Reports of cases argued and determined in the High Court of Admiralty; commencing with the judgments of the Right Hon. Sir William Scott, Michaelmas term 1798. By Chr. Robinson, … Volume the Sixth. 1808: Vol 5
Great Britain. High Court of Admiralty
n. (a) 148. 4 * 5. ? F ' '4 4 , *$ 4 I. * « , , : a 1 8 # 1 =: 5 x 1 1282 LF 14 4 # Au. * 4 » 4 of „„ r loben # & 4 12 9 145 &YF' 14. * 5 * f * «= Y 4 f 4 4 ” <# + 1546 » N 5. „ ff & — bk | abit — — "4D. — 4d = * — no" TIAL ey þ 4 —" » 4 os / zh vo Tn JUS 4 (.) The Eiitar takes this eine Tapped quel of that caſe: On the gth of April 1805, it came un again, on the report of the Regiſtrar and Merchants, ſtating the amount of the embezzlement which had taken place, &c. On the part of the Britiſb Merchant who had acted as Agent in claiming the NJ property, it was prayed that the Court would confirm the Report, 443 : notwithe DIN |. TENT nes See ne CASES DETERMINED IN THE: IB iH 2205h1IvV9 VAC vd Tvoxthr, vr, Y/ 7 #9! (393 Byte 0 Sir William Saat 3 am. thi neceflity ; of: Le this charge to have been ſufficignily pro ed by the oath of the neutral maſter, unanſwered as it is: 2 £42:3.301.5 4at ING EY ;twithflanding the $ en We Bad{cRov a no an ing t e Span; 1 P prof rie 1 were now come remic a ad 50 Luger 1 bus Bind; befeie tic Cuß would direct the ſum reported td be brought into the Repiſtry und alſo the Cos s, for the purpoſe of being puid to the Brut Mens, chant, as an indemnification ſoxithe expences, incurred, hy. him 3 in Pröfecuting the claim. The King. s Advocate ſtated clo Leda flanges in mitigation, on the part 01 the captars. —- ar wis' a eaſe of great miſconduct if the'privateer, who 8 ſeiruro in time of peace. and afterwards delayed lesen able time to bring the caſe to adjudication. e hen brought on, reſtitution was reſiſted on grounds; * Court could not but conſider as wholly untenable, time of the former decree, the charge of Ws referred to the Regiſtrar and Merchants, and the reve we coſts, was reſerved. The Regiſtrar and M-rchants now report that there is a deficiency. by any evidence offered on the part of. the owners of the privateer, ſince the cauſe firſt came on in Septem- ber 18647” That damage was actually ſuſtained i in- 1885 deed admitted by the negoeiation which the agent Uf the ou are ſtated to have been at one time diſpoſed to enter into. for the reparation of the injury which. the veſſe] had received. It muſt, therefore, be pro- nounced to be à caſe of coſts and damages, and — referred to the Regiſtrar and merchants to report the amount. But the Court will not ſtop here: Owners are farther anſwerable for the proper conduct of the perſons to whoſe care they entrult the conduct of their privateer. | They ought. not to put their veſſel into the. hands of a perſon capable of being - guilty of ſuch! outrageous "behaviour; as is imputed to the prize. maſter in tliis inffarice, and is not contradicted. The protelt was communicated to the owners in an any {tage of the cauſe, and it was their duty immediatel to have uſed all means to exculpate themſelves- their-crew (a). Since this has not been done, I diet admit the charge as proved; and I think I deal out very ſcanty Juſtice, by condemning them in the ſum of one hundred guineas, to be divided amongſt. the. crew of the neutral veſſel, which conſiſted of ten per · ſons. As to the diſtribution of that ſum, I ſhall' di- rect twenty guineas to be given to the maſter, fifteen” to the boy who was particularly the object of 118 uage, a ad. the wn to be divided N . , \\ oi 1 1 4 — — e 1 477 (4) ew ſaid in excuſe that the . N ſons, on whoſe affidavits alone they could ground any defence, had. hen abſent ever ſince on a voyage to the Hef Ia. 3 N | | | |. [ | do Dig Fine > Dans. CEO e It is ſtated, taothembntes 119 2s. iI —U—— — i d ! 