement that he was apprised and warned that suspicions were entertained by the lieutenant-governor of the vessel's character, stated that the permit for shipping the gun- powder, though withheld on the 31st of March, was delivered to him on the day following, with a declaration by Mr. Campbell that the lieutenant-governor's suspicions respecting the vessel were removed. On the 29th of September the cause came on for judgment, when the judge, having heard the proof read, rejected the claims [ * 6 ] of Pedro Felipe del Campo * and Pedro Martinez, and by interlocutory decree pronounced the contents of the libel to be sufficiently proved, condemning the ship as forfeited, and the de- fendants severally in the full penalties claimed. From this decree an appeal to his Majesty in council was duly interposed on behalf of "William Sherwill. Pending the above suit in the Vice- Admiralty Court, the appellant was proceeded against criminally by order of the lieutenant-governor, and having been arrested and committed, was indicted for having "piratically, feloniously, and unlawfully fitted out, equipped, de- spatched, and used the said ship Cazador, to accomplish the object of shipping, embarking, receiving, detaining, and confining on board slaves and other persons, for the purpose of their being carried away and removed in order to their being dealt with as slaves." On the 25th of September, 1835, the day previous to the hearing of the cause in the Vice- Admiralty Court, the trial upon this indict- ment came on, when the same witnesses who had already been exa- mined on depositions in the civil suit, were produced against the prisoner, and his personal answers to the libel read, and upon this evidence he was convicted and sentenced to be imprisoned for three years, and kept to hard labor. The appeal having been duly admitted and referred to the judicial committee, the usual inhibition, citation, and monition, were issued, and returned into court, to which his Majesty's procurator-general appeared, under protest, and delivered in a petition, setting out the BEFORE THE PRIVY COUNCIL. The Cazador. 2 Moore's P. C. Rep. various proceedings, and concluding, by way of protest, "that the said William Sherwill was *and had been, from' [ * 7 1 the time of the said conviction, undergoing the sentence of the law thereby imposed upon him, and that all his goods, chattels, and credits, so far as the same could be found, had been seized to the use of his Majesty ; that the inhibition and citation issued under the seal of this court, were decreed in ignorance of the fact of the said conviction of the said William Sherwill, and that the said William Sherwill, by reason of the premises, was legally incapable of appear- ing in judgment to prosecute that his pretended appeal. Wherefore the procurator-general prayed the court to pronounce for that his pro- test, and that the inhibition and citation issued in the aforesaid pre- tended appeal might be decreed to be relaxed." The protest was accompanied by a record of the conviction. June 2, 1836. On the appeal coming on, upon the protest, 1 Sir William Follett was heard in opposition, and the King*s Advocate declining to press for the allowance of the protest, the same was over- ruled, the judicial committee observing, — That if the protest could be supported, the effect of the sentence in the criminal court would be to deprive the appellant of the only means by which he could satisfy the judgment in the civil suit, as when the sentence of impri- sonment was satisfied, he would- still be liable to the penalties, though all his effects were forfeited ; that there being no attainder, there was no personal disability to prevent the appellant being heard on his appeal, though the conviction might be a good .bar to an action to recover back the penalties, * supposing he succeeded [ * 8 1 in reversing the judgment of the Vice- Admiralty Court. The appeal was accordingly fixed for hearing on an early day. Sir William Follett, K. C, and Dr. Phillimore, for the appellant. This is the first case which has arisen under the act of 5 Geo. IV. c. 113, which was passed for the purpose of consolidating the laws relating to the slave-trade ; being directed against a cruel and out- rageous traffic, it requires, in proportion as its enactments are penal and severe, a strict and technical interpretation. There are two classes of offence contemplated by this act : one, the direct traffic in slaves on the high seas, which is declared piracy, and, as such, felony, punishable with death; the other, the knowingly and wilfully engag- ing directly or indirectly in aiding or assisting, or contributing to the i Present : Mr. Baron Parke, the Chief Judge of the Court of Bankruptcy, Sir John Nicholl, and Sir Herbert Jenner. K. & M. 6 9 CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C. Eep. carrying on of the slave-trade ; this latter is either punishable in the Civil Court with penalties, or in the Criminal Court with imprison- ment or transportation. The 9th section provides for the capital felony ; the 2d, 5th, 6th, and 7th sections declare the traffic in slaves illegal, and prohibit it under severe penalties ; the 10th section makes such traffic criminal under certain circumstances. Now in all these cases a guilty knowledge is essential to the commission of the offences, whether it be capital, criminal, or merely subjecting the party to penalties ; and the words " knowingly and wilfully," are to be found in every section not merely declaratory ; thus, in the 5th, the know- ingly and wilfully embarking capital in the slave-trade, — in the 6th, the knowingly and wilfully guaranteeing slave adventures, — in the 7th, the knowingly and wilfully shipping goods to be em- [*9 ] ployed in the slave-trade *is made subject to pecuniary penalties, — and in the 10th, the knowingly and wilfully being engaged in any of the above acts is constituted felony. It may be doubtful whether the legislature ever intended that a party should be liable to be proceeded against both in a civil and criminal suit, but there can be no question whatever that in either suit he must be proved to have had a guilty knowledge, and, accordingly, the libel here is expressly framed with that view, the charge being in the very words of the statute,' that the appellant " did knowingly and wilfully ship goods," &c. Such knowledge is, however, expressly denied by Mr. Sherwill, who, in his personal answer, says he neither knew nor suspected that the vessel was equipped or intended for the slave-trade, and if he had ever entertained the most distant suspicion, the con- duct of the government authorities was calculated to allay, if not destroy such, for they not only grant him permits to ship the goods on board, but they give them the very night before her seizure ; nor is such knowledge brought home to him by any witness examined in the cause ; and without such proof the courts below had no right to assume the appellant's guilt, or to amerce him in the heavy penalties which have been awarded against him. The real secret of the admission of the libel can alone be accounted for by the unusual and unprecedented course>which was taken upon the trial of the indictment. That trial was fixed on the day previous to the hearing of the cause in the Vice- Admiralty Court : it came on before the same judges, the lieutenant-governor being one of the commissioners. The witnesses who had been already examined on these depositions were brought into court, and examined [ * 10 ] again, * and the personal answers given in by Mr. Sherwill to the libel read, as a confession or statement of a prisoner in a criminal charge. BEFORE THE PRIVY COUNCIL. 11 The Cazador. 2 Moore's P. C. Rep. The King's Advocate (Sir John Dodson) and Dr. Burnaby, for the crown. There is no doubt that there has been a wilful contravention of the act of parliament in this case, and the only question is, whether the appellant did not knowingly and wilfully ship the goods in ques- tion for the purposes of the slave-trade. A vessel employed in such trade, is, by the fourth section of the statute, expressly condemned, and the owners or part-owners are liable to be seized. On whom, then, is the onus probandi, the want of guilty knowledge ? clearly not on the party seizing, but, as in all cases of the commission of a cri- minal act, on the party committing it : he must prove his innocence, or, afr least, his want of participation, in that which constitutes the criminality of the offence. The language of section ten is the same as that in sections five, six, and seven, and the proofs must necessarily be the same, that dispose of the objection against the examination of the same witnesses. With respect to the court having allowed the appellant's personal answer to the libel to be read in the criminal suit, there is no evidence of that fact, and if there were, it would only amount to a plea of not guilty ; for he denies the allegations, that is, that he did ship the goods on board, &c, knowingly and wilfully, and if his bare denial is to impose the necessity of proof of such know- ledge, not to be inferred from the circumstances of the case, there can be no conviction under the act. But this is a civil not a criminal proceeding, and the same rule must apply to the seizure of the goods and the penalties incurred * as if they had been in [ * 11 ] a foreign vessel sailing under British colors, in which case, it has been expressly decided that the onus probandi is on the claim- ants, not on the seizor. 1 By 7 and 8 Geo. IV. c. 30, s. 11, the exhibit- ing false lights with the intent to bring any ship or vessel into danger, is a capital felony ; how is such intent to be proved but from the cir- cumstances of the case ? If, upon an indictment, the personal plea of the defendant of not guilty is to be an answer to the charge, there would be an end to all prosecutions for the offence, — the onus of proof of innocence must be on the party accused : here an illegal act has been committed, the appellant is particeps criminis, he does not deny his participation, but says he did not knowingly and wilfully ship the goods, and he calls on the seizor to prove his knowledge, which, if not an inference from the act itself, is sufficiently established from the evidence ; there was enough in the appearance and conduct of the vessel to have put any reasonable man on his guard, and if he is ignorant only because he shuts his eyes, he wilfully incurs the con- sequences of his own act. 1 The Beaver, 1 Dodson, 152. 12 CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C.'Kep. Lord Wynford. Before I apply myself to the particular case which is now under our consideration, I am directed by their lord- ships to state, that no inference is to be raised with reference to the proceedings which have been alluded to in the criminal suit against the appellant, from the judgment which we are about to give in J;his, the civil suit ; we are only to decide on the case which is presented to us. I, for one, am exceedingly sorry that the two cases have [ * 12 ] been mixed up together; it * would have been much better if it had been avoided. There cannot be a doubt, I think, that there is a great deal of suspicion about this case. But I entirely agree with the appellant's counsel, that we are not, in this case, or any other criminal case, to decide on suspicion, and that the more serious the offence is, the greater should be the caution of the judges before they condemn. We think that this case does not go beyond suspicion. It is a case that proceeds on the 7th section of the 5th of Geo. IV. c. 113, by which it is enacted, " That if any person shall knowingly and wilfully ship, transship, lade, receive, or put on board, or contract for the shipping, transshipping, lading, receiving, or put- ting on board of any ship, vessel, or boat, any money, goods, or effects to be employed in accomplishing any of the objects, or the contracts in relation to the objects, which objects and contracts have herein- before been declared unlawful, then, and in every such case, the persons so offending, and their procurers, counsellors, aiders, and abettors, shall forfeit and pay for every such offence, double the value of all the money, goods, and effects so shipped, transshipped, laden, received, or put on board." The counsel for the crown has said, Is ignorance to be any excuse ? Indeed, ignorance is an excuse ; not wilful igno- rance, if it can be shown to be such ; but ignorance is an- excuse, and must be, because, by the words of the statute, unless there is know- ledge there can be no guilt, and where there is complete ignorance there certainly is not that knowledge which would be required to convict. I do not mean to say that it is necessary that you should have express evidence of knowledge, knowledge may be inferred in this and in every other case. And that brings us to the real question in the case, whether [ * 13 ] * there is sufficient ground to infer more than suspicion, whether there is sufficient ground to infer that criminal knowledge, ,which wpuld bring the party within the reach of this highly penal act of parliament. Now take it as it is charged in the 7th section of the libel ; that suspicion arose on the 30th March, 1835, that the vessel was engaged in illicit traffic ; on the 31st, that suspicion appears to have been con- siderably increased, so much so, that on that day, there having been BEFORE THE PRIVY COUNCIL. 14 The Cazador. 2 Moore's P. C. Rep. some little examination in the interim, the lieutenant-governor refused to grant the permit for the shipment of the gunpowder. On the 1st of April, it appears distinctly that the suspicion, such as it existed on the 31st of March, was lulled, if not entirely removed ; for, on that day, the lieutenant-governor granted the permit to ship the gunpow- der. I cannot conceive it possible that he would have granted that permit if his suspicions, which existed on the 31st of March, had not been got rid of on the 1st of April. The answers that have been given by this gentleman (Mr. Sher- will) upon oath, to the interrogatories and questions that were put to him, have been put in on his behalf. Whether those questions were properly put to him, in a proceeding of this sort, I do not know ; I should be very sorry to be obliged to decide that they were. But it is enough to say, that in this case it is perfectly immaterial ; because, whether those questions were properly put or not, the answers are undoubtedly in his favor. At first it struck me that he did not swear in the sort of way, in his affidavit, particularly, that I should have expected a man in his situation to swear. He put his knowledge a little too much upon the correspondence which had taken * place between him and his employers; he does not dis- [ * 14 ] tinctly deny that he might not have had knowledge from some other communication. But when he comes to be examined in answer to one of the questions that were put to him, he upon his oath distinctly states that he had no knowledge whatever of this ship being about to be despatched on a slave voyage. Whether right or wrong, those who proceed for this penalty have thought proper to put in this evidence ; they have made it evidence, and the appellant has a right to take advantage of it. But I beg leave to say, that it strikes me that there is nothing in this case to weigh down the positive tes- timony obtained from this man. We have here direct evidence that he did not know ; we have no direct evidence that he did know ; we have no circumstance from which we can fairly infer that he did know. I am bound, therefore, in justice to my opinion, and their lordships instruct me so to say that there is not that proof of knowledge which will warrant this court in supporting the judgment that has been given by the court below for this penalty. The court, therefore, are of opinion that this appeal must be allowed. 15 • CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C. Rep. ON APPEAL FROM THE VICE-ADMIRATY COURT AT GIBRALTAR. [ * 15 ] * The Cazador. Pedro Felipe del Campo, and Pedro Martinez, of Cadiz, merchants, Appellants, v. our sovereign lady the Queen, and Ilted Nicholl, Esq., her Majesty's procurator-general, Respondents? July 5, 1837. The receiving goods on board a slave-ship, is the joint act of the owner and master of the vessel ; and the penalties given by 5 Geo. IV. c. 113, s. 7, are in such case joint and not several. The owner of a vessel, though a subject of the Queen of Spain, and resident ( at Cadiz, is lia- ble to the forfeitures and penalties incurred under the Slave Abolition Act, if his vessel came within a British port. This was the appeal of the other defendants in the last case, the circumstances of which are there fully detailed. On the 28th of September, 1836, an inhibition issued under the seal of this court, upon an appeal, so far as the same rejected the claims, and condemned the ship, and the property, goods, and effects of the owner thereof: also so far as the same condemned Pedro Fe- lipe del Campto, and Pedro Martinez, in the penalty of 10,000Z. each, and in costs. The appellants prayed their lordships to reverse the decision of the Vice- Admiralty Court at Gibraltar, for the following reasons : — 1. Because the ship, and the goods belonging to the owner of the ship, could not be liable to confiscation and forfeiture, unless the vio- lation of the statute, 5 Geo. IV. c. 113, be established by adequate proof. [ * 16 ] 2. * Because Pedro Felipe del Campo, and Pedro Marti- nez, being natural born subjects of her Majesty the Queen of Spain, and not resident within the dominions of his Britannic Ma- jesty, could not be rendered liable to penalties imposed by an act of the British legislature. The King's Proctor, on the other hand, prayed the court to affirm the decision of the court below, and remit the same ; and that the 1 Present : Lord Brougham, Mr. Baron Parke, Sir John Nicholl, and the Eight Honorable gir Herbert Jenner, D.C.L. BEFORE THE PEIVY COUNCIL. 17 The Cazador. 2 Moore's P. C. Rep. appellants should be condemned in costs for the following rea- son : — Because The Cazador was fitted out and equipped for, and' bound upon a slaving voyage to the coast of Africa at the time of her seiz- ure in the port of Gibraltar : and that the goods and effects laden on board the said ship, in the said port, by or under the authority of the appellants, were shipped to be employed in such illegal voyage con- trary to the provisions of the act of parliament for the abolition of the slave-trade ; and that the same and every part thereof were justly- liable to forfeiture and condemnation : and that the penalties pro- nounced by the court below to be due from the appellants, were justly and legally incurred. Dr. Lushington and Dr. Phillimore, for the appellants, — contended, upon the grounds contained in their second reason, that the Act 5 Geo. IV. c. 113, applied only to persons who were themselves within the jurisdiction ; that the Vice- Admiralty Court had no power to de- cree the penalties against Del Campo, who was resident in Cadiz, a subject of the Queen of Spain : that Pedro Martinez was an acces- sory after the fact, and that, in order to make him liable for a * breach of the act of parliament, it was indispensable that [ * 17 ] it should be shown that he shipped the goods on board the vessel, with a guilty knowledge of its object and destination : they contended, also, that no more than one penalty could be decreed un- der the act, for the same offence, there being no provision in the act for making the penalties cumulative. The Queen's Advocate (Sir John Dodson) and the Solicitor- General (Sir Robert Monsey Rolfe) for the respondents, were stopped by the court. Lord Brougham. It appears to their lordships that the only ques- tion for their decision now, is respecting the penalties. Whether the court below was right in giving two penalties against Del Campo and Riera, or whether they ought not to have given a joint penalty against both. Now Del Campo and Riera receive goods on board ; which Martinez and Sherwill ship : Martinez is the owner of the goods, but Del Campo is the owner of the vessel. The sentence of the court below forfeited the goods as well as the vessel. We are of opinion that, by the 7th section of 5 Geo. IV. c. 10, the goods are only forfeited when they are the goods of the owner, and that that part of the sentence, therefore, must be reversed. With respect to the other appellant, Del Campo, the owner of the vessel, the case is 18 CASES ARGUED AND DETERMINED The Cazador. 2 Moore's P. C. Eep. different. There is no doubt, and it is admitted by the appellants' counsel, that this vessel was fitted and equipped for the purpose of the slave-trade. Being found in a British port, that alone subjects her to seizure ; but the act of parliament has also attached penalties to the owners of vessels found equipped for, or engaged in such traffic. Throughout all the clauses in which the penalties are named, [ * 18 ] * the word " persons," is used, and it has been contended that these clauses can only apply to such "persons" as are British subjects, and that, consequently, Del Campo being a subject of the Queen of Spain, resident at Cadiz, without the jurisdiction of the Vice- Admiralty Court, cannot be made subject to its decree. But the offence is committed within the jurisdiction of that court, which acts in rem as well as in personam ; and their lordships have no doubt that the court at Gibraltar had full jurisdiction to award the penalty against the owner, as well as to seize his vessel. The doubt their lordships have entertained, is respecting the decree of two penalties of 10,000/. ; one against the owner, Del Campo, and the other against the master, Riera, for one and the same offence ; namely, the receiv- ing of goods on board. The single offence of shipping or receiving goods on board is made a joint offence ; the words are, "in every case the person so offend- ing," not every person so offending ; and though, as was observed by Lord Mansfield, in Rex v. Clarke, (Cowper, 610,) "where the offence is in its nature several, afld every person concerned may be separately guilty, there each offender is separately liable to the penalties," it has been decided in Hardyman v. Whitaker, (Bull. N. P. 189,) that where the offence is made a joint offence by statute, the parties concerned are liable to but one forfeiture ; this has been followed in Barnard v. Gostling, (2 East, 569.) Looking to the words of the act, and these authorities, their lordships are of opinion that the separate penalties of 10,000/. against Del Campo and Riera, must be remitted ; and that instead, one penalty only of 10,000/. must be pronounced due^from them jointly : that the goods of Pedro Martinez must be restored, or that he be at liberty to take such steps as he shall be advised [ * 19 ] *for recovering their value, the nature of which their lord- ships give no opinion upon; subject to these alterations, and to the remission of the sentence against Sherwill, which has already been pronounced, their lordships will recommend her Majesty to affirm this appeal, but without costs. BEFORE THE PRIVY COUNCIL. 20 The "Winwick. 2 Moore's P. C. Rep. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF GIBRALTAR. The Winwick. Miles Barton and others, Appellants, and William Henry Sheriff and Ilted Nicholl, Esq., her Majesty's Procurator- General, Respondents?- February 7, 1840. The Act 5 Geo. IV. c. 113, throws the. burden of proof of the facts necessary to constitute a liability to forfeiture or penalties upon the prosecutor, and the privileges given by section forty-six to seizors, are not for their benefit, but for their protection against liability to costs and actions, where the judge shall certify pursuant to 4 Geo. III. c. 15, s. 46, that there was probable cause for seizure. A vessel having been seized in the port of Gibraltar, on the allegation that she was engaged in carrying slaves, or persons to be dealt with as slaves, and upon proceedings taken against her, held forfeited, and the owners, master, and mate, condemned in penalties, the judgment of the Vice- Admiralty Court of Gibraltar was reversed, the judicial committee being of opinion that the evidence of the persons being slaves, or intended to be dealt with as slaves, was in itself doubtful, but that neither the owner, master, or mate, were proved to be cognizant or privy to that fact, which it was the duty of the seizors to make out. ' Upon a monition from the judicial committee against the judge and registrar of the Vice- Admiralty Court of Gibraltar, to transmit the proceeds arising from the sale of a vessel decreed to be forfeited, and sold subsequent to an appeal being asserted, and an inhibition issued and served, the whole amount of the proceeds must be brought into court, and not the balance remaining after deducting the costs and fees incident to the seizure and sale. The refusal to comply with such monition is a contempt, and an attachment for such was granted by the judicial committee against the judge, registrar, and marshal of the Vice- Admiralty Court. This was an appeal by the owners and officers of a vessel seized in the port of Gibraltar, and condemned, for having on board three persons, alleged-to be * slaves, against the sentence of [ * 20 ] condemnation, and the penalties imposed in consequence of such sentence. On the 12th of October, 1837, the ship Winwick arrived and an- chored in the port of Gibraltar, having sailed from Trieste on the 1st of September previous, and being bound for Bahia, in Brazil : having discharged part of her cargo and taken on board certain goods for the port of Bahia, and being about to sail, she was seized on the 21st, by 1 Present : Mr. Baron Parke, Mr. Justice Bosanquet, Mr. Justice Erskine, and the Eight Honorable Stephen Lushington, D.C.L. 21 CASES ARGUED AND DETERMINED The "Winwick. 2 Moore's P. C. Rep. William Henry Sheriff, captain of the port, on the allegation that she was engaged, or employed, in the illegal carrying away or removing of slaves, or other persons, as or in order to their being dealt with as slaves, and having bn board two male slaves called Jose and Candido, and one female slave called Laurianna. In the muster-roll which was seized with the ship's papers, the above three persons were described as passengers, travelling with passports ; which were subsequently found, and appeared to have been signed by the Austrian minister at Vienne, and vised by the director of police, and British vice-consul at Trieste. Separate deeds of manumission, both of Jose" and Candido, were also found, with letters from their late master, Mr. John Natterer, formerly of Rio Janeiro, but then of Vienna, soliciting em- [ * 21 ] ployment for them * at Bahia. One of these letters also contained a history of their previous employment. On the 2d of November, the usual monition issued at the suit of her Majesty's advocate and procurator-general, and having been duly executed, a claim was given in on behalf of James Cocksholt, and Miles Barton, as the principal owners of the ship, and of Charles Cotesworth, Thomas Palgrave, Margaret Dowie, and Coote Heley Hutchinson, the other owners of the vessel. The claim was supported by affidavits, denying that the parties in question were slaves, and repudiating all the circumstances which could' fix the owners with the knowledge of the fact. A libel was given in on the 18th of December, 1837, on behalf of the crown, by the seizor, pleading the statute 5th Geo. IV. c. 113, and containing seven articles. Various witnesses were examined on the libel, including the alleged slaves Jose" and Candido, both of whom stated that they left Vienna contrary to their inclination, but because their late master would not allow them to remain ; that they considered themselves slaves, inas- much as neither of them had received their passports or letters of freedom. It did not, however, appear, that they had ever claimed, or had occasion for them on the voyage. The appellants having given in an allegation, arid examined wit- nesses, tendered evidence of the law of Brazil, of the 7th of Novem- ber, 1831, declaring that " all the slaves that enter the territory or the ports of Brazil, coming from abroad, are free, except sailors on board any vessel belonging to countries where the slave-trade is permitted, so long as they are employed in the service of the same ves- [ * 22 ] sel, * or those who abscond from the territory, or from on ■ board a foreign vessel ; who are to be given up to the mas- ters who may claim them, and sent out of Brazil." BEFORE THE PRIVY COUNCIL. 23 The Winwick. 2 Moore's P. C. Eep. On the 20th July, 1838, the cause came on for hearing before Mr. Barron Field, the judge of the Vice- Admiralty Court at Gibraltar, when judgment was given for the respondents, and the ship, her tackle, and slaves, adjudged to be forfeited to the Queen. The fol- lowing penalties were also pronounced for, namely : the sum of 2001., being 1001. for each of the slaves to be due from William Hodge, the master of the ship, William Hodge, Jr., the first mate, and Miles Bar- ton, Charles Cotesworth, James Cocksholt, Thomas Palgrave, Mar- garet Dowie, and Coote Hely Hutchinson, the owners thereof jointly, (all of whom were appellants in the present case,) and condemned them in costs. On the 3d of August, 1838, the proctor for the owners and officers of the ship thus condemned, asserted an appeal from the above de- cree, and executed the usual bond : and on the 10th of the same month, the judge, at the petition of the procurator-general, and upon the marshal's report of the perishable state and condition of divers of the ship's stores, articles, and provisions, granted a decree of sale of the same, which was accordingly executed. The appeal from the decree of the 20th of July was duly entered and prosecuted, and referred by her Majesty to the judicial committee of the privy council, by whom, on the 14th of December, 1838, an inhibition was issued, whereby the judge, the registrar, and Captain Sheriff, in special, and all others in general, were inhibited, that pending the appeal, they should *not do, or attempt [ * 23 ] any thing to the prejudice of the appellants, or their cause of appeal. 1 1 The following is a copy of the Inhibition, which varies only in the particulars of the case from the usual form. Victoria, by the grace of God, &c, to all and singular our liege subjects being literate persons whomsoever and wheresoever in and throughout our said united king- dom, and other our foreign plantations and dominions, greeting : Whereas, &c, (here follows a recital of the various proceedings in the court below, the sentence, and appeal,) and whereas we have been pleased to refer the said appeal to the judicial committee of the privy council, and whereas the worshipful Augustus Gostling, Doctor of Laws, one of the surrogates of the said judicial committee lawfully appointed, hath decreed an inhibition and citation to the effect following (justice so requiring) ; we do, there- fore, authorize and empower and strictly charge and command you jointly and seve- rally that you do inhibit or cause to be inhibited the said Barron Field, Esq., the judge from whom the said cause is appealed, his surrogate, registrar, or actuary, and the said William Henry Sheriff, and also Eted Mcholl, Esq., our procurator-general, in special, and all others in general, whom, by the tenor hereof we so inhibit, that neither they nor either of them, pending the said cause of appeal, do or attempt any thing to the prejudice of the said parties, appellant, or their said cause of appeal ; but that they may have full liberty and power to proceed in and prosecute the same so long as it 24 CASES ARGUED AND DETERMINED The Winwick. 2 Moore's P. C. Rep. [ * 24 ] * This inhibition was served personally on the judge and registrar on the 9th January, 1839. On the 8th of February following, her Majesty's advocate-general moved, upon the affidavit of a ship-builder, resident at Gibraltar, stating that the vessel had deteriorated in value, and was likely to decrease, for the sale of the ship. The motion was opposed by the appellant's proctor, who insisted that the Vice- Admiralty Court had no power to order a sale after service of the inhibition, and pending the appeal ; the judge, however, pronounced for the sale, and, accord- ingly, on the 14th of March, the ship was sold by the deputy-marshal of the Vice- Admiralty Court of Gibraltar for 7,050 dollars (1,591Z.) Against this order, the appellant's proctor asserted an appeal, which was admitted, and bail given, and allowed for its prosecution. On the 21st of the same month, upon the application of the advo N - cate-general at Gibraltar, the bill of costs on behalf of the crown was referred to the registrar for taxation, and an order was at the same time made for the payment thereof, with the judge's, registrar's and mar- shal's fees, amounting altogether to the sum of 965/. 10s. 10d., out of the proceeds of the sale : this application was ex parte, no notice having been given to the appellants' proctor, nor was any copy of the bill of costs of the seizors of the vessel, or of the crown, delivered to him, pursuant to the thirty-first rule for regulating the practice of the Vice- Admiralty Court, or notice of any appointment for the taxation of such costs; [ * 25 ] * As soon as the sale was known in England, the usual monition was issued from the judicial committee against the judge and registrar of the Vice- Admiralty Court, to transmit the proceeds of the sale : this monition was served personally on the judge and registrar, on the 19th of April, 1839, but in consequence of shall depend and remain undecided, under pain of the law and contempt thereof; and that you also cite or cause to be cited the "said William Henry Sheriff, and Ilted Nicholl, Esq., to appear before the judicial committee of our privy council aforesaid, or any four of them, in the Privy Council Chamber, Whitehall, the thirtieth day after service of these presents, if it be a court day, otherwise before their lordships' surrogate in the Common Hall of Doctor's Commons, situate, &c, upon the next court held there be- tween the usual hours for hearing causes, then and there to answer unto the said Wil- liam Hodge, William Hodge, the younger, Miles Barton, Charles Cotesworth, James Cocksholt, Thomas Palgrave, Margaret Dowie, widow, and Charles Coote Hely Hutch- inson, in the said cause of appeal ; and, further, to do and receive as unto law and jus- tice shall appertain, under pain of the law and contempt hereof; and whatsoever you shall do or cause to be done in the premises, that you duly certify the same to the said judicial committee, or any four or more of them, or their surrogate, together with their presents. Given at London under the seal which we use in this behalf, this 14th day of December, 1838, and of our reign the second. BEFORE THE PEIVY COUNCIL. 26 The Winwiok. 2 Moore's P. C. Rep. the payment of the costs, and officers' fees, the proceeds of the sale were reduced to the sum of 6251. 9s. 2d., which sum was alone trans- mitted. On the 13th of June, 1839, on the motipn of Dr. Nicholl, the judi- cial committee granted a further monition against the judge, registrar, and deputy-marshal of the Vice- Admiralty Court, to transmit the above sum of 9551. 10s. lOd. so deducted, and detained as the amount of costs incurred on behalf of the crown, and the fees of the judge, registrar, and marshal, in proceeding to condemnation. To this monition, the judge, registrar, and marshal, made a special return, setting forth a general statement of the above proceedings as affecting them, and stating that the monition to transmit the pro- ceeds was not served until after the payment of the costs and fees : that the appellants not being within the jurisdiction of the Vice- Admiralty Court, and not being by the practice required to give secur- ity for costs, the costs of condemnation could not be recovered from them personally ; that the proceedings in courts of admiralty are in rem, and the res when condemned, is liable to pay the costs of the suit in the first instance ; that neither the judge, registrar, or marshal, had any salary attached to their respective offices, nor any other emolument therefrom than the fees allowed them by the 2 Will. IV. c. 51, and the order in council of the 23d of June, 1832. That if the judge of the * court had committed any error, [ * 26 ] such error proceeded purely from a mistake of the practice of the courts of admiralty, and not from any intention of disobeying the inhibition of the Superior Court : and that the registrar and deputy-marshal, merely acting in obedience to the orders of the court, could not be answerable in their persons or property for a judicial error ; they prayed, therefore, the judicial committee to reserve the question till after the hearing of the appeal. Upon this return, and an affidavit of the appellants' proctor at Gib- raltar, Dr. Nicholl, on the 7th of December, 1839, moved for an attach- ment against the judge, registrar, and deputy-marshal of the Vice- Admiralty Court of Gibraltar, for non-compliance with the moni- tion of the 13th of June, 1839. The motion, which was ex parte, was granted, the attachment being ordered not to issue for two months. 1 i The Mowing is the order for attachment as entered in the registry of her Majesty's High Court of Admiralty and Appeals. "On Saturday the seventh day of December in the year of our Lord, 1839, before the Judicial Committee of her Majesty's most honorable Privy Council, at the Council' Chamber, Whitehall." K. & M. 7 27 CASES ARGUED AND DETERMINED The Winwick. 2 Moore's P. C. Rep. On the 7th of February, 1840, the original appeal came [ * 27 ] * on for hearing, when the appellants relied on the following reasons : — 1. That the true conclusion to be drawn in the case, was that the three persons in question were not slaves, nor were they intended by any one to be dealt with as slaves. 2. That the adjudication of the penalties as against the owners was wrong and erroneous, inasmuch as they were utterly ignorant of the transaction from beginning to end ; and so, also, as against the captain and mate, inasmuch as the true conclusion to be drawn from the evidence was, that they were wholly innocent of the offences in respect of which the penalties were adjudged. 3. That as to the adjudicature of the forfeiture of the ship, it was erroneous, and that there was no evidence of any offence being com-' mitted against the fourth section of the statute upon which the for- feiture was adjudged. [ * 28 ] * The respondents submitted that the sentence appealed from ought to be affirmed, and the cause remitted, for the following reason : — Because the said vessel, The Winwick, being the property of the appellants, Miles Barton, Charles Cotesworth, James Cocksholt, Present: &c. "In pain of the worshipful Barron Field, Esq., the Judge; James Boss Oxberry, Esq., the Registrar ; and Edward Prichard, the Deputy-Marshal of the Vice- Admiralty Court of Gibraltar, not having complied with the tenor of the monition personally served on them respectively, to transmit the sum of 9551. 10s. lOd. into the registry of this court, the said sum being the balance of the net proceeds of the said ship or vessel Winwick, her tackle, apparel, or furniture, and the goods, wares, or merchandises laden therein, as mentioned in the said monition ; their lordships, at the petition of Gostling, on motion of council, decreed them to be attached for such their contumacy and con- tempt, but direct the attachment not to issue for two months from this day." No attachment was issued pursuant to the above order, the parties having, within the time limited for its issuing, complied with the monition. This appears from the following entry in the same registry : — 25th January, 1840. Barton and others v. The Queen, Sheriff, and others. The Ship Winwick. "Appeared personally, William Henry Sheriff, Esq., captain in her Majesty's royal navy, the seizor, and one of the respondents, and in obedience to the monition served upon Barron Field, Esq., the Judge, James Ross Oxberry, Esq., the Registrar, and Edward Pritchard, the Deputy-Marshal of the Vice- Admiralty Court of Gibraltar, brought in the sum of 955?. 10s. 10d., the said sum being the balance of the proceeds of the said ship or vessel Winwick, her tackle, apparel, and furniture, and the goods, wares, and merchandise laden therein, as mentioned in the said monition." BEFORE THE PRIVY COUNCIL. 29 The Winwick. 