66 6 6 "field in Lindo v. Rodney (y), that there is no instance in "history or law, ancient or modern, of any question ever 'having existed respecting Booty taken in a continental "land-war before any legal judicature in this kingdom,' "that in very early times causes respecting it were deter"mined in the Court of Chivalry held before the Constable "and Marshal. In the MS. Treatise of Lord Hale, De "Prærogativâ Regis, cap. 12. s. 3. fol. 191., he says, In "matters civil, for which there is no remedy by the "common law, the military jurisdiction continues as well "after the War as during the time of it; for that part "of the jurisdiction of the Constable and Marshal stands "still, notwithstanding the War determines as concerning 'right of prisoners and Booty, military contracts, ensigns, ""&c.' 66 6 6 "The only direct instance of the exercise of this jurisdic"tion which the reporter has been able to find, is one "mentioned in a MS. Treatise of Lord Hale, in Lincoln's "Inn Library, which is headed, Upon certain petitions of "late exhibited in the Court of Chivalry, there have been "raised divers questions of law,' and afterwards proceeds "to discuss the power of that Court to fine and imprison, "and give costs and damages in an action commenced there "for opprobrious words, and whether the Earl Marshal " alone might in that, and in such like cases, hold pleas. In page 33 of this manuscript, amongst the precedents cited "to prove that this Court might give damages, there is the "following passage: About the 17th year of Richard II., "in a cause depending in the Court of Chivalry between "John Haulce and John Rosque, concerning certain 66 66 6 goods taken from a captain of a castle beyond the seas, "the plaintiff in the libel demanded costs and damages "according to the custom of the Court of Chivalry.' "There are, however, many instances on record of its (y) Douglas's Reports, 592, but see the case of Banda & Kirwee Booty at the end of this chapter. exercising a jurisdiction in the analogous cases of disputes respecting the right to or ransom of prisoners, whom "their captors were, by the usual custom of those times, "allowed to ransom for their own benefit. Thus in "Edward III.'s reign, there were special commissions to "Guido de Brien and Richard de Stafford, in the place "of the Constable of England, who was then a minor, to "hear, together with Edward de Mortimar, the Marshal, "two cases respecting the right to prisoners: Rot. Pat. 48. "Edw. III. in dorso p. 2, m. 10, mentioned in an anony"mous treatise in Hearne's Curious Discourses, vol. ii. "p. 150; and in the 2nd Henry IV., there was a com"mission to delegates to hear an appeal from the Court of "Chivalry held before the Constable and the Marshal respecting the custody of a hostage and for the ransom "for the Count of Denia (8. Rym. Fœd. 211), in which case there was subsequently a commission to co-delegates "(ibid. 423); and in the same volume of Rymer, p. 292, "there is a commission, in 4th Henry IV., to judges appointed to determine the rights of persons claiming "the prisoners taken at the battle of Humbledon Hill, in "the room of the judges of the Court of Chivalry, the "Earl of Westmorland, the Constable, and the Earl of "Northumberland, the Marshal. The reason of this "appointment is stated to have been because these peers "were absent in the Marches of Scotland, and interested 66 66 in the cases; and the issuing of it probably was one of "the principal causes of their rebellion in the course of the "same year. Since the time of Henry VIII., when the "office of Constable of England ceased, the jurisdiction of "the Court of Chivalry was frequently disputed, on the "ground that it could not be held before the Earl Marshal alone; and it seems to have confined itself wholly to "questions of pedigrees, escutcheons, pennons, and coat"armour, with occasionally a few actions for slanderous words, as to which, however, its jurisdiction was expressly "denied by the King's Bench, on an application for a pro 66 66 66 66 66 "hibition in the case of Chambers v. Jennings (z). In the same case it was decided, that it could neither fine nor "imprison; and it was determined in the House of Lords, "in Oldis v. Donmille (a), that it had no power to prevent persons who were not heralds from painting escutcheons " and marshalling funerals. After these decisions the Court appears to have fallen into desuetude. The last case "tried in it was Sir Henry Blunt's case, in 1737 (b). The "best account of it is to be found in the various discourses "concerning the antiquity and offices of the Constable "and Earl Marshal of England, and the defence of the "jurisdiction of the Earl Marshal's Court in the vacancy "of a Constable, by Dr. Plott, which are printed in the "second volume of Hearne's Curious Discourses by eminent "Antiquaries" (c). The Court of the Constable and Marshal was limited by the Statute of the 13 Richard