5 hag 12 55 f 5 meaſures. io be taken for the farteiture aher No 520 «I! FF 5 5107 marque. * {4 98 | 9910 .o 21 10 11609 301 oT eting; 4 01 1119 0 4 18 i 101 11 if | 2 * S115 10 3: or} offi 430 I et 5105 10 23791515% | 1. CASES DETERMINED iS HE Rok Peas capture, has been ſince loſÞ.: If | the gaſe, I. ſhould, certainly have 1s (40 Sc 5767 me 16 oonmad? 0 19 one 25 rahe (U THE SACRA FAMIITA;' do.] ' 5 72511 1516 2 01 wort: ad It c101qs3-11. 104 Hs, Was A queſtion ariſing on am application made peer e, . en behalf of 2 Linerpou privateers Ming the actual captor, ſuliained, not- withfianding the fr ; — of ee joint captar, ee 8. actual aptor, to have the Rice remoyesl te 5 mu, where ſne had beep. buoy — : dip, who had dipole Tit ” the pretence af ho, gd Lite Ns 20 ein" obtained to tha 2 on af Abu 2 motion was now ade on the part IS. ajelty' $ AP, 4 1 Urenie, the aſſerted joint: captor (q Hcyying e Court. Wes not permit the gqmamiliognto [3 at + 4 . © a7 Io net zit a: 61 2509 tbr div | 110 07 the” part + the joint capter, the King's Ac Tee —The capture was made ſoon after the declaration of hoſtilities againſt Spain: The privateer, who was the acqual captor, had not a letter of marque on (bpard againſt Spain. The Uranie being in ſi ghe at che time, and coming up, toox poſſeffion of "hg jo or "under an erronedus e ir which fee ms to. deen very he e "Fg the. — © IP —— FACE FL — du my va) IN 5 1 no $413 10 * "3K © 0 *. 13; {ns 4 ; „ 11 (a): 121th, the, 18606.—This 4 came on to de dusrb'bn the claim of bie Majeſty's ſhip Uranic, to Thare ds fbint chpder, en dhe plea of being in filr, when the claim was eſtabliſhed d 15 TMu node Eee rr 3 * lad tb chat effect 3 in à lite doeh dt ap manner UppOfed the 5 which w pk r pa on tha eie = 2 Gig: 4 T0 15 5. 40 5 Jen. 4271 2680 _—_— 9 be either one commiſſion including all, or MGM COURTIGFADMARALTY. is ſtatetl to lIbVe urHNn⁰ from mens enflön '"%, aftet or t 9 the part of the joint · captor, or that ons x | tention or wiſh to have the prize ſent to Liverpool. To remove her to that port would be rather for the con- venience of the owners, than for the benefit of the joint-intexeſt3 in/which the King's ſhip, though only a joint-captor, will partake to a much greater extent that the Court will not fanQion I te 2 che rize entirely out of the \ view 0 ap, . it i is echt neceſſary te to Fong $1 the” Court will direct ie pri Z ig de 74 tf RM _ WY | 1111117 RICA Frog 05 the other” fide, Lade ſtated That the. com- - mild" Rad dein already granted; and ſubmitted, with reference to the circumſtances of the caſe, that duff cient 2 was not ſhewn why that K 181050 553 3 xy 1 — . 06 3601 — 2» — 22 : 7 1 17 Cn GDI] Ame. unn — {4) 146 If the State be neee Be it by neceſ.. - 0 otherwiſe, if a captain, having Kaye: Hin 7 ſhould ie with and capram ng ge Fn i ih a lawful prize, but might: br taken away ach man f war as \ ſoould firſt fall in with him.” —Spirit of Marine Law, by. John Maxwell, of the Honourable Society of the Inner Temple, and date of the Royal Navy This citation is intreduetd, ſolely for the purpoſe af corretting cho erroneous intimation of the luſt cliniſe, ' . made vhon it-in the Jadgment'y infra, p. 302. JUDGMENT, ubli Klip 5 Ke. 3 Pavateer! Under cheſe dreumſtanees and 5 all&atioti of joint Eapture has been afferted, it — t} i TIE * * N 8 28. - ? 40 Its Nut rl "4 30 The SaekA * LA. | Abs DETERMINED — | | #64 9113 1511 10 30, 2 ebe er eee OI DSITU e L1H en n E of) Sir in, Scott, —The queſtion before me is; Whether * 1 ſhall carry into effect the decree whith hab already paſſed, or whether ſufficient cauſe. is ſneum to ſtop/the! commiſſion which has been granted? It appears that the prize was a Spaniſh veſſel of conſiderable value, taken by a Liverpool privateer, not having on board a letter of marque againſt Spain; but the 5 be preſumed to have ſuppoſed that his ownecy would be active in their own intereſts, and that they would uſe immediate exertions to arm themſelves with a commiſſion againſt Spain. He made the capture” ex- preſsly on fe ground of Spaniſh hoſtilities, and