the admiralty, who, or any three of them, give discharges and quietuses to the collector. So far the grant goes: but by course of office the lords are accountable to the exchequer, and grants of the droits are made by the king's warrants in the treasury, upon petition.

There have been instances in which attempts have been made, under the words of particular acts of parliament, to distinguish between droits and forfeitures, and to insist that the value of ship and cargo should be paid directly into the exchequer (33), without passing through the hands of the high court of admiralty.

The distinct capacities of the king, claiming jure coronæ, and in his office of admiralty, occasion a necessary distinction of officers, employed to enforce his rights.-A king's advocate and king's proctor or procurator general.-An advocate of the admiralty and proctor for the king in his office of admiralty. A receiver-general of the rights and perquisites of the admiralty, and some correspondent officer in his majesty's office of treasury, or an escheator, nominee, &c. &c.

The perquisites of royal fishes, and of fines and amerciaments in the court of admiralty, are not worthy of being dwelt upon.

It is very observable, that at one period the king was, in the most literal sense, the lord high

(33) See the remarkable case of the Dickenson, in Sir James Marriot's decisions of the high court of admiralty.

admiral (in the reign of Charles II.) there being for a short time no lords commissioners of the admiralty.

We have already quoted from the highest authority the dictum, that the resolutions of 1665 give to the admiral the benefit of all captures, whether made by commissioned or non-commissioned persons, of enemies ships or goods coming into ports, &c. unless they come in by revolt, or are driven in by the king's cruizers. And yet it is worthy of notice, that Sir Leoline Jenkins maintains, that though seizures in port, after a declaration of war by persons non-commissioned, make droits of admiralty, the king's prerogative of seizing enemies goods jure belli, or jure reprisaliarum, is still concurrent with that of the lord admiral, within his jurisdiction, and commissioned ships in the king's service may also seize in port(34). "For," says this learned judge so often quoted, "the right in port doth not appear to be in the "lord admiral to the prejudice of the king's own "ships, either by patent or by prescription. Not "by patent, for the words bona inimicorum casu 'fortuito reperta, do refer as well to the open "seas (and there the lord admiral claims not "against the king's ships) as to the ports." Nor by prescription, as the learned judge proves by

(34) That is, as I understand his opinion to be, if the subject matter has not been previously seized by a non-commissioned person, and so become vested in the lord high admiral as a droit.-See Sir L. Jenkins, 2d vol. p. 765.

appeal to the precedents by him found; "and if it "were otherwise," saith he, "the king's ships would "be in a condition more bounded and restrained "than the private men of war, who are commis"sioned to seize in port, as well as upon the open And when the king grants this power (which, even where there was a distinct lord high admiral, "was granted not virtute officii, but by special "commission) he cannot be intended to exclude "his own ships from that liberty,"

"sea.

66

It seems difficult to reconcile this opinion with that first mentioned, unless they refer to ships under totally different circumstances, and that Jenkins speaks only of cases omitted in the resolutions of 1665. Let us put this case: a neutral ship, after war commences, comes into one of our ports, having an enemy's cargo on board, and this not through stress of weather, nor by accident, nor ignorance of the war. It seems to be a casus omissus in the resolutions of 1661.

Undoubtedly the orders of council in 1665 leave still latitude for controversy, and many cases unsettled. If a neutral vessel brings in an enemy's cargo, as suppose of French wines, during a French war, to sell in these countries; or if an enemy's ship of war coming with the purpose of hostile invasion into one of our ports, as the French have done into Bantry Bay, were there captured by an English man of war; these will be found to be cases not described in the second or any article of those orders. And it is observable, that the framers of

the prize acts, as if they had not these orders in contemplation, or had forgotten them, do in general words say, that persons taking ships or vessels in any creek, haven, or road, shall have the sole interest therein after adjudication.

Still further to confirm this assertion, that there is still room left for doubts by these orders, it must be noticed, that so lately as in the year 1782, a question was started in the case of the Le Hazard and other ships, in the resolution of which eminent civilians differed in opinion, whether a distinction was to be established between ships taken before hostilities declared, and ships taken afterwards, upon any expression in the said orders of council of 1666, so as to entitle the admiralty in the one case, and exclude it in the other? And the better opinion appeared to be, that the expression enemies ships in the second clause includes all ships adjudged to be enemies ships, whatever be the ground on which they were adjudged, and whether that ground was precedent or subsequent to the act of capture, because it is the adjudication, and not the capture, which declares the quality and character of the ship(35).

(35) Thus in the case of the Saint Croix, a French ship, taken in 1775, before any declaration of hostilities against France, and therefore reclaimed, the order for hostilities issuing before adjudication, she was considered as a droit of admiralty. Yet in the cases of the Santa Catalina and St. Catherina, contrary opinions were held in the year 1782.

CHAPTER IV.

ON THE JURISDICTION OF THE INSTANCE COURT.

THE limits and extent of the jurisdiction of the instance court have been the subject of such warm controversies in the courts of common law on questions of prohibition, and however they may be now well understood in the supreme courts in England, still afford so much room for dispute and doubt before the tribunals of other countries appendant to the British crown, that it is surely worth our pains to try, both upon principle and by authorities, to fix these hitherto confused boundaries. Yet, in endeavouring to do so, my researches, from want of reports of cases in the admiralty instance court, must chiefly be confined to the doctrines and decisions of the law courts; although possibly, in some of the cases, the admiralty would still decree for its own jurisdiction(1), if not

(1) Thus it should seem, notwithstanding the resolutions or determinations of the law judges, that, in the case of Ladbroke v. Cricket, 2 Term Reports, 649, the court had exercised its old power of trying an hypothecation or bottomry bond and its validity, though made on land, in England, between English subjects, and under seal, where the defendant had not objected to the jurisdiction.