2 Moore's P. C. Rep. Thomas Palgrave, Margaret Dowie, and Coote Heley Hutchinson, respectively, British subjects, and under the charge or command of William Hodge, the elder, as master, and of William Hodge, the younger, as mate, was engaged or employed in the illegal shipping or receiving on board, or detaining, or confining, or carrying away, or removing of slaves or other persons, as, or in order to their being dealt with as slaves, contrary to the statute of 5 Geo. IV. c. 113. Sir W. Follett, Q. C, Dr. Nicholl, and Mr. S. Martin, for the appel- lants, — contended that, under the Slave Abolition Act, a guilty know- ledge that the persons on board are slaves, must be proved ; that the owners, master, and mate, ought to have been presumed innocent, and not put by the judge of the Vice- Admiralty Court to the proof of that fact ; that the former must be ignorant, and the condemnation of the ship, therefore, was illegal, and there was no sufficient proof of the knowledge of the latter to fix them with the penalties decreed. They contended, also, that even if the three individuals, Jose", Can- dido, and Laurianna, had, previously to their arrival in the Brazils, been slaves, they were not such at the period of the ship's seizure, either by the law of Brazil, or according to the principles laid down by Lord * Stowell, in the case of the slave Grace, 1 [ * 29 ] and that therefore, the having them on board was not an offence, within the meaning of the statute. They insisted, also, that they were intitled to full restitution in value for the sale of ship and cargo after the service of inhibition from the judge, registrar, and deputy-marshal, and they prayed the court to award them damages and costs, as in the cases of The Der Mohr, 2 and the Peacock. 3 The Queen's Advocate, (Sir John Dodson,) the Attorney -General, (Sir John Campbell,) and Mr. Wigram, Q. C, for the respondents, — insisted, that the policy of the Slave Abolition Act was to throw the proof of innocence upon the parties, the owner and officers of vessels found engaged in the traffic prohibited by the statute ; that the same principle prevailed in the excise laws, where forfeiture and penalties were incurred by the simple possession of the contraband goods ; in the game laws, under which the having game in possession after a certain day, renders persons liable to penalties ; that by 45 Geo. III. c. 89, s. 6, the possession of forged bank notes is evidence of guilt, and made a felony " without lawful excuse, the proof whereof shall lie upon the person accused ; " and that the common case of a receiver of stolen goods, on whom the burden of proving his igno- 1 2 Hagg. Ad. Kep. 95. a 3 Kobinaon, Ad. Kep. 129. 8 4 Eobinson, Ad. Kep. 185. 30 CASES ARGUED AND DETERMINED The Winwick. 2 Moore's P. C. Rep. ranee of the fact of their being stolen was always thrown, was pre- cisely similar. They contended that the evidence was sufficient to show that these persons of color were considered and treated [ * 80 ] as slaves by the * master and mate, and so considered them- ' selves ; that the law of Brazil, as pleaded, was not correct ; that slavery prevailed in every part of that country ; and that never having" in fact acquired their freedom, they did not come within the principle of the case of the slave Grace. They cited Hetsel's Com. Treatise, 4th vol., 64, 65. July 3, 1840. Me. Baron Parke. This case has stood over for some time, in order to give their lordships an opportunity of carefully considering, the provisions of the Slave Prevention Act, 5 Geo. IV. c. 113, and examining the evidence adduced on both sides in the court below; they have done so, and though they cannot say that the construction of the act is not open to some doubt, or that part of the evidence may not give rise to suspicion, they think that the sen- tence of the court below cannot be sustained, and will, therefore, advise her Majesty to reverse it. Their lordships, however, think it right to say, that upon one of the questions which has been adverted to in the course of the argument, they have felt no doubt, and are satisfied, that the learned judge of the court below has labored under a misconception of the meaning of the act, in a particular by no means unimportant, if the statement with which we have been furnished correctly represents the grounds upon which his sentence proceeded ; whatever the construction to be put upon the statute may be, the burden of the proof of the facts necessary to constitute a liability to forfeiture or penalties unques- tionably lies on the prosecutor, for it has certainly not been [ * 31 ] thrown upon, the claimant or defendant by *'any special pro- vision in this statute. The learned judge appears to have misapprehended the effect of the forty-fifth section of the act, which extends the benefit of the 4th Geo. III. c. 15, and any other acts which there may be containing provisions for the protection of seiz- ors, it is not the provisions for their benefit, but for their protection, that are referred to ; and such is the example for liability to costs, and actions for seizures, if the judge should certify that there was reasonable cause for seizure. It is the forty-sixth section of the act of 4th Geo. III., not the forty-fifth, which is referred to in the section in question, and, consequently, it did not lie on the defendants to prove that the persons' on board their ship were not slaves, or persons falling within the description in the act, nor to disprove their know- ledge of that circumstance, if such knowledge be necessary to consti- tute the offence. The case must be proved by those who prosecute BEFORE THE PRIVY COUNCIL. 32 The "Win-wick, 2 Moore's P. C. Rep. on behalf of the crown, as in every case of penalty or forfeiture, by the ordinary evidence, by which such cases are made out ; not that it must always be positive and conclusive evidence, for a primd facie case is sufficient where further proof could not reasonably be expected from the prosecutors, and the party accused omits to explain or repel it, where the means must be supposed to be in his power. But the seizor must establish his title by reasonable evidence, and the court ought not to pronounce for him, unless under, all the circumstances, it is judicially satisfied that the offence has been committed. "We do not think it necessary for the decision of the present case, to pronounce an opinion whether the three persons shipped at Trieste, or any of them, were or were not slaves, or " persons removed in order to * be dealt with, as slaves," within the meaning of [ * 32 ] the fourth and tenth sections of the 5th of Geo. IV. c. 113 ; upon the first of which sections the question of forfeiture, and on the second that of the penalty, depends. It may not be improper to state, that upon that point all their lordships who heard the argument are not altogether satisfied r but we think (though not without some doubt in a part of the court) that it is necessary, in order to create a liability to forfeiture or penalty, not merely to show the simple fact of persons answering the description of the act being found on board vessels ; but also to prove that the owners, or the persons who have the conduct and management of the vessel claimed to be forfeited, or the persons sought to be affected by the penalty were, at least, cog- nizant of that fact. The forfeitures and penalties are not imposed in respect of the simple circumstance of slaves or intended slaves being on board, (as is the case in some of the revenue statutes in respect of prohibited goods,) but are both marked as punishments on actors, for acts done. The fourth section inflicts the forfeiture on those who seize or employ vessels in order to accomplish any of the objects hereinbefore declared to be unlawful, and the "use of these terms necessarily implies the knowledge of these objects, and the intent to accomplish. The tenth section, imposing the penalty, is capable of a similar construction, which is so accordant to our notion of natural justice, that it ought to be adopted ; and we think it is ndt a sufficient answer to say, that in other parts of the statute, that the legislature have expressly said, that the act must be "knowingly and wilfully done," especially as in some of the cases, their introduction was necessary, *as there were no accompanying expressions, [ * 33 ] such as in order to effect the object meant, or equivalent ex- pressions imputing knowledge. The question, therefore, to be decided upon the evidence in the case is, whether it is made out to the judicial satisfaction of their 34 CASES ARGUED AND DETERMINED, ETC. The Winwick. 2 Moore's P. C. Kep. lordships who are to. pronounce their opinion upon the matter of fact, that the owners, master or mate, on whom the penalties have been imposed by the court below, were cognizant of, and privy to the fact, of any of these three persons being slaves, or intended to be dealt with as such, (supposing that they were.) The duty of making out these facts lies upon the crown or the seizor enforcing its. rights ; as to the owners, there is a total absence of proof, not only of any crimi- nal design, but of all knowledge, on their part, of the fact of any negroes being on board ; as to the master and mate, there is some evidence that required consideration, and the question as to their knowledge, is not so free from doubt. It is not to be expected that upon such a question, depending upon a considerable number of facts, those facts should strike all our minds precisely in the same form of view. Their lordships, therefore, do not propose to enter into a minute consideration of the evidence in detail : it is sufficient to say, that we think that the captain acted bond fide, and, on the whole, that we are not satisfied judicially, that he or the mate was privy to the fact, of the three persons,_or any of them, being either slaves or intended to be dealt with as such. We shall, therefore, advise her Majesty to reverse the sentence of the court below ; but, as we are of opinion that there was probable cause of seizure, we shall so'certify, and that no action is to [ * 34 ] be brought * against the seizors ; we reserve, however, to the appellant any right he. may have against the court below and its officers, for the disobedience of the inhibition in this case. The following order was made in conformity with the above judg- ment by the Queen in council, on the 13th of July, 1840. " That the decreee or sentence appealed from be reversed ; the principal cause retained therein ; that the claim of the said Marcus Hill Bland, given in the court below, be admitted ; and the said ship or vessel Winwick, her tackle, apparel, and furniture, be restored to the claimant,, for the use of the owners and proprietors thereof, or the proceeds thereof (transmitted to the registry of this court) paid to them, but without costs and damages against the said William Henry Sheriff, Esq., the seizor of the said ship or vessel. And their lord- ships having reported that there was probable cause of the seizure .and prosecution of the said ship or vessel, that the said appellants, the owners thereof, be at full liberty to proceed as they may be advised, against any person or persons whom it may concern, for, further compensation for any loss they may have sustained,- or ex- penses that may have been incurred, by reason of the sale of the said ship or vessel under the authority of the court below, after service of .the inhibition under seal of this court. / CASES SELECTED FROM VOLUME III MOORE'S PRIVY COUNCIL REPORTS. [THE CASES SELECTED AEE THOSE IN ADMIRALTY.] 1839-41. CASES HEAED AND DETERMINED BY THE JUDICIAL COMMITTEE AND THE lords of t;ee peiyy council. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY OF ENGLAND. * The Prince of Saxe Cobourg, Ladd. [ * 1 ] Manoel Joaquin Soares, Appellant, v. George Rahn and others, Respondents. 1 December 18, 1838. To justify the resort, by a master of a ship, to a bottomry bond, it is requisite, by maritime law, that the advances should be merely to enable the ship to refit, or to pay for the repair and despatch of the vessel for the completion of her voyage, and that the master should be unable to obtain such advances upon personal credit. The jurisdiction of the Court of Admiralty, in cases of bottomry bond, is founded on the existence of necessity, arising from the want of personal credit. The sale of a bottomry bond, pursuant to public advertisement, by auction, to the lowest bidder, in a foreign port, by the master of a ship, is not sufficient to discharge a purchaser of the bottomry bond from making reasonable inquiries that the master is, under the cir- cumstances, justified in granting the bond. A bottomry bond on the ship, freight, and cargo, sold at public auction, in a foreign port, by the master and part owner of the ship, there being an agent of the charterer and sole owner of the cargo willing to advance, on personal credit of the owner of the cargo, for the necessary repairs of the ship, under the circumstances pronounced against. ISemble. The master, though the original hypothecator of the ship, and a part owner, is not precluded, by the practice of the Court of Admiralty, from joining his eo-owners in impugning the bond. This was originally a cause of bottomry, promoted and brought in the High Court of Admiralty by the appellant, Manoel Joa- J Present, Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy, and the Eight Honorable Dr. Lushington. 2 CASES ARGUED AND DETERMINED The Prince of Sax,e Cobourg. a Moore's P. C. Rep. [ * 2 ] quin Soares, the London agent of * Messrs. Le Cesne, Gnillot & Co., of Lisbon, merchants, the legal holder of a bottomry bond, on the ship Prince of Saxe Cobourg, her cargo, and freight, against George Rahn and John Ladd, the principal owners of the ship, and Nathan Mayer Rothschild, the charterer of the vessel and sole owner of the cargo. The question arose upon the validity of a bond taken up at Lis- bon, by Ladd, the master of the vessel ; the charterer of the vessel and sole owner of the cargo having an authorized agent there, who it appeared had waited upon the master, and informed him person- ally, and also in writing, of his character of agent for the owner, and expressed himself ready and willing to advance any money necessary to repair the ship on the personal credit of the owner. It did not, however, appear that the holders of the bond were aware of this fact at the time the bond was executed, of which they became the purchasers in the following manner. In the month of June, 1836, (the ship being in the port of Lisbon, bound, with a cargo of quicksilver, from the port of Cadiz to Lon- don,) it was publicly advertised at Lisbon, that on Thursday, the 23d of that month, a sale by auction would take place at the Exchange of that city at the accustomed hour, to the lowest bidder, of a loan on bottomry of the sum of 2,000 milreis, more or [ * 3 ] less, which was required to * defray the expenses occa- ' sioned by the vessel having been forced to put into the port of Lisbon. At this sale Messrs. Le Cesne, Guillot & Co. attended and became bidders, and, after the sale had proceeded in usual course, the bond was adjudged to them, as having offered to take it at six per cent, premium, the lowest rate bid. The bond was duly executed for the sum of 6421. 5s., with interest after the above rate, and the money paid to the master, whereupon the ship proceeded on her voyage, and arrived in due course in the port of London, when, payment being refused, a warrant was obtained to arrest the ship, and an action commenced upon the bond at the instance of the appellant. The action was resisted and the bond impeached, on the ground that the funds necessary for the repairs of the ship might have been obtained, and were, in fact, tendered, by the agent of the owner of the cargo and charterer of the vessel, on the personal credit of the owner, and that there was no such case of " unprovided necessity" as justified the resort to a bond of hypothecation. "" Various circum- stances also were pleaded and proof produced, showing the master's knowledge that such credit might be obtained ; of steps taken by BEFORE THE PRIVY COUNCIL. The Prince of Saxe Cobourg. 3 Moore's P. C. Rep. him, by putting the vessel under consignment to one James, and > allowing him to discharge the cargo, for which commission was charged ; one moiety being charged by the master, and which, being contrary to the commercial usage of the owners' (Rothschild's) house, was refused, whereupon the master had hypothecated the ship, not merely for the amount of the supplies, but to cover such com- mission. On the 12th of May, 1837, the Judge of the High Court of Admiralty, (Sir John Nicholl,) by an interlocutory *de- [ "4 ] cree, pronounced against the force and validity of the bond. 1 From this sentence the holders of the bond appealed to her Majesty in council. Sir William Folleti, Q. C, and Dr. Addams, for the appellant. There is no question that the master of the ship, being a part owner, had. a right to consign the vessel to whoever he liked, for the purpose of repairing; he was not bound to consign it to the agent of the owner of the cargo. But it is said that the master might have got the necessary advances for the repairs of the ship from the agent of the owner of the cargo, without resorting to a bottomry bond. Of this fact Messrs. Le Cesne, Guillot & Co., the holders of the bottomry bond, were entirely ignorant ; they knew nothing of the correspond- ence between the master of the ship and the agent of the owner of the cargo,- or of the willingness of the agent to advance the neces- sary amount for the repairs, at the personal credit of the owner of the cargo. The bond being publicly advertised, Le Cesne, Guillot & Co. go into the market' at Lisbon, where sales of bottomry are common, and matters of frequent occurrence, and the bond is ad- judged to them, as having offered to take it at the lowest rate. Such advance was perfectly legal by the usage of Lisbon ; and the sale having been allowed to pass off without any warning of any illegal- ity in the master's conduct, Messrs. Le Cesne, Guillot & Co. did not and could not suspect that any objection would possibly arise to the validity of the transaction. The * circumstance [ *5 1 of the bond being advertised for public auction was suffi-. cient to show that there was an unprovided necessity, the publicity of which was sufficient to dispense with inquiries on the part of the lenders, as to the actual existence of the ship, even if there was evi- dence that they made no inquiry. i Keported, 3 Hagg. Adm. R. 387. 6 CASES ARGUED AND DETERMINED The Prince of Saxo Cobourg. 3 Moore's P. C. Rep. Ladd, the master, by whom the hypothecation was made, and who is one of the part owners of the ship, now claims an interest, and joins with the owners of the cargo in their defence to the bond ; such a defence is collusive, and contrary to justice. If the bond is not good against the ship and cargo to its whole extent, at any rate it is to the extent of the interest of the master, who, as part owner, had a right, so far as his interest in the ship is concerned, to pledge it by bottomry bond. Abbott on Shipping. 1 The Nelson. 2 The court can regulate the quantum and reduce the bond. The Augusta. 3 The Queen's Advocate (Sir John Dodson) and Dr. Harding; fox the respondents. The only question is, whether the ship was in such a state of unprovided necessity as to warrant the master resorting to a bottomry bond. To justify a master of a ship resorting to a bot- tomry bond there must be a double necessity : first, a necessity for repairs, or supplies ; and then an absence of personal credit, Hea- thorn v. Darling. 4 The Rhadamantlie. 6 The Alexander. 6 A bot- tomry bond can be validly given only where the funds [' *6 ] necessary cannot be raised on * personal security. In the present case, the necessary funds might have been procured on personal credit, the charterer of the ship and sole owner of the cargo having an authorized agent at Lisbon, who offered to advance all the necessary funds on the personal credit of the owner. We admit that the owner or part owner, to the extent of his respective interest, may hypothecate the ship ; but that is not a bottomry bond. A Court of Admiralty has no jurisdiction over it ; for there must be maritime risk to give a maritime court jurisdiction to entertain the suit. Sin William Follett, in reply, referred to Johnson v. Shipper, 7 Ab- bott on Shipping, 8 and to Heathorn v. Darling. 9 May 10, 1839. The Right Hon. Dr. Lushington This is an appeal from the High Court of Admiralty, which by its decree, bear- ing date the 12th of May, 1-837, pronounced against the validity of a bottomry bond, the subject of this suit. There is no material difference between the parties as to the facts of the case. They lie in a very narrow compass. i Edit, by Shee, 130. a 1 Hagg. Adm. R. 176. 3 1 Dodson, 283. i 1 Moore's P. C. Cases, 5. s 1 Dodson, 201. 6 1 Dodson, 278. 7 2 Ld. Raym. 892. 8 Edit, by Shee, 129. 9 1 Moore's P. C. Cases, 5. BEFORE THE PRIVY COUNCIL. The Prince of Saxe Cobourg. 3 Moore's P. C. Rep. In the month of May, 1836, the vessel being hired by the house of Messrs. Rothschild, of London, with a cargo of quicksilver, left the port of Cadiz, on a voyage to London ; in consequence of having sprung a leak she made for Lisbon, and arrived at Belem, which is about four miles below that port, on the 31st * of [ *7 ] May, or the 1st of June. Ladd, the master, who was a part owner, was informed by a clerk of Finnie & Co. that their house were the agents and correspondents of Messrs. Rothschild ; that they, were prepared to take charge of the vessel, to make preparations for the repairs, and also to make every necessary advance. To this communication the master replied that he was already in the hands of the agent of Messrs. Rothschild ; and it appears that a Mr. James had, by himself or clerk, already made some application to the mas- ter, to consign the vessel to him. On further explanation with the house of Messrs. Finnie & Co., the vessel was placed under their charge, and 600 packages, part of the cargo, unladen. At this time the master took the vessel from Messrs. Finnie & Co., and consigned it to Mr. Henry James ; and it is alleged that his reason for doing so was, that Messrs. Finnie & Co. refused to charge any commission, being accustomed not to do so with respect to vessels freighted by Messrs. Rothschild ; at the. same time, however, Messrs. Finnie & Co. declared their willingness to make every necessary advance, and to pay all the expenses requisite for setting forth the ship to sea. Repairs to a small amount were then done, and the cargo was , reladen. In the account there appears a charge for commission on the cargo, amounting to 3661. 13s. 5d., the shipwright's bill being 591. 18s. Id. In the latter end of June, a correspondence took place between Ladd, the master, and Messrs. Finnie & Co., whether they would advance, on account of Messrs. Rothschild, the amount required to defray the expense of repairs, and other customary and usual charges incurred; to which Messrs. Finnie & Co. replied, that, upon examination of the accounts, they were * willing to pay [ *8 ] such expenses and charges as would have been made, had the business remained in their hands. In these letters the master had declared that he must grant a bottomry bond on the ship and cargo. The result, then, is, that Messrs. Finnie & Co. declined to advance money to cover the commission, conceiving the same to be unnecessary, though they were willing to advance for all other neces- sary expenses. The master then advertised for a loan on bottomry, by public auc- tion. The lowest bidders were Messrs. Le Cesne, Guillot & Co.,. k. & m. 8 9 CASES ARGUED AND DETERMINED The Prince of Saxe Cobourg. 3 Moore's P. C. Rep. who purchased the bond at six per cent, prernium, and the master granted to them a bottomry bond on ship, cargo, and freight, at that rate of maritime interest, the amount for which the bond was granted being 642/. 5s. Od. In the act on petition it is alleged, on behalf of Messrs. Le Cesne, Guillot & Co., that they neither knew, nor had any reason to believe, that the owner of the ship or cargo had any authorized agent or cor- respondent in Lisbon, or that the master had any instructions to apply to Messrs. Finnie & Co. in case of need, or. that he was fur- nished with any letter of credit to them, or any introduction whatever to their house of trade. In considering the law applicable to this state of facts, it may be expedient to advert to the principles on which the validity of bot- tomry bonds have always been made to rest in the Court of Admi- ralty. In the large majority of cases, the master is neither owner nor part owner of the ship or cargo ; when he takes up money on bottomry, he pledges the property of others, and that, too, upon maritime interest, which frequently is extremely high, and very one- rous to the owners. To justify him in such an act, and to [ *9 ] warrant the foreign merchant * advancing his money on valid security, it is requisite, by the maritime law, that the advances shall be merely to enable the ship to refit, or to pay for the repairs and despatch of the vessel for the completion of her voyage, and that the master shall be unable to obtain the same on personal credit. This rule has always been rigidly maintained, and with no other qualification than that which justice and the interests of commerce necessarily call for. If the foreign merchant, after due inquiry, shall have reasonable ground for concluding that the repairs are necessary, and that the money cannot be raised on personal credit, then his security on the ship and cargo shall not be impeached or invalidated, because it might happen that, notwithstanding his reasonable and bond fide inquiries, the repairs were not necessary or the money might have been had on personal credit. In the present case, their lordships are satisfied that all the ad- vances necessary to be made, to enable the ship to complete her voy- age, might have been had on personal credit ; and, on the part of the bottomry bond holders, it is not alleged that any inquiry was made, as to any of the facts or circumstances relating to the ship. The validity of the bond, it is said, must be upheld, because the bond was bought at public auction by Messrs. Le Cesne, Guillot & Co., after public advertisement. It is contended that these circumstances are sufficient to render all inquiry, on the part of the lenders on bot- BEFORE THE PRIVY COUNCIL. 10 The Prince of Saxe Cobourg. 3 Moore's P. C. Rep. tomry, unnecessary ; but their lordships cannot assent to this doc- trine, which, if admitted, might be attended with consequences very pernicious to the mercantile marine of this kingdom. * In the first place it may be observed, that advertise- [ *10 ] ments, and the sale of bottomry bonds, have not for their direct object the publicity of any of' the transactions attending the ship, or the credit of the master. The principal object in view, by such proceeding, is, to produce a bond at the lowest rate of interest, by inducing public competition. Analogous to this is the common practice of sending circulars to different houses of -trade, inquiring if they are willing to advance money on bottomry, and at what rate, for the voyage in question. But we are clearly of opinion that nei- ther precedent nor principle, nor the consideration of the real advan- tage of commerce, would sanction us in considering those circum- stances as sufficient to dispense with all inquiry on the part of the lenders. The" foreign merchant ought to know, that the master's authority to bind the ship and cargo by a bottomry bond is founded on neces- sity alone ; and- that it is his duty, before he takes a security so one- rously affecting the property of others, to satisfy himself, by a reason- able inquiry, that the circumstances of the case justify the master in this exercise of his authority. No such inquiry having taken place in this case, we -think that the judgment of the court below was right, and that the appeal must be dismissed. In the course of the argument it has been said, that the master, Ladd, being a part owner of this vessel, could not be heard, so far as applied to his own interest, to set up the defence which might be good for his coowners ; but however that might be before another tribunal, such argument cannot avail before the Court of Admiralty, because the authority * of that court, in the case [ *11-] of bottomry bond, is founded upon the existence of, and necessity arising from, the want of personal credit ; and unless that fact be established,' or, at least, after due inquiry, the credible appear- ance of such necessity, the Court of Admiralty has no jurisdiction to enforce the bond. It is not, in the received meaning of the term, bottomry bond at all, and of other bonds the Court of Admiralty takes no cognizance. 79 CASES ARGUED AND DETERMINED The Hersey 3 Moore's P. C. Rep. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY OF ENGLAND. [ * 79 ] * The Heesey, Grinrwood. John Gore and others, Appellants ; and James Gardiner and Alexan- der Urquhart, Respondents. 1 1 February 6, 1840. Bottomry bond given by the master upon a threat of arrest, for supplies previously furnished on his personal credit, held void. This was originally a cause of bottomry, civil and maritime, pro- mpted by the appellants, as the attorneys of Thomas Hewitt, against the ship Hersey, her tackle, &c, whereof Joseph Grimwood was mas- ter, and also against the freight due for transportation of the cargo on board the same. [ * 80 ] * The circumstances of the case were as follows : — The brig Hersey, being a new-built vessel, sailed on her first voyage from the port of Leith in the month of March, 1834, on a general trading yoyage, under the command of Joseph Grimwood. In the month of April, 1835, she arrived, at Hobart Town, from the Cape of Good Hope, where the master employed William Morgan Orr, a merchant of that town, with whom he was previously ac- quainted, as his agent or broker, for the purpose of receiving the freight of part of the cargo there landed, and disposing of the other parts. The ship afterwards left Hobart Town for Sydney, and returned in August, 1835, when the master again employed Orr, as agent or broker. Having taken in a cargo of oil and other goods, as freight, with passengers for London, the vessel was, as it appeared from the affidavits in the cause, ready to sail on the 27th of October following. No accounts had been delivered by Orr to the master up to this time, though the sum of 28/. 15s. Id., the balance, as it afterwards appeared, on the account current between them, was paid by Orr to the master. The vessel was detained by reason, as it was alleged, of Orr's neglect to furnish his accounts. These accounts were deli-, 1 Present, Mr. Baron Parke, Mr. Justice Bosanquet, Mr. Justice Erskine, and the Eight Hon. Dr. Lushington. BEFORE THE PRIVY COUNCIL. 81 — • — : Tho Hersey. 3 Moore's P. C. Rep. vered on the 3d of November, when, notwithstanding the above balance in favor of the master, a list or schedule of debts owing by him was produced,, amounting in the whole to 4512. lis. 11<£, and said to be for supplies and necessaries for the brig. Among these was an item for 832. 2s. 10<£, for sundries furnished by Orr ; 462. 2s. lOd. and 162. 6s. 6d., sundries furnished by G. & A. Sutherland ; 42. 15s. ditto, by George Watson ; and 82. 2s. 3d., for government, pilot- age, and harbor dues. , * To provide for the payment of this balance, the master, [ * 81 ] under the threat of arrest by Orr, hypothecated the ship, and executed a bottomry bond on the day following to Thomas Hewitt, merchant, resident in Hobart Town, for the sum of 5642. principal, together with premium, to become due within six days after the arrival of the vessel in England. The owners having refused to discharge the bond, on the ground that it was not given for necessary disbursements, and obtained by collusion between Orr and Hewitt, proceedings were commenced ki the High Court of Admiralty to recover the amount. On the 27th of November, 1837, the judge pronounced against the validity of the bond, on the ground that the credit given to the master was a personal credit, and did not constitute a lien on the vessel, and that ttiere was an absence of all necessity for the hypo- thecation. 1 . From this judgment the appellant appealed, insisting on the follow- ing reason : — I. That the bond was proved to have been given for necessary dis- bursements on account of the ship, in a port where the owners had no personal credit, and that there was no proof whatever of the fraud or other misconduct imputed to the obligee of the bond, in order to impeach its validity. The respondents, however, relied upon the judgment of the court below, for the following reasons : — I. That, at the time the bond was entered into, The Hersey was not in a state of unprovided necessity ; that Orr, for whose benefit it was entered into, was at such time, and had for some time previously, * been the agent for the owners in respect [ * 82 ] of the said ship ; that he had in his hands sufficient funds belonging to the owners, and that money, if required, might have been obtained on account of the homeward freight, or on the per- sonal credit of the owners. 1 Keported 3 Hagg. Adm. K. 404. 8* 83 CASES ARGUED AND DETERMINED, &c. -*- The Hersey. 3 Moore's P. C. Eep. II. That the bond was not contemplated, still less conditioned for, previous to the payment by Orr of the great mass of the sums for which it purported to have been given, and that all payments oh account of the ship were made out of moneys belonging to the own- ers, previously in the hands of Orr. III. That the bond was not entered into bond fide for the benefit of Hewitt, to whom it purported to have been given, but was obtained by, duress on the master, in liquidation of a debt due to Orr, for goods supplied and moneys advanced to the master,, on his own private account and personal credit. Sir Frederick Pollock, Q. C, and Dr. Addams, for the appellants, cited The Augusta. 1 Sir William Follett, Q. C, and Dr. Nicholl, for the respondents were not called upon. Mr. Baron Parke. This is as hopeless a case as was ever pre- sented to a Court of Appeal. From the accounts, it is clear that the supplies were furnished on the personal credit of the master. There is too great a proneness, on the part of masters of vessels, to resort to bottomry bonds. It is only for necessary supplies or repairs that resort to a bottomry bond can be upheld ; but even then it [ * 83 ] * must be such a necessity as requires the hypothecation,* namely, no personal credit being to be obtained. Here the supplies, in the first place, .are not necessary supplies. There are several items in the accounts which are clearly not for necessary sup- plies or repairs. Then, at the time the godds are supplied, no agree- ment is made that their amount shall be secured by hypothecation ? that is essential. But the day after the accounts are delivered, the master, as he alleges, upon a threat of arrest, and without any pre- vious agreement or existing necessity, executes a bottomry bond. Now, although he might have been arrested, yet the ship could not have been detained ; there is no pretence that there was any attempt or threat to arrest the vessel. Here both Orr and Hewitt must have known, or at least they must be taken to have known, that there was no necessity to hypothecate the ship, and they must take the conse- quence of their own act. All their lordships are of opinion that there .never was a clearer case. Judgment affirmed, with costs. 1 1 Dodson, 283. CASES SELECTED EROM VOLUME IV MOORE'S PRIVY COUNCIL REPORTS. [THE CA£ES SELECTED ARE THOSE IN ADMIRALTY.] 1841-45. CASES HEARD AND DETERMINED BT THE JUDICIAL COMMITTEE AND THE LORDS OF THE PRIYY COUNCIL. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY % IN ENGLAND. The Diana. James Stuart, Appellant, and Richard Isemonger, Respondent. 1 February 11, 1842. The 6th Geo. IV. c. 125, s. 55, does not exempt the owners and masters of vessels having a licensed pilot on board, from liability in respect of damages done by their vessel, unless the damage was solely caused by the neglect, default, incompetency, or incapacity of the pilot. \ Where, therefore, it was proved that the accident happened through the carelessness of the master and crew, as well as the pilot, in not keeping a good look-out ; the judicial com- mittee of the privy council held, affirming the sentence of the Admiralty Court, that the civil liability of the owner in respect of damages continued. This was originally a cause of damage, civil and maritime, pro- moted in the High Court of Admiralty of England, by Richard Ise- monger, the respondent, the sole owner of the schooner Littlehamp- ton, against James Stuart, the appellant, the owner of the ship Diana, arising 'from the collision of The Diana, when on her voyage from Barbadoes to London, with a cargo of sugar, having Richard Russell, 1 Present : Lprd Wynford, Lord Brougham, Lord Campbell, and Mr. Justice Ers- kine. 12 CASES ARGUED AND DETERMINED The Diana. 4 Moore's P. C. Rep. a duly licensed cinque port pilot, on board, with The Little- [ * 12 ] hampton, when on * her voyage from Sunderland to Wor- thing, with a cargo of coals. The collision occurred in that part of the channel called the Gull Stream, between Ramsgate and Broadstairs, on the morning of the 5th of September, 1838, whereby The Littlehampton sustained so much damage that she shortly after sunk. The act on petition alleged that the accident was wholly occa- sioned by the fault of The Diana, in not altering her course, and in not keeping a good look-out. In reply to the act, it was denied by ' the owners of The Diana, that no good look-out was kept on board their vessel, and insisted that the damage was occasioned by The Littlehampton ; and that, even if the accident had been caused by the neglect or incapacity of any one on board The Diana, that the same was and could only be attributable to 'the pilot, inasmuch as The Diana, at the time, was in the sole charge of a duly licensed pilot, and that all his orders were duly, obeyed by the man at the helm and the rest of the crew ; that the said pilot, having been taken on board under the provisions of the act 6 Geo. IV. c. 125, by reason of the premises, the owners of The Diana were not answerable for the damages. The judge of the Admiralty Court, (the Right Honorable Dr. Lush- ington,) assisted by two Trinity Masters, by his sentence, 1 bearing date the 12th of February, 1840, decreed for the claim of the respond- ent, on the grounds that the accident was solely occasioned by the fault of the persons on board The Diana, and that, as the accident was occasioned by the joint misconduct of the pilot and crew, that the liability still attaches to the owner of The Diana. From this sentence the present appeal was brought. [ * 13 ] * Dr. Addams and Mr. Cleasbg, for the appellants. There is no dispute that The Diana was in charge of a duly licensed pilot, and if any damage was done to The Littlehampton by the co\- lision, the presumption is, that the pilot-, who is intrusted with the navigation of the^ vessel, was to blame, and the onus of exemption lies on him. By the 6th Geo. IV., c. 125, s. 55, it is enacted, "that no owner or master of any ship or vessel shall be answerable for any loss or damage which shall happen to any person or persons whom- soever, from or by reason or means of any neglect, default, incompe- tency, or incapacity of any licensed pilot acting in the charge of any 1 Reported 1 W. Robinson's Admiralty Reports, 131. BEFORE THE PRIVY COUNCIL. 14 The Diana. 4 Moore'a P. C. Rep. such ship or vessel, under or in pursuance of any of the provisions of this act, when and so long as such pilot shall be duly qualified to have the charge of such ship or vessel." Having a pilot on board, in conformity with the requisites of this section, exonerates the owner of the ship placed under his control from being answerable for damage done by the collision. Bennet v. Moita j 1 Ritchie v. Bowsfield ; 2 The Christiana. 3 It may be inferred, that where the master is bound to place his ship in the charge of a pilot, and does so accordingly, the ship is not to be considered as under the management of the owners or their servants. Caruthers v. Sydebotham ; 4 Abbott on Shipping, p. 184. 