had in his poſſeſſion the Gazette containing intelligence of that occurrence, and ſhewed it to the maſter of the Spaniſh veſſel, The King's ſhip came up after the capture, and diſpoſſeſſed him. I am not diſpoſed ta fay any thing vindictive on this point, as the error ſeems to have been very general in the navy, and to have been derived from ſome publication, which the Gentlemen of that profeſſion have been in the habit, of conſidering as legal authority. The fact however, is, that the King's ſhip did diſpoſſeſs the privateer, and brought the prize to Plymorth, where, on better advice being obtained, the poſſeſſion was, it is ſaid, imme» diately given up. Proceedings were commence here on the part of the privater, no appearafice being then given for other parties. A commiſſion of removal was prayed, and was not then oppoſed; Under | ſueh circumſtances it was not neceſſary for the actual captor to do more than ſtate his wiſh that the prize immer- mizht he. removed to Liverpool; the commiſſion paſſe, N captor is potior jure. Can it be ſaid that, when he is, deſirous of fending the prize to a port not improper, ... 8 HIGH. COURT. QF ADMIRALTY. ed, as of courſe, under the uſual proviſions. That the parties ſhould wiſh the prize to be carried to their 2 on port Was very natural; and as long as it was not = an improper: market, which Liverpool can ſcarcely. he ſtated to be, there ſeemed to be no ground of ohjer · tion on the part of the Court. Had the application been for a; removal to a market - evidently diſadvany tageous, as for inſtance, to Greenock, or any other | ſuch port, where the convenience of the actual cap- tor would: have been conſulted in oppoſition to the generat> interęſt, the caſe would have ſtood on very © different grounds. An oppoſition is now given on tha part of the joint captor, praying that the prize may not be temovtd to Liverpool, but that it may be brought to Lendun. To ſell at Plymouth is out of the queſtion ; that port cannot be ſuppoſed to afford a very beneficial market. It ſeems indeed to be entirely” out of the intention of either of the parties that the prize ſhould remain there; but they are not agreed aa to the place to which ſhe ſhall be removed. Now, in ſuch a caſe; I have always underſtood that the actual and more commodious for the convenience of the owners, 2 mere conſtructive captor ſhould be at li. berty to defeat that wiſh, by ſuggeſting a market; which may by poſſibility be-i in ſome reſpects a little more advantageous,” To allow ſuch a power to the conſtructiue captor would be going farther than I ever remember to have been done, If the port to which 4 the prize was intended te be removed, had been a 2 . in N or one in 5575 wy danger" of | — extbezs Sxcta FAMr- LIA. March Lab, 4 0%, dona: 343 n nf 1 _ av f ITY 1 W353: » hi FA 3} dr & 21 * A An joint captor t. to oppoſe fuch 4 4 removal. Bü EASES DETERMINED IN THE | .YTAAAIMGA 10 Tu Hz embezzlement could be apprehended, 1 b have already ſaid that it might afford grounds for an oppoſition of this kind. In the preſent. caſe, the only queſtion which could be made is: Whther tie privateer ex- b intention of ſending the prize to Li 12 | inſtance, or whether it might net Hate 99 to Plymouth with the perfect "Ginctifibiice of * 5 04 Whether "the gy pie. al" | Gilted upon to ſhew an original mien Sr Soli to Liverpool? Becauſe, if no fuck with Wis Ufitertaih ig | the time of capture, and the intention of 5 to a e was only lately "take pany 5 re ture from t original plan,” it might” erhaps g Pn think it muſt be Prelbimed bi the dtn of the parties and the 'rcumſtaces of the eats, Ha fuch fg EY was in fact entertaimel of the tual captor ; or if ay doubt ene = to exiſt on that head, it is again repelled by the ne- | 3 of the joint captor in not appearing to make any objection to the original application. am of 0 plates that the objection, coming as it does at tut late period, is not ſufficient to induce the Cpt yy ifuperſede. the commiſſion which has ae creed, and Thave no heſitation in direct "decree to be carried into effect. * IN bw) —_ 12525 02 191909 7 9 — ü! „7 n ore dr e 7. 