ment (q): so in the case of the unlawful rescue of the prize by the Captors from the custody of the Court (r). And where the claimant has not affected his property with a hostile character, as by a trade with the enemy, &c., but has been engaged in some other traffic contravening the municipal law of his own country, so that he cannot entitle himself to a restitution of the property, it will be condemned to the Government, and not to the captors (s). 66 66 By 27 & 28 Vict. c. 25. § 37, it is provided that " a Prize "Court, on proof of any offence against the Law of Nations, "or against this Act, or any Act relating to naval discipline, or against any Order in Council or royal pro"clamation, or of any breach of Her Majesty's instructions relating to prize, or of any act of disobedience to the "orders of the Lords of the Admiralty, or to the com"mand of a superior officer, committed by the captors in "relation to any ship or goods taken as prize, or in re"lation to any person on board any such ship, may, on "condemnation, reserve the prize to Her Majesty's dis 66 posal, notwithstanding any grant that may have been "made by Her Majesty in favour of captors. The Der Mohr, 3 Rob. Adm. Rep. p. 129. The Triton, 4 ib. p. 78. The Barossa, note to the Woodbridge, 1 Haggard Adm. Rep. p. 75. The Nemesis, Edwards' Adm. Rep. p. 50. With respect to the punishment of the misconduct of Privateers, vide post. (q) The Bothnea & Janstoff, 2 Gallison's (Amer.) Rep. pp. 78, 92. (r) The Cossack, Stewart, p. 513. (s) The Walsingham Packet, 2 Rob. Adm. Rep. p. 77. The Etrusco, 4 ib. 262, note (a). The Venus, 8 Cranch's (Amer.) Rep. pp. 277, 287. CHAPTER V. 1. NON-COMMISSIONED CAPTORS.-2. JOINT CAPTURE.3. CAPTURES BY TENDERS. CCCLXXXII. A TREATISE upon International Law does not perhaps, strictly speaking, require a further investigation of the subject of Maritime Capture than has been given in the preceding chapter; but there are certain outlying and collateral questions of a mixed public and International character, which it is the object of the present and following chapter to consider. It is now proposed to consider questions relating to 1. Non-commissioned Captors. 2. Joint Capture. 3. Captures by Boats and Tenders. CCCLXXXIII. 1. As to Non-commissioned Captors. In cases of non-commissioned ships, and ships commissioned against one enemy, having no commission against another whose property is captured (a), the Captors are not entitled to any share in the prize, and the property is to be condemned to the Government, or to its special grantee, if any such exist. Bynkershoek, indeed, contends, that if a noncommissioned ship is attacked, and captures the assailant in her own defence, the officers and crew are solely entitled to the prize; and this doctrine seems also to be supported by Grotius (b). However, the general Prize Law of France, (a) Vide antè, vol. i. pt. iii. c. xx. (b) Bynk, Q. J. Pub. 1. i. c. xx. Du Ponceau's ed. pp. 155-161. Grotius de J. B. et P. 1. iii. c. vi. s. 10. Vide antè, § ccclvi. for provision on this subject, in § 39 of 27 & 28 Vict. c. 25. Great Britain, and the United States is as has been above stated (c). If at the time of a Capture by a ship commissioned by letter of marque, the master of the capturing vessel be not on board, the Capture is considered as made without a commission, and it enures to the Government, or its special grantee (d); and if a Capture be made by a cutter fitted out by a captain of a man-of-war as a tender (e), and manned from his ship, but without any authority or commission, it is deemed to be made by a non-commissioned vessel, and the Capture will not enure to the benefit of the man-of-war. It would be otherwise if the tender were attached to the ship by public authority, for then the ship would share (ƒ). And if persons in the navy land from their ships and man a fort, and thereby compel a ship to strike as prize, it is considered as a Capture made at sea by a force upon land, which is a Non-commissioned Capture (g). But it would be otherwise if the place on shore were a resort for naval purposes by persons in the navy only, for then it may be deemed a stationary tender, rather attached to and dependent upon the vessels, than having the vessels attached to and dependent upon it. CCCLXXXIV. In England, by very ancient grants from the Crown, the Lord High Admiral has the benefit of (c) Du Ponceau's Bynk. p. 162, note (d). 