5 The judgment of the court below condemned the owner of The Diana, by reason of the alleged negligence of the master and crew in not keeping a good look-out at the time of the acci- cident, imputing blame to the pilot, and the master *and [ * 14 ] crew. If blame is to be attributed to the master and crew as well as the pilot, the fifty-fifth clause is virtually repealed. The blame, if any, should be imputable to the pilot alone, who had the control of the vessel. There is no evidence to show that there was negligence on the part of the master and crew, or that the crew did not obey the pilot. If the owners are to be fixed with the responsi- bility while the pilot is in charge of the vessel, the party complaining must show that the blame was not attributable to the pilot but to the master and crew. The Queen's Advocate, (Sir John Dodsbn,) for the respondent. Two questions are raised by the appellant, one of fact and the other of law ; first, to whom the blame attaches ; and, secondly, whether by law, the owner of The Diana is exonerated from damages. Upon the first point, the evidence leaves no doubt that The Diana was the sole cause of the collision, occasioned by the want of proper care of the persons on board. There was a want of a good look-out, which was clearly the duty of the master and crew, and through their negligence the accident took place. But it is said by the owner of The Diana, that, although the accident might have been caused by The Diana, still that he was not responsible, as he had a licensed pilot on board, pursuant to the 55th section of the 6th Geo. IV. c. 125, and Bennet v. Moita, and Ritchie v. Bowsfield, are cited in support of such position. These cases are distinguishable, and do not apply to the peculiar circumstances of this case. Here, there is the joint 1 7 Taunt. 258. 2 7 Taunt. 309. s 2 Hagg. Adm. Rep. 183. 4 4 Maul. & Sel. 77. 6 6 Ed. by Shee.~ 15 CASES ARGUED AND DETERMINED The Diana. 4 Moore's P. C. Rep. misconduct of the pilot and of the master and crew, which [ * 15 ] the fifty-fifth section does not provide for. * The onus of exemption is, therefore, thrown on the owner. The objec- tion raised, that the liability by the sentence of the court below falls upon the owner alone, and not upon the pilot, who was in part to blame, can have no weight. Sir John Nicholl, in The Girolama, 1 held, acting upon the authority of The Neptune the Second, 2 that the Act 6th Geo. IV. c. 125, only exonerates masters and owners from personal responsibilities, leaving the remedy in rem. unimpaired. February 19th. Lord Brougham. This was an appeal from a decree of the Court of Admiralty, condemning the appellant, as the sole owner of The Diana, to make good to the respondent the damage sustained, by his ship, The Littlehampton. That damage arose from the collision of the two vessels, when The Diana had a licensed pilot on board. The learned judge in the court below was assisted by Trinity "Mas- ters, who gave it as their clear opinion that the collision was not occasioned by any fault or neglect on the part of the people belong- ing to The Littlehampton, thus negativing one ground of defence taken by the appellant. In this opinion upon the facts the learned judge concurred, and their lordships see no reason to form a different conclusion from the evidence in the cause. - The Trinity Masters, also, with the concurrence of the learned judge, were further decidedly of opinion that the accident was attri- butable to neglect and deficiency of look-out and management on board The Diana, but that the blame was to be shared by the master and crew, with the pilot. They considered that the acci- [ * 16 ] dent * was attributable to the pilot's not sufficiently perform- ing his duty, but they also decidedly thought that there was neglect on the part of the master and crew. Although the evidence on this subject may not be so clear as that which absolves The Lit- tlehampton, yet their lordships can see no good ground for coming to a conclusion different from that to which the Trinity Masters and the court below were led ; and they consider it as sufficiently proved that the master and crew were in part to blame for the neglect which caused the accident. . An argument was raised, both here and in the court below, that the vessel doing the damage being primd facie answerable for it, the proof lies on her owners, of whatever is necessary to bring themselves 3 Hagg. Adm. Rep. 169. 2 l Dod, 467. BEFORE THE PRIVY COUNCIL. 17 The Diana. 4 Moore's P. C. Rep. within the description to which the exception in the pilot act refers.) If this position were admitted, then, upon the construction of the act which the court below has adopted, and which we are about to con- sider, it would be incumbent upon the appellant to prove that - the accident was solely owing to the pilot's neglect, and that the master and crew had no share of the blame. But there is no occasion to discuss that question in this case, or to inquire how, far it is decided in one way by the case of Bennet v. Moita, 7 Taunt. 258 ; for, upon which side soever the proof lies, there is no evidence here to show that the pilot was not alone to blame, the master and the crew being also justly chargeable with neglect. The question, therefore, which arises, and the only question, is, whether or not, the owner of The Diana is discharged from his responsibility for a damage in part occa- sioned by his servants, the master and crew navigating, but negli- gently navigating, his vessel, because of that vessel having, at the *time, been in charge of a licensad pilot, to whose [ * 17 ] neglect in other part the accident was owing ? And the answer to. this question must depend upon the construction of the statute 6 Geo. IV. c. 125, sometimes called the General Pilot Act. The fifty-fifth section of that act provides, that " no owner or master shall be answerable for any damage which shall happen from, or by reason or means of, any neglect, default, incompetence, or incapacity of any licensed pilot duly acting in charge of any vessel under the provisions of the act." Does this provision intend to exempt from all liability, provided there be a pilot on board ? Of course it is not contended that such exemption would extend to cases in which damage was done by the crew disobeying the pilot's orders, though he, too, might be chargeable with neglect of duty. But it is con- tended, that although the crew be in part to blame, yet, if in any part, the pilot be also blamable, the exemption attaches. Now this appears to us a construction contrary to the plain meaning of the words, and inconsistent with all the principles which can be applica- ble to such a question. The words are, " damage which shall happen from, or by reason of, or means of, any neglect" of the pilot. He is the cause and author of the damage, from all consequences of which the owners are relieved, upon the ground that they had no choice in his appointment, but were com- pelled to employ his services. By the common law they are answer- able for the damage done by their vessel, because it is navigated to their profit, and by their servants. The statute interposes, and takes the management, in a great degree, out of their hands ; it, therefore, indemnifies them from any damage which the person im- posed upon them may * occasion; but it surely, cannot [ * 18 ] K. & M. 9 19 CASES ARGUED AND DETERMINED The Diana. 4 Moore's P. C. Rep. intend to indemnify them for what is, in part, occasioned by then- own servants. If it be said that they should be answerable only for the portion of the damage occasioned by their servants, and not for that portion occasioned by the pilot, the answer is plain, — no such apportionment of damage is provided for by the statute ; and, in ail probability, because it would hardly be possible to do so ; but the legislature has done enough to relieve- the owners, by exempting them, where the pilot, whom they were forced to employ, has done the mischief, and leaving them answerable where their crew, whom they had selected for this service, are sharers in the blame. Let it be observed, too, that the exemption is given, not only to the owners, but to the master. If the owners were on board, and so far inter- fered, as in part 'to cause the mischief, it could hardly be contended that the statute would work an indemnity to them, against the con- sequences of their own negligence. But the master would be ex- empted from the consequences of his own negligence, if the construc- tion were to prevail, which makes the conduct of the master and crew immaterial, provided the pilot be at all in fault. The construction which has been adopted below, appears to have proceeded, by reference to the corresponding section. in the act, which first gave this exemption, the 52d Geo. III. c. 39, s. 30. The words there are, that no owner or master shall be answerableifor any loss or damage, for or by reason or means of any neglect, &c, of any pilot taken on board in pursuance of this act. These words appear plainly to provide, and only to provide, that the owner or master shall not be ' answerable for the acts, or rather the defaults, of the pilot. The 53d section of the latter act, 6 Geo. IV. c. 125, ap- [ *19 ] pears * further to favor the same construction. It exempts from all consequences of having no pilot on board, provided , it can be shown that all means were used to obtain a pilot. But surely, as was said by Sir John Nicholl, in The Girolamo, (3 Hagg. Adm. Rep. 169,) this provision never can be intended to exempt from all responsibility for whatever might be done, or whatever may hap- pen, so it may 1 only have chanced that a pilot could not be got ; it. only exempts from whatever was occasioned solely by the want of a pilot, — and by no other cause. It must be manifest, upon every view which can be taken of the principles applicable to this question, that the civil responsibility^ the owners for the damage done in navigating their vessel, like that of all persons employing servants for their own benefit, can be restricted only in so far as their own acts, or, which is the same thing, the acts of their servants, are not the cause of the damage done. To find similar cases would not be easy, because there are hardly any in BEFORE THE PRIVY COUNCIL. 20 The Diana. 4 Moore's P. C. Rep. which persons could be made answerable for the acts of others whom they are forced to employ, and where alone it would be necessary to exempt or indemnify them. The contract of insurance affords, per- haps, some analogy in that very anomalous risk undertaken by the insurers indemnifying the owner against the misconduct, even the criminal misconduct, of his servant, the master. But here the assured cannot recover if the owner at all consented to the barratry, and the indemnities have been absorbed when any negligence of the owners enabled the mariners to do the act. Pipon v. Cope, (1 Camp. 434.) Another analogy is furnished by the restriction of the liabil- ity of carriers ; but let us take * statutes relative to. the lia- [ *20 ] bility of ship-owners, of which the earliest is 7 Geo. II. c. 15, and the latest the 53 Geo. III. c. 159, which confines their liability for damage done, to the value of the ship and freight. It is to be observed, that this exemption is confined to cases of damage arising "without the fault or privity" of the owner; and the courts have held, that a strict construction should be given to a statute limiting the common-law responsibility of all persons for injuries occasioned by their acts, or the acts of those in their service ; so that the court of B. R. in the case of Gale v. Laurie, (5 B. & C. 156,) held fishing- stores to come within the term appurtenances of a ship, used in the acts, and it is held for the purpose of enlarging the remedy of the party damnified, and thus restraining the exemption, although in a policy upon the ship it was agreed that their stores would not be considered as covered. It is to be observed, that in the case of The Girolamo, (3 Hagg. Adm. Rep. 169,) though the Court of Admiralty avoided deciding the pre- sent question on the ground that its decision was not necessary to dispose of the case, yet the whole remarks of the learned judge (Sir John Nicholl) very plainly indicate that his opinion strongly inclined towards the construction which their lordships have now adopted. But their lordships rely the less upon this circumstance, because Sir John Nicholl appears to have considered the decision of Lord Stow- ell, in Neptune the Second, (1 Dodson, 467,) as a decision upon the point, assuming that learned judge to have been aware of the act, (52 Geo. III. c. 39,) which there is every reason to believe he was not ; for it certainly never can be maintained that this act, or *the one under consideration, is confined in its applica- tion to remedies at law ; and that they do not govern the [ * 21 ] proceedings in rem in the Court of Admiralty. . The order of their lordships, therefore, is, that the appeal be dis- missed, the sentence of the court below affirmed, and the cause remitted. 22 CASES ARGUED AND DETERMINED The Prince George. 4 Moore's P. C. Pep. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. The Prince George. Junius Smith, Appellant, and Nathaniel Gould and others Respond- ents?- February H and 19, 1842. A bottomry bond may be gdDd in part, though void for the residue. Where, therefore, a bottomry bond was given by the master at New York, as well for ad- vances to obtain his discharge from arrest, at the instance of the consignees, on account of damage done on the voyage to part of the cargo ; as for payment of the port duties and other disbursements necessary to enable the ship to prosecute her voyage ; the judicial committee, reversing so much of the decision of the Admiralty Court as rejected the bond in toto, sustained the bond to the extent of the sums advanced for necessary supplies and payment of the port duties. If reliance is placed upon a difference between the law of England and a foreign State, the party relying upon the difference is bound by witnesses or authorities to prove such fact. This was an appeal from a sentence of the judge of the High Court of Admiralty in a cause of bottomry, brought by the appellant, the legal holder, (as assignee of Messrs. Wardsworth & Smith, of New York, merchants,) of a bottomry bond, dated 14th Septem- [ * 22 ] ber, 1836, for 294Z. 10s., on the ship Prince * George, and the freight to be earned on a voyage then intended to be made by her ; against the said ship, her tackle, &c. ; and against Nathaniel Gould and James Dowie, of London, merchants, and Peter M'Gill and William Price, of Quebec, merchants, intervening in the cause, as the present owners of the ship. In the month of September, 1836, the ship Prince George arrived at New York from London with a general cargo, and a large number of passengers, under a charter-party to the appellant, being destined from thence to Quebec, under a charter-party to the respondent, Gould, and others. By the charter-party to the appellant, a moiety of the freight (the entire sum being 506Z.) was payable in London, previous to the sailing of the ship, and the remainder in New York, on the right delivery of the cargo there. During the voyage, the master broke bulk, and made use of some porter, part of the cargo on 1 Present : Lord Wynford, Lord Brougham, Lord Campbell, and Mr. Justice Ers- kine. BEFORE THE PRIVY COUNCIL. 23 The Prince George. 4 Moore's P. C. Eep. freight, a portion of which he used as ship's stores for the crew, and the remainder he sold to some of the steerage passengers. On land- ing the cargo at New York, part of it was found to have been damaged by bad stowage. The consignees of the porter claimed five hundred and eighty-eight dollars, as the value of the deficiency thereof, and the owners of the damaged cargo claimed one thousand one hun- dred and fifteen dollars, as the amount of the damage. The only fund the master had to meet these claims and the port charges, and the expenses of furnishing the ship with provisions, and fitting her for sea on her further voyage under the second charter-party, was the moiety of the freight, amounting to 2531., payable at New York under the first charter-party, which the consignees refused to pay, and the mas- ter, not being able to satisfy their claims for the deficiencies in, or damage done to the cargo, was arrested at their instance. To relieve * himself from this arrest, the master applied to [ * 23 ] Messrs. Wadsworth & Smith, the correspondents and agents of the appellant at New York, to advance such sums as might be necessary to meet his exigencies, and as neither he nor the owner of the ship had any personal credit in that city, they advised him to raise funds, which they ultimately agreed to furnish on bottomry. No money actually passed through the hands of the master, but Messrs. Wadsworth & Smith made up their accounts, and debited the money received by them for freight, with the claims for damage done to the cargo, and paid the charges and expenses of the ship at New York, necessary to enable her to proceed on her destination, and for repayment of such advances, with a maritime interest of 20 per cent., the master executed the bond now sued for. Messrs. Wadsworth & Smith also drew a bill of exchange for the amount advanced on the owner of the ship, payable at one day's sight after her arrival in London, in the event of which the bond was to be con- sidered as satisfied. The bill of exchange having been presented and refused payment, the present suit was instituted, and the learned judge, (the right honorable Dr. Lushington,) by his decree, bearing date the 2d of March, 1838, pronounced against the force and validity of the bond. From this sentence the present appeal was brought. The Queen's Advocate, (Sir John Dodson,) and Mr. Toller, for the appellant, contended, that the bond was, in the circumstances, good and valid, the money being advanced for the necessities of the ship in a foreign port, where the master and owners were without personal credit ; that the fact of part of the money advanced on the bond, * being for the payment to the consignee for damage [ * 24 ] done to the cargo, did not invalidate the bond, the consignee 9* ■ , 25 CASES ARGUED AND DETERMINED The Prince George. 4 Moore's P. C. Bep. having, by the law of New York, a specific lien on the ship, and the master, being without funds, from which such damage could be paid, had no other remedy than to hypothecate the ship, to save it from being arrested and sold by the Admiralty Court "in New York; that the bill of- exchange was only a collateral security, and did not sub- stitute personal security for the hypothecation of the ship. Dr. Phillimore, for the respondents, submitted, that the circum- stances of the case did not show such a necessity as to warrant the master hypothecating the ship, which was done by him solely for the purpose of meeting the personal demand against himself, in respect of the porter, and the claim of the consignees in respect of the damaged goods. The following authorities were referred to in the course of the argu- ment : The Augusta, 1 The Vibilia,? The Jane, 3 The Zodiac,* Thomp- son v. The Royal Exchange Insurance Company, 5 Abbott on Ship- ping, 128, 129, 130; 1 Karnes's Essays; Mercatores, 128; 3 Kent's Com. 168 ; The General Smith. 6 Lord Campbell. This is an appeal from the Court of Admiralty, in a suit on a bottomry bond. The learned judge below was of opinion that the bond [ * 25 ] was wholly void, on the ground that the master * had no authority to hypothecate the ship for any part of the money secured by it. We should have been of the same opinion, if we had taken the same view of the facts of the case which he appears to have done. If the bond had been given as a security for the amount of the damage done to the cargo on the voyage from London to-New York, and the value of certain porter, part of the cargo consumed during the voyage, we should have thought it invalid. The appellant's counsel have contended, that by the law of New York, the consignees of the cargo had a specific lien on the ship for any damage sustained by the cargo, in violation of the contract contained in the bill of lad- ing, and that as the master had no funds from which this damage could be paid, he might hypothecate the ship for the amount, so that she might prosecute her voyage, instead of being arrested and sold by 1 1 Dod. Kep. 283. z 1 W. Robinson, 1. s 1 Dod, Eep. 461. ' i 1 Hagg. Adm. Rep. 320. 6 1 Maul. & Sel. 30. 6 4 Wheaton, Sup. Ct. of U. S. Rep. 498. BEFORE THE PRIVY COUNCIL. 26 The Prince George. 4 Moore's P. C. Rep. decree of the Admiralty Court. If it had been proved that the law of New York gave the lien upon the ship as suggested, we should have thought, upon the general principle, that where the master can- not in any other way raise money which is indispensably necessary to enable the ship to continue her voyage, he may hypothecate the ship : this power would extend to a case where the ship might be arrested and sold for a demand for which the owner would be liable. It seems immaterial whether the necessity for funds arises from such a demand, or to pay for repairs, stores, or port duties. But in this case, there is no sufficient evidence that by the law of New York, the consignee of goods has any specific remedy against the ship for damage they may have sustained in the course of the voyage, No witness, professing to be acquainted with the law upon the subject, has been examined ; and the witnesses who have * been examined, only use some loose expressions, from [ * 26 ] which a doubtful inference as to the state of the law may be drawn. It is said, indeed, that we ought, in the absence of evidence, to presume the law to be as contended for by the appellant, the law of England upon this subject being an exception to the law of all other commercial nations. But we apprehend that where reliance is placed by any party upon a difference between the law of England and the law of a foreign State upon such a subject, he is bound by witnesses, or books of authority, to show that there is such a difference. In the present instance, we believe that the presumption would be contrary to the truth ; for, although the law of most commercial nations except England gives a specific remedy against the ship for repairs and stores to fit her out for a voyage, it is only in a few States that this remedy against the ship is extended to damage done to the cargo ; and there is every reason to believe that such is not the law in New York, as it appears that an act was passed by the legislature of that State, giving a lien on the ship only for repairs and stores, 1 leading to the conclusion that the law of that State upon this subject is not further varied from the ancient commercial law of England. We therefore cannot pronounce for the validity of the bond on this ground ; and if it really had been given entirely in respect of the claim of the consignees of the cargo, we must have affirmed the de- cree. But upon carefully examining the evidence and the accounts, it appears to us that, with the exception of the sum of three hundred i Acts of 22d Session, c. 1, and 40th Session, C; 59. 27 CASES ARGUED AND DETERMINED The Prince George. 4 Moore's P. C. Rep. and twenty-nine dollars, the money secured by the bond was required for the ship's necessary disbursements at New York. By [ * 27 ] *the charter-party and bills of lading, a sum of 2531. for freight was payable at New York. If this had been received by the master, and therewith he had paid all his port charges and outfit,, and a demand being afterwards made upon him by the consignees, he had executed the bottomry bond to satisfy this demand ; in the absence of evidence of the foreign law upon the subject, we should have considered the bond wholly void. But the depositions show that the master did not receive the 253L, and that the whole of that sum was detained by the consignees to cover the amount of the damage dqne to the cargo, except a balance of eight dollars ninety- one cents. The master had no means of compelling payment of the freight in full. He, therefore, had no funds from which he could pay port duties and other necessary disbursements to enable him to pro- secute his voyage, and it is admitted that he could not raise the necessary funds for hypothecating the ship. The bond, therefore, was to secure money borrowed to pay port duties and such other necessary disbursements, not merely to satisfy the demand of the consignees for damage done to the cargo. But we cannot say that the bond is good for the whole. In the principal sum of one thou- sand one hundred and sixty-seven dollars, for which it is given, is included an item of three hundred and twenty-nine dollars in respect of porter, part of the cargo, consumed during the voyage. The evi- dence certainly shows that the ship was well supplied with water and stores of all sorts, and that it was from the unusual length of the voy- age that it became necessary for the crew and passengers to use this porter. But there is no evidence before us that by the law of New York, the consignee of the porter could have detained the [ * 28 ] ship till his demand was satisfied. The master * was arrested ; but assuming that he was lawfully arrested, it is impossible to lay it down for a rule that the master may hypothecate the ship for any demand in respect of which he himself is liable to be arrested in a foreign country. For the sum i of three hundred and twenty-nine dollars, and the- maritime interest calculated upon that sum, the bond cannot be sup-, ported. But it is a well known doctrine in the admiralty courts that a bottomry bond may be good pro tanto, and void for the residue. Some other small items have been pointed out to us as having been expended before there is evidence of any negotiation for a bot- tomry bond, but we think that these items may be fairly included in the sum to be secured, and that we may presume they were advanced in contemplation of such a security. Bottomry bonds, for the benefit of BEFORE THE PRIVY COUNCIL. 167 The Thirteenth of Jane. 4 Moore's P. C Rep. the ship-owners, and the general advantage of commerce, are greatly favored in courts of admiralty ; and where there is no suspicion of fraud, every fair presumption is to be made to support them. Upon the whole, their lordships will recommend -to her Majesty that the decree of the court below be reversed, and that, deducting the amount of the three hundred and twenty-nine dollars and inte- rest, there be a decree in favor of the appellant, for the principal and interest secured by the bond, with the costs of the appellant below, leaving the parties respectively to pay their own costs of appeal. , ON APPEAL FROM THE VICE-ADMIRALTY COURT OF BARBADOES. * The Thirteenth op June. [ * 167 ] Francisco Fernandez Guimaraens, Appellants, and "William Preston, Esq., the commander, and the officers and crew of her Majesty's ship CuraQoa, and the Queen, Respondents. 1 July 13, 1842. Seizure and condemnation of a Portuguese vessel, under 2 & 3 Vict. c. 73, affirmed on appeal by the judicial committee. ■> Proceedings taken against a vessel seized under the 2 & 3 Vict. c. 73, are to be according to the rules and regulations, established under the 2 & 3 Will. IV. c. 51, and not according to the forms of the civil law. The affidavit of a.person present at the seizure, though not the seizor himself, is sufficient to ground a monition citing the master in particular, and all others in 'general, to appear, &c. Evidence of the owners' claim not tendered in the court below, received by the judicial com- mittee on the hearing of the appeal. This was an appeal from a sentence of condemnation for a breach of the Act 2 & 3 Vict. c. 73, for the suppression of the slave-trade, pronounced on the 25th of 'June, 1840, by the judge of the Vice- Admiralty * Court of Barbadoes, against the vessel [ * 168 ] called The " Treze de Junho," or " Thirteenth of June," her , cargo, tackle, apparel, and furniture ; whereof the appellant, Fran- cisco Fernandez Guimaraens, was sole owner. i Present : The Lord President, Lord Brougham, Sir Herbert Jenner Fust, and the Eight Honorable Dr. Lushington. 169 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Eep. The statute 2 .& 3 Vict. c. 73, after reciting, that it is expedient, among other things, that power should be given to the High Court of Admiralty, and to courts of Vice- Admiralty, to adjudicate upon vessels and their cargoes captured for having been engaged in the slave-trade, &c, and declaring that her Majesty had been pleased to issue orders to her cruisers to capture Portuguese 1 vessels engaged in the slave-trade, and other vessels engaged in the slave-trade, not being justly entitled to claim tile protection of the flag of any state or nation, — enacted, "that it shall be lawful for any person or persons in her Majesty's service, under any order or authority of the Lord High Admiral, or of the commissioners for executing the office of^ Lord High Admiral of Great Britain, or of any one of her Majesty's secretaries of state, to detain, seize, and capture any such vessels, and the slaves, if any, found therein, and to bring the same to adju- dication in the High Court of Admiralty in England, or in any Vice- Admiralty Court within her Majesty's dominions, in the [ * 169 ] same way as if such vessels * and the cargoes thereof were the property of British subjects." By the third section it is enacted, " that it shall be lawful for the High Court of Admiralty of England, and for all courts of Vice- Admi- ralty in any colonies or dominions of her Majesty beyond_ the seas, to take cognizance of, and try, such Portuguese vessel which shall be detained or captured either to the north or to the south of the equa- tor, under any such order or authority, and any vessel which shall not establish, to the satisfaction of such court, that she is justly entitled •to claim the protection of tEe flag of any state or nation, and to con- demn any such vessel, and adjudge as to the slaves found therein, in like manner and under such and the like rules and regulations 2 as i Such parts of this statute as apply to Portuguese vessels have been repealed by the 5 & 6 Vict. c. 114, and vessels of that nation can now only be seized and made for- feit under the authority of the treaty between Great Britain and Portugal of the 3d of July, 1842. The jurisdiction of her Majesty's Vice- Admiralty Court is superseded by the^Mixed Commission Courts, established under that treaty, and the judgment of the commission is declared definite and without appeal. (See Treaty, Annex, B., Ayt. III., VII., and IX.). 2 The practice to be observed in suits and proceedings in the courts of Vice-Adini- ralty abroad is governed by certain rules and regulations established by an order in council, under the 2d & 3d Will. IV. c. 51, printed and circulated by the Board of Admiralty. The rules and regulations are accompanied by tables of fees for the courts of vice-admiralty in the various colonies, and contain a copious appendix of forms of pleadings, &c. ; they are divided into separate sections, that referred to being section 25, headed, " Prosecutions for a breach of the laws for the. abolition of slavery." " Foreign slave-vessels cannot be detained at sea except for a violation of treaty, and BEFORE THE PRIVY COUNCIL. 169 The Thirteenth of June. 4 Moore's P. C. Rep. are' contained in any act or acts of parliament in force, in relation to the suppression of the slave-trade, by British-owned ships, as fully then only by such of his Majesty's ships of war as are provided with special instructions for that purpose, nor can the search of any such foreign slave-vessel be made by any officer holding a rank inferior to that of lieutenant in .the navy of Great Britain. " With respect to these seizures of foreign slave-vessels, the vice-admiralty courts have no jurisdiction. The only tribunals which can legally adjudicate thereon are the 'Mixed Commission Courts,' established in pursuance of treaties with certain foreign powers. " When a vessel engaged in the slave-trade is seized for a violation of the municipal laws of the United Kingdom of Great Britain and Ireland, it is the duty of the captor to send her, with the slaves, if any, on board, for the purpose of adjudication, to the nearest and most convenient port in any colony or settlement where there is a Vice- Admiralty Court. " Upon the arrival in port of the vessel and slaves seized, and also in case of a seizure of slaves on shore, an immediate representation of the seizure is to be made to the regis- trar of the Court of Vice- Admiralty, and the seizor is to make an affidavit, (in the form prescribed,) detailing all the circumstances connected therewith, and stating especially by what breach of the law the forfeiture of the slaves has been incurred. And, in the case of the seizure of a vessel, there are to be annexed to the affidavit, and verified therein, all original papers that may have been delivered up to the seizor, or, if_the ship's papers shall have been concealed, thrown overboard, or otherwise destroyed, that fact is to be stated in the affidavit. " The affidavit being duly sworn and exhibited before the judge or surrogate, he is to decree a monition to issue, returnable fourteen days after service, citing by name the owners or persons implicated, if known, and all others in general, to appear and show cause why the forfeiture should not be decreed and the penalties pronounced for. " Where the owners or persons implicated are not known, the monition must only cite all persons in general. If the monition contain the names of the owners or others, from whom penalties are sought to be recovered, it should be personally served on the parties, in the manner of other instruments requiring personal service. In all cases the monition must be served on the Exchange or the Court-house or other public place, as before directed in derelict cases. If the monition issue against all -persons in gene- ral, and not against any individual in particular, it need not be served in the manner last mentioned. "If, when the monition has been served, no appearance be given, the judge, upon the return of the monition, is, immediately, or on the next regular adjourned court day, to proceed to pronounce, by interlocutory decree, for the forfeiture of the slaves (if any) and vessel, and for the penalties- due by law, without requiring any further evidence. "If it shall appear to the judge, by affidavit, that personal service cannot be effected . on the parties, if any, named in the monition, by reason that they have purposely absented themselves, to avoid service, the judge is to pronounce his decree ; but If he has reason to believe that the parties are bond fide ignorant thereof, he ought to reserve his judgment, so far as relates to the penalties sued for, and also as to the slaves and yessel, if any doubt shall arise upon the evidence. "In the case of a monition citing all persons in general, and not describing any per^ son by name, no penalties against individuals can be pronounced for ; but if the per- sons by whom the offence.has been committed shall afterwards be discovered, a subse- 170 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Rep. and effectually, to all intents and purposes, as if all the [ * 170 ] powers, authorities, and provisions contained in * such acts quent monition may issue in the same suit, against him or them, for recovery of the penalties. "In order to move for the interlocutory decree, a case, together •with a copy of the affidavit, must be placed in the hands of counsel, as in other cases. "At any time before the interlocutory decree, a claim may be given on behalf of the owners, and the claimant may, if he think fit, require the seizor to proceed by plea and proof, and pray him to be assigned to give his information or libel, to which the claimant may give in a responsive plea or allegation. " To the claim must be annexed an affidavit, containing the names, additions, and residence of the owners, and a detail of all the circumstances on which the claimant means to rely as the ground of his defence. The same course, in all respects, is to be pursued in giving in the claim, as before directed, in derelict cases. "When a claim is given and no libel prayed, the court may proceed to adjudge the case on the facts and circumstances stated in the affidavit of the seizor, exhibited on praying the monition, and in the claim and affidavit in support thereof. " Should the judge consider the case not sufficiently proved by such evidence, to . enable him to proceed to sentence, he may direct a libel to be filed by the seizor, and witnesses to be examined thereon, to which libel the claimant's proctor may give a responsive plea or allegation, and in like manner examine witnesses. The proceed- ings will then be the same as directed in cases contested by plea and proof. "In the event of the judge not in the first instance condemning or restoring the slaves, he is required in certain cases, by the Act 5 Geo. IV. c. 113, to order them to be valued ; and, upon the valuation being approved by the court, they are to be delivered over, pursuant to the act, to persons specially appointed to receive, protect, and pro- vide for them. The same course is to be followed when a decree restoring or con- demning slaves is suspended by appeal. And in no case whatever are slaves to be delivered to claimants on bail, to answer the adjudication. " Where a seizure of several slaves, belonging to the same owner, is made by the same seizor, for one and the same cause of forfeiture, there is to be only one affidavit and one monition required to enable the court to proceed. "Where several slaves, whether belonging to the same or different owners, are seized for the same cause of forfeiture, but by different seizors, there must be a separate affidavit by each seizor, but the slaves may all be included in one monition. " Where several slaves, belonging to the same or to different owners, are seized by the same seizor or by different seizors, for different causes of forfeiture, there must be as many affidavits and monitions as there are different causes of forfeiture ; but the judge may afterwards, in his discretion, consolidate the proceedings, so as to form but one suit to come before the court for hearing. " Care is to be taken, in consolidating proceedings, that the monition, and also the libel when that proceeding is required, be drawn conformably with the several circum- stances, and that the different seizures be described in separate articles or counts of the libel or information. "In order to avoid the injury which owners may sustain by the delay of the seizor to proceed, any claimant or owner may apply to the court for a monition against the seizor, returnable in three days after service, requiring him immediately to proceed to the adjudication of any slave or slaves so claimed." BEFORE THE PRIVY COUNCIL. 171 The Thirteenth of June. 4 Moore's P. C. Rep. were repeated and reenacted in this act, as to such High Court of Admiralty, or courts of Vice- Admiralty." * By section four, it is enacted, " That every such vessel [ * 171 ] shall be subject to seizure, detention, and condemnation, * under any such order or authority ; if, in the equipment of [ * 172 ] such vessel, there shall be found any of the things herein- after mentioned ; namely, first, hatches, with open gratings, instead of the close hatches which are usual in merchant vessels : secondly, divisions or bulk-heads in the hold or on deck, more nume- rous than are necessary for vessels * engaged in lawful trade : [ * 173 ] thirdly, spare plank, fitted for being laid down as a second or slave deck : fourthly, shackles, bolts, or handcuffs : fifthly, a larger quantity of water in casks or in tanks than is requisite for the use of the crew of the vessel as a merchant vessel : sixthly, an extraordinary number of water-casks, or of other vessels for holding liquid, unless the master shall produce a certificate from the custom-house at the place from which he cleared outwards, stating that a sufficient security had been given by the owners of such vessel that such extra quantity of casks or of other vessels should only be used for the reception of palm oil, or other purposes of lawful commerce : seventhly, a greater quan- tity of mess-tubs or kids than are requisite for the use of the crew of the vessel as a merchant vessel : eighthly, a boiler of an unusual size, and larger than requisite for the use of the crew of the vessel as a merchant vessel, or more than one boiler of the ordinary size : ninthly, an extraordinary quantity either of rice, or of the flour of Brazil, manioc or cassada, commonly called farina, of maize, or of Indian corn, or of any other article of food whatever, beyond what might probably be requisite for the use of the crew ; such rice, flour, maize, Indian corn, or other article of food, not being entered on the mani- fest as part of the cargo for trade : tenthly, a quantity of mats or mat- ting larger than is necessary for the use of the crew of the vessel as a merchant vessel : any one or more of these circumstances, if proved, shall be considered as primd facie evidence of the actual employment of the vessel in the transport of negroes or others, for the purpose of consigning them to slavery, and the vessel and cargo shall * thereupon be condemned to the crown, unless it be esta- [*174 ] blished by satisfactory evidence on the part of the master or owner, that such vessel was, at the time of her detention or capture, employed on some legal pursuit, and that such of the several things above .enumerated, as were found on board of such vessel at the time of her detention, or had been put on board on the voyage on which, K. & M. 10 175 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Rep. when captured, such vessel was proceeding, were needed for legal purposes on that particular voyage." 