4 # 5 * $4 % © % x * - g N ! a 324 1301 | MMC 63 435043 GNUCULT e117 08 4 # 1-8 * " ; 4 ' , 10 C0051: 22577 Nr fer + 4 rp 19071 316 3W (169Y * 5 118 1 = d 8 = PIR | Y r 4 : 8 | ws DE; 4YO0t% ** ; 50 9 1773. l 2441 7200 Funn 9143 ” 3 *% 4 8 * 1 * * we k , 4 — DNN * gerne an EL STO). '2 novidogqqo ns wt bg L 1e dim 21 3802 bit. 10 »819Up Va, , 500 221.3 TIDE Ii} (al by 14 21d "oak > wth * 12 16729 THE MARIA, „ Pavia bluoo doider 1 wer 07 ig: True 5 9 8 Pr f 2n Anericen tp hie k had hs ,,come.. from the Hauannab to New Providence TG the enemy: with a;cargy.of colonial produce, and was procgcding, Review of for- when takepy with a conſiderable part of that cargo gn. Frans bein. the ꝓqrt of Anfterdam. - pep this r _ — Ultimate On the part 7 15 : the captor,, the King s e — 5 2, to the zeneral principle of law t ny been applied to. this aſs of caſes ; and to the ne- of adhering to it, in proportion as the "8k J old] in this courſe of trade on the part of me chants in America, and. the intereſts which the ene. ee eee e is 7g Doll 11, 201 , 7211 INTE Ns tits 7 — — TI ITT r (4) The intereſt which eile confeſs themſelves io derive from the aſſiſtance of foreign. merchants, . Tae fraudulent devices the commerce between the mother country and their colanies, may be eſtimated by the following extracts from let- ters found amongſt the papers of the Orion, r3th March 1866 and written by perſons at Anſlerdam to their correſpondentsat the Gape of Good Hope, —* How much it grieves us not to. 158 u in ger power to execute the aceumulated orders of all our friends, owing to the vexatious ſituation of the times. The only channel we had, to wit, through Copenhagen, which we could · avail ourſelves of laſt year, we are no alſo debarred from, owing to a ſtrict interdiftion of & the Daniſþ Government not to load any other goods than thoſe which are bona fide Daniſb property, which has prevented our friends as well as all other houſes of repute to be of ſervice to us therein a, ormerly, We are not ignorant that there are expeditions made to remote quarter of the globe, and {till farther from other neutral places, but we do not conſider ourſelves juſtified, without ſpecial authority from our employers, to riſt their property in this manner. oy / 9 Reiftitution. E The i ca DETERMINED 1H THE" eame every day more manifeſt, — On the facts it | was Þ 32 my ſuſficient grounds to eſtabliſh the original intention, rated motives.” contended, that the courſe of the tranſaion afforded The veſſel had come from the Havannah to the port of America on the z iſt May, and proceeded again, after ſome neceſſary repairs, on the 20th July, with much the larger (5) part of the ſame cargo on board, to the country of the enemy; that the illegality of. the, trade attached upon the veſſel alſo, as well as up the cargo; that it had been ſo held in the caſe. ofthe) Eher, Orne. 11 15 ni On the part of the Claimant, Sad 4 Aden; contended That there were circumſtances that —_ ed to a a-ſeverance of intention between, the preſent. 4 F 1 L K. . re In the firſt inſtance . the enormous charges, but, reel A pally becauſe we are not ſufficiently convinced of the ſolidit 778 property of the parties concerned. The fame reaſons prevent Us fro participating inexpeditions by American ſhips; mnt us that theſe are often marred before their departure from henct, Audix thoſe upon whoſe honour we might conſide, h:/itate to engage in neu tratizing, either from a too rigid 2 of conſcience, or from ſelfrinte- In the ſame collection of papers is to be found alſo the following extract of a letter relative to tranſhi ipmients in America, dated Amfterdam, 24th Auguſt 1805, from'Meſirs: Tru and Co. to Mr. G. E. Overteck, at the Cape of Good Her: & Severat neutrals have been carried into England, and the cargaes con rod ed on the flighteſt ſuſpicion, noteuiſ Manding the cargces en tranſhipped in America, and had paid the intvard and outward p uly, which might be the means of expofing our Indian and Cap [Friend de great Loſſes.” ) Ws In a late popular publication in America, — the ſignature olf, rn Phocion, the amount of colonial produce, re-exported by means of drawbeck; from America to Zurope, as aſcertuinecd by oa reports for the laſt ear, is ſtated to have, been. 28 milliuas af eh lars; being in proportion of 28 to 75, (viz. ſcventyaſſue milliom of - dollges), the amount of the whole imports of the countiys accord« ing to the lame official returas. | voyage EPE AS. ors HJGH COURT or ADMIRALTY. voyage and the voyage from the Havannah : that eme coffee, which had compoſed part of the former cargo, had been left in America, whilſt other parts of the preſent cargo were taken on freight, and were not expoſed to the objection of having been brought from the colony of the enemy; that as to ſuch parts, the ſhip could\not in any manner be ſaid to have been en- gaged in an illegal voyage; that it did not indeed follow that there muſt neceſſarily be a unity of pur- poſe. as to the voyage of the ſhip, even if the owner ſhould be held to have formed ſuch an original inten- tion, as to the cargo; ſince inſtances frequently oecur- red in which the deſign as to the cargo was carried' into execution by means of tranthipment, even between veſſels of the ſame owner. Iu the cales- which had eccurred lately, there were particular circumſtances ticular voyage: but the preſent caſe does not afford any: concluſive evidence as to the cargo, and much lefs as to : the ſhip ; it was one therefore which the Court would n to be referred for farther information. 307 q the, MAnrac | Sept. hit, 1805. which-led to a concluſion as to the unity of each pars. "Toba; t. Sir William Scatt.— This queſtion ariſes as to a reſet” which had gone to the Hauannab, and from thence to New Providence, where ſhe was refitted, and took on- board part of the ſame cargo, with other goods. wa of longing to, the ſame owner, and ſome other articles en freight, and was at the time of capture proceeding 5 to Am/terdam. On theſe facts two queſtions have been - made Firſt. Whether the goods ſo going are not _— * to condemnation? and ſecondly, Whether the Hip, us coucerurd in che eee is e 5 3 "bj 14 - 235 0 — — = — —— CASES DETERMINED IN THE to the ſame penalty. It is certainly true that 2 con. · fn Dang ne hy om , Mother Country, or  veſſel belongs, will ſubjeR the cargo to confiſcation ; and the only point which the Court has to decide * whether the voyage in queſtion is to be conſidered as a continued voyage or not. It is a queſtion in its nature ſubje& .to very conſiderable difficulties in particular caſes ; and one, on which the Court muſt exerciſe its judgment with great caution. on the ſpecial circumſtances which com» poſe the ſubſtance of each caſe, and with great care not to attribute more weight to any particular fact that what it juſtly demands. In the caſe of the Der, Orne, which was decided by the Court of Appeal, the principle of law, by which ſuch caſes are to be decided, was diſtinctly affirmed. It certainly is not a novel principle; and I cannot but expreſs my ſur- prize, that it ſhould be repreſented in any piace, as 1 underſtand it has been, that-the principle is new. 0 1 1 2 congeve-$9, :, > an 7 5 ——— a from America 185 Li C finding «the matket * bad ſhe went. on wy em and there tk. n board à cargo of — duce for the Hatbmab, under the direction e 2 © that ſhe mould go to the har q 'Salem fn ticles, was the onnen (0h. ; of and ſent the yeſel on. , — to 8 that it was 955 N 45 in the mind of an aut! XX ater full powers, that the velſel ! ould 1 gato t and that this purpoſe was adopted by che; , hät it was in reality x; continued © voyage: from