These doctrines, adopted by the great Dutch jurists, are certainly guides in our courts. The various cases of such damage, as one ship may be at anchor, or both under way, &c. are well put in Roccus.

The laws of Oleron say, that if a vessel moored and lying at anchor be struck by another vessel under sail, the damage shall be in common, because old decayed vessels have sometimes been purposely put in the way of better; and if in harbour, where there is little water, the anchor of one lies dry, the other may remove it, and the party preventing him must answer the damage; and every ship not having a buoy to the anchor, is liable for any damage happening thereby. Articles 14 and 15.

CHAPTER VI.

ON THE JURISDICTION OF THE PRIZE COURT.

THINGS taken on the high seas, jure belli, out of the hands of the enemy, are things of prize(1); and all questions of prize at sea belong exclusively to the admiralty jurisdiction(2).

In matters of prize, the rule which the civilian so much, so justly, but so unsuccessfully, laboured to establish in the instance court, is universally confessed and admitted; that the jurisdiction depends not on locality, but on the subject matter, which is governed by the jus belli, and not by the rules of the common law(3). The jurisdiction too is exclusive. A thing done upon the high seas, unconnected with prize, doth not exclude the jurisdiction of the common law for instance, for the seizing, stopping, or taking a ship, not as prize, an action will lie; but for taking as prize, no action will lie. The nature of the question excludes not the locality (4).

(1) 1 Robinson, 283. (3) Douglas, 586.

(2) Douglas, 572 to 591.
(4) Douglas, 592.

The history of the prize court has been deduced with great learning by Lord Mansfield, in the cause of Lindo v. Rodney. Yet I own, it doth not appear to me that the laborious research of that super-eminent judge has removed all obscurity from the subject. That great man, indeed, observes himself, that his researches could not be extended to any high antiquity; that there were no prize-act books further back than the year 1641-no sentences further back than 1648-and that, down to 1690, the records are in confusion, illegible, and without an index.

He observes, that the jurisdiction in matters of prize (whether coeval with the court of admiralty, or, which is more probable, of a later date beyond time of memory) is quite distinct from the ordinary jurisdiction of the court of admiralty, though exercised by the same person; and that, in the ordinary commission under the great seal, there is no mention of prize.

That to constitute the prize authority, or to call it forth, in every war a commission under the great seal issues to the lord high admiral, to will and require, and authorise the court of admiralty, and the lieutenant and judge of the said court, and his surrogates, to proceed upon all captures, seizures, prizes, and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the course of the admiralty and the law of nations.

That the monition and other proceedings, after reciting his titles, add emphatically, "and also to "hear and determine all and all manner of causes "and complaints, as to ships and goods seized "and taken as prize, specially constituted and ap"pointed."

That the whole system of litigation, proceeding, and jurisprudence, in the prize court, is peculiar to itself; and it is no more like to the admiralty, (i. e. to the instance court) than to any court in Westminster hall. The instance court is governed by the civil law, the laws of Oleron, and the customs of the admiralty, modified by statute law. The prize court is to hear and determine according to the course of the admiralty and the law of nations.

That the end of a prize court is to suspend the property till condemnation; to punish every sort of misbehaviour in the captors; to restore instantly velis levatis if, upon the most summary examination, there do not appear sufficient ground-to condemn finally, if the goods really are prize, against every body, giving every body a fair opportunity of being heard. A captor may and must force every body interested to defend, and every person interested may force him to proceed to condemn without delay.

That these views cannot be answered in any court of Westminster hall, and therefore they have never attempted to take cognizance of the question, prize or no prize, not from the locality or the act

being done at sea, since for seizing a ship at sea not as prize an action will lie, but from their incompetence to embrace the whole of the subject.Douglas, 592.

All this is clear; but when the illustrious judge expresses his doubt whether the jurisdiction in matters of prize be coeval with the court of admiralty(5), or, which is more probable, of a later institution beyond the time of memory-when he doth not inform us at what time a prize commission distinct was first granted-and when he uses the ambiguous expression, that it is granted to constitute this authority, or to call it forth(6), thereby intimating a doubt whether it be not always, at least latently, inherent; and leaving us at a loss to know whether it could or could not be granted to any other person(7)—and when he

(5) These are his words; he doth not say the instance court, but seems to distinguish the court of admiralty from the court of prize.

(6) The words of Sir James Marriott upon this subject are remarkably, if not studiously, ambiguous." It is singu"lar," saith he, "that in the patent of the judge of the admiralty, no particular jurisdiction of prize is expressly "given."

66

I have seen an opinion of Sir W. Wynne, that though the admiralty of Scotland has no special prize commission, yet it hath cognizance of prize causes under its general commission. Sed quære, if it be like other general admiralty

commissions?

(7) Douglas, 595.