By the Right Hon. his Majesty's Principal Commissioners for Prizes. Whereas we are informed that upon trial and adjudication in the Court of Admiralty of several ships taken as prizes, you proceed to the condemnation of the bottoms as Dutch, and respite your Sentence as to the Goods with offer of time and liberty unto all claimants, who are likely to withdraw, by their pretended proofs, great quantities of the cargo of ships condemned. We therefore in pursuance of his Majesty's command, and to prevent that the seizure of all enemy's ships may not by such liberty of claiming the goods become wholly ineffectual, and his Majesty having further declared himself that he will speedily send you Rules for your better direction therein, do hereby pray and require you to respite all proceedings of that nature until you receive further orders. ALBEMARLE. ST. ALBANS. JNO. BERKELEY. WM. MORRIS. LAUDERDALE. HEN. BENNETT. The Lords Commissioners thereupon appointed a body of Civilians to review the maritime Law, and to compile a body of Rules and Ordinances, by which the Judge of the Admiralty for the time being should proceed in the adjudication of Prize 4. Sir Leoline Jenkins was one of the Civilians selected on this occasion by the Lords of the Privy Council, and a body of Rules and Regulations was prepared by him and his colleagues, which was approved by his Majesty in Council, and has been the standard of all future proceedings in the English Prize Court. § 190. When War exists between two independent Powers, all the Subjects of the one are the enemies Lord High Admiral in 1674, and subsequently Judge of the Admiralty. 24 Prize, as observed by Lord Mansfield, is not a civil or marine cause, to be heard and decided according to the Process of the Instance Court of Admiralty, but the whole system of litigation and jurisprudence in the matters of Prize is peculiar to itself. Lindo v. Rodney, 2 Douglas, p. 614. mission of a Privateer. of the other, and are of right entitled to do all such acts to the Subjects of the other, which War justifies between the Belligerent Powers themselves. A private ship accordingly which is the property of a Comthe Subject of a belligerent Power, and is not fur- War must nished with a Letter of Marque or Commission of be on board War, may nevertheless lawfully attack a private ship, which is the property of an Enemy, because a state of War exists between them, and a state of War authorises the one to attack and capture the other. It may indeed happen that the Municipal Law of the Belligerent State to which the Captor belongs, has declared all captures made by private ships not having Commissions of War or Letters of Marque 25 to be Droits of the Lord Admiral, or it may have declared that captures made by non-commissioned ships shall under certain circumstances be shared amongst the crews in the same way as in the case of private ships having a Commission of War 26, but such distinctions do not arise under any Common Law amongst Nations; they are the creatures of Municipal Law, and may be varied at the pleasure of the Sovereign Power. The case is otherwise however with regard to a ship, which is the property of the Subjects of a Belligerent Power, if it should venture to attack another ship belonging to the Subjects of a Neutral Power. In such a case the attacking vessel, if the Commander of it be not furnished with a Commis 25 Under the Order of Council of 6 March 1665-6, declaring what shall be Droits of the Admiralty of England, it was declared that all enemy's ships and goods casually met at sea and seized by any vessel not commissionated, do belong to the Lord High Admiral. The "Re- 26 The 22 and 23 Car. II. sion of War from the Belligerent Power, may be treated as a pirate by the neutral vessel which she has attacked, or by any vessel coming to the aid of the latter; and even if the assailant should succeed in capturing the neutral vessel, the latter would be entitled to be released by a tribunal of Prize, inasmuch as the capturing vessel had not any Commission of War. Every vessel, claiming to act as a private ship of War, must have her Commission of War on board. Thus a British vessel claiming to have a Commission of War from the King of Portugal against the Castilians and Moors, captured a vessel belonging to Ostend in the British Channel, and brought her Prize into the port of Dover, where the Prize was taken possession of by the officers of the Customs. It appeared that there was only on board the Captor's vessel a transcript of a Commission from the King of Portugal, translated into French, and attested for a true translation under the hand and seal of the French Consul at Lisbon. Sir Leoline Jenkins", acting as judge of the Admiralty, advised the Lords of his Majesty's Council, that amongst other grounds why the capture was unduly made, and the Ostender ought to have his ship and goods restored to him, the true Commission was "neither pretended, showed, nor indeed on board, at the time of the, capture"." On the other hand, if the Commission of War has been lost since the capture has been made, Courts of Prize have allowed the fact 27 Life of Sir Leoline Jenkins, Vol. II. p. 727. A. D. 1665. 28 In the case of an acknowledged Independent Power the seal of the Commission is held to prove itself; but when a Civil War is raging in a foreign country, and one part of the population separates itself from the old Government, and places itself under a new distinct Government, the seal of a Commission issued by the new Government cannot be allowed to prove itself, but may be proved by such testimony as the nature of the case admits. The United States v. Palmer, 3 Wheaton, p. 644 of such a Commission having been on board the Privateer at the time of the capture to be proved by oral evidence. Thus a question came before the Supreme Court of the United States, in regard to a vessel and cargo which had been captured by Venezuelan Privateer, which had been subsequently lost before a Prize Court had adjudicated upon the capture. It was attempted by the former Spanish owner of the vessel and her cargo to obtain restitution of his property from the American Prize Court, on the alleged ground amongst others, that the Privateer had not any Commission of War on board at the time when she captured the Spanish vessel. The Court however on this occasion allowed the Prize-crew to prove by oral evidence that the capturing vessel had a Commission from the Government of Venezuela at the time the capture was made, which had been issued and delivered at Carthagena, and that the Commission was lost on board of her, as she sank almost immediately after the Prizecrew had taken possession of the Spanish vessel 29. All Codes of Maritime Law recognise the necessity of a Commission of War being on board a Privateer. Thus the French Ordonnance de la Marine (A.D. 1681) 30 whilst it enacted that no one should fit out a vessel of war without a Commission from the Admiral, declared in its fourth article all vessels to be good Prize which should be found cruising on the sea without a Commission from some Prince or Sovereign State. The Spanish Ordinance of 171831 embodies in its sixth article the identical provision of the French Ordinance; and the British Naval 29 The Estrella, 6 Wheaton, P. 304. 31 Tratado Juridico-Politico sobre Pressas de Mar su autor 30 Lebeau, Nouveau Code des Don Felix Joseph de Abreu y Prises, Tom. I. p. 82. Bertodano, Cadiz, p. 318. What constitutes a lawful Commis sion of War. J Instructions, which were published in 1730, declared 32 The same directions are given in the British Naval Instructions of 1806 and of 1826. 33 Les gueux de mer was the name given to these privateers by the Spaniards. |