land (d). The condemnations, as they are called, sometimes made abroad, upon the survey and report of captains or carpenters, have no binding force in this country, but the fact upon which they profess to be founded may be again litigated by the parties interested in disputing it. This was successfully done at a trial before Lord Ellenborough, in a case (e) of which it will be proper to detail the circumstances, as there is too much reason to fear that similar practices not unfrequently take place. The owners of the ship Grace sent her to Jamaica, under the command of one Cook, with a cargo consigned principally to M'Anuff and Cunningham, and with orders to follow their directions in respect to his loading back, and to apply to them for money for the use of the ship. On the 23rd of February, 1802, after the discharge of her cargo, the ship was driven on shore at Rio Bueno in Jamaica, in a gale of wind. The master applied to Cunningham, who resided at Montego Bay, for advice in this emergency, and on the 27th of February made the usual protest. On the same day, the deputy naval officer at Montego Bay directed his warrant to four masters of ships, desiring them to examine the Grace, and make a return upon oath of her state and condition. They reported that they had been on board, and found the ship settled in a sand-bank four feet, with a bank of sand between her and the sea of twice her length, and not more than two feet water on the sand-bank; and that they were therefore unanimously of opinion, from the great expense that would be incurred in attempting to get her afloat, and the little chance of succeeding therein, that it would be most for the advantage of the underwriters, and all others concerned, to sell the ship as she then lay, with all her materials, to the best bidder. Cunningham advertised the ship for sale by auction as a wreck; he acted as auctioneer, and charged his commission, and she was sold, on the 15th of March, to one Dunn, for 1,210l. Jamaica currency, about 864. sterling. One of the surveyors attended, and bid at the sale. Dunn sold the vessel to Robert Moulton, a brother of one of the defendants, who, upon his oath of ownership, and surrender of her register, obtained a new register at Jamaica, and transferred her there to the three defendants, one of whom was one of the four masters by whom she had been surveyed. The vessel was got off the sand with considerable difficulty, but very little injured, and after some slight repairs returned to England with a cargo. deputy naval officer here mentioned, is the deputy of an officer appointed by the governors of our colonies and plantations to receive an account of ships and their cargoes upon their arrival there (ƒ). The ship had cost 3,700l. before she left England, and was little more than three years old."

The

The owners being dissatisfied with this sale, brought the present action to try its validity; and, at the trial, it appeared by the evidence

(d) See, however, the 3 & 4 Wm. 4, c. 55, s. 8.

(e) Hayman and Others v. Moulton and Others, Sitt. at Guildhall, Nov. 1, 1803.

There is a report of this case in 5 Esp. N. P.C.p.65. Ridgway v. Roberts, 4 Hare,103. (f) 15 Car. 2, c. 7, s. 8; and 7 & 8 Wm. 3, c. 22, s. 5.

of Cook, and of three of the masters who had surveyed her, that they had paid very little attention to the ship itself, which was never pumped before they made their report; but they swore that they thought a sale the most prudent step to be taken, on account of the difficulty, expense, and hazard of removing her from her situation, and the little resources that Cook had for such a purpose. The plaintiffs contended, that the master of a ship could not dispose of her in any case; or that, admitting him to have this power in a case of absolute necessity (g), such necessity did not exist in this instance, and the whole transaction was a gross fraud.

The Chief Justice, Lord Ellenborough, offered to reserve the question of the master's power to sell under any circumstances for the consideration of the Court, if the verdict should render that point material; and stated his own opinion to the jury to be, that although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of the concerned, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot; and that in extreme cases, and extreme cases only, he had power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish absolutely. And he desired the jury to consider, whether in this case there was such a necessity as would have induced the owner himself to sell if he had been present; and, if they thought there was such a necessity, then, whether the sale in this instance was fraudulent? The jury found a verdict for the plaintiff's.

In the course of the trial no regard was paid to the authority of the deputy naval officer, whose situation certainly gives him no manner of jurisdiction on such a subject. In commenting upon the evidence, the Chief Justice adverted particularly to the circumstance of one of the surveyors having bid at the sale, and another become a purchaser before the ship left the island; and observed, that it might be a useful lesson to teach such persons, that by accepting the office of surveyor, they elected, not to become purchasers, or to derive any benefit from the sale.

And at a subsequent trial of an action (), brought to recover the value of a ship, which had been in like manner condemned and sold at Tobago, as incapable of repair, and in which also the plaintiff succeeded, his lordship said, that he considered a proceeding of this sort, not as the sentence of a Court pronounced for the captors of a captured vessel, but rather as the inquisition of a sheriff, for the purpose of information to those who, under certain circumstances, have the power of selling the ship. Such an inquisition is not conclusive upon the party whose property is in question.