1 The " Treze de Junho" left the port of Rio de Janeiro on the 28th of March, 1840, under Portuguese colors, commanded by Jose da' Lomba, boundto the port of Benguela, on the coast of Africa. On the 31st of March, 1840, she was seized by her Majesty's ship of war Curacoa, William Preston, Esq., commander, and despatched to Rio de Janeiro, in charge of Mr. Roger Lucius Curtis, mate of her Majes- ty's said ship, under instructions that proceedings should be instituted against the master in the Mixed Commission Court there established. On her arrival at that port, a strict and careful survey was made, by order of T. B. Sullivan, Esq*, commodore of the second class, and senior officer of her Majesty's ships and vessels on the east coast of South America : and on the 26th of April, 1840, she was, by the orders of the commodore, navigated to the island of Barbadoes, in charge of the mate and an English crew, (her master and commander, Jose" da Lomba, being on board,) to be proceeded against in the Vice- Admiralty Court of that island. [ * 175 ] * On the 3d of June, and immediately upon her arrival at Barbadoes, an affidavit was made by Curtis, wherein he stated, " that on the 30th of March, 1840, whilst cruising off Cape Trio, The Curacoa fell in with the said brigantine or vessel, and Captain Preston sent a boat, with William Tead, his second lieute- nant, and William Parker, master, to examine her, and that deponent accompanied them, and was present at the said examination ; and that .upon the return of the said boat, William Tead informed the said Captain Preston, that there was on board of her a considerable quantity of farina, stowed in bulk, not on the manifest, and in a much greater proportion than would be required for the use of her crew : that buried in the farina were found several new water-suckers, two pumps, also a slave whip, and a rattle : that in her fore-hold were four leaguers and four hogsheads : on deck, two pipes, seven half pipes, and five quarter pipes, all water-casks : the casks in the hold, one of which was nearly empty, were stowed underneath part of her cargo, and could not be required for the use of the crew on the voy- age : that in the after part of her hold, near the helm, were found four shackles, and in every part of the hold were considerable quanti- ties of firewood, much more than requisite for her consumption on the voyage : that the main hatchway was of unusual dimensions for a vessel employed in fair mercantile traffic : that the long boat was 1 This section is incorporated verbatim in the Treaty of 1842, Art. IX. BEFORE THE PRIVY COUNCIL. 176 The Thirteenth of June. 4 Moore's P. C Hep. needlessly large for a coast trader, besides a large canoe, and a jolly boat : the cook-house, also, was of large dimensions, and the cabin had every appearance of having been used for slaves on a former occasion : whereupon the said Captain Preston seized the said brigantine as liable to forfeiture to her Majesty *for [ * 176 ] having such articles on board, and directed deponent to take her to Rio de Janeiro, to be brought before the ' Mixed Commission ;' and deponent further said, that having arrived at Rio de Janeiro, Thomas Bale Sullivan, Esq., commodore of her Majesty's ships and vessels on the coast of South America, caused a survey to be had of the said brigantine, and at which survey deponent was present, and the particulars thereof were set forth in a paper writing annexed, and that by the further orders of the said Commodore Sullivan, he had brought the said brigatine into the port of Carlisle Bay, in that island." Appended to the affidavit was part of the ship's papers, and an account of the survey, as deposed to. On the 4th of June the usual monition issued under the seal of the Vice- Admiralty "Court of Barbadoes, at the suit of the crown, citing the said Jose' da Lomba in particular, and all persons in general, having, or pretending to have, an interest in the said vessel or cargo, to appear on the fourteenth day after service, and show cause, if they had or knew any, why the brigantine should not be pronounced to have been equipped for the slave-trade, contrary to the provisions of the statute or statutes in such case made and provided, and as such, or otherwise, subject and liable to forfeiture and condemnation, and why the penalties due by law should not be pronounced for, with the usual intimation. The monition was served personally on Jos6 de Lomba, but no claim or appearance was entered by him, or on his behalf, or on be- half of any other person. A commission of unlivery having been awarded, and the cargo unladen, it appeared that a quantity of farina, *in bulk, in bags averaging one hundred and [*177] twelve pounds, or thereabouts, each, and not included in her manifest, was landed from her. On the 25th of June the cause came on by special appointment, when affidavits and exhibits were read by the registrar, according to the usual practice. The affidavits included those already stated, with further deposi- tions respecting the unlivery of the cargo. t The exhibits consisted of the ship's papers, the muster-roll, register* and manifest, and comprised two letters of instructions from Guima- raens, the owner of the vessel. 178 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Eep. The first (which related to other transactions) was addressed to Antonio Joaquim Fencira Torres, who appeared by the manifest to be one of the consignees of the present cargo, and was as follows : — "St. John's Bar, 7th December, 1839. " Sir, — By the brigantine Umbellina, Captain Antonio Jose Per- reira, (the supercargo Francesco Jose,) I was favored with yours of the 2d November, 'ultimo, accompanied with thirty-one volumes, (slaves,) marked A, which you had shipped on your account, in the said brigantine, to my consignment, which I sold to Jose Joaquim, a very worthy person, at six months' credit, the net proceeds being reis six thousand three hundred and sixty-five, dollars six hundred and eighty, as you will see by the annexed accounts, which sum, in con- formity to your order, I passed into the hands of Manuel Perreira, by a bill drawn and indorsed by me and accepted by the said purchaser, but I render myself responsible for this sale, and for all others that you make of people which may come consigned to me. [ * 178 ] * " Your people (slaves) arrived' in very good order, and on that account I obtained higher prices than have been obtained for any others, hoping that you will be satisfied and continue your favors ; the cargo of the brigantine Umbellina brought various prices, yours being the highest, the lowest at two hundred and fifty-five dol- lars, for which reason, whenever you have to make a remittance oh your account it must be a good one, because the difference in price obtained is worth while. "6th March, 1840. " I confirm all I have said above, on the 7th of December, of last year,' and of the 10th of January, of the present. " Inclosed you will find the receipt of delivery, which I made to Manuel Perreira, of the net proceeds of the volumes (slaves) which you consigned to me by the brigantine Umbellina, according to your order. " The brigantine of the 8th of December arrived here on the 14th of last month in safety, as also the forty-five slaves, which, for your account, you shipped in the said brigantine', for which I congratulate you," &c. (Signed) "Jose Joaquim, Marques D'Abren." The second was a letter of instruction, from the owner, addressed to the master and commander, with others, in the following terms : — " Captain Jose 1 da Lomba, in his absence (as to what relates to the brigantine) to the mate, Jose Joaquim Gomer Vianna, and the con- signment of goods and merchandise to Jose Joaquim Teixeire, and in the absence of both to Antonio Joaquim Terreira Torres. BEFORE THE PEIVY COUNCIL. 179 The Thirteenth of June. 4 Moore's P. C. Eep. * " Rio Janeiro, 27th March, 1840. [ * 179 ] " I have given to your command the brigantine ' Thir- teenth of June,' my property, which vessel being laden and cleared to-morrow, if the weather permits, you will sail direct for the port of Benguela, with great caution, in order to make a good and sure voy- age. With this I accompany a public form of writing, which proves that I have purchased the said vessel when she was rigged as a smack, in which she made four voyages from Benguela to this port, always laden with wax, honey, oil, and urzella, which is proved by the certificates of manifests taken from this custom-house, which I also deliver to you ; which documents you must show in the event of your being boarded by any Portuguese or English cruiser. " In the same brigantine I loaded the goods and merchandise, as will appear by bills of lading and invoice, amounting to dol- lars, to your consignment, which you will take charge of on your safe arrival ;. disposing of the net proceeds in wax, ivory, and oil, to load the said vessel with, and any other cargo you may obtain on freight, when you will return to this port as soon as possible. " The amount of freight will be 2,320 dollars, 700 reis, as will be seen by the book of cargo, which I give you ; which you will receive, and apply to the necessary expenses of the vessel with the greatest economy. Your wages will be 700 dollars, on your safe arrival ; the mate, 100 dollars ; the boatswain, 100 dollars ; five sea- men, at 45 dollars ; and seven slaves belonging to the vessel, with whom you must be very cautious, in order that they may not escape. " I hope that you will avail yourself of the most expedi- tious * means for the benefit of this transaction, and speedy [ * 180 ] arrangement for your departure for this place. As soon as you arrive, yon must inform me, and continue to do so, of what occurs, whenever there is an opportunity, even by way of Angola. I have signed two letters of the same tenor; giving you one for your guidance, and another signed by you, to aVoid misunder- standing. " I wish you a prosperous voyage and good health, and am " Your obedient servant, " Francisco Fernandez Guimaraens." " For support of the crew, I have shipped twenty-five bags of farina." The certificate of the vice-consul at Rio de Janeiro also bore date the 27th of March, 1840, and stated that the master had verified his 10* 181 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Bep. crew, consisting of fifteen persons, a list of which was given, con- taining the names of the master and others, their ages, country, con- dition and wages. Among them the cook was entered as Jose", a native of Africa, and, in lieu of wages, " gratis " was written ; and under the title of " Lads " there were six additional names entered, and their condition described as " slaves of Francisco Fernandez Gui- maraens." The cause came on for hearing before Mr. John A. Beckles, sole judge of the Vice- Admiralty, Court of Barbadoes, the registrar, maris- chal, and sworn interpreter being present, on the 25th of June, 1840, when, upon the evidence produced, and upon motion, of the [ *181 ] solicitor-general, (no party appearing for the * owner or the master of the vessel,) the ship Treze de Junho (Thirteenth of June) was, by interlocutory decree, pronounced " to have been, at the time of the seizure thereof, illegally equipped for the transport of negroes and others, for the purpose of conveying them to slavery, con- trary to the provisions of the acts 2 & 3 Vict. c. 73, entitled, &c, and, as such or otherwise, subject and liable to forfeiture," and condemned accordingly. On the 20th of March, 1841, an appeal was duly made and inter- posed on behalf of the appellant, the owner of the vessel, and others, owners of the cargo, and brought into the registry of the High Court of Admiralty. The appeal being admitted and referred to the Judicial Committee, the proctor, on behalf of the appellants, brought in an attestation and claim, with various exhibits, on behalf of the appellants, and obtained the usual inhibition, citation, and monition. The exhibits thus produced consisted of a certified copy of the terms of the deed of purchase of the brigantine Treze de Junho, by the appellant, a copy of a protest made by the appellant, and Jose de Lomba, the master, taken and entered at the general consulate of Portugal, against the commander of her Majesty's ship of war The Curagoa, for the caption of the brigantine ; copies of the manifests ~ with which the said vessel entered and discharged at the custom- house at Rio de Janeiro, after two several voyages, in 1837 and 1838, from Benguella ; and a certificate, together with the tenor of a decree pronounced ex parte, on the 30th of April, 1840, by Nicholas de Silva Lisboa, the judge conservative of British subjects in [ * 182 ] Rio de Janeiro, notifying * that certain acts of justification had been commenced by the owner of the ship Treze de Junho, then detained by the British ship of war Curac,oa, and con- taining the proceedings thereon. These consisted of the protest of the owner against the seizure, and petitions for the examination of BEFORE THE PRIVY COUNCIL. 183 The Thirteenth of June. 4 Moore's P. C. Eep. witnesses to prove the illegality thereof ; the term of the privileges and immunities conceded by the Mixed Commission to subjects of the British nation ; the deposition of the witnesses thus tendered, and the judgment, affirming the matter thereof proved. With this additional evidence, the appeal now came on to be heard. Mr. Burge, Q. C, and Dr. Phillimore, for the appellants. The rules and regulations issued under the authority of the 2 & 3 Will. IV. c. 51, for regulating the practice of the Vice- Admiralty Courts abroad, are not applicable to a seizure of a Portuguese ship; under 2 & 3 Vict. c. 73. The statute of Victoria, being a penal statute, cannot be made more extensive than the words express ; and the words in the third section, for the trial of vessels engaged in the slave- trade, do not so refer to the previous statute of 2 & 3 Will. IV. c. 51, as to import the regulations made under that statute into the act of Victoria. These rules and regulations cannot be applied to the case of a foreign ship ; for the effect would be to alter the form of proceeding provided by the civil law. In the present case there was neither libel or information, as required by the civil law ; but the pro- ceedings were wholly regulated by the rules under the 2 & 3 Will. IV. c. 51. But even these rules were not * adhered [ * 183 ] to ; for the affidavit upon which the monition was grounded was made, not by the seizor, as required by the twenty-fifth section of the rules, but by Curtis, who was a mere looker-on. All the pro- ceedings were ex parte, behind the back of the owner, and in his absence ; and were consequently both illegal, as well as informal. Even if the proceedings were regular, the evidence would not justify the sentence ; since there was nothing either in the ship's appear- ance, her cargo, or manifest, from which it could be legally presumed that she was engaged, or about to be engaged, in the illegal traffic of the slave-trade. There was no evidence of there being an extraordinary quantity of provisions, or more than was necessary for the crew. The Queen's Advocate, (Sir John Dodson,) and the Attorney- Gene- ral, (Sir Frederick Pollock,) for the respondent. By the 2 & 3 Vict, c. 73, Portuguese vessels were placed under the municipal law of Great Britain, and are to be proceeded against in the same manner " as if such vessels, and the cargoes thereof, were the property of British subjects." The mode of proceeding is provided for by the twenty-fifth section of the rules for Vice-Admiralty Courts, esta- 184 CASES ARGUED AND DETERMINED The Thirteenth of June. 4 Moore's P. C. Rep. blished under the 2 & 3 Will. IV. c. 51. 1 These regulations have been strictly complied with. The objection, that the affidavit was not made by the commander, or seizor, but by Curtis, the mate of the ship of war Curagoa, is untenable. Curtis accompanied the second lieutenant and the master upon the search, and was, in fact, one of the seizors ; he was also in charge of the vessel when she arrived at Barbadoes. The object of the affidavit is to ground the [ *184 ] subsequent process of *a monition ; and it is not the party making it, but the matter contained in it, that is essential. In the margin of the form appended to the rules it is stated, that it must contain a full and specific account of the facts constituting the breach of the law, and that is amply complied with in this instance. Then the question resolves itself into one of a violation of the act ; that is sufficiently manifest, both from the fittings of, the vessel, as well as her cargo, provisions, and manifest. She had more farina than could, under any circumstances, be requisite for her crew ; the articles, too, concealed, were such as to lead to the evident conclu- sion that she was engaged for an illicit traffic, and justified both her detention and condemnation. There is nothing in the evidence, pro- duced for the first time here on behalf of the owner, which can affect the sentence below. Sir Herbert Jenner Fust. Their lordships are of opinion that the sentence of the court below was right, and must be affirmed. The proceedings subsequent to the seizure of the vessel, taken at Barbadoes, were conformable to the act 2 & 3 Vict. c. 73, and the rules prescribed under the 2 & 3 Will. IV c. 51. The vessel being engaged in the slave-trade, was seized at Rio de Janeiro, for a viola- tion of the municipal law of Great Britain, and was sent, in pursu- ance of the regulations under the 2 & 3 Will. IV. c. 51, to the near- est and most convenient port where a Court of Vice- Admiralty was established ; that port was Barbadoes. Upon her arrival she was proceeded against, by monition, according to the practice established under the twenty-fifth section of the rules and regulations; and the monition, as appears by the certificate of the marshal to [ *185 ] whom *it was directed, was served personally on Jose da Lomba, the master and commander. It appears that no proceedings against the condemnation were taken, either by the owner or by the master ; though the latter had full notice of the pro- ceedings, and that if no cause was shown, a judgment of condemna- 1 Ante, p. 169 BEFORE THE PRIVY COUNCIL. 272 The Gazelle. 4 Moore's P. C. Rep. tion would be pronounced. The sentence, therefore, which followed, though ex parte, cannot be said to have been made behind the back of the owner, or without his knowledge, or the means being afforded him of resisting it. Still their lordships were of opinion that it would best conduce towards the ends of justice to allow the owner to produce before them such evidence as he thought material to his defence ; and they have, accordingly, allowed him to bring in the documents contained in the supplemental appendix. They have considered the various documents he has produced, but do not think them sufficient to rebut the case proved in the court below. The appellant complains of the removal of the vessel from Rio de Ja- neiro to Barbadoes ; but that was in conformity with the law. And he cannot say that the vessel was condemned behind his back ; for Jose da Lomba, his- master, was carried with the vessel to Barba- does, and was sufficiently acquainted with the nature of the trade in which the vessel really was engaged to have made any affidavit, or produced any evidence, that could be favorable to his owner's case, if such had existed. But neither at Rio de Janeiro nor at Barbadoes does he make any such deposition, nor is there any evidence that the voyage which the ship was about to make, when seized, was a legal mercantile adventure. Under these circumstances, their lordships are of opinion that the sentence of the court below was right, and must be affirmed, with costs. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY. * The Gazelle. [ * 272 ] William Batchelor Brownlow and others, Appellants; and George Garson and others, Respondents. 1 July 3, 1843. Appeal from the High Court of Admiralty not prosecuted ; cause remitted, with costs. This was originally a cause of damage, promoted by the respond- i Present, The Lord President, (Lord Wharncliffe,) Lord Brougham, Mr. Baron Parke, and Mr. Justice Erskine. 273 CASES ARGUED AND DETERMINED The Winwiclc. 4 Moore's P. C. Rep. ents, owners of the ship and cargo, and the master, officers, and crew, against the appellants, the owners of the steam-vessel Ga- zelle. The cause was heard on the 11th of December, 1842, before the judge of the Admiralty Court, who pronounced for the damage, and condemned the owners of The Gazelle and the bail in costs. An appeal having been asserted, and the usual proceedings taken in this court, the cause was assigned for hearing on the 1st of June, 1843. The proctor for the appellants having, however, exhibited a proxy, and declared his parties, proceeded no further in the appeal. Dr. Phillimore moved their lordships to remit the cause, and con- demn the appellants in costs. "Which was ordered accordingly. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF GIBRALTAR. [*273] *The Winwick. In the Matter of the Petition of Miles Barton and others v. Barron Field. February 14, 1842,' and November 27, 28, 1843. 2 This court will not visit a judge of an inferior court with the penal consequences of an attachment for contumacy and contempt, for disregarding an inhibition, unless such dis- obedience is wilful, and proceeded from improper motives. An inhibition to the judge of the Vice-Admiralty Court at Gibraltar, inhibiting him from doing any thing prejudicial to the parties appellant, pending an appeal, is not to be disre- garded at his discretion, although he may consider that he is acting for the benefit of all parties. Decree for a sale of a vessel condemned, after appeal asserted and inhibition served person- i Present;, Lord Brougham, Lord Campbell, Mr. Justice Erskine, and the Eight Hon. Dr. _Lushington. , 2 Present, Lord Cottingham, Lord Campbell, the Vice-Chancellor, (Knight Bruce,) and the Eight Hon. Dr. Lushmgton. BEFORE THE PRIVY COUNCIL. 274 The Winwick. 4 Moore's P. C. Eep. ally on the judge, held not such a contempt, under the circumstances of the case, as to entitle the owners to an attachment against the judge, for costs and damages incurred thereby. This was an application for an attachment against Barron Field, Esq., the late judge of the Vice- Admiralty Court at Gibraltar, for contumacy and contempt, in decreeing the sale of the ship "Winwick, her tackle, &c, after an inhibition had issued under the seal of the Judicial Committee of the Privy Council, inhibiting him, pending the appeal, from doing or attempting any thing to the prejudice of the parties appellants. 1 * By an order in council, bearing date the 13th of July, [ *274 1 1840, 2 reversing the sentence of the court below, it was, among other things, ordered that the appellants (the owners of the ship Winwick) " be at liberty to proceed as they may be advised, against any person or persons whom it may concern, for further com- pensation for any loss they may have sustained, or expenses they may have incurred, by reason of the sale of the said ship, under the authority of the court below, after service of the inhibition under seal of this court." On the 14th of May, 1841, 3 Miles Barton presented a petition on behalf of himself and the other owners of the ship Winwick, pray- ing their lordships to ^decree a monition against the judge of the Vice- Admiralty Court at Gibraltar, to appear and show cause why he should not pay the costs and damages incurred by the illegal sale of the ship. No affidavits were filed in support of this applica- tion, to show that any damage had been incurred by the sale of the ship. Dr. Nicholl, for the motion, relied on the rules and regulations regarding appeals from the Vice- Admiralty Courts abroad, made in pursuance of 2 Will. IV. c. 51, 4 and cited the following author- 1 The proceedings which gave rise to this application are reported ante, vol. 2, p. 19, on the appeal from the sentence of the Vice- Admiralty Court of Gibraltar. 2 Ante, vol. 2, p. 34. 3 Present, Mr. Baron Parke, Sir Herbert Jenner, the Eight Hon. Dr. Lushington, and Mr. Justice Littledale. 4 These rules being printed only for the purpose of distribution to the Vice- Admi- ralty Courts, and not generally accessible, are here inserted : — " All appeals from decrees of the Vice- Admiralty Courts are to be asserted by a party in the suit, within fifteen days'after the date of the decree, which is to be done by the proctor, declaring the same in court, and a minute thereof is to be entered in the Assignation Book ; and the party must also give bail, within fifteen days from 275 CASES ARGUED AND DETERMINED The Winwick. 4 Moore's P. C. Eep. [ * 275 ] * ities : The case of The Marshalsea ; x Diet, per Lord Stowell; 2 The Ship William ; 3 The Dove; 4 The Nordiska Wanskapen. 5 The Queen's Advocate, (Sir John Dodson,) contrd. Me. Baron Parke. There ought to have been an affidavit, as to damages. The application ought to have been for a rule to [ *276 ] show * cause why an attachment should not issue, and the present petition must be dismissed. Their lordships, how- ever, think that leave should be given to amend the petition, and to make a fresh application. On the 14th of February, 1842, 6 a further petition was presented by Miles Barton, and the other owners of the ship, praying for a monition against the worshipful Barron Field, the judge of the Admi- ralty Court of Gibraltar, to appear and show cause why he should not be attached for contumacy and contempt, for decreeing the sale the assertion of the appeal, in the sum of 100/. sterling, to answer the costs of such appeal. " In all cases, however, in which an appeal is asserted, except respecting slaves, the judge may proceed to carry his sentence into execution, provided the party in whose favor the decree has been made give bail to abide the event of the appeal, by two sureties, in the amount of the value of the property or subject in dispute, together with the further sum of 1001. sterling, to answer costs, in the event of the same being awarded by the Superior Court. " The party appealing, having complied with these regulations, is then to cause the judge and registrar to be served with an inhibition from the High Court of Admiralty, restraining them from further proceeding in the cause, and also with a monition to transmit the process. " This process will consist of a fair copy of the proceedings, under seal of the Vice- Admiralty Court, to be made and signed- by the registrar, at the expense of the party ordering the same, which is to be transmitted to the Superior Court, pursuant to the monition. " The proceeds, if in court, or in the hands of any individual, must, on a special monition for that purpose being served, be remitted to the registrar of the High Court of Admiralty, or Court of Appeal." i 10 Coke, Rep. 76 a. 2 1 Add. 21. 3 6 Bob. Adm. Rep. 310. * 18th June, 1796. 5 27th March, 1809. Note. In the cases of The Dove and The Nordiska Wanskapen, which were pro- duced by the registrar of the court, a monition was issued against the judge, registrar, and marshal of the Vice- Admiralty Court, to bring in the sums they had respectively received as costs, and which had been disallowed \fy subsequent decree and taxation. « Present, Lord Brougham, Lord Campbell, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. BEFORE THE PRIVY COUNCIL. 277 The Win-wick. 4 Moore's P. C. Rep. of the ship Wiriwick, after having been personally served with the inhibition of the Judicial Committee of the Privy Council, inhibiting him from doing any act in the said cause. This motion was sup- ported by the affidavits of Robert Cotesworth and others, from which it appeared that the alleged damages, occasioned by the sale of the ship, amounted to about 1,000Z. Mr. S. Martin, in support of the petition. The Queen's Advocate, for Mr. Barron Field, the judge of the Vice- Admiralty Court of Gibraltar. Lord Campbell. The question is, whether an attachment is to issue against the judge ; whether the judge of the Vice- Admiralty Court sold the vessel to the prejudice of the party, the sale being in violation of the order of this court. Their lordships think there is good ground for granting a rule to show cause why he * should not be attached, for decreeing sale after the inhibi- [ * 277 ] tion. The judge must deliver his act on petition the first session of next term. The act on petition was afterwards brought in on behalf of Mr. Barron Field,' the asserter of an appeal; and the proceedings therein, after setting forth the circumstances of the condemnation of the ves- sel, proceeded to state that, on the 8th of February, 1839, an affida- vit of Thomas Smith, of Gibraltar, a ship-builder, was filed, as to the perishable state and condition of the said vessel, and wherein he deposed that he had examined the said vessel, and was of opinion that, since he had appraised the said vessel in the month of January, 1838, she had deteriorated in value $2,000, the natural effect of the lapse of time and exposure to the weather ; and that he was of opinion that a further exposure to the weather, during the then ensuing summer, would very considerably decrease her valrie ; the more so, as she was not then in so good a condition to resist the. effects of the weather as when he last examined her ; that a motion, was thereupon made in the said Vice- Admiralty Court, on the part of the crown and seizor, to decree the vessel to be sold ; whereupon the said Barron Field, the judge aforesaid, and acting as such, hav- ing first heard advocates and proctors on both sides, did (for the reasons contained in the said affidavit, and in consideration of the constant expense of two ship-keepers to preserve the said vessel, in addition to the incidental expense of occasional salvage assistance which had been incurred, and which were likely to recur with the K. & M. 11 278 CASES AEGUED AND DETERMINED The Winwick. 4 Moore's P. C. Rep. then approaching equinoctial gales, which renders the port of Gib- raltar very dangerous in certain winds) decree a commis- [ * 278 ] sion * to issue for the sale of the said vessel ; that, in pro- nouncing such decree, thesaid Barron Field never contem- plated or intended any act in contravention of the inhibition, so as aforesaid served upon him, and considered, as the fact was, that he was not doing or attempting any thing to the prejudice of the par- ties appellant, or their said cause of appeal, but that, in directing the vessel to be sold, he was conferring a benefit on whomsoever might thereafter be entitled to the proceeds arising from the sale thereof. The act then set forth the particulars of the sale, and the circum- stance of one of the owners' brothers, a partner in a house at Liver- pool, being the purchaser, as showing collusion between the parties, and the subsequent proceedings taken in this court, and insisted that the said Barron Field, the judge of the said court, in decreeing the sale of the vessel, acted with perfect good faith both towards the owners and seizors of the vessels, having been called upon to exer- cise his judicial functions in a case of necessity and emergency," requiring an immediate remedy to protect all parties in the cause from further loss ; and he humbly submitted that, by the tenor of the inhibition served upon him, he was not precluded from exercising, in such a case as this, a fair and equitable discretion, when judicially applied to by either of the parties in the cause. The owners replied to this act on petition, traversing and denying the facts and inferences therein drawn, and denying collusion in the purchase of the vessel, and praying and insisting that the judge might be condemned in all costs and damages consequent on such sale, the amount thereof to be referred to the registrar and [ * 279 ] merchants, to ascertain and report. Both parties * filed affi- davits, in support of the various allegations and statements contained in the act and reply. The Queen's Advocate, (Sir John Dodson,) Sir Thomas Wilde, and Mr. Edmund F. Moore, for Mr. Barron Field. The sale of the ves- sel was warranted and requisite, under the circumstances of the case, and the decree for the same was not an act in contempt of the inhi- bition of this court. It was never intended by this court that the judge of the court below should be proceeded against by penal pro- cess, for the exercise of his discretion. Even if he were, under the circumstances, liable to such a proceeding, he is not solely liable, and ought not to be proceeded against alone ; the party promoting the office of the judge is the responsible party in the suit, and if any one is liable for the supposed damage, occasioned by the sale of the vessel, BEFORE THE PRIVY COUNCIL. 280 The Winwick. 4 Moore's P. C. Rep. he is, and ought at. least to have been joined with the judge. Clarke's Praxis in Curiis Ecclesiasticis, tit. 265. If, under such cir- cumstances, a judge was personally liable, he could never safely try a cause of forfeiture without taking a bond of indemnity from the party promoting his office. That is the practice in the United States. Ross v. Rittenhouse. 1 No such practice prevails here. In the cases of The Dove and The Nordiska Wanskapen, the object was to obtain the proceeds, and the monition was to bring them in. There was no breach of the inhibition. No contempt of this court has been committed by the judge below. The language of the inhi- bition is, that the parties inhibited are not to do or attempt any thing * to the prejudice of the appellants. Here a posi- [ *280 ] tive benefit has been done. It was shown that the ship had deteriorated in value, had incurred salvage expenses, was becom- ing every day less valuable, and was likely at the approaching equi- noctial gales to be entirely destroyed. Was the judge of the Vice- Admiralty Court at Gibraltar, in whose custody the vessel was, to direct the parties to apply to this court for an order for sale, and to wait the return of such order ? The mischief anticipated might have happened before a meeting of this court took place ; and who could so properly examine the evidence of the ship's deterioration as the judge of the court below ? It was his peculiar duty. The cir- cumstances presented a case of necessity and emergency, and left hiin no alternative but the exercise of a discretionary authority ; for that he is not liable to an attachment. If the sale had been ordered before service of the inhibition, no question of its propriety could be raised ; but the proceeds, the res, are secured, and that satisfies the intent of the inhibition. The offence committed by the judge, if any, is an attentat ; but there are no articles exhibited against Mr. Barron Field for an attentat, and they could not be supported, since they must charge, and the proof must be, that the judge's act was wrongfully innovated, or attempted pending the appeal. Lancellott, 2 pars, c. 12, lira. 6, n. 27, 28. And see 1 Add. Rep. 22, 23. The pro- ceeding by attachment is wholly irregular, and, in such a case as this, unheard of. The affidavits of loss' occasioned to the owners, by reason of the sale at Gibraltar, are not satisfactory. The evidence amounts to opinion only, is contradicted, and there is strong ground to presume collusion between the owners and purchasers of the vessel. The Prize Acts, 45 Geo. III. * c. 72, s. 52, [ *281 ] expressly provide for a sale being made, notwithstanding an 2 Dallas's Eep. 160. 282 CASES ARGUED AND DETERMINED The Win-wick. 4 Moore's P. C. Rep. appeal is pending. And accordingly it has been held, that if a suit be commenced between a captor of a prize and a claimant, and a decree obtained either for or against the claimant, on giving security such sentence or decree shall be put in execution, notwithstanding any appeal. Thompson v. Smith. 1 Mr. Martin, Q. C, and Dr. Bayford, for the owners. The pro- ceeding is in strict conformity with the direction of this court. By the original judgment, which was a reversion of the decision of the court below, the owners were to be at liberty to proceed as they might be advised against any person or persons whom it might con- concern, for further compensation for any loss sustained, or expenses they may have incurred, by reason of the sale of the ship under the authority of the court below, after service of the inhibition under seal of this court. It is clear that this court thought the judge of the Vice- Admiralty Court personally liable for such loss and damage, and accordingly a monition was applied for against the judge, to appear and show cause why he should not pay the costs and da- mage incurred. On that application this court required an affidavit of damages; this we supplied; and we then asked for a rule that Mr. Barron Field might show cause why he should not be attached for contumacy and contempt, for decreeing the sale. This court granted that application ; and we come here now to answer the act on petition delivered in by the judge, and to pray that the rule may be made absolute. The effect of the service of an inhibi- [ * 282 ] tion on the judge is the same * as the service of a notice of the allowance of a writ of error. The judge's hands are, from that instant, tied ; he is, as far as the cause in question is con- cerned, functus officio. Chichester v. Donegal. 2 Inhibitions are bor- rowed from the canon law ; they were not known to the civil law, and arose out of the distinction introduced into the canon law, of allowing an appeal from a grievance ; no such appeal was known to the civil law. The inhibition is part of the appeal, and the breach of it is a grievance of which we complain. Corp. Jur. Civ. Dig. 29, tit. 7 ; Cod. B. VIII. t. 62,1. 3 ; Ayliffe's Parergon, p. 71, 73. If this is an attentat, the wrongfulness of the act is sufficiently pleaded in our reply to the articles exhibited. Lancellott de Attentatis, 359. In the Prize Acts, special provision is made for allowing a sale pending an appeal ; such exception proves the general rule. 1 1 Sid. 320. And see 2 Keble, 155. 2 1 Add. Rep. 5, 21. BEFORE THE PRIVY COUNCIL. 283 The Winwick. 4 Moore's P. C. Rep. The Right Hon. Dr. Lushington. Several questions of consi- derable difficulty and importance have been discussed in the course of the argument in this case, but their lordships are of opinion, for the reason which I am about to state, that it is wholly unnecessary for them to enter into the consideration of those questions, or to give any opinion upon them. The point upon which they intend to decide the case is as fol- lows : — This is an application, charging the judge of the Vice- Admiralty Court at Gibraltar with having committed a contempt, in directing a decree of sale to pass of the vessel Winwick, after he had been served with an inhibition issuing under the authority of this court. * Now we do not offer any opinion upon the validity of [ * 283 ] the inhibition ; but assuming, for the present, that the inhi- bition was fully justified in law, in pursuance of the act of parlia- ment, and the practice of the court, the question which arises is this, whether the judge of the Vice- Admiralty Court, in decreeing a sale, was wilfully guilty of any disobedience of the appellate authority. We are of opinion that it is not sufficient, for the purpose of visit- ing him with the penal consequences which it has been endeavored to attach upon him, that he may have committed an error of judg- ment. We think it must be proved to our satisfaction, not only that there was error, but that, in addition to there being error, it was wilful error, and proceeded from corrupt or improper motives. Now, having considered the whole of these proceedings, we have come to the conclusion that no such culpability attaches to this judge, because we think he may have acted according to the best of his judgment, under all the circumstances of the case. He had to form an opinion as to the true effect and operation of the inhibition ; that was evidently to him a difficult question to deal with. And it appearing to their lordships that there was no wilful culpability, we cannot visit him with the consequences which the owners seek to attach upon him by this application. The determination of their lordships, therefore, is to refuse the application, but without costs. 11 284 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. Rep. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF SIERRA LEONE. [*284] *The Guiana. James Logan and John Moore, Appellants, and Lieutenant Godol- phin James Burslem, the officers, and crew of her Majesty's ship Viper, and the Queen, Respondents. 