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"Bower, shewed cause against the rule for prohibition; and "submitted two propositions to the Court. First, that the Court of Admiralty has power by a monition to order in the proceeds of a prize from any person in whose hands they are charged (and "not denied) to be, for the purpose of adjudication, and to enforce "the sentence of adjudication. And, 2dly, that this power subsists "till the enforcement of a sentence of adjudication on all prize "claims arising from the capture. As to the first: although the "Prize Court of the Admiralty acts principally in rem, yet it possesses a complete and original power over the persons of the captors, and those who by their acts become possessed of the proceeds of a prize. By the capture the thing is acquired, not "to the individual, but to the State; and though it is now usually

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put into the hands of the captors, it remains in contemplation of "law in the custody of the public. Formerly it actually did "remain in their custody, as is still the case in all foreign countries: "it is merely for the convenience of the captors that the English Admiralty permits them to take possession of the property. But "it must be remembered that it is so held by them as agents of "the Court, and not in right of property; and therefore their "possession may be devested by the act of the Court, either ex officio, "or on the application of the parties interested, shewing good cause "for taking it out of their hands. Now if the captor himself be compellable to bring in the proceeds of the prize, his agent must "be equally so, since they are both the agents of the public. It is "not necessary here to contend that a case may not exist in which a person charged to be possessed of the proceeds of a prize may "not show a sufficient cause why the monition should not be "enforced, either by denying the fact of possession, or by giving some satisfactory plea why the possession should not be delivered up. It is sufficient in this case that such a monition may issue, "calling on the parties to show why the proceeds should not be brought into Court. It may be admitted that no such power as "this is to be found in the Prize Acts; but there are many undoubted privileges of the Court of Admiralty which are not given by "them. The Prize Acts are of a modern date, and form indeed but a very small portion of the law of the Admiralty. They were "drawn up principally for the direction of the Vice-Admiralty Courts, to which a jurisdiction over questions of prize was thereby "for the first time given. But a great part of the Admiralty jurisdiction is founded on the established usage, and (as it were) "the common law of the Admiralty. It is not contended that the "Admiralty has a jurisdiction inconsistent with those Statutes: but, being affirmative Acts, they leave every other matter, not thereby "specially provided for, as it was before. And notwithstanding "those Statutes require that bail shall be taken in some cases, when "the possession of the prize is given up, yet they do not destroy

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"the lien which the Admiralty has in rem. When the claimant is "a foreigner, or insolvent, it is prudent to take a personal security; "but the real security (the thing itself) still continues so long as "it remains within the reach of the process of the Court. The suggestion proceeds on an idea that the Admiralty has only jurisdiction over the thing, and that, when the possession is "given up, it has no longer any jurisdiction upon the subject, (L except to the amount of the stipulation given by the parties. "Sureties, indeed, are only answerable to the amount of the stipu"lation; but the Prize Court of the Admiralty has also a jurisdiction แ over every person, who obtains the possession of the proceeds of any prize. And there is a material distinction in this respect "between the Instance and the Prize Court of the Admiralty. The "former proceeds originally by arrest, in order to compel bail to be given to submit to its jurisdiction; but that is not done in the "Prize Court, whose jurisdiction is founded on a higher authority "than the mere consent of the parties; it is founded on the right "to enforce the Law of Nations. That such a power as this now " contended for is necessary cannot be disputed.

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Courts of

Admiralty are the only tribunals to which neutral subjects can "resort on complaints arising in time of war. It is stipulated "between all the Maritime Powers of Europe, that there shall be "a Court of Admiralty in their respective dominions; and in this country it also subsists on the footing of ancient and established usage. Then it would be absurd to allow the existence of such a Court, and to deny it the necessary power of enforcing its own "decrees. For if it has no power of ordering in the proceeds of a prize which is carried into a neutral port, and sold, and the produce remitted to the agents of the captors here, there must necessarily be a failure of justice. But the constant and regular "exercise of this power is a decisive proof of its legality. In the course of the last war several instances of this sort occurred, "where the Prize Court of Admiralty exercised the jurisdiction now " contended for, and their proceedings were confirmed by the Court "of Appeals. One of them was in the instance of the Buoen "Consago, which was a prize taken by an English ship, and carried "into Lisbon, where the proceeds were lodged in an English house "under the firm of Mayne and Co.: after condemnation of the cargo there, which was confirmed on appeal here, a claim was "set up on the part of the joint captors for their proportion of the prize; and a monition was accordingly issued from the Court of "Appeal (at which Court the Lords Camden and Grantley were "present,) requiring Mayne and Co. to bring the proceeds into court; for disobeying which monition an attachment issued on "the 5th of July, 1786; and in consequence of that the proceeds were brought in. The cases of the Misericordia, the Jean de "Theodore, the Vrow Maria, the Nostra Seignora de Saragossa,

