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captors. This, of course, upon the rule we have stated, excludes allsuch as have not been adjudged good prize; for expressio unius, est exclusio alterius. The title depends upon a grant, and must conform to it and comply with its conditions. The condition in this case is, that it shall be brought in and condemned as lawful prize before any title accrues. Chief Justice Taney says: "All captures jure belli are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure, and the question of prize or no prize, can be determined in his own courts only upon which he has conferred jurisdiction to try the question." Jecker v. Montgomery, 13 How. 515, 14 L. Ed. 240. To the same effect is the judgment and opinion of Sir William Scott. That eminent admiralty judge says: "All grants of the sovereign are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants; and upon this just ground, that the prerogatives, rights, and emoluments of the sovereign being conferred upon him for great purposes and for public use, it shall not be intended that such prerogatives, rights, and emoluments are diminished by any grant beyond what such grant by necessary and unavoidable construction shall take away." The Rebekah, 1 C. Rob. 230.

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The case which bears most strongly on the question in hand is the judgment of the same great jurist in the case of The Elsebe, 5 Rob. 173. *

If these principles are sound, and we think they are sustained by the strongest reasons and the highest authorities, it must follow that this suit cannot be maintained by this claimant, for want of title to and interest in the subject-matter in respect of which the claim is made. By the seizure of the ships they acquired a right to carry them into a port of this country for adjudication. It is the condemnation under the act which gives the interest, and not the seizure. The capture vests it in the United States-the condemnation in the captors. It follows, as a necessary consequence from this, that there never having been a condemnation by a competent tribunal, there never has been any legal right vested in the claimants. Nor could there be any such, for it required the judgment of a competent prize tribunal to vest that right in them under the act of Congress. No other court is competent to supply the want of it, because that is an essential condition of the grant, and cannot be supplied by anything else. What follows then? Simply this, that when the Levant was permitted to be unlawfully recaptured by the Portuguese government, in violation of the rights of hospitality, as well as her neutrality, the sole right to and interest in the captured prize was in the United States alone. The injury was committed against her rights; and whether she should demand reparation in any form, or to any extent, was a matter to be dictated and controlled by considerations of public interest and policy alone, and

not by any considerations of private interest or grievance, for none existed. * * *

We, therefore, are compelled to sustain the demurrer and dismiss the petition.*

SECTION 2.-PRIZE COURTS-AUTHORITY AND

JURISDICTION

LINDO v. RODNEY.

(King's Bench, 1782. 2 Doug. 613, note.)

LORD MANSFIELD. Many persons, in the same case, under the same circumstances, upon the same ground, have severally applied for. a prohibition, to stop the judge of the Admiralty from proceeding upon a monition, issued in the usual form, in order to the condemnation of goods, wares, merchandizes, arms, stores, and ammunition, taken and seized, by His Majesty's land and sea forces, under the command of Admiral Rodney and General Vaughan, at the island of St. Eustatius, and its dependencies, upon the surrender of the said island of St. Eustatius, and its dependencies, on or about the 3d of February last; and citing all persons to shew cause, why they should not be pronounced to have belonged, at the time of the capture and seizure, to our enemies, and as goods of enemies, or otherwise liable to confiscation, be adjudged, and condemned, as good and lawful prize.

Elias Lindo claims part of these goods, as belonging to him, a British subject, and as to them, prays a prohibition; and, by his suggestion, among other things, he avers;

That Sir George Rodney and General Vaughan, upon the 3d of

4 For another occasion on which this famous frigate appeared in court, see The Constitution, L. R. 1878-79, 4 Prob. Div. 39 (1879), ante, p. 310, note. For a description of the naval battle out of which Commodore Stewart's claim arose, see Ira Nelson Hollis, The Frigate Constitution 196–215 (1900). It may be of interest to note that Stewart remained in active service until he was retired as senior commodore in 1856 and flag officer in 1860; that on July 16, 1862, he was commissioned rear admiral in his eighty-fourth year, and that he remained on waiting orders until his death, in 1869. His fighting qualities as well as his name appeared in his grandson, the late Charles Stewart Parnell.

In The Nuestra Señora de Regla 108 U. S. 92, 103, 2 Sup. Ct. 287, 27 L. Ed. 662 (1882), the Supreme Court, per Chief Justice Waite, said:

"The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum v. Mayberry, 2 Wheat. 1, 4 L. Ed. 169 (1817); The Apollon, 9 Wheat. 362, 6 L. Ed. 111 (1824); The Lively, 1 Gall. 315, Fed. Cas. No. 8,403 (1812); The Corier Maratimo, 1 C. Rob. 287 (1799).”

Parts of the opinion are omitted.

February, in a hostile manner, seized upon, and took possession of, the island of St. Eustatius, with everything whatsoever therein being (open hostilities then subsisting between the King and the States), and that the goods claimed were taken upon land, in the said island of St. Eustatius.

The ground upon which the prohibition is prayed, is; that the goods were taken upon land, which appears upon the face of the monition, and is averred by the suggestion.

The only question then is, whether the goods being taken on land, though in consequence of a surrender to ships at sea, excludes the only prize jurisdiction known in this kingdom?

This question naturally leads to an enquiry into the nature of this jurisdiction, exercised by the judge of the Admiralty, exclusively of every other judicature of every kind except upon appeal.