1 November 28 and 29, 1842. The 5th Geo. IV. c. 113, s. 29, enacts, that no appeals shall be prosecuted from any sentence of any Court of Admiralty or Vice- Admiralty, (with the exception of the Cape of Good Hope and eastward thereof,) unless an inhibition be applied for and decreed within twelve months from the time of the decree or sentence being pronounced. By the 3d & 4th Will. IV. c. 41, the appellate jurisdiction given by the previous statute to the High Court of Admiralty was vested in the judicial committee of the privy council ; but which court, from its constitution, had no jurisdiction over the appeal until the petition of appeal was referred to them by the crown. The appellant presented, on the 16th of July, 1841, a petition ofappeal from a decree of condemnation pronounced on the 12th of August, 1840, by the Vice-Admiralty Court of Sierra Leone, against a vessel engaged in the slave-trade, contrary to the provisions of the 6th Geo. IV. c. 113. The appeal was not referred by her Majesty to the judicial com- mittee until the 11th of August, 1841, one day before the year expired, and notice of such reference was not given by the clerk in council until the 13th of the same month, one day after the twelve months had expired, when the appellant applied for and obtained an inhi- bition. On protest against the appeal, held, 1st, That the 5th Geo. IV. c. 113, was incorporated in the 3d & 4th Will. IV. c. 41 ; 2d. That the appellant having failed to procure, in compli- ance with the 29th section of the 5th Geo. IV. c. 113, an inhibition to issue within twelve months from the sentence, was barred his appeal ; the provisions of that; section being imperative, and leaving no discretion in the court to relax the operation of the act. This was originally a cause instituted in the Vice- Admiralty Court at Sierra Leone, on behalf of Lieutenant G.J. Burslem, the com- mander, and the officers and crew of her Majesty's schooner of war Viper, and our sovereign lady the Queen, against the said [ *285 ] brig *or vessel Guiana, seized by her Majesty's said ship of war on the 26th of March, 1840, together with her tackle, apparel, furniture, and the goods, wares, and merchandise laden on board her, for forfeiture and condemnation and penalties ; by reason of her being, at the time of such seizure, engaged in the slave-trade, contrary to the provisions of statute 5 Geo. IV. c. 113. 1 Present : Lord Campbell, Sir Herbert Jenner Fust, the Vice- Chancellor Knight .Bruce, and the Eight Honorable Dr. Lushington. BEFOEE THE PEIVY COUNCIL. 286 ( Thp Guiana. 4 Moore's P. C. Rep. Proceedings having been taken against the said vessel on the 12th of August, 1840, the acting judge and commissary, by his introductory decree, pronounced the said brig Guiana to have been, at the time of the seizure, thereof engaged in the slave-trade, contrary to the pro- visions of the above statute, and, as such, subject and liable to forfeit- ure and condemnation ; and condemned the said brig, her tackle, &c, as forfeited ; and pronounced that the shippers of the goods, wares, and merchandise laden on board the said brig, were liable to the penalty due by law, that is to. say, double the value of the said goods, wares, and merchandise, and that the said goods, wares, and mer-F chandise should be held in deposit until the said penalty was paid : and on the 19th day of the same month, the said acting judge decreed that the cargo should be sold, evidence having been given that the same was "deteriorating in value. In the month of October, 1840, information reached the owners of the vessel that she had been condemned ; but in consequence of de- lays in the transmission of the process, copies of the proceedings did not reach this country until the 20th of July, 1841. In the mean time, and on the 30th of June, 1841, an * appeal from the decree or sentence was interposed before a [ * 286 ] notary and witness by the appellants' proctor, on behalf of James Logan and John Moore, the owners of the said brig Guiana : as also on behalf of Manuel Francisco Topez, (a Brazilian subject,) the owner of the cargo. On the 16th of July, 1841, the appeal, together with the usual peti- tion to her Majesty in council, praying that the same might be refer- red to the judicial committee, was lodged in the registry of the High Court of Admiralty. This petition was laid before the Queen in council on the 11th of August, one day before the expiration of the year from the date of the sentence or decree of condemnation, and referred by her Majesty on the same day to the judicial committee. Notice of such reference was not, however, given to the appellants' proctor before the 13th, the day on which the registrar of the Court of Admiralty received intimation thereof. In the mean time, and on several occasions subsequent to the 16th of July, when the appeal and petition had been lodged, the appel- lants' proctor attended in the registry of the Court of Admiralty and Appeals, and requested the registrar to attend before some surrogate to the judicial committee of the privy council, in order that th'e usual inhibition might be decreed ; but the registrar declined to do so, on the ground that, until the appeal and petition had been answered, it was incompetent for any surrogate to decree an inhibition, or to do any act in furtherance of the appeal. 287 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. Rep. In consequence of this refusal on the part of the registrar, and no notice having been given of the reference by her Majesty in coun- cil until the 13th of August, the inhibition could not be decreed until more than twelve months had elapsed from the date of the decree. [*287 ] * By the 29th seetion of the 5th Geo. IV. c. 113, it is provided, " That no appeals shall be prosecuted from any decree or sentence of any Court of Admiralty or Vice-Admiralty, touching any of the matters provided for in this act, unless the inhi- bition shall be applied for and decreed within twelve months from the time when such decree or sentence was pronounced : except when such decree or sentence shall be passed in any Vice- Admiralty Court at the Cape of Good Hope, or to the eastward thereof, in which case eighteen months shall be allowed for the prosecution of the said appeal." By 3 & 4 Will. IV. c. 41, s. 2, " all appeals or applications in prize suits, and in all other suits or proceedings in the Court of Admiralty, or Vice- Admiralty Courts, or any other court in the plantations in America, and other his Majesty's dominions, or elsewhere abroad, which may now, by virtue of any law, statute, commission, or usage, be made to the High Court of Admiralty in England, or to the lords commissioner in prize cases, shall be made to his Majesty in council, and not to the said High Court of Admiralty in England, or to such commissioners as aforesaid ; and such appeals shall be made in the same manner and form, and within such time, wherein such appeal might, if this act had hot been passed, have been made to the said High Court of Admiralty or to the lords commissioners in prize cases respectively; and all laws or statutes now'in force with respect to any such appeals or applications shall apply to any appeals to be made in pursuance of this act to his Majesty in council. By section 20, it is enacted, " That all appeals to his Majesty in council shall be made within such times, respectively, within [ *288 ] * which the same may now be made, where such time shall be fixed by any law or usage ; and where no such law or usage shall exist, then within such time as shall be ordered by his Majesty in council; and that, subject to any right subsisting under any charter or constitution of any colony or plantation, it shall be lawful for his Majesty in council to alter any usage as to the time of making appeals, and to make any order respecting the time of appeal- ing to his Majesty in council." By the orders in council of the 9th of December, 1833, made under the general power of this act by his Majesty in council, for the more convenient conducting, of appeals and applications in prize suits, and BEFORE THE PRIVY COUNCIL. 289 The Guiana. 4 Moore's P. C. Eep. in all other suits or proceedings in the Court of Admiralty or Vice- Admiralty, it was ordered and directed, "That all such appeals, applications, suits, or complaints, in the nature of appeals as afore- said, shall be conducted in the same manner and form, and by the same persons and officers, as the same might have been conducted if such appeals, applications, suits, or complaints in the nature of ap- peals, had been made as heretofore to the said High Court of Admi- ralty, the said High ' Courf of Delegates, or to the said lords commis- sioners in prize cases, respectively." And it was further ordered and directed, " That it shall and may be lawful for any four or more of the members of the said judicial committee of his Majesty's privy council to appoint such of the advo- cates of the Arches Court of Canterbury, and of the said High Court of Admiralty, (as now are,, or hereafter shall be, duly and lawfully admitted surrogates of such court respectively,) tobe surrogates of the said judicial committee of his Majesty's privy council, *and that it shall and may be lawful for such surrogates, [*289 ] or any one or more of them who shall be so appointed as aforesaid, in all such appeals, applications, suits, or complaints in the nature of appeals as aforesaid, to administer such oaths or affirma- tions, and to do and perform alhsuch other acts, matters, and things, and to make all such orders for the forwarding the said appeals, applications, and acts, or complaints in the nature of appeals, in their usual stages, preparatory to the final hearing thereof by the said judi- cial committee, as shall be found necessary, or have heretofore been done and performed or made by the surrogate of the said Arches Cqurt of Canterbury, and of the said High Court of Admiralty, in cases of appeal, applications, suits, or complaints in the nature of appeal, made and presented to such court respectively, or by the sur- rogates of the said lords commissioners in prize cases in appeals, applications, suits, or complaints in the nature of appeal, made and presented before the said lords commissioners." And it was further ordered, " That upon any appeal, application, suit, or complaint in the nature of appeal, as aforesaid, being entered in the registry of the High Court of Admiralty and Appeals, a peti- tion by or on behalf of the appellants shall forthwith be presented to his Majesty in council, praying that the said petition and appeal may be referred to the judicial committee of the privy council, to hear the same, and to report their opinion thereupon to his Majesty in council, and upon such reference having been made, notice thereof shall be forthwith transferred to the registry aforesaid." 1 See these Orders, 2 Knapp's P. C. Cases, 20. 290 CASES ARGUED AND DETERMINED. The Guiana. 4 Moore's- P. C. Rep. [ * 290 ] * On the 3d of September, 1841, the usual inhibition, cita- tion, and monition, were decreed, to which the respondents appeared under protest on the 21st of April, 1842, and a proctor was assigned to bring in his act thereon. Accordingly, on the 27th of April, the act on protest was brought in by the respondents' proctor, setting forth the circumstances of the seizure and condemnation of the vessel for breach of the act 5 Geo. IV. c. 113, and the clause therein limiting the time of appeal, and submitting that, inasmuch as the sentence of condemnation was a sentence of a Court of Vice-Admiralty, neither at or eastward of the Cape of Good Hope, and the inhibition served was not decreed within twelve months of the sentence ; by the express words of the act, no appeal could be prosecuted therefrom. To this the proctor on behalf of the appellants replied, admitting the seizure as set forth in the act on protest of the respondents, and the circumstances and date of the sentence of condemnation, but sub- mitted that the inhibition was applied for twenty-six days within the period prescribed by the 29th section of the 5th of Geo. IV. c. 113, and alleged that he was prevented from obtaining a decree for the issue of the said inhibition within the time limited by the statute, by invincible necessity, and by the impossibility of being able to compel her Majesty to convene a meeting of her most honorable privy coun- cil, inasmuch as from the altered state of the law subsequent to the passing of the 5th Geo. IV. c. 113, it is now only after a reference emanating from her Majesty in council, to the judicial committee of the said privy council, that any inhibition could be decreed in any cause of appeal from any sentence of a Vice- Admiralty Court ;" [ *291 ] and he * alleged that at the time of the passing of the said statute, 5 Geo. IV. c. 113, the High Court of Admiralty was the appellate jurisdiction from all Vice- Admiralty Courts; and it was competent for any proctor exercent in the High Court of Admiralty, to attend on any day prior to the expiration of the twelve months from the date of the decree intended to be appealed from, before one of the advocates of the civil law, who are surrogates of the judge of the High Court of Admiralty, to pray the usual inhibition, which would then have been decreed and issued as of course ; but that when the appellate jurisdiction of the High Court of Admiralty became transferred by 2 & 3 Will. IV. c. 91, and 3 & 4 Will. IV. c. 41, to her Majesty in council, it became essential, in the first instance, to peti- tion her Majesty in council to refer the appeal-to the judicial commit- tee of the said privy council; and it hasbeen and is still maintained by the registrar of the High Court of Admiralty and of the Appeals, that until such petition and appeal are referred to the judicial com- BEFORE THE PRIVY COUNCIL. 292 The Guiana. 4 Moore's P. C. Rep. mittee as aforesaid, no advocate has power, as surrogate of the judi- cial committee, or otherwise, to decree an inhibition, or to do any act in any cause of appeal so referred as aforesaid ; and that it is recited in all such inhibitions, that the appeal and inhibition have been so referred; and after setting forth the particulars of his request- ing the registrar to attend with him before a surrogate, in order to obtain the prohibition, and his refusal, he alleged, "that he had Com- plied with the provisions of the said statute of 5 Geo. IV. c 113, to the utmost of his power, and had advanced cy-pres to an exact com- pliance with them, and that he was only prevented by imperious necessity, and a delay originating in the highest quarter, which he could not control, from * fulfilling them to their [*292] technical and literal extent; and he humbly submitted that even in the administration of the most unbending laws, no one is held to the fulfilment of an impossibility." Dr. Addams and Mr. Butt, for the respondents, 1 % relied, in support of the protest against the right of appeal, on the 29th section of the 5 Geo. IV. c. 113, and insisted that the inhibition not having been applied for and decreed within twelve months from the time when the decree or sentence of condemnation was pronounced, the appeal interposed could not be prosecuted, and must be dismissed with costs. , Mr. Burg.e, Q. C. and Dr. P/iillimore, for the appellants, contended that the application for the inhibition within the time limited by the statute, though the same was not decreed, was, under the circum- stances, and in consequence of the provisions of the statutes 2 & 3 Will. IV. c. 92, and 3 & 4 Will. IV. c. 41, a sufficient requisition with the terms of the 29th section of 5 Geo. IV. c. 113. They insisted, also, that neither the seizor or the crown could be heard upon the protest. They cited Day v. Savage, 2 The City of London v. Wood, 3 Dr. Bonham's Case, 4 Muter v. Chipchase. 5 *Lord Campbell. This cause originated in the Vice- [*293 ] Admiralty Court of Sierra Leone. It was a proceeding for i The respondents' counsel, being for the protest, claimed and were allowed to begin, according to the practice of the Court of Admiralty. Their lordships, however, re- marked that such allowance was not to be drawn into a precedent, as it was against the practice uniformly observed in this court. 2 Hob. 87. 3 12 Mod. 669-; Plow. Com. 176. 4 8 Coke Kep. 107. 5 1 Moore's P. C. Cases, 1. 294 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. ReJ). the condemnation of the ship Guiana, by reason of an alleged infrac- tion of the Slave-Trade Act. On the 12th of August, 1840, a decree was made by that court, pronouncing that there had been such infrac- tion, and decreeing that the ship, her tackle, apparel, and furniture were forfeited ; and that certain penalties were incurred by the own- ers of the cargo. Against that decree there has been an appeal, which is now before us, by the owners of the ship. Information of this de- cree or sentence was received by the owners of the. ship in the month of October, 1840, , and they took no judicial step until the 16th of July, 1841, when they lodged an appeal in the Admiralty Court, and a petition under the Privy Council Act, praying that it might be referred to the judicial committee. There was no answer received to that petition until the 13th of August, one day after the year expired, the answer being dated the 11th of August, the day before it expired. On the 3d of September, 1841, an inhibition was decreed and issued ; but between the 16th of July and the 11th of August there had been several applications made for the purpose of obtaining the inhibition. The question is, whether, under these circumstances, this appeal can be prosecuted. It is contended on the part of the seizors of the ship, that the appeal cannot be prosecuted. "We may at once dispose of one objec- tion that is made on the part of the appellants, namely, that the seiz- ors or the crown cannot be heard. Their lordships are clearly of opinion, that, according to the principle of decided cases, [ *294 ]*the seizors have a right to be heard, and to, make any ob- jection which the law affords them, to the appeal being prose- cuted. The question, then, is, whether the claimants of the ship have a right to prosecute this appeal ; and that depends upon the construc- tion of two acts of parliament, and of certain orders in council. The first act of parliament is the 5th of Geo. IV. c. 113, s. 29, which enacts, " that no appeal shall be prosecuted from any decree or sen- tence of any Court of Admiralty or Vice- Admiralty, touching any of the matters provided for in this act, unless the inhibition shall be ap- plied for and decreed within twelve months from the time when such decree or sentence was pronounced, except," &c. And so the law stood until the act was passed constituting this tribunal, the judicial com- mittee of the privy council. By the 2d section of the 3d & 4th William IV. c. 41, it is enacted [the learned judge here read the section. 1 ] So that the 5th of Geo. IV. c. 113, is to be considered as incorporated in the 3d & 4th Will. IV. 1 Ante, p. 287. BEFORE THE PRIVY COUNCIL. 295 The Guiana. 4 Moore's P. C. Eep. c. 41. Then, according to the power vested in the privy council, there are certain orders made to regulate the mode in which appeals shall be prosecuted, whereby, in such appeals as this, it is ordered that there shall be a petition lodged in the place where the Court of Admiralty is held, and a petition to the sovereign, praying that the case may be referred to the judicial committee. Now, upon these acts of parlia- ment, and orders, the question arises whether, there having been no inhibition decreed until the 3d of September, 1841, the appeal can be prosecuted. It is first said that this is a case in which we have a dis- cretion ; that on account of the great hardship * arising to [*295 ] the parties, if that construction is to be put upon the acts of parliament, there is a discretion vested in the judicial committee, to relax the operation of this act of parliament, the 5th Geo. IV. c. 113. In this particular instance, their lordships are clearly of opinion that they have no such discretion ; that they are imperatively bound, by the express words of the act ; that they can only construe them ; and that when they have arrived at what they consider a just construction of them, whatever the effect may be, that must take place. Indeed, it was probably with a view to take away that discretion from the court, and to obviate the numerous applications which formerly were made, that this enactment was introduced into the act, that in no case shall the appeal be prosecuted, " unless the inhibition shall be applied for and decreed within twelve months from the time when such decree or sentence was pronounced." That took away all dis- cretion ; and unless the conditions in every case to which that act applies have been performed, the court has no jurisdiction to hear the appeal. What, then, is the true construction to be put upon this act of par- liament, coupled with that which follows, the 3d & 4th of Will. IV. c. 41 ? Their lordships are of opinion, that unless the inhibition be both applied for and decreed within twelve months from the time when the decree and sentence was pronounced, the appeal cannot be prosecuted ; and their lordships are of opinion, that this is a case to which that enactment does apply, and that the inhibition must be considered as not obtained until after the expiration of twelve months. Indeed, that is broadly admitted on the part of the appel- lants, because that * which is stated by their proctor, in their [ *296 ] act on protest, is, "that he was prevented from obtaining the said inhibition within the time limited by the said statute, by invinci- ble necessity." He admits that he was prevented from obtaining it, and he says it was by invincible necessity ; but he admits that the inhibition was not decreed in this cause till the 3d of- September.. k. & m. 12 297 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. Rep. Then, if it is necessary that the inhibition should be decreed on or before the 12th of August, 1841, the appeal cannot be prosecuted. Was it, therefore, necessary that the inhibition should be procured on the 12th of August, 1841 ? Such is clearly the literal and gram- matical construction of the words, "unless the inhibition shall be applied for and decreed within twelve months from the time when such decree or sentence was pronounced." Their lordships would have been most happy if any construction could have been put upon this act of parliament, so as to allow this appeal to be prosecuted, but they have no power to dispense with the enactment of the legis- lature. As to what has been said of an act of parliament not binding if it is contrary to reason, that can receive no countenance from any court of justice whatever. A court of justice cannot set itself above the legislature. It must suppose, that what the legislature has enacted is reasonable ; and all, therefore, that we can do, is to try to find out what the legislature intended. If a literal translation or construction of the words would lead to an injustice and absurdity, another con- struction possibly might be put upon them, but still it is a question of construction, and there is no power of dispensation from the words used. [ * 297 ] There have been several suggestions thrown out, all * de- serving great consideration, as to how we could construe this section of the act of parliament, and still -admit the appeal. First, it has been suggested, that instead of "the inhibition shall be applied for and decreed within twelve months," it might be, "or decreed within twelve months;" but it seems to us, that that construction would be using an unwarrantable liberty with the language which the legislature has employed ; and that, in fact, it would be putting out of the act of parliament, entirely, these words, "and decreed within twelve months," because then the same construction would be put upon that enactment as if the Words only were, "if the inhibi- tion shall be applied for within twelve months ;" because they are not two separate, independent acts, one of which may take place without the other, — applying for and obtaining the inhibition, the inhibition cannot be obtained unless it is applied for; therefore, if you were to say, "or decreed within twelve months," it would be really striking out, which we have no authority to do, the words " and decreed," from the act of parliament. Then, it has been suggested whether you might riot use the words, "unless the inhibition shall be applied for and decreed," where it is possible. But the legislature has always supposed that it would be a possibility that this should be done ; and we think that in putting BEFORE THE PRIVY COUNCIL. 298 The Guiana. 4 Moore's P. C. Rep. such a construction on the enactment, we should be interpolating words without any authority whatsoever. It has been said, that you might refer the application of such a clause to the case where there has been a court called into existence, which might grant the inhibition ; and that the year should date, not from the decree, but from the time that the court has been * called into existence, which could grant the inhibition; [*298 ] but then the act of parliament is, "unless the inhibition shall be applied for and decreed within twelve months from the time when" such decree or sentence was pronounced." Now there is scarcely any case in which there could be a court capable of granting an inhibition immediately after the sentence had been pronounced, certainly there are many cases in which no such court could exist. With regard to what took place before the Judicial Committee Act passed, where there was an appeal from the High Court of Admiralty to the Court of Delegates, it must have been at least some days, or weeks r or months, before there could have been a petition presented to the crown for a commission of delegates, and the com- mission executed and accepted by those to whom it was addressed. Then, with reference to an appeal from the Vice- Admiralty Court abroad to the High Court of Admiralty in England, it must have been weeks and months, very often, before there could be an appeal brought from the Vice- Admiralty Court to this part of the world, lodged in the High Court of Admiralty in England, and then, an opportunity occurring, of applying for an inhibition, an inhibition being decreed. It seems to us, therefore, that there are no means, either of omitting words, or of adding words, that will authorize us in putting the construction upon the statute which is contended for. Their lordships regret that the appellants should be shut out from the opportunity of having their appeal heard ; but, however great that hardship may be, that cannot alter the law. It has been said, that hard cases make bad laws; and their lordships must guard against the inclinations that judges may feel, on the ground *that there may be a pressure of the law in any particu- [*299 ] lar case. The courts must look at general rules, and be governed by them. It gives us less regret, however, in this case, because there was, as it seems, very considerable laches on the part of the appellants. They heard of the condemnation in the month of October, and they took no judicial step until the month of July fol- lowing ; and between the 16th of July and the 12th of August, if they had made the usual applications to the officers who superintend these matters, we have no doubt at all that there would have been a refer- ence by the Queen in council to the judicial committee before the 300 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. Rep. year expired. It seems to us, therefore, that they themselves are to blame if there is any hardship. However that may be, their lordships are of opinion that the act of parliament has imposed a condition which has not been complied with, and that, therefore, the appeal cannot be prosecuted. It is not, however, a case for costs. 1 ON PROTEST AGAINST AN APPEAL FROM THE VICE-ADMIRALTY COURT AT SIERRA LEONE. [*300] *The Guiana. Manoel Francisco Lopez and others, Appellants; and Lieutenant Godolphin James Burslem, the Officers and Crew of Her Majesty's Ship Viper, and the Queen, Respondents? November 28, 29, 1843. The 5th Geo. IV. c. 113, (the Slave Abolition Act,) sec. 29, enacts that no appeals shall be . prosecuted from any sentence of any Court of Admiralty, or Vice- Admiralty, (except in any, Vice-Admiralty Court at the Cape of Good Hope, or to the eastward thereof,) unless an inhibition be applied for and decreed within twelve months from the time of the decree or sentence being pronounced. Held to apply to foreigners as well as British subjects. Protest against an appeal sustained. The appellants, (Brazilian subjects.) the owners of the cargo on board a vessel seized and condemned, under the 5th Geo. IV. c. 113, having failed to procure an inhibition to issue within twelve months from the date of the con- demnation. The British parliament have no power to legislate for foreigners out of the dominions and - beyond the jurisdiction of the crown; yet it can, by statute, fix the time within which appli- cation must be made for redress to the tribunalsof the empire. This being matter of pro- cedure, becomes the law of the forum, by which all mankind are bound. The facts of this case, so far as the owners of the vessel Guiana were concerned, are fully detailed in the preceding case. The pre- sent appeal differed in no respect from the former, except that it was the appeal of the owners of the cargo laden on board the [ * 301 ] vessel, * and seized and condemned therewith, who were Brazilian subjects. 3 1 See next ease. 2 Present : the Lord Langdale, Lord Campbell, the Vice- Chancellor Knight Bruce, and the Right Hon. Dr. Lushington. 8 In pursuance of the 6th & 7th Vict. chap. 38, s. 1, which enacted that appeals, BEFORE THE PRIVY COUNCIL. 302 The Guiana. " 4 Moore's P. C. Rep. The respondents, as in the preceding case, appeared under protest of the twenty-ninth section of 5 Geo. IV. c. 113, *the [ * 302 ] &c., might be heard by not less than three members of the Judicial Committee of the Privy Council, under a special order of her Majesty, the following order in council was made in this case : — - "VICTORIA K. " Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland, Queen, defender of the faith, &c. To our trusty and well-beloved James, Lord Wharn- cliffe, the lord president of our privy council, and to our trusty and well-beloved privy councillors, being members of the Judicial Committee of our Privy Council. Whereas, by an act passed in the present year of our reign, intituled ' An Act to make further Regulations for facilitating the hearing of Appeals and other Matters by the Judicial Committee of the Privy Council,' it was, amongst other things, enacted, ' That in any appeal, application for prolongation or confirmation of letters-patent, or other matter referred, or hereafter to be referred, by her Majesty in council to the Judicial Com- mittee of the Privy Council, it shall be lawful for her Majesty, by order in council, or special direction under her royal sign-manual, having regard to the nature of the said appeal or other matter, and in respect of the same, not requiring the presence of more than three members of the said committee, to order that the same be heard, and when so ordered it shall be lawful that the same shall be accordingly heard by not less than three of the members of the said Judicial Committee, subject to such other rules as are applicable, or, under this act, may be applicable, to the hearing and making report of appeals and other matters, by four or more of the members of the said Judicial Committee;' now know ye, that we, reposing great trust and confidence in your knowledge and integrity, have ordered, and do by these presents order, pursuant to the powers vested in us by the said recited act, that the matter of a certain appeal from a decree of the Vice- Admiralty Court at Sierra Leone, touching the seizure and condemnation of the ship Guiana and her cargo, be accordingly heard by not less than three of you, being members of Jhe Judicial Committee of our Privy Council, subjeGt to such rules as are applicable to the hearing and making report on appeals and other matters, by four or more of the members of the Judicial Committee of our Privy Council. " Given at our Court at Windsor, the 4th day of August, in the seventh year of our reign. " By her Majesty's command, "J. Graham." 5th August, 1843.* Upon the above order in council being read, Lord Brougham observed — That it was to be distinctly understood that the late act, 6th & 7th Vict. c. 38, which was now for the first time brought into operation, is only applicable to matters of inferior importance. There must be an order in each The order was, however, not acted on ; the cause, as above stated, being subse- quently heard by four members of the Judicial Committee. * Present : Lord Brougham, Lord Campbell, and the Eight Hon. Dr. Lushington. 12* 303 CASES ARGUED AND DETERMINED t The Guiana. 4 Moore's P. C. Rep. appellants not having procured an inhibition to issue within twelve months after the condemnation pronounced by the Admiralty Court at Sierra Leone. The question raised by the protest against the right to appeal, and argued, was, whether the appellants, the owners of the cargo on board The Guiana, being Brazilian subjects, and the vessel captured at sea, were amenable to the provisions of the statute 5 Geo. IV. c. 113. The appellants contended that they were amenable only to the treaties entered into between this country and the Brazils for the suppression of the slave-trade, and that, consequently, the Vice- Admiralty Court at Sierra Leone had no jurisdiction under the sta- tute, to have made any decree whatever in that cause, so far as con- cerned the cargo ; but that, if any breach of treaty had been com- mitted, it should have been referred to the British and Brazilian Mixed Commission Court at Sierra Leone, as the tribunal [ * 303 ] specially * appointed and provided for that purpose. The respondents submitted, that the suggested distinction be- tween the present appeal, being that of the cargo, and the case of the brig Guiana, decided against in the previous appeal, was not such a distinction as to warrant any difference of judgment in the two appeals. Mr. Thesiger, Q. C, and Br. Adams, in support of the protest ; and Mr. Burge, Q. C, and Dr. Phillimore, for the appeal, relied upon the following authorities : The Le Louis ; 1 The Hercules ; 2 The Fabius ; 3 The Carell and Magdalena ; * The Cazador. 5 Lord Campbell. This is an appeal by certain persons, alleged to .be Brazilian subjects, and owners of the cargo laden on board the British ship Guiana, against a sentence of the Vice- Admiralty Court at Sierra Leone, by which the ship was condemned as forfeited, for being engaged in the slave-trade, contrary to the provisions of the statute 5 Geo. IV. c. 113, and the shippers of the goods on board were found liable to the penalty of double the value thereof. An objection has been made that the bail cannot be received, on .the ground that the condition imposed by the twenty-ninth section i 2 Dodson, 210. a 2 Dodson, 353. 3 2 Rob. Adm. 245. 4 3 K b. ^dm. 58. 5 2 Moore's P. C. Cases, 15. BEFORE THE PEIVY COUNCIL. 304 Tho Guiana. 4 Moore's P. C. Rep. of that act, respecting the prosecution of appeals, has not been complied with ; and * the only question now to be [ * 304 ] decided is, whether the appeal can be received. I need not say that their lordships must lean strongly against any such objection, and that it would be particularly satisfactory to them that the appellants should be heard against the sentence in this case, as they are said to be foreigners. But we can only, to the best of our ability, put a construction on the statute by which our jurisdic- tion is regulated ; and if it appears to us that this statute forbids us to receive the appeal, we are bound, however reluctantly, to dis- miss it. The statute 5 Geo. IV. c. 113, was passed to consolidate the acts relating to the abolition of the slave-trade ; and the twenty-ninth section enacts, that " no appeals shall be prosecuted from any decree or sentence of any Court of Admiralty or Vice- Admiralty, touching any of the matters provided for in this act, unless the inhibition shall be applied for and decreed within twelve months from the time when such decree or sentence was pronounced, except where such decree or sentence shall be passed in any Vice- Admiralty Court at the Cape of Good Hope, or to the eastward thereof, in which case eighteen months shall be allowed for the prosecution of the said appeal." In this case the sentence was pronounced by the Vice- Admiralty Court at Sierra Leone, on the 17th of August, 1840, and the inhibi- tion was not decreed till the 3d of September, 1841. Their lordships have already decided that, for this reason, the owners of the ship were not entitled to prosecute their appeal. The counsel for the owners of the cargo have attempted to dis- tinguish their case from * that of the owners of the ship, on [ * 305 ] several grounds; but I regret to say that their lordships, after great deliberation, think that the cases are not distinguishable, and that the former decision (to which they adhere) must govern the present. In the first place, it is contended that the owners of the cargo are not bound by the enactment, because they are foreigners. The Bri- tish parliament certainly has no general power to legislate for foreign- ers, out of the dominions and beyond the jurisdiction of the British crown, but it cannot be doubted for a moment that a British statute may fix a time within which application must be made for redress to the tribunals of the empire. This is matter of procedure, and be- comes the law, of the forum. On matter of procedure, all mankind, whether aliens or liege: subjects, plaintiffs or defendants, appellants or respondents, are bound by the law of the forum. If a law were 306 CASES ARGUED AND DETERMINED The Guiana. 4 Moore's P. C. Eep. made upon this subject, working oppression and injustice to the sub- jects of a foreign state, that state might make representations and remonstrances against this law to our government ; but, while it remains in force, judges have no choice but to give it effect. Had it been shown to us ever so clearly, that in this case the condition required could not have been complied with, if it has clearly, abso- lutely, and universally been imposed, we should have no power to dispense with it. At the same time, it is a great consolation to us to consider, that the enactment in question leaves ample time for the effectual prosecution of such an appeal ; and that it may be well defended on the principles on which there are laws of prescription in all civilized countries, fixing the time within which suits shall be commenced, or appeals prosecuted. In the present case, [*306 ] nothing *has been said of the circumstances which led to the delay in decreeing the inhibition ; but in the former case it appeared that the delay mainly arose from the laches of the agents of the appellants, in not sooner taking the proper steps for obtain- ing it. The appellants, as' owners of the goods, must rely upon a part of the sentence, by which it is declared that the goods shall be held in deposit till the penalty, is paid. This, they contend, is contrary to the act of parliament, therefore not provided for in the act ; and, therefore, they say it entirely takes the case out of the operation of the twenty-ninth section. But the question at present is, not whe- ther the sentence is justified by the act, but whether it touches any of the matters provided for in the act. Now, the fourth section of the act provides, that a ship employed in the slave-trade shall be for- feited ; and the seventh section provides, that the shippers of goods to be employed in the slave-trade shall forfeit double the value. The sentence below finds that The Guiana, at the time of her seizure, was employed in the slave-trade, contrary to the provisions of the 5th Geo. IV. c. 113, and condemns her as forfeited ; and pronounces that the shippers of the goods on board are liable to the penalty of double the value of the said goods, as the penalty due by law ; and that the goods shall be held in deposit till the penalty is paid. Whether this sentence be or be not according to the act, are the appellants justified in saying that it is not a sentence touching any of the matters provided for in the act? The judge of the Vice- Admiralty Court may be mistaken in supposing that a lien could be claimed on the goods for the penalty ; but can it be successfully con- tended that the remedy for the penalty on the goods, in [ * 307 ] respect of * which the penalty was incurred, was not a mat- ter touching the penalty and the goods ? Are we to have BEFORE THE PRIVY COUNCIL. 