In the case of the ship Grace, the sale was considered to be fraudulent; but in those of the ship Glamorgan, and the ship Lady Banks,

(g) As to this (the degree of necessity which will justify a sale of the ship by the master), see the authorities and reasoning collected in 2 Phillipps on Insurance, 307, et seq., and the note to Story's edition of

C

this work, p. 10. As to necessity being an excuse for the violation of a positive law, see Lord Stowell in The Generous, 2 Dods. 328.

(h) Andrews v. Glover. Sitt. after Trin. T., 46 Geo. 3, at Guildhall.

which have been recently mentioned, the sale was thought to be fair and well intended; and the former was made under an order of the Court of Vice-Admiralty of Antigua, founded on the proceedings usual on such occasions-viz., a petition of the master to the Court for a survey, a commission of a survey, report of surveyors, decree of the Judges adopting the report, petition of the master for a sale, and a commission of sale directed to the Marshal of the Court. Yet in this case also, the Court of King's Bench decided, that the Vice-Admiralty Courts abroad have no authority to decree, upon the mere petition of the master, the sale of a ship reported upon survey to be unseaworthy, and not repairable, so as to carry its cargo to the place of destination without an expense exceeding the value of the ship when repaired (i).

3. Another mode of acquiring property in a ship is by capture from an enemy in time of war, legalized and sanctioned by a sentence of condemnation in a Court of the capturing power, constituted according to the law of nations (k). In this case, however, if the capture is made by a ship belonging to his Majesty, the prize is formally condemned to the King, and the value distributed among the captors; and if the capture is made by a private ship, in which case the sentence is in form a condemnation to the captors, a sale will always be the most convenient mode of ascertaining the value, both for the purpose of distribution among the captors, and of payment of the (1) duties to the King (m); and the Acts of Parliament which give to prizes the privileges of British ships, presume a sale thereof, and provide regulations accordingly, as will appear in the next chapter.

There appears to be no settled and uniform rule established in practice among nations as to the precise period at which property is devested by capture. By some writers, and in some nations, this has been held to take place after a possession of twenty-four hours; by others, not until the prize has been carried infra præsidia (n) — an expression of very doubtful meaning as applied to maritime warfare.

(i) Reid v. Darby, 10 East, 143.

(k) Molloy, b. 1, c. 2 & 3. Asseviedo r. Cambridge, 10 Mod. 77. Goss v. Withers, 2 Burr. 690. "The sentence of a foreign Court of Admiralty of competent jurisdiction pronounced in rem is conclusive against all the world as to the existence of the ground on which the Court professes to decide." Smith's Leading Cases, vol. 2, p. 452, citing Bernardi v. Motteux, 2 Dougl. 574. Baring v. Claggett, 3 B. & P. 201. Pollard v. Bell, ST. R. 431. Bolton v. Gladstone, 5 East, 155. Don . Lippinan, 5 Cl. & Fin. 1. "If," says Mr. Starkie, "it be a general sentence of condemnation without assigning any reason, the Courts will consider that it proceeded upon the grounds of the ship being the property of an enemy; but if the sentence profess to be made on particular grounds, set forth in the sentence, and which appear not to warrant the condemnation, the sentence is not conclusive as to those facts." See

-

(1) By 34 Geo. 3, c. 70, ships of war, made prize, are exempt from duty.

(m) "Prize," said Lord Stowell, "is altogether a creature of the Crown. No man has or can have any interest in it but what he takes as the mere gift of the Crown." See the Elsebe, 5 Rob. 182, in which the power of the Crown to direct the release of property secured as prize before adjudication, and against the will of the captors, was affirmed. See also the Thetis, 1 Hagg. 231. 1 Blackstone, by Christian, 259, note. Vattel's Law of Nations, b. 3, c. 15.

(n) March, 110. See Vattel, b. 3, c. 13.

Lord Stowell has said, that, in his apprehension, "by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchaser in Europe during war looks to the legal sentence of condemnation as one of the title-deeds of a ship, if he buys a prize vessel" (o). Such a sentence was thought necessary in this country to devest the title of the original owner, and give a valid title to a purchaser under captors more than a century ago; and a ship taken from an Englishman by a French squadron in the year 1691, and sent into Bergen in Norway, and there sold, coming afterwards into this country, was claimed by the original owner, and decreed to be restored to him by a sentence of the Court of Admiralty, affirmed afterwards upon appeal to the delegates (p); and upon the ground, that a legal sentence of condemnation cannot, according to the law of nations, be pronounced by a consul or minister of the belligerent power, in the country of a neutral power to which the prize may have been taken, ships have been restored, by the judgment of the Court of Admiralty, to their original owners, as well upon recapture from the purchaser (9), as upon arrest in a port of this country (r). In one case, the ship, while in the hands of a neutral purchaser, had been taken by the French, and carried into a Spanish port, and there condemned by the French consul as prize, but that condemnation had been reversed on appeal to the Superior Prize Court at Paris, and the ship restored to the purchaser. These facts, however, were held not to alter the case, or give validity to the title of the purchaser.