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"and the Santa Rita, were also mentioned as similar instances. "This power of the Admiralty was also incidentally recognized in Parliament in 1785, when a Bill was brought in for the purpose "of compelling the prize agents to deliver the proceeds of the capture at St. Eustatia into the hands of certain commissioners; "but that Bill was dismissed on the ground that the Admiralty "Court had a competent power to compel the production of the "proceeds, if a proper case were made out. In consequence of "this, a monition has since issued against these agents; some of "whom are indeed out of the reach of the process of the Court, "but the others are made amenable. Then if it be objected that "at all events this power of the Admiralty only exists till sentence "of condemnation, and that afterwards its jurisdiction is at an end, "for that then the parties hold the proceeds of the prize, not as "agents, but in right of property, it is contended,

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2ndly. That that power subsists after a general adjudication, "until all claims respecting the prize are determined. Those claims may arise from three different parties; the captor enemy, the "the captured enemy, or a neutral. The rights of the latter form "the most important object of the attention of the Prize Court; for "with regard to enemies, the condemnation puts a final end to their "claims; but it is otherwise with respect to the neutrals, whose "claims arise after condemnation; and the condemnation itself is subject to such rights as neutrals may have in the property. The "neutral master, who is a mere carrier, has a lien on the cargo for "freight and expenses; and this lien still continues, notwithstanding a general condemnation, for the cargo is condemned subject to his "right. The master is no party to the suit respecting the question "of prize; and a judgment can only conclude those who are parties "to the suit. And in this particular case the plaintiffs are bound "by their own agreement; for the cargo was put into their hands "with an express reservation of the question of freight, to be heard "in the regular course of causes. So that this cargo was only de"livered to them conditionally, and a part of this cargo sufficient to ". answer the claim for freight and expenses has not been condemned "at all. Neither can it be said that the question of freight is to be "determined of course, because the master is, in general, entitled "to freight and expenses; for his claim is subject to many exceptions, which cannot be determined without involving in it the question of prize; as if the captor plead that the goods were con"traband, there a direct question arises whether the freight does "not become prize as well as the goods. This is one of the most "difficult subjects which are agitated in the Admiralty Court, "because it may be affected by particular Treaties, the Law of "Nations, Proclamations, or Orders in Council. Or if the captor "plead that the neutral refused search, or sailed under convoy of "the enemy's ships of war, or conveyed intelligence to the enemy,

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"they also are waivers of the rights of neutrality, and must be dis"cussed before the question of freight can be determined; but of none of them can the Common Law Courts take cognizance. The question of freight must be determined by the same Court which "determines the principal question of prize; otherwise the Courts "of Common Law must be converted into Prize Courts. It may be "said that the freight may be adjudged in the Admiralty, and that a proceeding may be instituted in a Common Law Court to enforce "that decree: but it would be in vain for the Admiralty to adjudge "the question of prize, if they could not order the proceeds to be brought into their Court. If they could not give effect to their own adjudication, they would have a power of adjudging that "which they could not execute, and the Common Law Courts would "have to execute that decree, the justice of which they could not "examine; a species of judicature not only vexatious to the sub"ject, but also degrading to both the Courts. This jurisdiction now claimed by the Admiralty was recognized by Lord Mansfield "in Livingston and another v. M'Kenzie, at Nisi Prius in 1766. "The ship Margaret (a) was taken in the war before the last by a King's ship, but restored by the sentence of the Vice-Admiralty "Court in Jamaica; that sentence was confirmed on appeal here, and the cause was remitted back to Jamaica. The captured, however, brought an action here at Common Law, founded on the sentence of reversal; but Lord Mansfield was of opinion that it

