of Prizes. The decree of a prize court being a proceeding in rem, it is Competent Court essential to the validity of such proceeding that the prize itself be in the control, and so to say, possession of the court at the time of adjudication. The condemnation, therefore, of a ship as lawful prize of war, while lying in a neutral port, is insufficient to give the captors or purchaser a good title as against the original owners.' Lord Stowell, having condemned The Herstelder, which was represented to the court as lying at Plymouth, afterwards rescinded the decree, upon hearing that instead of Plymouth, the vessel was at the time of adjudication actually lying in the port of a neutral country;' but the same learned judge, knowing that illegal sentences of this kind had in former wars occasionally received the sanction of the courts of this country, thought himself bound to give effect to a similar sentence passed by the enemy, until the practice should be restored by the Court of Appeal to the proper purity of the principle; and the Lords Commissioners of Appeals, whilst recognising the principles laid down by Lord Stowell as the only proper foundation on which the proceedings and decree of a court of prize could be sustained, approved of the exception made in this particular instance and affirmed the decree. During the time that this appeal was pending, and before sentence was given by the Lords Commissioners, another case of the same kind had been brought before Lord Stowell, and with respect to it, there was no alternative but to follow the course which he had previously taken in the case of The Henric and Maria. So far as appears, this is the latest case before Lord Stowell,' being only the second, in which he countenanced would have been if this second sentence had been an affirmation merely of the first upon appeal. The Herstelder, De Koe, 1 C. Rob. She was in a port of Norway. The The Henric and Maria, Baar, 4 C. note. 4 The Comet, Adams, 5 C. Rob. Ad. The Victoria, Edw. Ad. 97, is not a any deviation from the rectitude of principle; and in these two instances he bowed to a necessity, imposed on him by the defection of his predecessors, practising at the same time a of his predecessors. It is to be regretted that the very learned Chancellor Kent should have been misled, by what authority he says not, so far to misrepresent both Lord Stowell and the principles of the English Prize Court, as appears by the following statement in the latest edition of his Commentaries, vol. i. P. 104. "He (Lord Stowell) considered that the English Admiralty had gone too far, in supporting condemnations in England, of prizes abroad in a neutral port, to permit him to recall the vicious practice of the Court to the acknowledged principle; and the English rule is now definitely settled, agreeably to the old usage and the practice of other nations." The learned commentator adds, "The Supreme Court of the United States has followed the English rule, and it has held valid the condemnation, by a belligerent court, of prizes carried into a neutral port and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war; and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub potestate of the captor." The principle, on which this alleged practice of the United States Courts is founded, may be seen asserted and argued by Marshall, C.J., in the case of Hudson v. Guestier, 4 Cranch's Rep. 293. ment of the learned Chief Justice appears to be this :-the prize, though lying in a neutral port, is in the power and possession of the officer on board; his possession is that of the sovereign of his country; and it is the possession of the sovereign that gives his court jurisdiction; therefore the prize is within the possession of the court. It is not intended to misrepresent the learned judge's argument; but it seems when thus stated to be a principle on which The argu the less that is said the better. It is far more easy to justify the practice by expediency and with that the learned commentator should have contented himself. But with regard to the prac tice of the United States, it is laid down so late as the year 1851 by Taney, Chief Justice of the Supreme Court (Jecker v. Montgomery, 13 Howard Rep. 498, 516) that, "As a general rule it is the duty of the captor to bring it within the jurisdiction of a prize court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the Act of Congress in cases of capture by the ships of the United States; and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilised countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property." As for the practice of the continental nations, I have not been able to ascertain what it has been subsequently to the peace of 1815. Before that period, during the great French war, when anything was observed but principle, I have no doubt it was exceedingly irregu lar. Martens' "Essai concernant les armateurs," &c., lays down the following rule, which it will be observed is more stringent than the principle of the English Courts: "C'est alors qu'observant les formes susdites, l'armateur doit amener sa prise, et l'amener dans la règle dans un des ports de son souverain et même, s'il peut, dans ce port dans lequel ila obtenu sa commission." But I find the same author, in his Droit des Gens, liv. 8, c. 4, § 289, admits that while it is the duty of a privateer to carry his prize into a port of his own country, he may under stress of war carry it into a neutral port, and wait for condemnation of it there. Among higher equity towards the enemy,' in order to win for himself and his successors the acknowledged right of ever after observing strictly the principles of the court in all their purity. Accordingly, during the recent war with Russia, when seven ships, captured from the enemy, but totally unfit to be brought to this country, were carried into Memel, the port of a neutral country, and the consent of the authorities of the country had been obtained for the sale of them there, Dr. Lushington, reluctantly, and only in consideration of the exceptional circumstances of the case, condemned them as prize. But the learned judge added:-"I wish it moreover to be expressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of prize while lying in a neutral port. The modern writers neither M. Ortolan, nor M. Hautefeuille make any mention of the question. Both of them, however, are agreed upon another and a broader question, which has exercised the ingenuity of jurists to little advantage or satisfaction of their