* When this practice of condemnation in a neutral port, by the consul of a belligerent state, was first challenged in the Court of Admiralty of England, in the case of the Flad-Oyen, it was treated by Lord Stowell as a pretension altogether without authority. "I must deem," he said, "the act of this French consul a licentious. attempt to exercise the rights of war within the bosom of a neutral country." Lord Kenyon, in the Court of King's Bench, a few months after, emphatically approved of this decision, and said, that "the case had been determined on grounds which would recommend it to all who filled judicial situations" (s). In the United States also, it has been held that the exercise of such a jurisdiction is inconsistent with the law of nations (t).

The principle upon which these decisions were founded is, that a sentence of condemnation as prize of war is a judgment in rem; the result of legal proceedings in a legitimate Court, armed with competent authority upon the subject-matter, and over the parties concerned; a Court which has the means of pursuing the proper inquiry, and enforcing its decision by reason of its possession of the res ipsa, the corpus, which is the subject-matter of it.

*

According to this principle, a ship carried into a neutral port

(0) 1 Rob. A. R. 139.

The ship Constant Mary, 3 Rob. A. R. 97, note. Thermolin v. Sands, Carth. 423. (2) The Flad-Oyen, Martinson, 1 Rob.

A. R. 135.

(r) The Kierlighett, Sporewig, 3 Rob. A. R. 96. And the Prosperous, Dec. 1800. (s) Havelock v. Rockwood, 8 Term Rep. 268. Donaldson v. Thompson, 1 Camp. 429. (t) American edition, in notis, p. 17.

66

ought not, while remaining there, to be condemned in the country of the captors; and in the cases of the Flad-Oyen and the Hersteldef (u), Lord Stowell was of opinion that such a practice was not authorized by the law of nations. In the last cited case, having learnt that a Dutch ship, condemned by him, and which was described as lying at Plymouth, had been taken on capture to a port in Norway, and lay there at the time of adjudication, he declared that "the Court would not condemn a vessel lying in a neutral port, and directed the registrar to amend the decree. Upon principle," said the same learned Judge, in the subsequent case of the Heinrich and Maria (v), which was that of a British ship carried into Norway by a Dutch privateer, and condemned by a Court at the Hague, "it is not to be asserted that a ship brought into a neutral port is with effect proceeded against in the belligerent country." But having been satisfied that the High Court of Admiralty of England had condemned, as prize, ships lying at Leghorn and Lisbon, when the Sovereigns of those ports were not engaged in a common war against the enemy of this country, and had also issued commissions to other neutral ports for the examination of prisoners of war carried into them, he added, "I am of opinion that this Court is bound against the true principle, by the practice which it has not only admitted but applied. The observation of Bynkershoek, In jure belli quod quis sibi sumit hostibus tribuendum est'-a rule true in all instances-is not more true in any instance than in one in which the rights and interests of other countries, being neutral, are so directly concerned. How far the Superior Court may consider that question as concluded by the practice, even an inveterate practice of this Court, is more than I can say; but sitting here and observing, as I am judicially bound to do, the course of judicial administration which has prevailed, I do not feel myself authorized to uphold the sentences which have passed in this Court over prizes carried into Foreign Ports, and disallow, at the same time, the validity of such as the enemy has pronounced, under circumstances so nearly similar as not to afford ground of a distinction between them, which appears to my judgment sufficiently solid." In the cases of the Comet (x) and the Victoria (y), Lord Stowell adhered to this decision.

The case of the Heinrich and Maria was affirmed by the Lords of Appeal; and the judgment pronounced by Sir William Grant (2) proceeds upon the ground, that the practice of Great Britain must have the effect of making those sentences valid, and that there was no equity on which we could deny the validity of that title to neutrals purchasing of the enemy, at the same time that they were invited to take it from ourselves (a).

*

The doctrine thus sanctioned by the practice of France, Spain, and

(u) 1 Rob. A. R. 113.

(r) 4 Rob. A. R. 34.

(a) 5 Rob. A. R. 285.

(y) Ed. A. R. 97.

(2) 6 Rob. A. R. 138.

(a) The doctrine of the British Courts proceeds, as is at once seen, not so much upon its supposed correctness in point of

principle, as upon the general usage of nations, and particularly of Great Britain. The question has been argued upon principle in the Supreme Court of the United States; and after elaborate discussion, it has been finally adjudged that a condemnation of prize property, while lying in a neutral port or in the port of an ally, is valid, and