mansdorff (Lords, August 1st, 1795), that it was not necessary that the ship should be actually entered, and that it was enough if she was in ipsis faucibus of the port, creek or road, it is evident that the words 'ports, creeks or roads,' have a signification intimating certain known receptacles of ships, more or less protected by points or headlands, and marked out by limits, and resorted to as places of safety.

"The distinction of law, as to droits of Admiralty and Admiralty prize of vessels in a port, river or creek, has been long clearly established; that all vessels detained in port, and found there at the breaking out of hostilities, are condemned jure coronæ to the king, and that all coming in after hostilities, not voluntarily by revolt, but ignorant of the fact, are to be condemned as droits of Admiralty." (The Gertruyda, ub. sup.)

Ships seized in the harbour of an island conquered and taken possession of by British forces, are condemnable as droits of Admiralty, though the conquest of the island may not have been confirmed to Great Britain by a treaty of peace. A ship and cargo were seized in December, 1811, whilst lying at anchor in the roadstead of Heligoland, which island had been surrendered to his Majesty's forces on the 5th of September, 1807. Lord Stowell said, "The locality of the transaction is sufficiently described by the term harbour, which must be understood to mean that portion of the sea to which vessels are carried for the purpose of landing their cargos at Heligoland; and whether the same portion of sea is more or less inclosed, whether it is completely land-locked or not, does not appear to be material to the issue in the present

S

case.

The Gazette describes the place as a haven, à compliment to which it is certainly not in strictness entitled; but it is used as a haven, and may, therefore, fairly be considered as such, at least for the purposes of the present question. There is certainly no reason for saying that the property is not within the grant of the crown to the Lord High Admiral, so far as the locality of the seizure is concerned; for it is the ordinary rule, that ships taken in such places during the existence of hostilities, become droits of the Admiralty. A doubt was suggested during the argument, whether at the time the seizure was made, Heligoland formed part of the dominions of the crown of Great Britain or not. The island had been conquered and taken possession of by British forces, but the conquest had not been confirmed to this country by a treaty of peace. It was a firm capture in war, but was still subject to a kind of latent title in the enemy by which he might have recovered it at the conclusion of the war, provided this country would have consented to its restitution. somewhat extraordinary, that in the course of the numerous and long wars in which this country has been engaged, no case should have been determined which might serve as a guide to the court in the decision of the present question. The grant from the crown to the Lord High Admiral applies to the king's dominions generally, and there is nothing which points to a distinction between these parts of the king's dominions over which the crown has plenum dominium or otherwise. No point is more clearly settled in the courts of common law, than that a conquered country forms immediately part of the king's dominions. (Campbell v. Hall, Cowp. 208.) In a late instance

It is

we know that an island so acquired (Guadaloupe) was transferred to a third power, subject undoubtedly to the shadowy right of the former proprietor. It is said that a conquest of this kind may be re-acquired flagranti bello, by the state from which it was taken, but so may any other possession, though forming part of the original and established dominions of the crown of this country, if the enemy has it in his power to make the conquest. The same observation is applicable to the Isle of Wight, as well as to Heligoland, for the enemy has the same right to make a conquest of the one as the other. It is said that the enemy may recover back the island of Heligoland when peace takes place; but it is equally true that the conqueror may retain it if he can, and, if nothing is said about it in the treaty, it remains with the possessor, whose title cannot afterwards be called in question. The distinction between the two species of territories is, in fact, rather more formal than substantial, at least I must profess my inability to see any distinction between them that can materially affect the present question. The power of the British government was full and complete; and though the Lords Commissioners of the Admiralty might not have interposed the particular authority with which they are invested, yet the crown had exercised its authority." (The Foltina, 1 Dod. 450.)

Under 1 Will. 4, c. 25, s. 1, and 1 Vict. c. 1, s. 2, droits of Admiralty are, with other hereditary revenues of the crown, to be transferred to the consolidated fund, in aid of the civil list, provision being made thereout for rewards to captors.

In the United States there are not, strictly speaking,

any such things as droits of Admiralty. The sole and exclusive right to all prizes vests in the government, and no individual can acquire any interest therein, unless under their grant and commission; and all captures, therefore, made without such grant and commission, enure to the government by virtue of its general prerogative, the government in such case not taking the property as droits of admiralty, but strictly and technically jure reipublicæ. (The Joseph, 1 Gale, 558.)

The general principles regulating the distribution of prize were thus laid down by Lord Stowell and the late Sir John Nicholl, to Mr. Jay, the American minister, in a letter dated Sept. 10th, 1794, which has hitherto only appeared in the valuable American edition of Sir C. Robinson's Reports :

"By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be or be not lawful prize.

"Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a court of Admiralty, judging by the law of nations and treaties.

"The proper and regular court for these condemnations is the court of that state to whom the captor belongs.

"The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken, viz., the papers on board, and the examination on the oath of the master, and other principal officers; for which purpose there are officers of Admiralty in all the considerable seaports of every maritime power at war, to examine the captains

and other principal officers of every ship, brought in as a prize upon general and impartial interrogatories.1 If there do not appear from thence ground to condemn as enemy property, or contraband goods going to the enemy, there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful that it is reasonable to go into farther proof thereof.

"A claim of ship or goods must be supported by the oath of somebody, at least as to belief.

"The law of nations requires good faith. Therefore every ship must be provided with complete and genuine papers; and the master at least should be privy to the truth of the transaction.

"To enforce these rules, if there be false or colourable papers, if any papers be thrown overboard, if the master and officers examined in preparatorio, grossly prevaricate, if proper ship's papers are not on board, or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehaviour or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received by the claimant, in case of acquittal and restitution. On the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages. For which purpose all privateers are obliged to give security for their good behaviour; and this is referred to, and expressly stipulated by many treaties.

"Though from the ship's papers and the preparatory

For the form of interrogatories exhibited, see C. Robinson's Reports, Vol. 1, Appendix.