readers, so great is the conflict of opinion, and so arbitrary the conclusions severally adopted. M. Ortolan (Règles Internationales et Diplomatie de La Mer, vol. 2, liv. 3, c. 3), and M. Hautefeuille (Des Droits et Devoirs des Nations Neutres, vol. 1, p. 354, 355), lay it down that the property of the captured is not divested except by a sentence of a court of competent jurisdiction. M. Martens (Droit des Gens, liv. 8, c. 4, § 282) seems to follow Grotius (De Jur. Belli, lib. 3, c. 6) in asserting that possession for twenty-four hours suffices. Vattel (liv. 3, c. 13), on the other hand, asserts that this rule of twenty-four hours applies only to military operations on land, and thinks that a ship must be brought infra prasidia into a place of safety where it is entirely in the captor's power. And the editor of Martens' Droit des Gens, M. Pinheiro-Ferreira disputes the possibility of determining the point (ubi pra, note 79). The question was much discussed before Lord Mansfield and the Court of King's Bench in Goss v. Withers, 2 Burr. 683, and it is there shown that it is the ancient practice of the English Courts to require a sentence of a court of competent jurisdiction to divest the captured of any property in his ship. The same is laid down as the rule by Lord Stowell not only in the numerous cases which came before him in his judicial capacity, but also in the celebrated letter written by him conjointly with Sir John Nicholl, in the month of September, 1794, on the practice of the English Prize Court, at the request of the American Minister at St. James's, the Hon. John Jay, and addressed to that gentleman (see Story's Notes on Prize Courts); and this is no doubt now the received rule and practice of the maritime nations of Europe and America. See, however, the Santa Cruz, Picoa, 1 C. Rob. Ad. 50; The Ceylon, Mulac, 1 Dods. Ad. 119. 1 "In jure belli, quod quis sibi sumit, hostibus tribuendum est :-in the conduct of war, you must hold that to be lawful to your enemy which you practise yourselves;" per Lord Stowell, Henric and Maria, 4 C. Rob. Ad. 43, 62. HOW TRANS- In case of a rule is, that the prize shall be brought into a port belonging to the captor's country, and the Court must guard itself against allowing a precedent to the contrary to be established."" We come now to consider the legal incidents which are requisite to a valid transfer of ownership from the seller to the purchaser. Such dealings with the property as result in Trusts, Mortgages, and Hypothecations, will be considered hereafter in their order. A legal transfer of a ship, or any number of the sixty-four shares therein, entitling the transferee to rank on the register as owner or joint-owner of such property, and to burthen or absolutely dispose of it accordingly, cannot be made except between persons who are qualified to be owners of a British ship. A valid transfer must be by one possessed of sufficient power, to another qualified to hold such property, by means of a proper bill of sale duly executed and attested; and must be evidenced by the requisite alterations and entries in the register. The recent Registry enactments have continued, among the purchasers of ship property, the distinction between those who are qualified to be owners of a British ship, and those who are not. No person, who is disqualified, may hold any legal or beneficial interest in a British ship, either as sole or part owner.' Upon the accession of a foreigner to her proprietory, the vessel must be taken off the register and her certificate delivered up; she must cease to use the British flag, or in any way assume the British character; otherwise, the property of the person disqualified, and also the whole ship, is liable to be forfeited to the Crown. We shall here consider by whom, and to whom, and in what way a valid transfer may be made. Registration of ships and owners will form the subject of a distinct chapter. 1 The Polka, Spinks' Prize Rep. 57. 4 Ibid. § 103. Yet it would seem Joint Stock Company without thereby disqualifying the company from holding property in British ships, Reg. v. Arnaud, 9 Q. B. 817, 818; 17 & 18Vict. c. 104, § 38. ferred. A ship of British build is, before registration, naturally By whom transsupposed to be in the disposition of the builder,' who, therefore, unless he has built her under special contract," or previously transferred his right in the vessel,' is the person capable of giving a valid title to the property therein. If a ship of foreign build is to be sold in this country, it is Foreign Ship from her previous bill of sale, the universal instrument of transfer in use with all maritime countries, together with such other muniments of title as the municipal law of her home port may require, that we are most likely to discover the true owner of the vessel. But if she has been brought into this country as prize of war, the proper document of title, showing authority for the sale, is the official of the condemnation of the vessel by a court of competent jurisdiction." copy Owner. A vessel, registered under the 17 & 18 Vict. c. 104, is in the Registered absolute disposal of the persons appearing on the register as owners, and jointly or severally to the extent of the shares registered in his, her, or their names, subject only to any rights. and powers appearing by the register to be vested in any other person. The register is the evidence of title to transfer, both as to the owner and the property owned; he who appears therein to be owner is the person to give effectual receipts for the price; and his legal relation to the property cannot be impugned, except on evidence of fraud, or that the bill of sale to him was a nullity. If the registry of a ship, or any share or shares therein, is in the joint names of several, all must join in the transfer to give a valid title." 9 In case of the lunacy of a sole registered owner, or of one Trustee. of several joint-registered owners of a ship or shares held upon Mucklow v. Mangles, 1 Taunt. 318; Miles v. Dawson, Peake, Add. C. 54; Stringer v. Murray, 2 B. & Ald. 248. * Woods v. Russell, 5 B. & Ald. 942; Clarke. Spence, 4 A. & E. 448; Wood v. Bell, 5 E. & B. 772. Read v. Fairbanks, 22 L. J. (C. P.) 206; 13 C. B. 692. The Sisters, 5 C. Rob. Ad. 155; per Lord Stowell in The Copenhagen, Mening, 1 C. Rob. Ad. 289. 5 17 & 18 Vict. c. 104, § 40. 7 Orr v. Dickinson, 1 Johnson, 1; 8 17 & 18 Vict. c. 104, § 37, 43. 9 Ibid. § 99. By the 18 & 19 Vict. c. 91, § 10, shares in ships are to be deemed to be included in the word |