II. chapter 2, to a contract touching "deeds of arms and War without the realm, and things that touch War within the realm, which cannot be "determined by the Common Law, as touching prisoners, "Prize, &c.; and in these proceedings the customs and "laws of War ought to direct their judgment (d). CXXX. The maxim "bello parta cedunt reipublicæ" (e) is recognised by all civilised States. In England all acquisitions of War belong to the Sovereign, who represents the commonwealth. The Sovereign is the fountain of Booty and Prize. The law upon this subject has been laid down by Lord Stowell and by Lord Chancellor Brougham (ƒ), in a manner (z) 7 Mod. p. 127. (a) Show Parl. Cas. p. 58. (b) 1 Atkyns, p. 296. (c) 2 Knapp's P. C. Rep. pp. 149–151. (d) Cap. 12 f. 186. (e) Bynk. Q. J. P. (f) See also the decision of Lord Eldon in Nicholl v. Goodall, 10 Vesey's Rep. p. 156. which leaves nothing to desire: the opinion of both these eminent men is given in the following extract from the judgment of Lord Brougham: 66 "That Prize is clearly and distinctly the property of the "Crown, that the Sovereign in this country, the executive "Government in all countries, in whom is vested the power "of levying the forces of the State, and of making War " and peace, is alone possessed of all property in Prize, is a "principle not to be disputed. It is equally incontestable "that the Crown possesses this property pleno jure, absolutely and wholly without control; that it may deal with "it entirely at its pleasure, may keep it for its own use, may abandon or restore it to the enemy, or, finally, may "distribute in whole or in part among the persons instru"mental in its capture, making that distribution according "to whatever scheme, and under whatever regulations and "conditions it sees fit. It is equally clear, and it follows "from the two former propositions, that the title of a party claiming Prize, must needs in all cases be the act of the "Crown, by which the royal pleasure to grant the Prize "shall have been signified to the subject. Whether, where "that act has once been completed, and it distinctly appears "that the Crown was minded to part with the property finally and irrevocably; whether, even in that case, the same paramount and transcendent power of the Crown might not enure to the effect of preserving to His Majesty "the right of modifying, or altogether revoking the grant, " is a question which has never yet arisen, and which, when "it does arise, will be found never to have been determined "in the negative. But this, at all events, is clear, that "when the Crown, by an act of grace and bounty, parts, "for certain purposes, and subject to certain modifications, “with the property in Prize, it by that act plainly signifies "its intention that the Prize shall continue subject to the 66 power of the Crown, as it was before the act was done. "This latter proposition is capable of illustration from a "variety of sources, which were but slightly adverted to in 66 66 "the argument; for whether we refer to the decisions of ❝venerable judges, to the precedents furnished by Prize "proclamations, or to the more venerable authority of the "letter of the statutes, from all these it will be found that, "in stating the absolute nature of the principle, I have not "strained, but have rather fallen short of the truth. 66 "The doctrine has been frequently recognised in cases "where the question has arisen subsequently to the capture, "and before condemnation; but the same principle was "afterwards extended in the case of the Elsebe (g), at the "cock-pit, in which, after final adjudication in the Court "below, but pending an appeal, and before the final de"cision of the appeal, the Crown thought proper, for reasons of state and public policy, to restore the Prize at "the expense of the captors. In other words, it was there "determined, and that too upon a solemn and most able "argument, and by a Judge the most learned and eminent. "of his time, the present Lord Stowell, that when the "Crown saw fit to restore the capture, the captors, who "had run the risk and suffered the loss, who had, more"over, borne the charge of bringing the Prize into port, "and the further costs of proceeding in the Admiralty to adjudication, and had even undergone additional expenses "in contesting their claim upon appeal, were altogether "without a remedy. It is admitted,' says Lord Stowell" in language which it would be vain to praise or to attempt "to imitate-it is admitted on the part of the captors, "whose interests have been argued with great force (and "not the less effective, surely, for the extreme decorum "with which that force has been tempered), that their "'claim rests wholly on the Order of Council, the proclamation, and the Prize Act. It is not, as it cannot "be, denied, that, independent of these instruments, the "whole subject-matter is in the hands of the Crown, as 666 (g) 5 Rob. Adm. Rep. p. 173. |