308 The Guiana. 4 Moore's P. C. Rep. a previous argument, as to whether this part of the sentence ought to be reversed, before we decide whether the appisal can be heard ? The construction of the clause of limitation, contended for by the appellant, would render it perfectly nugatory ; for in every case it might be contended that the clause does not apply, if the sentence be erroneous ; and the sufficiency of the sentence would be argued and determined on the protest against receiving the appeal. If, indeed, the sentence contained a separate and distinct matter, not touching any of the provisions of the act, although it did contain other matter touching those provisions, we think the clause would not apply to the sentence, so far as the former matter is concerned, and that, pro tanto, the appeal might be received, although the con- dition about the decreeing pf the inhibition had not been complied with ; but we cannot consider that the holding of the goods in depo- sit, for the penalty, is any such separate and distinct matter, and we make no doubt that it touches the penalty which the act imposes. If this part of the sentence is utterly void, as contended for, the goods cannot be lawfully detained for the penalty ; and the question may, perhaps, be tried in an action of trover, or for money had and received. Their lordships think that it cannot be tried on this appeal, either alleged as a substantive- ground for reversing the sen- tence, or as a ground for receiving the appeal. We know by expe- rience, in this place, that the sentences of the Vice- Admiralty Courts are often very informal ; and it would be most perilous to captors and seizors if such informalities might be taken advantage * of, by appeal, at any distance of time. -It was, probably, [ * 308 ] to guard against this that the legislature has anxiously made the limitation, as to the time of appealing, to apply in lan- guage so comprehensive to all sentences touching any of the matters provided for by the act ; and we are of opinion that we should by no means be justified in putting a construction upon it which would entirely defeat its object. It was further argued, that the Vice-Admiralty Court at Sierra Leone had no jurisdiction in this case, and that we ought, therefore, to reverse the appeal ; and, indeed, it was said we ought at once to reverse the sentence, or to declare it null. I did not exactly under- stand how we were to come to the conclusion that the Vice- Admi- ralty Court had no jurisdiction over this British ship, for an infrac- tion of the British statute, or how the case could have been brought before the Mixed British and Brazilian Commission. But the appel- lants do not deny that there are supposable facts, which would give the Vice- Admiralty Court at Sierra Leone jurisdiction over the whole case ; and, till the appeal is received and heard, how can we know 309 CASES ARGUED AND DETERMINED The. Guiana. 4 Moore's P. C. Eep. that these facts did not actually exist, and were not the foundation of the sentence? »But suppose that a total want of jurisdiction were established, the clause of limitation is not applied to sentences of courts acting within their jurisdiction ; and this sentence, if it were pronounced by a court not having jurisdiction, would not the less be the sentence of a Vice- Admiralty Court, touching matters provided for by the Slave-Trade Abolition Act. A number of cases were cited to us, showing what that [ *309 ] great judge, Lord Stowell, had said and done, *when he had to review sentences of Vice- Admiralty Courts, bad for want of jurisdiction ; but all these cases were regularly before him, upon an appeal duly brought and prosecuted ; and in none of them did the question arise which we have to decide, whether the appeal ought to be admitted upon the construction of an act of parliament for limiting the time for appealing. I apprehend, therefore, that, in this stage of the proceedings, the argument arising from a sup- posed want of jurisdiction in the Superior Court must be quite una- vailing. In the pardonable excess of a very laudable zeal, a power was imputed to this court which the learned counsel for the appellants, on reflection, must be aware does not belong to us. It was said that, as a supreme tribunal, acting on the law of nations, we were to remedy all the grievances of foreigners, arising from the acts of colo- nial courts, which may in any shape be brought before us. But, in reality, we are now sitting merely as a Court of Appeal from a Vice- Admiralty Court, strictly bound by acts of parliament, as much as the lowest court of justice in the kingdom. We cannot reverse or alter a sentence till it is regularly before us on appeal ; and we can- not receive an appeal, if, as in the present case, a previous condition prescribed by the legislature has not been complied with. I, for one, should have been well pleased if an attempt which was made in the last session of parliament, to allow this appeal to be heard, by altering the law for these particular appellants, had suc- ceeded. A clause in a bill for this purpose passed one [*310 ] house of the legislature without opposition, but *was not approved by the other ; 1 on the ground, as I was informed, 1 After the decision in the appeal of Logan v. Burslem, (ante, p. 284,) a bill, inti- tuled " An Act to make further Regulations for facilitating and hearing Appeals and other Matters, by the Judicial Committee of the Privy Council," was brought in the House of Lords. By section eleven of this bill it was enacted, " That in all cases wherein a petition shall have been heretofore lodged, as aforesaid, but the usual inhibi- tion and citation shall not have been decreed within the aforesaid respective periods, BEFORE THE PRIVY COUNCIL. 314 The Friends. 4 Moore's P. C. Rep. that, on inquiry, it was found that, if the agents employed had done their duty, the inhibition might easily have been obtained in due time. But however that may be, the general law stands unaltered ; and, upon the just construction of that law, their lordships are of opinion that the appeal cannot be received. They will, therefore, humbly recommend to her Majesty in council that the appeal should ' be dismissed, as prayed by the respondents. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. *The Friends. [*314] The General Steam Navigation Company, Appellants, and William Meddling Tonkin, Respondent. 1 February 6, 1844. In cases of collision, the rule of the Trinity House, that "where steam- vessels, on different courses, must unavoidably cross so near, that by continuing their respective courses there would be a risk of coming in collision, each vessel shall put her helm to port, so as always to pass on the larboard side of each other," is applicable only when the vessels, by con- tinuing their respective courses, are likely to come into collision, and when, by putting their helms to port, the collision may be avoided : but the rule is not applicable when either the Judicial Committee and their surrogates shall have full power to proceed, and the said Judicial Committee shall report, and her Majesty shall adjudge on such report, in like manner and as if the said inhibition and citation had been decreed withm the aforesaid respective periods, notwithstanding any protest entered into or determined upon by the said Judicial Committee." When the bill was sent down to the House of Commons, a select committee was appointed bv that house, " to inquire into the facts attending the delay m extracting the inhibition in the case of the ship Guiana, and dismissal of the appeal, in the said case, by the Judicial Committee of the Privy Council." The select committee, after examining witnesses, reported to the house that there did not appear sufficient grounds to sustain the above section, (which had been imported into the bill to meet the exi- gency in the case of The Guiana.) The section was accordingly struck out of the bill* Present: Lord Brougham, Lord ^Campbell, Sir Herbert Jenner Fust, and the Right Honorable T. Pemberton Leigh. * See the 6th and 7th Vict. c. 38. 315 CASES AEGUED AND DETERMINED The Friends. 4 Moore's P. C. Eep. vessel, by unskilful management, is so near the shore, that by porting her helm there would be danger of collision : in such case, the vessel on her right course is justified, in spite of the rule, in putting her helm to starboard. This was an appeal from the sentence pronounced by the judge of the High Court of Admiralty, in a cause of damage brought by the appellants, as the owners of the steam-ship Menai, against the schooner Friends, and the respondent, as the sole owner of that ves- sel. The facts of the case, as pleaded in the act on petition, were in substance as follows : — That about 7 P. M. of the 27th of October, the steam-vessel was proceeding up Half-way Reach, and was just below the half-way house between Gravesend and London, being at the time on the Kentish side of the river, and distant therefrom [ *315 ] * about one third of the width of the river, the night being dark, and the ebb-tide running, with the wind blowing strong irom the west. That at such time the schooner Friends was observed coming down the river, just open on the starboard bow of the steamer, and distant therefrom about a quarter of a mile, which was as far as a vessel having no light hoisted could have been seen in the darkness of the night. That the steamer had a good look-out, and had lights hoisted, one very large, with two burners, at the mast-head, which could be seen at the distance of a mile, at least, and the other, which was a smaller light, under the ship's head. That upon perceiving the schooner, the helm of the steamer was immediately put to starboard, and the schooner still continuing to bear down upon the steamer, was still kept a-starboard, for the purpose of bringing the steamer as near the shore as possible, and thereby avoiding a collision. That, upon the schooner coming within hail, the pilot of the steamer hailed the crew of the schooner to put her helm up, but this direction was not complied with, and the engines of the steamer were thereupon stopped, and, in consequence of her helm being a-starboard, the steamer was so near the shore that she went aground. That the helm of the steamer was then ported, but that, in consequence of the steamer having taken the ground, it had no effect, and the schooner struck the steamer amidship, abaft the starboard paddle-box, causing the damage in question. The owners of the schooner pleaded, — That the wind was west and by south, and the night starlight, and that the schooner was at the time proceeding down the river, in ballast, for Erith. That she was under her foresail, topsail, top-gallant-sail, fore-topmast [ * 316 ] * stay-sail, and main-sail, and with all her hands on deck, keeping a good look-out ; her course was southward of the mid-channel, the tide having recently turned, and running down. BEFORE THE PRIVY COUNCIL. 317 The Friends. 4 Moore's P. C. Rep. That, when the lights of the steamer were first perceived, from her position, they showed that the steamer's head was inclined to the northward. That, as the steamer rounded the point above foalf-way house, she opened upon the schooner's larboard bow, the vessels be- ing then at the distance of about a quarter of a mile from each other. That the schooner's course was thereupon slightly altered, by steering her more towards the south shore ; and upon rounding the point, the steamer's course, which had before been on the northward, was sud- denly altered, by putting the helm a-starboard, upon which the helm of the schooner was put still more a-port, so that she approached within a very short distance of the south shore, her course having previously been between the south shore and the mid-channel. That the steamer was repeatedly hailed to port her helm, and some person on board the steamer called out to the schooner, in reply, to starboard her helm. That, in order to lighten the force of the collision, but when the respective vessels were too near to avoid a collision, the helm of the schooner was put a-starboard, and the peak halyards and the main sheet were let go, and immediately afterwards the steamer ran into the schooner, the funnel-chain of the former catching the bow- sprit of the latter, carrying away the schooner's cutwater and apron, and doing her considerable damage. The schooner, in porting her helm and steering towards the south shore, acted in compliance with the instructions of the elder brethren of the Trinity House, that when there is a risk of a collision, * vessels should pass [ *317 ] each other on the larboard side, and that the accident was solely and entirely occasioned by the fault and misconduct of the persons on board the steamer. Evidence was entered into on both sides : that on behalf of the General Steam Navigation Company consisted of the affidavit of the commander, the pilot, and engineer on board The Menai at the time of the collision, a surveyor, the Trinity pilot, and harbor-master of the port of London ; and on the part of the schooner, the affidavit of the mate, two watermen on board, the owner, and a passenger. The case was heard before the learned judge of "the Admiralty Court, assisted by two Trinity Masters, when the court pronounced against the claim, and on behalf of the steamer, and dismissed the owner of the s'chooner with costs. 1 From this decree the present appeal was brought. Mr. Thesiger, Q. C, and Dr. Addams, for the appellants. The i Keported, 1 Kob. 478. K. & M. 13 318 CASES ARGUED AND DETERMINED The Friends. 4 Moore's P. C. Rep. question depends upon the weight to be given to the rule of the Trinity House, — whether that is to govern the case, or what is pleaded and proved by the evidence to be the practice, of vessels running against tide. The rule is not inflexible, — it must bend to circumstances. Here the course pursued by the steamer was fully justified, and so a jury in an action at common law by their verdict found. The schooner might have avoided the collision. The rule of law respecting negligence is, that although there may have been negligence on the part of the plaintiff, yet, unless he might, by ' the exercise of ordinary care, have avoided the conse- [ * 318 ] quences * of the defendant's negligence, he is entitled to recover. Davis v. Mann. 1 Neither can an action be main- tained where the accident is the result of fault on both sides. But- terfield v. Forrester; 2 Bridge v. The Grand Junction Railway Com- pany. 3 Assuming, therefore, that the appellants were wrong, yet, upon the principle laid down by the above authorities, the court should not have decreed against them, as it is apparent, that the col- lision might have been avoided by the schooner if those in charge of her had used due caution. In cases of collision, a difference exists between common-law courts and the admiralty. In the former, if both parties are to blame there are no damages. In the latter, the loss is divided between the parties according to the negligence. The Queen's Advocate (Sir John Dodson) and Mr. Piatt, Q. C, for the respondent. If the custom, as pleaded by the appellant, be not invariable, there is no usage at all. But this very rule of the Trinity House now sought to be avoided, has been sustained, and effect given to it. The Duke of Sussex. 4 There the court held that the rule of navigation with regard to steam-vessels approaching each other at different courses, that each vessel should put her helm to port, so as always to pass on the larboard side of each other, was a rule of bind- ing authority, and condemned a steamer for damages occasioned by neglecting this rule. This case is conclusive. There was an obliga- tion on the steamer to have ported her helm, and have pre- [ *319 ] vented the collision. No exception *can prevail to the rules laid down by the Trinity House. They are imperative. The cases cited as to the rule of the road, do not, therefore apply. Courts of Admiralty are governed by the same rules of evidence as at common law. The only difference is the mode of awarding 'damages, which, in the present case, is immaterial. i 10 Mee. & Wei. 546. 2 11 East, 60. » 3 Mee. & Wei. 244. * 1 Kob. Adm. 274. BEFORE THE PRIVY COUNCIL. 320 The Friends. 4 Moore's P. C. Eep. February 8, 1844. Lord Campbell. This is an appeal from the sentence pronounced by the judge of the High Court of Admiralty, in a cause of damage brought by the appellants, as owners of the steam-ship Menai, against the schooner Friends, and the respondent, as the sole owner of that vessel. After act on petition, reply, and rejoinder, and the examination of various witnesses on both sides, the case came on to be heard, the judge of the Admiralty Court being assisted by two masters of the Trinity House. The learned judge having summed up the evidence, asked their opinion as to the conduct of the two vessels in point of seamanship when the collision happened ; and they stated their opinion to be, "that the steamer was to blame, and that the other vessel conducted herself properly acccording to the rules of navigation," and thereupon he.pronounced judgment against the claim on behalf of the steamer, and to dismiss the owner of the other vessel with his costs. The case turned chiefly upon a rule of the Trinity House, bearing date 30th of October, 1840, that, " when steam-vessels on different courses must unavoidably or unnecessarily cross so near, that, by con- tinuing their respective courses, there would be a risk of coming in collision, each vessel shall pat her helm to port, so as always to pass on the larboard side of each other. * A steam-vessel [ *S20 ] passing another in a narrow channel must always leave the vessel she is passing on the larboard hand." In the evening of the 27th of October, 1842, after it was dark, The Menai steamer, on a voyage from Ostend to London, was coming up the River Thames against wind and tide, and the schooner Friends was coming down the river with the wind and tide in her favor. They approached each other near the point which separates Barking Reach from Half-way Reach. The schooner put her helm to port, but the steamer put her helm to starboard. The consequence was, that a collision took place between them. The appellants insist that, circumstanced as the two vessels were when they came in sight of each other, the rule was not applicable, and that observing it would have increased the danger. They argue, therefore, that it was not binding on this occasion ; and their lord- ships would be of this opinion, if they thought the fair result of the evidence to be that which is contended for by the appellants. If the schooner was hugging the Kentish shore, leaving the steamer on the starboard bow, they might have passed each other without changing their course ; and if the steamer was in that position, and the schooner by unskilful management was so near the Kentish shore, that if each vessel had put her helm to port, there would have been great danger 321 CASES ARGUED AND DETERMINED The Friends. 4 Moore's P. C. Rep. of collisiori, in spite of the rule, the steamer would have been justified in putting her helm to starboard, and the schooner would be liable for the damage that ensued, although at last she observed the rule ; for the rule can only be applicable where the vessels, by continuing their repective courses, are likely to come into collision, and [ *321 ] where, *by putting their helm to port, the collision may pro- bably be avoided. But there is strong evidence to show, that when the two vessels came in sight of each other, the steamer was nearer the north side of the river ; that if she had not starboarded her helm, the two vessels would have passed each other on the larboard side, and, at any rate, that if they were to change their course from the risk of collision, there was nothing to have prevented the steamer from putting her helm to port, so as certainly to have kept them clear of each other. The learned counsel for the appellants admitted at the bar, that if the evidence for the respondent was to be believed, the negligence was to be imputed to the steamer, and not to the schooner. That evidence was submitted to the elder brethren of the Trinity House, and their lordships are not prepared to say that the conclusions which they draw from it is erroneous. Always entertaining great respect for such an opinion, we should by no means consider ourselves bound by it, though approved of by the judge of the Admiralty Court, if we thought it erroneous ; but in this case, looking to the situation of the witnesses, and the statements they make, we should have arrived at the same conclusion. It is not alleged that any erroneous principle of law has been laid down ; and the case depends upon the credit to be given to the witnesses. It was suggested at the bar, and not denied, that an action had been brought in the Court of Exchequer by the owner of the schooner, against the owners of the steamer, in respect of this very collision, when there was a verdict for the defendants. Without at all ques- tioning the propriety of that verdict, according to the evi- [ * 322 ] dence laid before the jury, their lordships * can only consider whether this decision is not authorized by the evidence in the Court of Admiralty. It is not stated that, on the trial of that case, any direction in point of law was given, inconsistent with the judgment now appealed against. I apprehend that the principles on which such cases are determined, in the courts of common law and in the Court of Admiralty, are precisely the same, and I entirely con- cur in the cases that have been cited on the part of the appellants, Butterfield v. Forrester, Bridge v. The Grand Junction Railway Com- pany, and Davis v. Mann. The Court of Admiralty has the great advantage, where both parties have been to blame, of being able to BEFORE THE PRIVY COUNCIL. 369 The Augusta. 4 Moore's P. C. Rep. apportion the loss, according to their respective degrees of culpability ; but in a case like the present, upon the same facts,, ought to pro- nounce exactly the same judgment as a court of common law. Their lordships will, therefore, recommend to her Majesty, that the judgment appealed against should be affirmed, with costs. ON APPEAL FROM THE VICE- ADMIRALTY COURT AT SIERRA LEONE. *The Augusta. [*369] Thomas Jennings, Appellant, and Henry Worsley Hill, Respondent? February 20, 1844. A party attached for non-payment 1 of costs decreed against him in an appeal under the Slave- Trade Act, in which the crown and the captors were the respondents ; upon supersedeas by the crown, ordered to be discharged out of custody : notwithstanding the captors' objec- tion to the crown receiving costs out of the proceeds of the sale of the vessel condemned. By the 44th section of the 5th Geo. IV. c. 113, the captors of a vessel employed contrary to the provisions of the act, are only entitled to a moiety of the proceeds of the sale thereof, after deducting the costs of prosecution. This was a motion to relax and supersede an attachment issued against Thomas Jennings, the appellant, for not obeying a monition for payment of costs decreed on appeal under the following circum- stances : The appeal was from a sentence of the Vice- Admiralty Court at Sierra Leone, condemning the vessel, (The Augusta,) her tackle, &c, upon a charge of aiding and abetting the slave-trade, contrary to the 5th Geo. IV. c. 113. The app'eal was heard before their lordships 2 on the 5th of April, 1843, when the sentence of the court below was affirmed, and the appellant, Jennings, condemned in costs of the appeal. 3 i Present : Lord Campbell, Sir Herbert Jenner Fust, the Eight Honorable Dr. Lush- ington, and the Eight Honorable T. Pemberton Leigh. 2 Present : The Lord President, (Lord Wharncliffe,) Lord Brougham, Lord Camp- bell, and the Eight Honorable Dr. Lushington. 3 The judgment rested entirely on the facts and evidence in the cause, and contained no new principle of law as applicable to such cases. 13* 370 CASES AKGUED AND DETERMINED The Augusta. 4 Moore's P. C. Rep. [ * 370 ] * On .the 7th of July, 1843, a monition issued against Jen- nings for payment of these costs. The monition was served personally, and, on the 7th of December, having been returned, and the appellant certified m contempt for not having obeyed it, an attach- ment was issued against him. Under this attachment, Jennings was taken into custody and lodged in the Queen's Bench Prison. On the 18th of January, 1844, the costs of the crown were directed to be paid out of the proceeds remaining in the registry ; and on the same day one moiety of the net proceeds, after deducting the costs of the crown, was directed to be paid to the respondent, the captor,-pursuant to the 44th section of the 5th Geo. IV. c. 113. On the 8th of February, Nicholl, her Majesty's procurator-general, in pursuance of the directions of the lords commissioners of her Ma- jesty's treasury, alleged before the surrogate, that he would proceed no further under the attachment decreed against the said Jennings, and consented to the same being superseded. The proctor for the respondents, the captors, refused tb attend the surrogate, whereupon the matter was referred to the judicial committee. Dr. Addams now moved to discharge Captain Jennings from the attachment. The Queen's Advocate, (Sir John Dodson,) for the crown, offered no opposition ; but Dr. H. J. Nicholl, for the respondent and others, the cap^ [ *371 ] tors, opposed the motion, contending that by the 44th * sec- tion 1 of the 5th Geo. IV. c. 113, one moiety of the proceeds i This section is in the following terms : " And be it further enacted, That the pro- ceeds of all ships and goods seized, prosecuted, and condemned, for any offence against this act, except in such seizures as shall be made at sea by the commanders or officers of her Majesty's ships or vessels of war, shall be divided, paid, and applied as follows : that is to say, after deducting the charges of prosecution from the gross amount thereof,' one third of the net proceeds shall be paid into the hands of such person as his Ma- jesty, his heirs and successors, may please to appoint, for the use of his Majesty, his heirs and successors ; one third part thereof to the governor or commander-in-chief of the island, colony, plantation, settlement, or territory, where the said seizure shall have been made or prosecuted ; and the other third part thereof to the person or persons ^who shall lawfully seize, inform, and prosecute the same to condemnation. And in case of seizures made at sea by the commanders or officers of his Majesty's ships or -vessels of war, one moiety of the said net proceeds, after deducting the charges of pro- secution as aforesaid, shall be paid into the hands of such person as his Majesty, his -heirs and successors, may please to appoint, for the use of his Majesty, hisheirs and successors ; and the other moiety to the commanders or officers of his Majesty's ships ' BEFORE THE PRIVY COUNCIL. 372 The Augusta. 4 Moore's P. C. Rep. of the condemned vessel vested in the captors at the time of the seiz- ure, and that if the crown was entitled to deduct the costs out of the proceeds, it would defeat the object of the act. The sum might, per- haps, be paid by the crown, upon a petition of right. Lord Campbell. In this case their lordships are of opinion that the warrant of arrest should be superseded, and that Captain * Jennings is entitled to be discharged. Captain Jennings [*372 ] has been arrested for costs decreed to the crown on an ap- peal in this matter in which the crown is prosecutor. Their lordships are of opinion, that the crown has a right to supersede the process which issued at its own instance. Their lordships are of opinion, that the crown must be supposed to have done what is necessary to satisfy itself that the process should be superseded. We find it thus stated in the proceedings in the cause: "Nicholl, her Majesty's procurator- general, in pursuance of the directions of the lords commissioners of her Majesty's treasury, alleged that he should proceed no further under the attachment decreed against the said Thomas Jennings, and consented to the same being superseded." Therefore, on this minute, it is clear that the crown has consented, to the warrant being super- seded ; are we to interfere, and say there is no power in the crown to grant a supersedea's ? We apprehend that there is no discretion vested in us to advise the crown either to supersede the warrant, or to allow it to remain in full force ; that is a matter between Captain Jennings and the crown. Even if the crown had acted improperly towards the captors, the parties before us are only Captain Jennings and the crown, and we cannot interpose to prevent Captain Jennings having the benefit the^crown intends him to have. It has been said in argument, that Lieutenant Hill and the captors have a vested inte- rest in the proceeds ; and so they have, but it is in the net proceeds, after deducting the charges of the prosecution: and it is not until those charges have been deducted, that the net proceeds are ascer- tained. Their lordships must not be understood to say ,_ that there * is no remedy against the crown.. Dr. Nicholl referred to a [ * 373 J proceeding by a petition of right on behalf of the captors ; or vessels of war who shall have, made the seizure and prosecuted the same to con- demnation, subject, nevertheless, to such distribution in the seizures made by the com- manders or officers of his Majesty's ships or vessels of war, whether at sea or otherwise, as his Majesty, his heirs and successors, shall think fit to order and direct by any order or orders in council, or by any proclamation or proclamations to be made for that pur- 373 CASES ARGUED AND DETERMINED, &c. The Augusta. 4 Moore's P. C. Eep. but their lordships, looking to this section of the act of parliament, and finding the words are, " after deducting the charges of prosecu- tion," that the net proceeds are to be the net proceeds after deduct- ing the charges of prosecution, — finding this enactment, their lord- ships apprehend that Lieutenant Hill has no cause of complaint, — that the crown has a discretion to do what is proper. It is the crown who issued the monition, and had Captain Jennings arrested, and if the crown thinks proper to consent to Captain Jennings being dis- charged, we conceive that it is not exceeding the just power belong- ing to the crown. Therefore, Captain Jennings ought to be discharged. "We think the captors have no reason to complain, if they have one half of the net proceeds after these charges are paid. CASES SELECTED FROM VOLUME VI. OF MOORE'S PRIVY COUNCIL REPORTS. [THE CASES SELECTED ARE THOSE IN ADMIRALTY.! 1846-49. CASES HEARD AND DETERMINED BY THE x JUDICIAL COMMITTEE AND THE LORDS OF THE PRIYY COUNCIL. ON APPEAL FEOM THE HIGH COURT OF ADMI- RALTY. * The Saracen. [ * 56 ] Ami Bernard and others, Appellants; Samuel Hyne and Francis Casey, Respondents. 1 February 15 and 16, 1847. Although in the decision of cases properly within the jurisdiction of the Court of Admiralty, equitable considerations ought to have weight, yet that court has not jurisdiction to do all that a Court of Equity might do, in suits instituted by persons suing either for them- selves, or on behalf of themselves and others, for administration of assets or distribution of a common fund. Where, therefore, the owners of a vessel and part of the cargo, lost in a collision, brought an action in the Admiralty Court against the damaging vessel, and obtained a decree for the condemnation of the ship, referring the amount of damages to the registrar and mer- chants, who were to report them ; and, on the same day that the decree was pronounced, the owners of the remaining portion of the cargo brought an action against the damaging vessel, and applied to the court to be let in to participate ratably in the proceeds of the condemned ship remaining in the registry; it was held — First. That the Admiralty Court, in such circumstances, had no jurisdiction to decree a ratable distribution, and thereby take away the priority of the prior patens ; and, Secondly. That the decree for damage and reference to the registrar and merchants was a definitive sentence. The statute 53 Geo. III. c. 159, was passed for the protection of owners of ships, and applies only to bills in equity, and suits or proceedings instituted by or on behalf of owners, and does not give equitable jurisdiction to the Court of Admiralty in a case where a proceed- ing is not taken under the statute by the owners of the ship,. 1 Present: Lord Brougham, Lord Langdale, Lord Campbell, Eight Hon. Sir H. Jenner Fust, and the Eight Hon. T. Pemberton Leigh. 57 CASES ARGUED AND DETERMINED The Saracen. 6 Moore's P. C. Eep. Semble. That the fifteenth section of statute 53 Geo. III. c. 159, may be applicable to suits for damage in the Admiralty Court, if accompanied by a proceeding on the part of the owners, for their own protection, and may lead to a distribution pro rata of the proceeds of the ship among the claimants. This was originally a cause of damage, civil and mari- [ * 57 ] time, in the High Court of Admiralty of England, * pro- moted by Samuel Hyne, the owner of the late vessel Dili- gent, and Francis Casey, owner of part of the cargo laden on board the same, against the ship Saracen, her tackle, apparel, and furniture, and the freight due for the transportation of the cargo laden therein ; against Messrs. Dimmock, Albra & Bartlett, all of Boston, in the United States of America, the owners thereof, intervening in the cause. The cause arose from a collision at sea, between The Sara- cen and Diligent, occurring in the night of the 11th of February, 1845, in consequence of which The Diligent, with the whole of her cargo on board, was entirely lost. ' • On the 25th of February, 1845, an action was entered and a war- rant issued to arrest the ship Saracen, her tackle, apparel, and furni- ture, and the freight due for the transportation of the cargo then or then lately laden on board the same, and cited all persons having any right or interest therein to appear on the default day after Hilary Term, the 19th of March then next ensuing, to answer to Samuel Hyne, the owner of The Diligent, and also to Francis Casey, owner of part of the cargo lately laden on board the same, in a cause of damage, civil and maritime. An appearance to the action was entered for the owners of The Saracen, and the warrant to arrest the ship having been duly exe- cuted, but no bail being given, the vessel continued under arrest. On the 12th of March another action was entered against The Sa- racen, on behalf of two of the appellants, owners of part of the cargo then lately laden on board The Diligent, in a cause of damages, &c, the action being for 1,500Z. No further proceedings were had in this action. The act on petition in the original suit brought by the [ * 58 ] * respondents, and the answer thereto, having been brought in, and the usual proceedings had on both sides, the judge of the Admiralty Court, on the 6th of May, 1845, assisted by two Trinity Masters, by an interlocutory decree pronounced for the da- mage proceeded for in the original cause, and condemned the ship Saracen and freight therein, and in costs ; and referred the damage, together with all accounts and vouchers brought in, or thereafter to be brought in, relative thereto, to the registrar and merchants, to report the amount thereof; and also condemned the owners thereof BEFORE THE PRIVY COUNCIL. 59 The Saracen. 6 Moore's P. C. Rep. in costs, and decreed a commission of appraisement and sale of the ship, her tackle, apparel, and furniture. 1 On the same day that the interlocutory decree was pronounced, a fresh action was entered, and a warrant issued to arrest the ship Saracen, on behalf of the appellants, the damages being laid at 2,5002. No appearance was entered on behalf of the owners (the respondents) of The Diligent to this action. On the 24th of June, the commission of sale, with the amount thereof, was duly returned, and the sum of 1,037Z. 15s. Qd., as the net proceeds of the sale, brought into the registry of the court. On the 4th of November, the respondents' proctor prayed the judge to decree the proceeds of sale of the ship, remaining in the registry of the court, to be paid out to the respondents. But an appearance being made by the appellant's proctor, for the owners of part of the cargo laden on board the schooner Diligent, it was prayed that they might be heard on this, in objection to the prayer of the respondents. The judge assigned their proctor to bring in their act on petition at next court. * On the 14th of November, an act on petition was [ * 59-. ] brought in on behalf of the appellants, which, after stating the original action, and the proceeding thereon against the ship Sara- cen, and also the action brought by the appellants, proceeded to allege that the appellants' proctor distinctly ascertained from the respondents' proctor that no appearance would be given on behalf of the owners of The Saracen, to any action entered by, him on behalf of any owners of the lost cargo, and that no bail would be given for the ship Saracen, then already under arrest at the suit of the re- spondents ; that it was then considered by him, and admitted, that the interest of both parties was identical and equal, and that, under that impression, he retained, on behalf of his parties, the counsel who was already acting for the other side ; that it was then well known to all parties that the value of the ship Saracen was not nearly sufficient to cover the amount of damage sustained by either of the said parties separately ; that, in consideration of what was thus alleged, and for the purpose of saving expense, and thereby of serving the interest of all the parties damnified by the aforesaid colli- sion, he, with the knowledge and consent of the other party and his counsel, postponed arresting the ship Saracen, and taking the other necessary steps towards getting a decree of the court, pronouncing for the damage sustained by his parties, until the 6th day of May last, when a fresh action was entered by him on behalf of the appel- lants, and, by virtue of a warrant from the court, the ship Saracen was arrested, and kept under arrest until she was sold, as aforesaid ; k. & m. 14 60 CASES ARGUED AND DETERMINED The Saracen. 6 Moore's P. C. Rep. and no appearance having been given to such action, the [ * 60 ] usual * defaults have been duly granted. He further alleged that, having been instructed to take the necessary steps to establish the claims of certain other parties, owners of portions of the cargo, against The Saracen, or the proceeds of the sale thereof, he, some time in the month of June last, with the view of still fur- ' ther saving expense, and also of saving the great delay which would otherwise necessarily occur in getting the proceeds of the sale paid out of the registry, proposed that an arrangement should be made out of court, whereby the proceeds might be paid out, for the pur- pose of being placed in the hands of some third party, and divided amongst all the owners of the schooner and her cargo, in proportion to the damage sustained by each of them respectively ; that such proposal was agreed to, and was in the progress of being carried into effect, by obtaining the necessary signatures to an agreement drawn up with that view, when the claim now advanced, on behalf of the respondents, for priority of payment out of the proceeds, was first made. And he lastly alleged, that neither he nor his parties, nor either of them, had, at any time, relinquished their claim for compensation, or their right of establishing the same against The Saracen ; that they had not, nor had either of them, received any compensation whatever for the loss sustained by them, and that grievous injury and injustice would be sustained by them, unless they should' be allowed to participate ratably with the other parties in the proceeds ; that, by reason of his conduct in the premises, the fund now in court had been saved from great and unnecessary dimi- nution. He therefore submitted that, by reason of the pre- [ * 61 ] mises, his * claim for participation on behalf of his several parties had been well and duly made, and he was entitled to a decree of participation in the proceeds 'remaining in the registry of the court, and to the costs of that petition. And he prayed the judge to reject the prayer for payment of the proceeds to the respond- ents, and to pronounce that his parties, the owners of parts of the cargo on board The Diligent, when so sunk, were entitled to partici- pate ratably with the respondents in the proceeds of the ship, on proof being made by them of their ownership, as alleged, and other neces- sary proceedings being first duly had and taken, and to condemn them in the costs of that petition. In reply, the respondents' proctor alleged that, in virtue of the action entered by him on the 25th of February last, against the ship Saracen, and the freight due for the transportation of the cargo on board the same, (and which action was entered in the sum of 4,000J.,) the usual warrant of arrest issued under seal of this court, and, on BEFORE THE PRIVY COUNCIL. 