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(a) In 1762 this vessel, being the property of Livingston and Welsh of New York, sailed from thence with a cargo of lumber and provisions bound to Jamaica, where she delivered her cargo; and with the proceeds, amounting to 1,3007. in specie, she proceeded on a farther voyage to the Spanish settlement of Monti Christe, in the course of which she was taken by His Majesty's ship the "Defiance," commanded by Captain M'Kenzie. He took the specie out of the ship, and put a prize-master and mariners on board to conduct her to Jamaica; but before her arrival there she was captured by a French ship of war, and carried into Portau-Prince, where she was condemned to the French captors. Captain M'Kenzie soon afterwards instituted a suit in the Vice-Admiralty Court in Jamaica against the specie, which he either kept in his possession or had paid into the hands of his agent there. A claim was then set up by the master for the ship as the property of Livingston and Welsh, British subjects, residing at New York, and for the specie, as the property of the said owners and of him the claimant, also a British subject. On the 29th of October, 1762, after hearing the cause, the Judge of the ViceAdmiralty Court at Jamaica decreed the sum of 1,3007. in the possession of the captor to be restored to the claimant, and the ship and the rest of the effects on board at the time of the capture, or the full value, to be also restored to the claimant. From this decree Captain M'Kenzie appealed to the Lords Commissioners of Appeals in Prize Causes, who on the 1st of May, 1764, affirmed the sentence below, and decreed the cause to be remitted. About two years after this decree the action was brought here.

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was not maintainable, as the question arose out of a prize cause, "and that the Courts of Admiralty ought to enforce their own "decrees; and he nonsuited the plaintiffs. In determining a "question of this kind, the situation of neutrals is also entitled to some consideration; they are brought into litigation, without any "misconduct on their parts, on account of hostilities between this " and some other country; and if they were subject to the vexation "and expense of instituting a fresh suit in a Common Law Court, "after having gone through all the proceedings in the Court of Admiralty, it would be an inducement to foreign Powers in time of 66 war to enter into armed neutralities."

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APPENDIX VI. PAGE 309.

Right to capture Enemy's Goods in Neutral Bottoms. Opinion of Lampredi. (From "Commercio dei Popoli Neutrali in tempo di Guerra." Trattato di Gio. M. Lampredi. In Firenze, 1788. Parte I. pp. 149-153.)

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"Del resto non avvi esecuzione di diritto perfetto che non rechi "molestia e danno a qualche individuo. Io alzo il mio edifizio, e "tolgo la luce al mio vicino; circondo di siepe un campo, e impe"disco il comodo passo ai confinanti proprietarj; vendo le mie grasce, e diminuisco il prezzo di quelle degli altri, perchè scemano "i compratori: intraprendo un genere di commercio, e diminuisco il guadagno di un terzo che era solo a farlo, ec.: ma per queste moles"tie che risente qualche individuo, l'esecuzione di quei diritti non "si potrebbe impedire, se non nel caso dell' estrema necessità, nella "collisione dei diritti, e con le cautele exposte di sopra. Anche il "diritto naturale dei Neutrali di seguitare con le Nazioni Belligeranti "il solito commercio reca pregiudizio alle medesime; molte Navi "Neutrali cariche di Merci Nemiche eviteranno la vigilanza degli Armatori, ma per questo quel diritto non è men giusto.

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"Questa riflessione mi fa strada a toglier di mezzo le sopra esposte contradizioni. Se è lecito, dicono alcuni, predar la roba del "nemico ovunque si trovi, ed anche sopra i Bastimenti pacifici, con "lesione evidente della libertà dei Neutrali, e ciò perchè il nemico "ha diritto di diminuir le forze dell' altro all' infinito, all' effetto "di disporlo alla pace, perchè non è lecito arrestare e impedire i "Neutrali, che portano alle spiagge nemiche Merci lor proprie? "Non traggono da queste i Nemici un rinforzo, che reca all' altra parte un danno irreparabile? Perchè è illecito il primo, e lecito il "secondo? Perchè la necessità della tua difesa ti permette di at"taccar la libertà ed indipendenza di quelle, che portano le Merci

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