Upon the motion being made, I directed, in court, a search to be made into the books of the Admiralty, especially during the reign of Queen Elizabeth; I also got a search made myself. And one of the registers informed us, in court, during the argument, that there are no Prize Act books farther back than 1643; no sentences farther back than 1648.

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The register has not been able to search farther back than 1690. The prior records are in confusion, illegible, and no index.

It appears that this jurisdiction in matters of prize (whether it be coeval with the Court of Admiralty, or, which is much more probable, of a later institution, beyond the time of memory), though exercised by the same person, is quite distinct.

He is appointed Judge of the Admiralty by a commission under the Great Seal, which enumerates particularly, as well as generally, every object of his jurisdiction;, but not a word of prize.

To constitute that 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 the Court of Admiralty, and the lieutenant and judge of the said court, his surrogate or surrogates, and they are hereby authorized and required, to proceed upon all and all manner of 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.

A warrant issues to the judge accordingly.

The monition, and other proceedings, are in his name, with all his titles of office, rank, and degree; adding, emphatically, as the authority under which he acts, the following words: "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 appointed." The Court of Admiralty is called the Instance Court; the other the Prize Court.

The manner of proceeding is totally different.

The whole system of litigation and jurisprudence in the Prize Court is peculiar to itself; it is no more like the Court of Admiralty than it is to any court in Westminster Hall.

From 8 Eliz. c. 5, it appears that, in civil and marine causes, there were many appeals, which the statute restrains to one to the King in Chancery, to be finally decided by delegates. But prize is not a civil and marine cause; and the appeal lies to commissioners, consisting of the Privy Council.

A thing being done upon the high sea, don't exclude the jurisdiction of the courts of common law. For seizing, stopping, or taking, a ship, upon the high sea, 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. This was explained in the case of Le Caux v. Eden.

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 (as the books express it, and as I have often heard Dr. Paul quote), if, upon the most summary examination, there don't appear a 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 person interested to defend, and every person interested may force him to proceed to condemn, without delay.

These views cannot be answered in any court of Westminster Hall, and, therefore, the courts of Westminster Hall never have attempted to take cognizance of the question, “prize or not prize"; not from the locality of being done at sea, as I have said, but from their incompetence to embrace the whole of the subject.

As to plunder, or booty, in a mere continental land war, without the presence or intervention of any ships, or their crews, it never has been important enough to give rise to any question about it. It is often given to the soldiers upon the spot; or wrongfully taken by them, contrary to military discipline. If there is any dispute, it is regulated by the commander in chief. There is no instance, in history or law, ancient or modern, of any question before any legal judicature, ever having existed about it, in this kingdom. To contend that such plunder was within the rules and jurisdiction of the Prize Court, might be opposed by the subject matter, the nature of the jurisdiction, the person to whom it is given, and the rules by which he is judge. Therefore, the counsel have confined their argument to reprisals ashore, by a naval force; at least, I shall consider it as so confined, without entering into any question about booty, in a mere land war; as to which I have no light to go by, and it is not now necessary to be decided. Neque teneo, neque dicta refello.

The question then is, whether such a capture ashore, by a fleet of ships, and the land and sea forces aboard, in consequence of a

previous surrender of the place, is within the jurisdiction of the Court of Prize.

Two general objections have been relied upon.

1. That, though it were given and immemorially exercised, yet it cannot subsist, because contrary to the Statutes of 13 and 15 Ric. II, and 2 Hen. IV.

2. If there is no objection from these statutes to the existence of such a jurisdiction, that it is not given by immemorial usage, or the true construction of the commission.

As to the first: * * The view, purport, and tendency of the statutes, is to prevent the Admiralty from trying matters triable at law. The taking a ship upon the high sea is triable at law to repair the plaintiff in damages: but a taking on the high sea, as prize, is not triable at law to repair the plaintiff in damages. The nature of the ground of the action-prize or not prize-not only authorizes the Prize Court, but excludes the common law.

These statutes don't exclude the common law in any case, and they confine the Admiralty by the locality of the thing done, which is the cause of action; it must be done upon the high sea.

If done in ports, havens, or rivers, within the body of a county of the realm, the Admiralty is excluded. But the Prize Court has uniformly, without objection, tried all captures in ports, havens, etc., within the realm. It happens often. We all remember several cases. Ships, not knowing of hostilities, come in by mistake. Upon the declaration of war, or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made. They can only be condemned in the Court of Prize.

What is still more extensive, foreign ports, or harbours, are not the high sea, any more than the shore, but numberless captures made there, have been condemned as prize.

I am of opinion, that these statutes have no view, or relation to the subject of prize: consequently there arises from them no objection. 2. The second objection is, that the jurisdiction is not given. I will consider this objection in three points of view. (1) Upon the words of the commission.

(2) Upon the reason of the thing.

(3) Upon authorities and usage.

1. As to the first; the commission certainly has in view captures by ships. Hostilities are committed by ships and the men aboard, at sea, or ashore; a fight begins; the vanquished runs ashore; gets the goods out; is pursued ashore; and the goods are taken.

A fort, or town, is taken by the force of ships at sea, and is ransomed; or plate, money, and valuable effects taken.

The means this country has of annoying, and making reprisals upon an enemy, is by naval expeditions. There never was, there never will

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