62 The Saracen. 6 Moore's P. C. Hep. the 26th of the same month, was duly executed on board the ship, at Liverpool ; at which time her cargo had been discharged, the freight had been paid to the master, and the ship was in the act of taking in ballast, and would, but for the arrest, have cleared outward, and sailed on her voyage home to America. J9id he further alleged, that no action was entered against the ship, on behalf of the appellants, until the 12th day of March following, (and was then entered by him on behalf of two only of the present parties, and in the sum of 1,6001. only,) and was entered only, and not in any manner prose- cuted or proceeded in. And he further alleged, that the v proctor * of the owners of the ship Saracen, (and who duly [ * 62 ] appeared to the action by him entered, as aforesaid,) de- clined to give the usual bail for the release of the ship, but prayed an act on petition, which he was assigned to bring in, and afterwards brought in, and which was replied to by the proctor of the owners of the ship, and concluded, when Samuel Hyne, the owner of The Dili- gent, and Francis Casey, the owner of part of the cargo on board the same, his parties, having, at considerable trouble and expense, procured the evidence of the master and crew of the schooner in. sup- port thereof, the cause came on to be heard on the third session of Easter Term last, to wit, on the 6th day of May, when the right honorable the judge was pleased to pronounce for his prayer, and to condemn the ship Saracen and the freight in the damage proceeded for, with costs, and to decree the, usual commission for the appraise- ment and sale of the ship. And he further alleged that, on the same day, but not until after the court had pronounced and decreed as afore- said, the proctor for the appellants entered the present action against the ship Saracen, in the sum of 2,500Z., on behalf of his parties, the owners of parts of the cargo laden on board the. schooner Diligent, and which action, he admitted, had been prosecuted in the usual manner; but he expressly denied that the non-prosecution in the usual manner of the action first entered by such proctor, as aforesaid, was at the instance, or in any sort with the privity of him, the respondent's proctor. And he also expressly denies that he ever, at any time, recognized the claims of the proctor of the owners' parties, or either of them, to participate ratably with his parties in * the proceeds of sale of the ship Saracen, or that any pro- [ * 63 ] posals for the division of the proceeds amongst all the own- ers of The Diligent, and her cargo, in proportion to the damage sus- tained by them respectively, were ever made to him at any time prior to the month of June last, or that his parties ever entertained any such, or subscribed their names to any agreement to that purport or effect, or that he, or his parties, had done any act whatever whereby 64 CASES AEGUED AND DETERMINED The Saracen. 6 Moore's P. C. Rep. the prior claim of his parties to bef reimbursed out of the proceeds, (so far as the same would extend,) under and arising out of the cir- cumstances aforesaid, had been lost or forfeited. And he further alleged that the schooner Diligent, with her tackle, apparel, furniture, and stores, at the time she* was run down and sunk by the ship Sara- cen, was of the' value of 1,100/. and upwards; and that the goods and cargo shipped on board the schooner by his party, Francis Casey, and which were on board at the period aforesaid, were of the value of 2,250/., or thereabouts ; and he prayed the judge that he would be pleased to direct the proceeds of the sale of the ship Saracen, re- maining in the registry of the court, amounting to 1,037/. 15s. 6d., to be paid out to him, in behalf of his parties, the claims of his parties, together with all accounts and vouchers relative to the same, being first referred to the registrar and merchants, to report thereon, as usual ; and that he would be pleased to condemn the appellants in the costs and expenses of the petition. On the 25th of March, 1846, the judge, of the High Court of Admiralty, by his interlocutory decree, rejected the act on petition on behalf of the appellants, praying that they might be [ * 64 ] pronounced to be * entitled to participate ratably with the respondents in the proceeds of the vessel, The Saracen. From which sentence 1 this appeal was brought. Mr. Roupell, Q. C, and Dr. Harding; for the appellants. This appeal raises two questions : First, whether the interlocutory decree of the 6th of May, 1845, pronouncing for damage and condemning the ship, and referring it to the registrar and merchants to report the amount of such damages, was a definitive and final decree, so as to prevent the respondents, the other part owners ,of the cargo, from coming in and claiming a ratable distribution in the proceeds of the vessel in court ; and, secondly, whether the fifteenth section of the 53 Geo. III. c. 159, 2 does not give an equitable jurisdiction to the i See the case reported, nom. The Saracen, 2 W. Rob. Adm. R. 451. 2 An Act to limit the Responsibility of Ship Owners in certain Cases. Section, xy. enacts : — " That if any suit for any such loss or damage, as aforesaid, shall be insti- tuted or depending in any court competent to act as a Court of Equity, for the pur- poses of this act, such court shall, and is hereby authorized and empowered to proceed in such suit for such purposes, in the same manner, and under the same regulations, and with the same powers, as are herein given to Courts of Equity, so far as the same are applicable to the nature of such court, and the forms of proceeding therein, and such court shall use all such means as a Court of Equity is by this act empowered to use for the purposes of this act." BEFORE THE PEIVY COUNCIL. 65 The Saracen. 6 Moore's P. C. Rep. Court of Admiralty, on the application of the owners, to decree a distribution of the proceeds of the condemned ship, notwithstanding the other part owners may have previously obtained a decree for damages. I. The interlocutory decree of the 6th of May was * not [ * 65 ] a definitive decree ; it was simply a reference to the regis- trar and merchants, to ascertain the damage, and a report must be made by them before the court would order the money to be paid out of the registry. It was not, therefore, such a judgment as either in the Court of Admiralty, or any other court, could be considered as a final and definitive decree. The warrant for the arrest of the ship amounts to nothing more than an injunction to detain the ship ; and, by the practice of the Admiralty Court, the possession of the ship is then given to the party proceeding, when security to abide the,, result of the action is required by the court. The court never gives out the proceeds without taking security. There is, therefore, nothing in this proceeding which can bar the claim which the appel- lants make, unless the interlocutory decree of the 6th of May, 1845, can have that effect. The practice of the Admiralty Court, upon the reference to the registrar and merchants, is, where there is no opposition, that the registrar certifies the amount of sale, and, upon his certificate, the amount is paid. The form of a bail bond, 1 com- i The following is the form of a bond, to answer latent demands in a suit for wages : — " The proctor produced as sureties '. . . . who, submitting them- selves to the jurisdiction of her Majesty's High Court of Admiralty of England, bound themselves, their heirs, executors, and administrators, for ... a seaman on board the ship, in the sum of of 1 lawful money of Great Britain, unto our sovereign lady the queen, to restore the sum of £ . . . of like money, pronounced to be due to the said ... for his services on board the said ship ... by decree of the said court, bearing date and now about to be paid out of the proceeds arising from the sale of the said ship or vessel remaining in the registry of the said court, to the said ... in case any person shall come in for his interest in the said sum of £ or any part thereof, and shall repay the contumacy fees, as taxed in this cause, and shall put in sufficient security to answer the action commenced in this behalf, and for his personal appearance in judgment, at such times as the same shall be required, and to pay what shall be adjudged, with expenses ; and they further bound themselves, their heirs, executors, and administrators, to bring into the registry of the said court the said sum of £ . . . whensoever the court shall so order, and to save harmless the judge, registrar, and marshal, and all other officers of the said court, as to the payment of the said sum of £ . • • or any part thereof; and unless they shall so do, they do hereby severally consent that execution shall issue forth against them, their heirs', executors', and administrators' goods and chattels, 14* 66 CASES ARGUED AND DETERMINED The Saracen. 6 Moore's P. C. Bep. [ * 66 ] monly used in admiralty proceedings, * shows that the party is bound to bring back the money, to answer any latent demands. In this case no bail bond has been given, because there has been no ultimum decretum. II. The effect of the statute 53 Geo. III. c. 159, was to secure a ratable distribution of the proceeds of the ship and freight. "We submit that section vii. of that statute 1 gives to the Admiralty Court a jurisdiction similar to a Court of Equity, whereby [ * 67 ] an * equitable distribution would be insured. The court below said we came in after decree, but we submit that this decree did not make the matter rem judicatam. [Sir Herbert Jenner Fust. The interlocutory decree, condemn- ing the ship and ordering the sale, is a definitive sentence.] It has only fixed the liability of the ship to pay something. The respondents only got a reference to ascertain the amount of damage; they have no right to any portion of the proceeds by virtue of that interlocutory decree, but only upon the certificate of the registrar ; and if that certificate be contested, the court must again pronounce upon the question of amount. Cases have occurred where a Court of Equity has pronounced a decree, but referred it to the officer of the court to make inquiries ; and a Court of Equity has held that such judgment does not give priority. Smith v. Eyles. 2 In that wheresoever the same shall be found, to the value of the sum of £ before-mentioned, which caution the said surrogate received, on the report of John Deacon, deputy marshal of the said court, as to the sufficiency of the said sureties." 1 Section vii. " That if several persons shall suffer any loss or damage in or to their goods, wares, merchandise, ships, or otherwise, by any means for which the responsibility of any owner or owners is limited by this act, as aforesaid, and the value of the ship or vessel, with all her appurtenances, and the amount of the freight esti- mated as herein is mentioned, shall not be sufficient to make full compensation to all and every the person and persons suffering such loss and damages, it shall and may be lawful to and for the person or persons liable to make satisfaction for such loss or damage, or any one or more of them, on behalf of himself, or themselves, and the other owner or owners of the same ship or vessel, to exhibit a bill -in any Court of Equity, having competent jurisdiction against all persons who shall have brought any such action or actions, suit or suits, as aforesaid, and all other persons who shall claim to be entitled to any recompense for any loss or damage, arising or happening by the same separate and distinct accident, neglect, or default, or on the same occasion, to ascertain the amount of the value of the ship or vessel, appurtenances, and freight, and for the payment or distribution thereof, ratably, amongst the several persons claim- ing recompense, as aforesaid, in proportion to the amount of the several losses or damages sustained by such persons so claiming such recompense, as aforesaid, accord- ing to the rules of equity, as the case may require." 2 2 Atk. 385 -7. BEFORE THE PRIVY COUNCIL. 68 The Saracen. 6 Moore's P. C. Rep. case it was held, that a decree quod computet does not pass in rem judicatam till the final decree. It is perfectly well settled that, where a single creditor files his bill for the recovery of his own debt only, the court is under no disability of making a general decree for administra- tion. 1 Story's Comm. on Eq. Jur. p. 446, (2d edit.) ; Ram on Assets, ch. 8, p. 143. * It has been frequently decided that [ * 68 ] the Court of Admiralty is a Court of Equity, and is bound to administer equity broadly and equitably. The Minerva ; 1 The Jacob ; 2 The Harriett ; 3 The Alexander Larsen ; 4 The Columbine. 5 Indeed the court has, in two instances, The Margaret 6 and The Richmond, 7 in circumstances similar to the present, decreed a ratable distribution. The fifteenth seption of the statute 53 Geo. III. c. 159, must be construed so as to give it ' some effect, and that cannot be done without extending its provisions to the Court of Admiralty. The learned judge of the court below held, that the right of filing a bill in equity is exclusively given by that act to the owners for their protection, and not to the claimants for their advantage. 8 Is the equitable distribution, for which this statute provides, to depend upon the circumstance of whether the owner files a bill under the statute ? Assuming, then, that the Court of Admiralty founds its decisions upon equitable principles, can it be possible that, where there may be many part owners of a cargo, some in the country, others absent in different parts of the world, those absent parties are to be excluded from their rights, in consequence of a prior potens, although those absent parties came to the, court as soon as they could ? Can mere accident be a principle of equity ? Suppose the case of several actions and no mode of consolidation ; should not the court have the power either of withholding its final * decree, or [ * 69 ] advancing the last causes ? The court below, in the pre- sent case, having had distinct notice of our claims by the commence- ment of the second suit, and sitting as a Court of Equity, should not have proceeded to a final judgment, which would bar the other parties, who had equal rights with those who obtained the judgment. The reason for the abandonment of the second suit is satisfactorily accounted for, by the agreement which has been come to by the proc- tors for the appellants and the respondents, and which is pleaded in our act on petition. i 1 Hagg. Adm. E. 357. 2 4 Kob. Adm. K. 245. 3 1 W. Kob. Adm. R. 192. 4 1 W. Kob. Adm. R. 289, 297. s 2 W. Rob. Adm. K. 186. 6 Not reported. 7 Not reported. 8 2 W. Rob. Adm. R. 457. ^ 70 CASES AKGUED AND DETERMINED The Saracen. 6 Moore's P. C. Bep. . Dr. Addams and Mr. Bovill, for the respondents. It is not denied that the Court of Admiralty may be, for some purposes, a Court of Equity ; but this is not a case in which the Court of Admiralty could interfere, or was competent to order a ratable distribution, after the decree obtained by the respondents. Here there is nothing whatever to justify the court letting in the appellants ; they are entitled to no indulgence. They waited till we had obtained a decree in our favor, and, on the very day of the sentence they claimed to be let in, to share ratably in the proceeds of the condemned ship. Suppose the sentence had been against us, could we have claimed a share of the costs from the parties claiming to intervene? No authority has been cited in support of the appellants' argument, that, by the fifteenth section of the statute 53 Geo. IIL.c. 159, the Court of Admiralty being a Court of Equity, was bound to do something which would compel a ratable distribution among the claimants. The case of The Richmond, referred to in support of this position, is not in point. [Sir Herbert Jenner Fust, after referring to the regis- [ *70 ] trar's book, said that *the question in that case was, whe- ther the owner was liable to the extent- of the bail, or only to the ascertained value of the ship.] Neither can the case of The Margaret be recognized as an author- ity. The argument from analogy, to the decisions of a Court of Equity, is in favor of the respondents. Lee v. Park. 1 1 Story's Comm. on Eq. Jur. p. 443, (2d edit.) The doctrine of prior potens, in the Admiralty Courts, is nothing more than a branch of the rule, " Vigilantibus non dormientibus leges subservient ; " as in the case of a judgment obtained at law. An executor has priority on a judg- ment. " Qui priore est in jure potier est in juro." [Lord Campbell. The principle of the common law is* to give priority to a party obtaining a judgment.] In the Ecclesiastical Court, a creditor taking the risk of adminis- tration, where the intestate's estate is insufficient, has priority, and pays himself first. So in bankruptcy. If a party does not prove before a dividend is declared, he is excluded the benefit of the exist- ing funds. The same rule applies on an attachment in the Lord 1 1 Keen, 714. BEFORE THE PRIVY COUNCIL. 71 The Saracen. 6 Moore's P. C. Rep. Mayor's Court. Every principle is in favor of the respondents. If the appellants' argument was sound, it would lead to great incon- venience. How long might a party lay by? When is he to be excluded ? Is the fund to be distributed or kept ? [Lord Langdale. The form of the citation in this case is for all parties to come in. The practice in the Court of Chancery is to advertise, to bring parties in, which is different from the practice in the Admiralty Court.] The Admiralty Court has no power to bring in parties. There is no contract between the parties ; and even if there was a. contract, it is not such a one as the Court of Admiralty could enforce. The appellants put their * case upon the 53 Geo. III. c. 159, [ * 71 ] which does not apply. That statute was only passed for the purpose of limiting the liability of the owner of the ship pro- ceeded against, and is in pari materia with the 7 Geo. II. c. 15, and 26 Geo. III. c. 86. No question can be raised upon the alleged agreement between the proctors, as set forth in the appellants' act on petition. If such an agreement exists, it ought to have been the sub- ject of a distinct proceeding. The appellants have not established any thing like bad faith on the part of the respondents. [Lord Langdale. The court is with you on that point.] Neither can any question be raised upon the form of the bail bond, which only undertakes for payment of latent demands within a year and a day from the date of the bond. [Lord Campbell. This appeal really resolves itself into the ques- tion, whether the interlocutory decree of the 6th of May, 1845, was a final decree. The proceeds of the ship being in court.] That decree had the force and effect of a definite sentence. The money would have been paid out under that decree, as a matter of course, if these other parties had not asked to be let in to share. Mr. Boupell, in reply. This is a case of extreme difficulty, and one primes impressionis. Now what was the real effect of the decree of the 6th of May, 1845 ? It only gives directions for the purpose of ascertaining the amount due to the respondents. There is no order for payment. It gives an inchoate right only. 72 CASES ARGUED AND DETERMINED The Saracen. 6 Moore's P. C. Eep. [Lokd Campbell. There is a judgment, that damages are to be paid ; does not that give a party a vested right? The court below considered the ship and proceeds bound by the decree, the same as the land would be by a judgment at law.] [ * 72 ] * The party cannot get paid without the further order of the court ; the certificate of the registrar and merchants does not give the right to receive the amount until that is affirmed by the court, and it rests with the court as to what is to be the quan- tum. It cannot, therefore, be considered as a final decree. The prac- tice of the admiralty is now to suspend the payment out of court for a year ' and a day, and not to require a bond for latent demands. There was nothing in the bond which could exclude claimants of equal degree from coming in to participate. If equitable principles are to apply, what is there in this ease to prevent equal distribution, which a court of equity would decree ? The funds are in court. Then why are not those principles of equitable distribution to be carried out in the Court of Admiralty? The suit might be altered, so as to make it an action on behalf of all the injured parties ; or the party might be compelled to limit his action for his proper pro- portion. There is nothing to preclude a Court of Equity, in a case like this, where the fund has not been adjudicated upon, from distri- buting the fund ; for it is a principle of Courts of Equity that, until the time of actual distribution', a party is not too late in making his claim, unless estopped by other circumstances. February 19th, 1847. Their lordships reserved judgment, which was now delivered by Lord Langdale. This is a case of collision between The Sara- cen and The Diligent, in which The Diligent and her cargo were lost. On the 25th of February, 1845, an action for damage [ * 73 ] * was commenced, in the High Court of Admiralty, against the owners of The Saracen, by the respondents, the owners of The Diligent, and the owners of part of her cargo. A warrant to arrest The Saracen (a foreign ship) was issued, and, on the 19th of March, was returned duly executed. On the 12th of March, another action against the owners of The Saracen was commenced, by the owners of other parts of the cargo of The Diligent ; but this action was afterwards abandoned, and no effective proceedings were had therein. The action of the respondents was duly prosecuted, and, on the BEFOEE THE PRIVY COUNCIL. 74 The Saracen. 6 Moore's P. C. Rep. 6th of May, 1845, an interlocutory decree, having the force of a defi- nitive sentence in writing, was made therein ; and, by such decree, the court pronounced for the damage proceeded for in that cause; condemned the ship and freight therein and in costs; referred the damages, together with the accounts, to the registrar and merchants ; and decreed a commission for appraisement and sale of The Saracen, her tackle, apparel, and furniture. On the same 6th of May, a new action for damage was commenced against the owners of The Saracen, by the appellants, owners of part of the cargo of The Diligent. The proceeds arising from the sale of The Saracen were brought into the registry ; and the appellants, whose action was commenced on the 6th of May, claimed to be entitled to participate in the pro- ceeds, of the ship Saracen, remaining in the registry. After a full discussion, the judge, on the 25th of March, 1846, rejected the claim. * The appeal is from that decision ; and, in support of the [ * 74 ] appeal, it was argued : — First. That the High Court of Admiralty has an equitable juris- diction, in the exercise of which, in a case like the present, it ought to proceed in the same manner as a Court of Equity would proceed in the administration of assets, or in the distribution of any common fund, which is to be distributed pro ratd among several persons, inte- rested in or having claims upon it. Second. That the statute 53 Geo. III. c. 159, confers on the court a jurisdiction which ought to have ( been exercised for the benefit of the appellants. And, Third. That the agreement between the parties precluded the respondents from claiming the whole fund for themselves. In the course of the argument we expressed our opinion, that no effect can, on this occasion, be given to the alleged agreement. First. With respect to the equitable jurisdiction, it is true that, in the decisions of cases properly within the jurisdiction of the Court of Admiralty, equitable considerations ought to have their weight ; but it does not thence follow that the Court of Admiralty has juris- diction to do all that Courts of Equity may do, in suits instituted by persons suing, either for themselves,- or on behalf of themselves and others, for the administration of assets, or the distribution of a common fund, in which several persons are interested, or upon which they have claims. No instance of the exercise of any such jurisdic- tion has been cited ; and, in the absence of any authority, it does not appear to us that there is any such jurisdiction. . * It was suggested that the bail bond, required on pay- [ * 75 ] 76 CASES ARGUED AND DETERMINED The Saracen. 6 Moore's P. C. Rep. merit of money to a claimant for damage, shows that other claims than those upon which the payment is made, have to be provided for ; and, perhaps, it may be so. But there may be claims para- mount, such as claims for wages ; and, at the time when the form of the bond was settled, the claims of material men, &c, may have been considered to require attention. The bail bond may, therefore, be well understood as providing for paramount claims. There seems to be no reason to conclude that the bond is applicable to claims merely coordinate with those of the party who obtained the sentence. Moreover, as no instance has been shown of the exercise of any such jurisdiction, it seems unreasonable to infer that there is such jurisdic- tion because such a bond is taken. Second. The 53 Geo. III. c. 159, was passed for the protection of the owners of ships, and appears to apply only to bills in equity, and suits or proceedings instituted by or on behalf of the owners. The fifteenth clause may be applicable to suits for damage in the admi- ralty, accompanied by a proceeding, on the part of the owners, for their own protection, and which may lead to a distribution, pro ratd, of the proceeds of the ship among the claimants. But there is no such proceeding here. The action of the respondents was brought by them as individuals, for their own benefit ; there is no proceeding by the owners under the statute, and the sentence was pronounced for their benefit, subject only to such claims as may be made thereon under the bail bond. We are of opinion that the sentence of the 6th of May, 1845, is to be considered as a definitive sentence in favor of the [ * 76 ] respondents ; and that the appellants, * whose suit was not commenced till after the sentence was pronounced, are not entitled to participate in the proceeds of the ship in common with the respondents, by whose diligence, and at whose risk and expense, the damage has been pronounced for, the ship condemned, and the proceeds realized. We shall, therefore, report to her Majesty that, in our opinion, the appeal ought to be dismissed, and the sentence affirmed, with costs. BEFORE THE PEIVY COUNCIL. 90 The Duke of Manchester. 6 Moore's P. C. Rep. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY. The Duke of Manchester. [ * 90 ] Richard Shersby and others, Appellants; and Samuel Hibbert and others, Respondents} July I, 1847. A sailing vessel, having a licensed pilot on board, got on the Goodwin Sands, hut was res- cued by a steam-tug, which, after rendering her salvage services, was employed to tow the vessel to the Downs, but in consequence of the misconduct of the pilot and the negligence of the master of the steam-tug, the vessel was run ashore on the Sandwich Mats. Held, in such circumstances, that the steam-tug had no claim for salvage, as the master of the steam-tug was not released from all responsibility respecting the direction of the vessel towed, by reason of a licensed pilot being on board, and that it was the joint duty of the pilot and the master of the tug to do their utmost for the safety of the ship. Held, also, that the master of the steam-tug could not separate the towing of the vessel ^ from his claim for salvage services for getting her off the Sands, as it was one transaction ' of salvage. This was originally a cause of salvage, civil and maritime, brought by the appellants, the master, and owners, and crew of the steam- tug Copeland, against the ship Duke of Manchester, her cargo, and freight. The circumstances which gave rise to the appeal were these : — On the 13th of December, 1845, the bark Duke of Manchester, belonging to the respondents, outward bound, from London to the West Indies, with a general cargo, in charge of a licensed pilot, got upon the Goodwin Sands, midway between the North Sand Head and the Gull light-vessel, at forty minutes past three, P. M. ; the wind was moderate, the weather hazy, and it was *then [ * 91 ] within about an hour of low water. All proper precautions were immediately taken ; the larboard bower anchor was let go ; the bark lay quiet as the tide fell, though she had struck heavily at first ; she had thirteen feet water on the starboard, and ten feet on the lar- board side. A galley, which came alongside, was sent off to Rams- gate for a steamer, and, afriving there about eight, the steam-tug Copeland, of one hundred horse-power and eight men, which was i Present : Lord Brougham, Lord Langdale, Lord Campbell, and the Eight Hon. T. Pemberton Leigh. K. & M. 15 92 CASES ARGUED AND DETERMINED The Duke of Manchester. 6 Moore's P. C. Rep. lying in Ramsgate Hole, with her steam up, immediately put to sea, and discovered the Duke of Manchester, about half-past nine, P. M. On getting near her, about half an hour afterwards, two hawsers, and also the bark's steam-chain, were passed from the bark to the steamer, and the steamer attempted, to tow her off; at first by steady pulling, and then by jerking with the full power of her engines. Both the hawsers, and also both the chains, parted or were carried away, and about half-past ten the bark came off the Sand. Upon the bark's coming off the Goodwin Sand, the pilot in charge of her hailed The Copeland to " go to the Downs, and tow ahead." The Cbpeland accordingly towed the bark a-head for about an hour and a half ; they passed the Gull light-vessel about eleven o'clock, and the south buoy of the Brake about twenty minutespast eleven ; and between twelve and one, A. M., of the 14th of December, the bark was suddenly hailed from The Copeland to " starboard her helm," (that is, to turn her head in-shore,) which she immediately did, and again got hard aground on the Sandwich Flats, when it was nearly the top of high water. On the bark's thus grounding for the second time, it being nearly high water and the tide falling, it was found impossible to move her. Further assistance was obtained from Ramsgate ; The Copeland -made two abortive efforts to get [ * 92 ] her off *in the course of the 14th of December. Part of her cargo was then discharged into small craft, and, on the 15th of December, she was again got afloat; and it being impossible to continue her voyage without discharge and repair, was towed by The Copeland to the Downs, to Southend on the 16th, and to the West India Docks on the 17th. The act on petition on behalf of The Copeland, after setting forth the above facts, alleged that it was with great difficulty and exertion, and with imminent risk of life and property, that the vessel was dragged off the Sands into deep water; that the pilot of the ship then hailed the master of The Copeland to tow her to the Downs, which he did, by keeping as nearly as possible directly ahead of the ship, so as to have her masts in one, according to the invariable cus- tom of steam-tugs in towing vessels in charge of a pilot ; and that the steam-tug was proceeding to tow her to the Dowfis, but that, in consequence of the damaged condition of her rudder, The Duke of Manchester would not answer her helm, and again took to the ground on the Sandwich Flats. The answer of the respondents, the owners of The Duke of Man- chester, alleged that the vessel was extricated from the Goodwin Sands, not by the exertions of The Copeland, but by the influence of the tide ; that the vessel, whilst upon the Sands, was in no danger of / BEFORE THE PRIVY COUNCIL. 93 The Dnke of Manchester. 6 Moore's P. C. Eep. being lost ; and that no risk, or loss of life or property, was incurred by the master or crew of The Copeland ; that, when she got off the Goodwin Sands, The Duke of Manchester had sustained no damage, and that her consequent injuries were occasioned by the gross negli- gence and misconduct of the steamer, in towing her out of her proper course to the Downs, and running her aground on the Sandwich Flats. * In the surrejoinder, filed by the respondents, it was [ * 93 ] stated that one William Wells, the master of one of the small craft employed, who had remained on board the steam-tug from the time of going to the assistance of The Duke of Manchester until the ship went aground the second time, had informed the mas- ter of the steam-tug, shortly before the ship ran on the Sandwich Flats, that he was steering too much to the westward, but that the master, nevertheless, refused to alter his course. Wells made an affi- davit of this fact, and it was admitted by the appellants in their rebutter ; wherein they alleged that such intimation could not have justified the master of The Copeland in altering his course of the ship, directed by the pilot in charge of her, and that the master took every precaution that could be required of him. And it further alleged, that an inquiry had been instituted by the Trinity Board into the conduct of the pilot in charge of The Duke of Manchester on that occasion ; and that the result of that inquiry was, that he was dismissed from their service, and forbidden to pilot vessels in future. The judge of the Admiralty Court was assisted by two elder brethren of the Trinity House, who were of opinion : — " That the vessel going on the Sandwich Flats was not occasioned by the state of the weather, or the rudder being disabled, and that the stranding might have been prevented with ordinary cafe and skill ; and that there was, on the part of The Copeland, gross and' culpable negli- gence, and a disregard of duty." The learned judge of the Admi- ralty concurred in this opinion, and by his interlocutory decree, bear- ing date the 10th of June, 1846, pronounced against the appellants' claim for salvage, with costs. 1 * From this sentence this appeal was brought by the [ * 94 ] appellants, who prayed that it might be reversed, for the following reasons : — - First. Because it appeared, from the proofs in the cause, that the services rendered by the steam-tug Copeland to The Duke of Man- Kepoited, nom. The Duke of Manchester, 2 W. Kob. Adm. E. 470. 95 CASES ARGUED AND DETERMINED The Duke of Manchester. 6 Moore's P. C. Eep. Chester were of a most important nature ; that they were attended with danger to the steam-tug herself, and to the lives of those on board her; and that they were continued during a considerable time, and were the means of rescuing The Duke of Manchester from impending peril, if not from total loss. Second. Because it clearly appeared, by the evidence, that the subsequent grounding of The Duke of Manchester on the Sandwich Flats, and any damage consequent thereon, was imputable entirely, and was at the time so imputed by the master of The Duke of Man- chester, to the pilot on board of her, whose license to act as a pilot had since, after inquiry, been taken -away by the Trinity Board, in consequence of his misconduct on the occasion ; and that even if the subsequent grounding of The Duke of Manchester had been occa- sioned by the negligence of the crew of the steam-tug, it would not deprive the appellants of their right to salvage, unless (and which could not be pretended) the damages arising therefrom exceeded the benefit derived from their previous services. Third. Because the opinion of the most competent judge (the master of The Duke of Manchester,) as to The Copeland not having been in fault, was apparent, from the fact of his continuing her in his employ after his ship had been a second time run ashore, and from his afterwards engaging her to tow the ship up from the Downs to London. [ * 95 ] * The respondents, on the other hand, relied, in support of the decree appealed from, upon the following reasons : — First. Because, after the most careful consideration, by a most competent tribunal, of all the facts in dispute, (which were chiefly nautical,) the decision of that tribunal had been, on every point, dis- tinctly in favor of the respondents ; and it was humbly submitted that, without new evidence, their lordships would not reverse such decision. Second. Because, upon the whole matter, The Duke of Manchester was not salved, but injured ; and respondents, instead of having derived any benefit from the pretended services of the appellants, had thereby suffered serious loss and damage. Third. Because The Copeland did not tow The Duke of Manches- ter off the Goodwin Sands, nor did she incur any danger in attempt- ing to do so. Fourth. Because The Copeland did, by the grossest and most culpable negligence and misconduct, tow The Duke of Manchester ashore on the main land, (on Sandwich Flats,) in an easy and well- known channel, at nearly high water, in calm weather, having shortly before seen the Gull light ; having been previously warned that she BEFORE THE PRIVY COUNCIL. 96- The Duke of Manchester. 6 Moore's P. C. Rep. was going too far to the westward ; and after having just before hailed The Duke of Manchester to put her hjelm to starboard, (that is, her head in-shore.) Sir Frederick Thesiger, Q. C, and Dr. Addams, for the appellants. The stranding of The Duke of Manchester on the Sandwich Flats was solely the fault of the licensed pilot, and any damage occasioned by it is imputable * entirely to him, and not to [ * 96 ] The Copeland. But even if the subsequent grounding of The Duke of Manchester had been occasioned by the negligence of the master and crew of The Copeland, it would not deprive the appellants of their right to salvage for getting The Duke of Man- chester off the Goodwin Sands, unless the damage arising therefrom exceeded the benefit derived from their previous services. [Loed Campbell. , It was a continuous transaction ; the service was not completed by getting the vessel off the Sands; she was to be got to a place of safety.] That was a subsequent transaction ; the services consisted of two separate transactions, and the two claims may be distinguished. Suppose the vessel was got off the Goodwin Sands by The Cope* land^but for whose aid she would have been lost, and afterwards, by the gross negligence of The Copeland, she stranded on the Sandwich Flats, and received a very slight injury ; would that annihilate the claim for a very meritorious prior service ? The claim for salvage attached when the vessel was rescued from the imminent peril on the Sands. The damage sustained by grounding on the Flats was very trifling. It is an invariable rule, that it is the duty of a tug- steamer to obey the directions of the vessel in tow, more especially when in charge of a licensed pilot. He is released from all respon- sibility respecting the direction of the vessel ; all he has to do is to keep her masts in a line with his own. It would be dangerous to allow a tug to interfere with the pilot on board the vessel towed, whose duty it is to direct the course. See what the consequence would be if the master of the tug was to exercise his discretion ; he would, in effect, depose the pilot from his authority. In the case of The Duke of * Sussex, 1 a steam-tug, employed [ * 97 ] in towing a vessel having a licensed pilot on board, was held not responsible for a damage occasioned by the vessel coming 1 W. Rob. Adm. E. 270. 