1 Valin sur l'Ord. tom. i. p. 79. The Haase, 1 Rob. Adm. Rep. p. 286. The Rebeccah, 1 ib. p. 227. The Amor Parentum, ib. p. 303. The Twee Gessuster, 2 ib. p. 284, note (a). The Melomane, 5 ib. p. 41. The Joseph, 1 Gallison's (Amer.) Rep. p. 545. (d) The Charlotte, 5 Rob. Adm. Rep. p. 280. (e) Vide infrà as to Tenders. (f) The Melomane, 5 Rob. Adm. Rep. p. 41. The Charlotte, ib. p. 280. Capture of Curaçoa, 1 Dodson, Adm. Rep. p. 220, note (a). The Dos Hermanos, 2 Wheat. (Amer.) Rep. p. 76. (g) The Rebeccah, 1 Rob. Adm. Rep. p. 227. all Captures made at sea by non-commissioned vessels; and also of all Captures, by whomsoever made, of all ships and goods coming, or already come, into ports, creeks, or roads of England and Ireland, by stress of weather or other accident, or by mistake of port, or by ignorance, not knowing of the war, and also of all derelicts. But the Crown has still reserved to itself all such ships and goods as shall be seized in port before any declaration of war or reprisals; and also all such as shall voluntarily come in, upon revolt from the enemy, and as shall be driven or forced into port by the King's men-of-war (h). The office of the Lord High Admiral has for more than a century past been put in commission; but as the office is still considered to have a legal existence, though now residing in the person of the King, the rights and perquisites of that office are still distinguished as they were anciently, and are ascertained by an observance of the ancient rules, with the same exactness as if the proceeds were carried in the ancient and distinct course (i). Hence arises the well-known distinction of condemnation to the King jure corona, and the King in his office of Admiralty, as droits of Admiralty: the former applying in all cases where the Crown is still entitled to the prize property, in virtue of its sovereignty and inherent prerogatives; the latter applying to all cases where the same belongs to the office of Lord High Admiral. Hence the appointment of an Advocate and Proctor to Her Majesty, in her office of Admiralty, distinct from the appointments of the officer for (h) The Rebeccah, 1 Rob. Adm. Rep. pp. 227 and 230 note (a). The Gertruyda, 2 ib. p. 211. The Melomane, 5 ib. p. 22. The Maria Françoise, 6 ib. p. 282. The Joseph, 1 Gallison's (Amer.) Rep. p. 545. By 1 & 2 Vict. c. 2. s. 2., droits of Admiralty, with other hereditary revenues of the Crown, are transferred to the Consolidated Fund. As to receivers of, see 17 & 18 Vict. c. 120. (i) The Gertruyda, 2 Rob. Adm. Rep. p. 211. The Maria Françoise, 6 ib. p. 282. ! merly known as Queen's Advocate and of the Queen's Proctor. CCCLXXXV. In the North American United States, strictly speaking, there are no droits of Admiralty; for all prizes to which no persons can entitle themselves by a public or private commission of war, are condemnable to the Government itself in its sovereign capacity (k). But the phrase Droits of Admiralty is often used in the legal adjudications of the United States, as equivalent to condemnations to the United States, in virtue of their general sovereignty and prerogative, as enforced in the Courts of Admiralty. But although non-commissioned persons cannot, by making a Capture, entitle themselves to the benefits of prize, yet, in all cases of condemnations as droits of Admiralty, where their conduct has been fair, the Prize Court will, in its discretion, award them a recompence; and even in some cases will award them the whole value of the prize, where there has been great personal gallantry and merit (1). It is not necessary to enumerate at large the various cases in which property is deemed a droit of Admiralty, or a prize to the Government jure coronæ. The preceding authorities will be found to contain almost all the learning on the subject. CCCLXXXVI. 2. As to Joint Captures.-An accurate examination of the principles of Law applicable to this subject, requires that a distinction should be made be tween A. Private Ships of War, or Privateers. B. Public Ships of War. CCCLXXXVII. A. With respect to Private Ships of War, or Privateers, it is a general principle, that no right to share as Joint Captors accrues merely by being in sight at (k) The Joseph, 1 Gallison's (Amer.) Rep. p. 545. The Amor Parentum, ib. p. 303. |