15* 98 CASES ARGUED AND DETERMINED The Duke of Manchester- 6 Moore's P. C. Bep. in contact with another vessel. Upon the principle there laid down, we contend that the towed and towing vessels are to be considered as one ; that the licensed pilot on board the former is to be consi- dered in charge of both, and that the responsibility attaches solely to him. [Loed Campbell. Is there not a distinction between the case of a tug employed to tow a vessel, and a tug which is a salvor ? This is a claim for salvage.] We submit that the principle is the same. The Queen's Advocate, (Sir John Dodson,) Mr. Bethell, Q. C, and Dr. Harding; for the respondents. The steam-tug Copeland is not entitled to salvage. We do not question the rule laid down by the learned judge in the case of The Duke of Sussex, which casts the responsibility of directing the course of a vessel in tow upon the pilot on board ; which is very wholesome and proper in the case of towage, but in a case of salvage different duties are imposed upon a steamer, when she is the salving vessel. The getting the vessel upon the Sandwich Flats must have arisen from the negligence or misconduct of some person ; it must be either wilful, or through gross and culpable negligence. If it be said that the steam-tug must steer as the vessel was steered, that involves the proposition that the vessel could be steered freely without impediment. Now the case of the appellants, as raised by their pleadings, is, that her [ * 98 ] rudder was damaged, * and that she could not answer her helm. If so, then, when she got off the Goodwin Sands, on whom lay the duty to shape her course ? It must have been on the steamer, which was the salving vessel, as the vessel could not answer her helm. Here is a steamer towing a disabled vessel, to whose assistance she had come, along a channel familiar to the steamer, and permits the vessel, which could not guide herself, to get on shore. [Lord Brougham. Is the steamer answerable for the damage ?] When a steam-vessel takes a disabled vessel in tow; she is bound to exercise a careful and watchful superintendence ; and if the dis- abled vessel gets into danger whilst being towed, the steamer is answerable ; and, if a salvor, she forfeits her claim to reward. The damage occasioned by getting on the Sandwich Flats cancels the merit of the prior service. BEFORE THE PRIVY COUNCIL. 99 The Duke of Manchester. 6 Moore's P. C. Eep. Lord Campbell. This is an appeal in a cause of salvage, by the owners and crew of the steam-tug Copeland, against the ship The Duke of Manchester, her cargo, and freight. The learned judge of the Court of Admiralty having been assisted by two elder brethren of the Trinity House, by his decree disallowed the claim, and con- demned the claimants in costs. Their lordships cannot accede to the first reason for affirming the decree propounded by the respondents, namely, that all the facts having been considered by a competent tribunal, its decision ought not to be reversed without new evidence. We are bound to see whether, in our opinion, the decree appealed from is well supported, in point of fact as well as in point of law. * In the first place, their lordships entirely approve of the [ * 99 ] law as laid down by Dr. Lushington. The question of law is, whether, in case of salvage, where a tug is towing a ship that is in peril to a place of safety, the ship being under the command of a licensed pilot, the master of the tug is released from all responsibility respecting the direction of the ship, and is merely to keep her masts in a line with his own. The learned judge below repudiated the doctrine, that, under no circumstances, was it the duty of the master of the tug to interfere, and that the pilot was, under all circum- stances, the only person to blame ; and he laid down, that the master of the tug, watching the course which the licensed pilot pursues, if he finds that this course will lead the vessel into danger, is bound to interfere, and make a communication to the master of the ship, instead of making himself instrumental to the destruction of life or property. Their lordships are entirely of the same opinion, and con- sider it the joint duty of the licensed pilot and of the master of the tug, to do their utmost for the safety of the ship. Therefore, how- ever much the licensed pilot may misconduct himself, if the master of the tug, through gross negligence, omits to do what was in his power to keep the ship in a proper direction, that she may reach a place of safety, and thereby the ship is lost, or is led into peril as great as that from which she has been rescued, all claim to salvage is forfeited. This is not a claim for ordinary work and labor, but for salvage. The very notion of saving a ship supposes that the salvor, instead of merely executing orders, shall perform some extraordinary service, and exert himself to the utmost for the safety of life and pro- perty. * In this case, the elder brethren of the Trinity House [ * 100 ] found, "that the stranding on the Sandwich Flats might have been prevented by ordinary care and skill, and that there was, on the part of The Copeland, gross and culpable negligence." The 101 CASES ARGUED AND DETERMINED The Duko of Manchester. 6 Moore's P. C. Eep. damage occasioned by this stranding appears to have been greater than that occasioned by the stranding on The Goodwin Sands ; and, therefore, if the finding was justified by the evidence, the claim to salvage was properly disallowed. Now, although the pilot clearly was guilty of negligence, and was very properly dismissed from the service, the master and crewof the tug were likewise guilty of gross negligence, and their conduct even raises a suspicion that they had some ill design. Belonging to Ramsgate, they must have been familiarly acquainted with the ground ; and the course taken by the ship, after she was got off the Goodwin Sands, was clearly not the course to the Downs, whither they were told the ship was to be carried; But farther, it is expressly alleged in the pleadings by the respondents, and not denied by the appellants, that " William Wells, not long before the ship was towed ashore on the Sandwich Flats, told the master of The Copeland that he was steering too much to the westward, but that the said master refused to alter his course." Indeed the learned counsel for the appellants, in their arguments at the bar, relied upon the doctrine, that the ship being under the care of a licensed pilot, the master of the tug had nothing whatever to do with her direction, beyond keep- ing her masts always in a line with her own. Looking to the state of the wind and weather, there seems not to be the smallest doubt that, by a reasonable exertion of care and skill on the part [ * 101 ] of the tug, the ship might easily have been brought to ' a place of safety in the Downs, and enabled to pursue her voyage to the West Indies, instead of being again stranded, and obliged to be brought back to port to refit. There has, therefore, been no meritorious service, in respect of which salvage ought to be decreed. An attempt was made to separate the towing of the ship from the operation of getting her off from the Goodwin Sands ; but their lordships are of opinion that they cannot be severed, that there was no fresh engagement, and that the whole forms one transaction of salvage. When the ship had been got off, there was reason to appre- hend that her rudder had been injured, and, without forfeiting right to salvage, the tug could not then have deserted her. The claimants, in their pleadings, describe the whole of their services as of the same character, and claim extraordinary remuneration for the whole, on the principle of salvage. Their lordships will therefore advise her Majesty, that the decree appealed against should be affirmed, with costs, to be paid by the appellants. BEFORE THE PEIVY COUNCIL. 102 The Aquila. 6 Moore's P. C. Eep. ON APPEAL FROM THE VICE-ADMIRALTY COURT OF SAINT HELENA. *The Aquila. [*102] Our Sovereign Lady the Queen, Appellant, and Jose Alves Dias, Respondent. 1 February 19, 1847, and June 22, 1849. By the 35th section of the rules respecting appeals from the Vice- Admiralty Courts abroad, made under the authority of the statute 2d & 3d Will. IV. c. 51, all appeals are to be asserted within fifteen days after the date of the decree appealed from. In March, 1846, a decree was pronounced by the Vice-Admiralty Court of St. Helena, restoring a vessel seized by a British cruiser for an alleged infraction of the Slave-Trade Act, and referring the amount of 'costs and damages to the registrar. No appeal was asserted by the seizor's proctor, who attended before the registrar under the decree. In the month of December of that year, a petition of appeal was brought in by the Queen's proctor, on behalf of the seizor, which the registrar (in consequence of the appeal not haying been asserted within fifteen days) refused to receive. On an application made ex parte, supported by affidavits stating that it was the seizor's proctor's ignorance of the rule for asserting the appeal, which alone prevented him from appealing, leave was given to appeal, subject to a counter- petition being presented by the respondent to dismiss the appeal. Upon an act on protest against the right of appeal by the respondent, held by the judicial committee, that there was no sufficient ground to enable them to allow the appeal. This was originally a cause instituted in the Vice- Admiralty Court of St. Helena, by Henry Layton, Esq., commander of her Majesty's sloop Cygnet, against the schooner Aquila, seized by the sloop, as hav- ing been at the time of the seizure thereof equipped for, or engaged in, the slave-trade, or employed in the illegal traffic of negroes and others for the purpose of consigning them to slavery, and as such, by virtue of the statute, liable to forfeiture and condemnation. * All due and legal proceedings were had in the Vice- Admi- [ * 103 ] ralty Court of St. Helena, and on the 19th of March, 1846, the judge and commissary of that court, by his interlocutory decree, pronounced, that the proctor on behalf of the seizor, had failed in proof of the contents of the libel given in and admitted, and decreed the schooner to be restored to the claimant for the use of the owners and proprietors thereof, and condemned the seizor in costs and da- mages. 1 Present : Lord Brougham, Lord Langdale, the Right Honorable Dr. Lushington, and the Eight Honorable T. Pemberton Leigh. 104 CASES ARGUED AND DETERMINED The Aquila. 6 Moore's P. C. Rep. No appeal from this decree was asserted or interposed, in the Vice- Admiralty Court of St. Helena. The amount of costs and damages having been referred to the registrar and merchants to report thereon, and the registrar and merchants held meetings upon the subject, when the proctor for the seizor was heard in objection to the amount claimed on account of such costs and damages. On the 5th of June, 1846, the registrar and merchants made their report, wherein they reduced the amount originally claimed, from the sum of 8,7992. 17s. ' lid. to the sum of 2,318/. 15s. This report was confirmed on the 2d of July, 1846. On the 4th of December, 1846, her Majesty's procurator-general, under the direction of the lords of the treasury, presented his petition of appeal on behalf of her Majesty, from the above decree of the judge of the Vice-Admiralty Court of St. Helena ; but in consequence of the appeal not having been asserted within fifteen days, and an entry made of that fact in the Court of the Vice- Admiralty of St. Helena, as required by the 35th section of the regulations made pursuant to the statute 2 & 3 Will. IV, c. 51, for the vice-admiralty courts abroad, the registrar declined to receive the appeal, when the Queen's proctor prayed that his petition and appeal might be referred to the judicial committee of the privy council. [ *104 ] * December 15, 1846. 1 The Queen's Advocate, (Sir John, Dodson,) now moved, on behalf of the crown, that the ap- peal might be received : he referred to the. 35th section of the regula- tions for Vice- Admiralty Courts abroad, and the act to amend and consolidate the laws relating to the abolition of the slave-trade, 5th Geo. IV. c. 113, which, by section twenty -nine, fixes no limit for the time of appeal, if the inhibition is decreed within twelve months from the date of the decree. The vessel having been seized under the 8th & 9th Vict. c. 122, he contended, brought the case within the provi- sion of the former statute. Lord Brougham. The regulation referred to is made, among others, under the authority of an act of parliament, the 2d & 3d Will. IV. c. 51, and is similar to the rules in the Court of Chancery under vari- ous statutes : they would be of no value if they are to be dispensed with on any cause. No merits are shown : but the matter may stand 1 Present : Lord Brougham, Lord Langdale, the Right Honorable Dr. Lushington, and the Right Honorable T. Pemberton Leigh. BEFORE THE PRIVY COUNCIL. 105 The Aquila. 6 Moore's P. C. Rep. over to enable the crown, if there are merits, to bring them properly before us. In pursuance of the leave thus given, the Queen's proctor filed two affidavits ; the first by. Lewis Gideon, of the island of St. Helena, stating that he was one of the partners in the house of trade carrying on business under the firm of Gideon & Son, of St. Helena, merchants, and that to the best of his recollection and belief, in the month of November, 1845, instructions were received by his, deponent's son, Henry Hamer Gideon, from Henry Layton, the commander of her Majesty's sloop Cygnet, to take the necessary proceedings *for obtaining a sentence of condemnation against the Bra- [ * 105 ] zilian schooner called The Aquila, whereof Joze Alves Dias was master, which had been captured by Layton, as liable to forfeit- ure, for having been equipped for, or engaged in, the slave-trade, or employed in the illegal transport of negroes or others, for the purpose of consigning them to slavery. That about three years ago, as near as he could recollect, the deponent's son and partner was admitted a proctor of the Vice- Admiralty Court at St. Helena without having been articled to any proctor or solicitor, or without having had any legal education, and had since carried on his proctorial business on his own account, and totally independent of the deponent, and in which the deponent had no interest whatever. That his son com- menced proceedings in the Vice- Admiralty Court at St.' Helena, against the Brazilian schooner, for the purpose aforesaid ; and on the 19th of March, 1846, the cause came on for hearing before his honor, the judge of the court, when he, by interlocutory decree, admitted the claim of Joze Alves Dias, and pronounced that this deponent's son had failed in proof of .the libel and exhibits given and admitted in the cause, and decreed the schooner and her cargo to be restored to the claimant, and condemned the seizor in costs and damages. That there are only five proctors practising in the Vice- Admiralty Court, three of whom were merchants ; one a military officer in the East India Company's service ; and the other an assistant in a mercantile house ; and that none of the five persons, to the best of deponent's knowledge or belief, ever had any legal education ; and he was con- fident his son would have entered an appeal from the decree, had he known it was necessAy to have given a formal notice thereof, * within fifteen days from the date of the decree, and [ * 106 ] that he acted entirely from ignorance of the law in not doing so, there never having been, so far as this deponent knows or believes, any precedent of an appeal from that court. That the judge of'the court is the only lawyer on the island ; and, consequently, there was 107 CASES AEGUED AND DETEEMINED The Aquila. 6 Moore's P. C. Rep. no legal person with whom his son could advise on the subject. That from the conversations which passed between the deponent and his son, they both felt satisfied the schooner would have been condemned, and, consequently, were much surprised when the decree was pro- nounced by the judge aforesaid. That his son attended the meetings of the registrar and merchants for the purpose of ascertaining the amount of such damages, as the deponent's son acted under the im- pression that no appeal could be prosecuted, unless the damages and costs were ascertained to exceed a given sum ; because it is provided in the order in council for establishing the due administration of jus- tice on the island, that no appeal should be allowed, except where the sentence pronounced for or in respect of any sum or matter at issue above the amount of 5001. But the deponent hasj since his arrival in this country in the month of November last, been informed that such order in council does not apply to the Vice- Admiralty Court, but only to the Supreme Court. The second affidavit was made by Henry Layton, the commander of the sloop " Cygnet ; " and, after stating the circumstances of the capture, and the proceedings taken against the vessel, he further stated, that during the whole time the proceedings were being carried on, he was cruising off Benguela for the suppression of the [ * 107 ] slave-trade, and, consequently, * had no opportunity of com- municating with Hall, the prize-officer, and Gideon, his proc- tor : and being fully assured in his own mind that the vessel would be condemned, his orders to Hall were to return to the " Cygnet," with the least possible delay, the deponent having only one officer left on board 1 to do the duties of his ship. And he said, that if he had been at St. Helena when the judge of the Vice- Admiralty Court restored the vessel, and condemned the seizor in costs and damages, he would undoubtedly have appealed to the judicial committee of her Majesty's most honorable privy council, and v he thought that his proc- tor ought to have preserved the right to appeal until his directions could have been taken on the subject. February 19, 1847. 1 The Queen's Advocate moved for leave to pro- secute the appeal upon the above affidavit. Lord Brougham. If the act of parliatfcnt authorizes rules to be made, those rules are part of the act. There is no limitation as to 1 Present : Lord Brougham, Lord Langdale, the Eight Honorable Dr. Lushington, and the Eight Honorable T. Pemberton Leigh. BEFORE THE PRIVY COUNCIL. 108 The Aquila. 6 Moore's P. C. Rep. the time to appeal, under the act 2d & 3d Will. IV. c. 51 ; but by the rules made under its authority, an appeal must be asserted within fif- teen days from the sentence. Under the circumstances, leave will be given to lodge this appeal, but the other side may present a counter- petition to rescind the leave thus given. The leave to appeal is, there- fore, subject to the right of the respondents to present a petition to dismiss. * In consequence of the leave thus given, her Majesty's [ * 108 ] proctor brought in and filed his petition and appeal, and obtained the usual inhibition. The appeal was in the ordinary form, and was supported by the affidavits above-mentioned. To this appeal the respondents' proctor objected, and brought in an act on protest, wherein he alleged, that by the rules and regula- tions touching the practice to be observed in suits and proceedings in the several courts of vice-admiralty established in her Majesty's pos- sessions abroad, it was, among other things, ordered, that all appeals from. decrees of vice-admiralty courts be asserted within fifteen days after the date of the decree, in manner as therein ordered, and that the party so appealing shall give bail, within fifteen days from the assertion of the appeal, in the sum of one hundred pounds sterling, to answer the costs of such appeal, after which only, by the rules and regulations, the judge and registrar can be duly served with an inhi- bition from the superior (the appeal) court, and a monition for the transmission of the process. And he expressly alleged, that in the present instance, the rules and regulations aforesaid had not been complied with, nor had. any or either of them ; on the contrary, that the schooner Aquila and her cargo having been decreed to be restored to their owners, and the seizor condemned in costs and damages, on the 19th day of March, 1846, the only pretended appeal from such sentence or decree was that of the 4th of December in that year : on that day, her Majesty's proctor had lodged a petition of appeal on behalf of her Majesty and the captor, in the registry of the High Court of Admiralty and Appeals, and in virtue of which pretended appeal had in *fact issued, and been served, the [ * 109 ] inhibition and citation, to which latter his proctor had appeared for his party under protest. And he further alleged, that after the sentence or decree, for the restitution of the schooner and her cargo to their owners, with costs and damages against the seizor, (being the sentence appealed from,) the amount of such costs and damages was referred, at the instance of the proctor of the seizor, to the registrar and merchants, who, after repeated meetings on such k. & m. 16 110 CASES ARGUED AND DETERMINED The Aquila. 6 Moore's P. C. Bep. reference, whereat the proctor of the seizor attended and was heard in objection to the amount claimed on account of such costs and damages, made, on the 5th of June, 1846, a report, wherein they reduced such amount from the sum of 8,7991. 17s. lid., the original claim made in respect thereof, to the sum of 2.318Z. 15s., which; sum only they con- sidered should be allowed, instead of that claimed ;. and which report was afterwards, on the 2d of July, 1846, confirmed by the court, with- out objection on the part of the proctor for the seizor. Wherefore he prayed the judicial committee to pronounce for the protest in this case, and relax the inhibition issued and served in virtue of the appeal as aforesaid, and that otherwise right and justice in the premises might be done to him. To this protest, her Majesty's procurator-general replied, and after admitting the facts as stated in the protest, alleged, that although under the circumstances thereinbefore stated, it was the duty of- the proctor engaged, by and on behalf of our sovereign lady the Queen, to have immediately asserted an appeal from the decree, yet by way of explanation of his having omitted so to do, he stated and [ * 110 ] submitted the circumstances * deposed to, and detailed in the affidavits, setting forth in detail the facts constituting the merits of the case, that there were only five proctors practising in such Vice- Admiralty Court, two i of whom were merchants; one a pensioned military officer of the East India Company's service ; one a pensioned market-master of the East India Company's late esta- blishment at the island of St. Helena ; and the other an assistant in a mercantile house ; and that none of the five proctors had any legal education, and that there has not been any precedent of an appeal from that court. That the judge of the court is the only lawyer on the island ; and there was no person conversant with the law and mode of proceeding with whom the aforesaid proctor could advise on the subject of an appeal ; and that he acted through ignorance in not doing so. Wherefore, he prayed their lordships to overrule the protest of the respondent, and to assign him to appear absolutely. July 4, 1849. 1 To this reply, such parts as sought to put in issue the merits of the case, the respondent's proctor objected to, and on the 4th of July, 1848, such objection was argued before their lord- ships, when the reply was directed to be reformed by striking out the part objected to. 1 Present : Lord Langdale, Lord Campbell, Sir Herbert Jenner Fust, and the Eight Honorable T. Pemberton Leigh. ; BEFORE THE PRIVY COUNCIL. Ill The Aquila. 6 Moore's P. C. Rep. To the reply thus reformed the respondent rejoined, and alleged, that of the five proctors, or persons acting as proctors, in the Vice- Admiralty Court at St. Helena, at the time of the sentence being given, in the case of the schooner Aquila, in that court, one of them was, and had been for many years before, the coroner 6f that island ; two others then were, and had been for * some [ * 111 ] time before, practising as attorneys in the Supreme Court of the island ; and a fourth, the proctor of Layton, then was, and had been for many years before, an assistant to, and partly con- ductor of the business of the sole or only notary-public in the island. And he further alleged, that the rules and regulations touch- ing and concerning the practice to be observed in suits and proceed- ings, in the several courts of vice-admiralty established in her Majes- ty's possessions abroad, and in appeals therefrom, were and must be well known to all proctors, or persons practising as proctors, in the Vice- Admiralty Court at St. Helena, inasmuch as a printed copy thereof, accessible to, and constantly referred to by all such proc- tors, or persons acting as proctors, in the said court, is always kept in the registry of such court ; another printed copy thereof (belonging to the judge of the court) being also usually kept in the said court, or in the judge's chamber adjoining thereto ; and whose clerk is ready to lend, and, on their application, frequently did lend, such copy to such or any of such proctors of the court, or persons acting as such, as chose to apply for the same. And he moreover alleged, that the suit in the Vice- Admiralty Court at St. Helena, touching or concern- ing the schooner Aquila, was conducted (in common with all suits in that court) in conformity to the rules and regulations ; and that the judge of the court, in the course of giving sentence in the suit, or at the conclusion thereof, intimated to, or reminded the proctor of Lay- ton, that if dissatisfied with such sentence, it was open to him to appeal therefrom, wherein the time prescribed by the regulations, and which the proctor of the said Henry Layton, at one time, * said that it was *his intention to do. And he lastly alleged, [ *112 ] that on the 19th day of August, 1846, Layton, being then at St. Helena, himself ordered his proctor to pay, and who, accordingly, paid 1 to the proctor of the master and claimant, in the Court of Vice- Admiralty at St. Helena, of the schooner Aquila, a certain supple- mentary bill of costs of his, incurred in the cause relative thereto, then lately depending in the court. - The facts thus alleged were verified by affidavit. 1 June 22, 1849. 113 CASES ARGUED AND, DETERMINED The Aquila. 6 Moore's P. C. Eep. The various proofs alluded to having . been < brought in, the cause came on to be heard before the judicial committee, on the protest against the appeal. The Queen's Advocate, (Sir John Dodson,) and the Attorney -Gene- ral, (Sir John Jervis,) for the crown, submitted, that from the circum- stances disclosed in the affidavits there had been no neglect in prose- cuting the appeal. Dr. Addams, in support of the protest. . The^rules and regulations touching the practice of appeals, to be. observed in suits and. proceed- ings in the vice-admiralty courts established in her Majesty's posses- sions abroad, have not been complied with in this appeal. [Lord Langdale. Have these rules any more force than as rules. of court? If there had been a right of appeal from the interlocutory decree, it is perempted by the reference to the registrar , and merchants to take accounts.] Yes, that would be a desertion of the appeal, and the right of appeal would be wholly perempted by the acts done by the seizor in furtherance of the interlocutory decree or sentence. [ * 113 ] The fact of the crown being interested can make no differ- ence. In Laing v. Ingham, 1 this court held, that the crown was perempted from appealing, as an appeal had not been interposed within the time required by the Mauritius charter of justice, and that the crown had no greater right than a subject, in such circumstances, to be let in to appeal. , The Right Honorable Dr. Lushington. The facts of this case lie in a small compass. A Brazilian vessel was captured on the 11th of November, 1845, by one of her Majesty's sloops, The Cygnet, as lia- ble_to forfeiture, for having been equipped for, and engaged in, the slave-trade. The vessel was proceeded against in the Vice- Admiralty Court of St. Helena, to which port, as the nearest, she had been taken. On the 19th of March, 1846,. the judge and commissary of that court, having heard the proofs, and the proctors on both sides, admitted the claim of the master for the vessel and cargo, and decreed the same to be restored to the claimant, and condemned the seizor in costs and damages, and the usual reference was directed to the registrar and merchants to ascertain and report the amount of such costs and damages. Various meetings were held before the registrar and mer- chants for this purpose, at which the proctor for the seizor attended 1 3 Moore's P. C. Cases, 26. BEFORE THE PRIVY COUNCIL. 114 The Aquila. 6 Moore's P. C. Rep. and took an active part, and succeeded in reducing the amount ori- ginally claimed from 8,799/. 17s. lid., to 2,318/. 15s., being one third of the original claim, which reduced sum was reported to be due from the seizor, and that report was duly confirmed on the 2d of July, 1846. Now, from the decree pronounced on the 19th of March, 1846, up * to the 4th of December, 1846, no appeal was [ * 114 ] interposed or asserted, and the fifteen days limited by the 35th of the rules established under the 2d & 3d Will. IV. c. 51, for regulating the practice of Vice- Admiralty Courts for interposing an appeal, have expired long since, even if the right had not been alto- gether waived, by the seizor's conduct in attending and taking the active part he appears to have done, in the reference to the registrar and merchants. In these circumstances the case stood, when, in De- cember, 1846, her Majesty's proctor presents a petition for leave to appeal. That petition having been referred to this committee, and a motion made by the Queen's Advocate to admit the appeal, their, lordships directed the matter to stand over, with liberty to the Queen's proctor to verify the facts stated in his petition, and show merits, if there were any, for being let in to appeal. Two affidavits having been filed, this court was again moved on the 19th of February, 1847, when leave was given to the seizor's proctor to bring in his,appeal, subject to the same being dismissed on a counter-petition being pre- sented by the respondent. The appeal having been brought in pur- suant to this leave, no counter-petition to dismiss, was presented ; but the proctor, on behalf of the master of vessel and cargo, brought in an act on protest against the admission of the appeal, stating cir- cumstances why he should not be compelled to appear, and alleging, that the appeal was not duly prosecuted according to the rules of the Vice- Admiralty Court within fifteen days, and that any right which the appellant might have had, was effectually perempted by the course adopted by the appellant in submitting to, attending, and taking an active part upon the reference made to the registrar, and * merchants. Now, with the merits of the case, their lord- [ * 115 ] ships, in this stage of the proceedings, have nothing what- ever to do ; it is admitted on all hands that this is an application to the indulgence of the court, and the question their lordships have to decide is, whether they have the power to dispense with the rule limiting the period for appealing to fifteen days, and if so, whether there is such a case shown, as entitles the crown to this indulgence. The ground insisted on, is, the ignorance of the proctor for the seizor in St. Helena ; but their lordships remark, that all the proceedings taken by him are strictly regular, and according to the rules of prac- tice in all Vice- Admiralty Courts, and they cannot think that upon 16* 334 CASES ARGUED AND DETERMINED The Endeavor. 6 Moore's P. C. Eep. the single point, namely, the right of appeal, he was alone ignorant. It is in evidence that the book of rules and regulations made under the act, is in the court at St. Helena, and was .accessible to the seiz- or's proctor, and surely if he could conduct the case as he has done there, with strict regularity in the proceedings, even if he did not know that he was at liberty to appeal, he ought to have ascertained the fact by referring to the rules and regulations ; instead of which, he not only neglects to assert an appeal in due time, but actually assents to the decree, and acts under it, by attending and taking part before the registrar. Under such circumstances, their lordships think there is no case which entitles the seizor or the crown to any special indulgence, and without giving any opinion upon the merits, their lordships are of opinion that no sufficient grounds have been stated to enable them to allow the appeal, and they, therefore, pronounce for the protest, and dismiss the respondent from" all further process. ON APPEAL FROM THE HIGH COURT OF ADMI- RALTY. [ * 334 ] * The Endeavor. Nathaniel Colby and others, Appellants ; William Watson and ano- ther, Respondents? February 28, 1848. Upon a tender for salvage services, in getting a vessel off the Newcpmbe Sand, it appeared that, in order to get the vessel off the Sand, both her bower anchors and chains were slip- ped, and that the salvors, after getting her off, called in the aid of another boat to recover the anchors. Held, that the general salvage was completed when the vessel was off the Sand, and that the getting up of the anchors formed no ingredient in the salvage services as to entitle those who recovered the anchors to share in thegeneral salvage of the ship and cargo. Where the salvors took no step in the Admiralty Court to issue a commission of appraise- ment of the vessel proceeded against, this court, as the court of final appeal, will not admit affidavits appraising the vessel. This> was an appeal from a decree of the High Court of Admi- 1 Present : Lord Langdale, Lord Campbell, the Eight Hon". Sir Herbert Jenner Fust, and the Eight Honorable T. Pemberton Leigh. BEFORE THE PRIVY COUNCIL.- 335 The Endeavor. 6 Moore's P. C. Kep. ralty, in a cause of salvage, in which that court pronounced that a tender of 100L, made on * behalf of the owners of the [ * 335 ] ship Endeavor and her cargo, to the respective owners and ; boatmen belonging to the yawls Welcome Home and Happy Return, was a sufficient remuneration for the services rendered by them, in rescuing her off the Newcombe Sand. The cause was brought under the following circumstances : — On the 29th of January, 1846, The Endeavor, on a voyage from Hartlepool to London, with a cargo of coals, was run into and damaged in her rigging by a brig in Corton Roads, and soon after, missing stays, she grounded on the Newcombe Sand, off the coast of Suffolk, about four o'clock, P. M., an hour after low water. The weather was fine, the wind very light. All sail was immediately hove back, with a. view of backing her off, but without effect, and the small bower anchor, weighing nine cwt., was let go, and twenty fathoms' chain veered away. About five o'clock a- fishing-smack came alongside and offered assistance, which the master declined. The Welcome Home, with eighteen men, and a. galley, afterwards came alongside, and the master of The Endeavor inquired the charge of running an anchor away. The crew of The Welcome Home refused, to make . any specific charge, and the master engaged their services. The. Welcome Home ran away The Endeavor's best bower anchor, weighing ten cwt., and fifty fathoms of chain ; and her small bower being slipped, she was, at high water, hove off to the best bower ; her kedge, with two warps, was run away to the eastward, and she was hove further off the ground, slipped from her best bower and chain, and brought" up by her kedge, until The Endeavor's anchors and cables were recovered, and, at about half past ten, she "was brought up in Corton Roads. [ * 336 ] In recovering the anchors and chains, the other yawl, The Happy Return, with eighteen men, was employed, at the instance of the crew of The Welcome Home. The whole number of men engaged in actual salvage service was twenty-nine. , The value of the ship, cargo, and freight, was sworn at 1,834Z. The owners of The Endeavor tendered 1007., which the salvors rejected, when an action was entered by them at 400Z. The salvors relied upon the number of hands employed, contend- ing that it was owing to that circumstance alone that the vessel was got off that tide. The owners of The Endeavor, on the contrary, insisted that such numerical force was wholly unnecessary, and alto- gether unauthorized by the master, who only engaged the crew of The Welcome Home to carry out an anchor and heave at the wind- lass ; and that this yawl's crew could have recovered both anchors 337 CASES ARGUED AND DETERMINED The Endeavor. 6 Moore's P. C. Rep. and chains, as they were engaged to do ; and that if an unlimited number of persons. were permitted, by the original salvors, to assist in doing that for which the latter were solely engaged, and quite competent to perform, the owners were not legally rendered liable to remunerate such persons as salvors. The learned judge of the Admiralty Court, (the Right Hon. Dr. Lushington,) by his sentence, held the tender to be sufficient ; that, when the vessel. got off the Sand, there was an end of the salvage service ; that The Happy Return was not a salvor ; and that, if she was entitled to be paid at all, it was simply for work jind labor done in getting up the anchors; and condemned the salvors in 151., nomine expensa/rum. [ * 337 ] * From this sentence the salvors appealed, and, by their reasons of appeal submitted that the sentence ought to be reversed : — Because it appeared^ from the proofs in the cause, that The En- deavor and her cargo were rescued from a state of peril at sea by the united exertions of twenty-nine men ; and Because the vessel, having lost both her bower anchors and cables, and being merely held by her kedge anchor, was not in a state of security ; and, consequently, that the weighing of the two bower anchors and cables formed a most important ingredient in the salvage services. The respondents, on the other hand, contended that the sentence appealed from was proper, for the following reasons : — 1st. Because the only salvage services received by The Endeavor were, in fact, performed by one boat's crew, the eighteen men of The Welcome Home, and were terminated by The Endeavor being hove off the Sand, without any difficulty, danger, or extraordinary exertion, by about two hours' labor, and during fine weather. 2d. Because the boat's crew of The "Welcome Home were alone engaged by the master to perform the whole necessary service, includ- ing the picking up and putting on board both the anchors and chains, which they might easily have done, and that no necessity existed for sending on shore for and employment of The Happy Return ; anrfWch additional men and such employment, not having been ordered or authorized by the master, the appellants were not liable to remune- rate those men as salvors. [*338] *3d. Because the getting The Endeavor off the Sand, and recovering her anchors and chains, under the circum- stances, were such ordinary and slight salvage services, and required for their performance so small an amount of skill, labor, or time, (by whatever number of men performed,) as to be amply compensated by the 100Z., especially considering the value of her cargo. BEFOEE. THE PRIVY COUNCIL. 339 The Endeavor. 6 Moore's. P. C.Kep. At the opening of the appeal, the counsel for the appellants applied to be admitted to bring in affidavits of the actual. value of the ship, upon the ground that the salvors' agent, in the court below, believing that the owners, would give a fair value, did not think it necessary to extract a commission of appraisement, but that it had been discovered that the vessel and cargo was of greater value ; that the court below awarded 1001. upon an estimated value of 1,834Z. They cited, in sup- port of the application, The Oscar. 1 < Sir Herbert Jenner Fust. We cannot entertain this applica- tion. The appellants ought to have.applied to, the court below, and have made it a part of the appeal, whereas no step has been taken in this matter, and you now ask a court of. final appeal to receive fur- ther evidence. The appellants have let the proper time go by, and this court cannot help them. . . , . , Mr. Sergeant Shee and Dr. Robinson, for the appellants. The court below has allowed nothing for recovering the anchors, but we. submit that the. recovering *the anchors, in such [*339 ] circumstances, was a salvage service. They were lost in the course of the salvage service, and The Endeavor could not go away without them. The salvage was not complete until the anchors were safely on board. [Lord Langdale. Do you contend that, after the ship was salved, there was another salvage service for recovering her anchors ?] The Wreck and Salvage Act, 9 '& 10 Vict. c. 99, s. 19, recognizes as salvage. service the recovery of an anchor. • [Lord Langdale. The anchors were not derelict ; it was known where' they were.] It is a question of principle whether, when an anchor is lost in the course of a salvage service rendered to the, ship, and the recovery of the; anchor is necessary, in order to place her in a place of safety, it is not a salvage service, and entitled to reward. The Westminster 2 shows the modes of estimating' the salvage. Independently of salv- ing .the anchors, the value of the service was not sufficiently consi- dered. • Only'lOO^is given but of 1,800Z., to twenty-nine men. 12 Hagg. Adm. K. 257.' 2 i W. Rob. juni 229. 340 CASKS ARGUED AND DETERMINED The'Eiideavor. 6 Moore's P. C. Rep; The Queen's Advocate, (Sir John Dodspn,) arid Dr. Harding,' for the respondents, were not called upon to address their loTdships. Sir Herbert Jenner Fust. Their lordships entirely agree in the opinion of the learned judge of the Gourt of Admiralty. The facts of the case lie in a very narrow compass. The