Main t the Havennah ; that ay e e. intention Adu Was done away by the E 5 on the part of the dune r, ů wal theſe f oui port cht ᷑ s fully implicated in the engage- ment uf lending her on, according to the projected 2 voyage. That was the fundamental caſe—# caſe of a trade from th Mother Country to the Colony, with" full -knowtedge oß the eircumſtances, and à diftin&' ” adoption:of cid purpoſe on the part of the <wner; '* Ober caſet have ſoecurred ſince in this Court wc have been determined on their own particular eirtum -- 8 ſtagces y ah indeed, all cafes! of this kind muſt b enjoretnedfthait bm erijcnne; which tay boighner>" 8 „ e 111. 34 ye Vater / 1200 1 forthe 5 e vo oy ba pron 4 fi „8 — 2 N do2111540 | e | FC 4) Ad 91 uly 1 * burt to America, and from thence to the Mother Country (5) Adm. 23 July 1805. - called for the deciſion of this Court, was that of the veſſel, from which it appeared that ſhe had been for a 2 — — CASES DETERMINED IN IR or ſtronger, according to the manner in which the tranſaction has been conducted. The firſt cafe that Enoch, (a) in which appeared one fact, which was in ĩtſelf concluſive of the intention, viz. a charter -· party, pro- viding © for a voyage to the colony of the enemy, and n Europe,” affording a compleat demonſtration of one entire voyage. It was not merely a circumſtance, it was an abſolute and concluſive fact, declaratory of the intention of ſending on the cargo to Europe: The next caſe was the Rowena, (b) which happened on the fame day, and which the Court did not diſtinguiſh in judgment from the preceding caſe, though there was this difference between them, that it kad ngt a charter. party linking together the two parts of the original voyage. But other circumſtances occurred leading to the ſame concluſion, and the Court can only decide on circumſtances. There were the former habits of the conſiderable number of voyages employed in the fame ; courſe of trade in the hands of the ſame owner : The ; whole cargo had come from the colony of the enemy, 1 and had laid in America only a very ſhort time, juſt * long enough for the purpoſe of being landed and re- 0 ſhipped. Under theſe circumſtances the Court thought Ia itſelf bound to preſume that the original intention of de ſending the cargo to Europe had actuated the whole Wy adventure. Soon after came the caſe of the Reſpect, (c in which it was affirmed in the claim, that the goods which compoſed part only of a former cargo, were intended for fale in America. This averment was F444 with... lotta bt Rs 2 HIGH COURT OF ADMIRALTY. ſolemnly. interpoſed on oath, and as the matter was dubious, the Court thought proper to admit the parties to eſtabliſh their averment in proof. Theſe are the principal caſes which have occurred in this Court, without adverting to caſes that have occurred in the Superior Court; and I now have to conſider whether there was in thoſe caſes any thing, on which the Court relied, which binds me to conclude, that the preſent voyage was a continued voyage, and that there could have been no real bong fide importation. There are no letters or writings, as in the Eſex, Orne, purport- ing an original intention to ſend on: There is no charter. party as in the Enoch : There are no inſtruc. tions, diſcloſing a courſe of ſimilar voyages to Amher- dam, as in the Rowena. The former voyages are clear of ſuſpicion ; and I think there is ſomething in | that fact, and that it is but juſt that the preſumption from former habits, which weighs unfavourably in ſome caſes, ſhould have its due weight on the other fide. It is, indeed, the very purpoſe of the ſeventh in- terrogatory, to illuſtrate what is obſcure in the tranſ- action immediately before the Court by former habits. The preſent caſe is dilinguiſhable alſo in another point of view, that the deſtination is not to the Mother Country of the colony. I do not ſay that the rule of law would be. different on that account, but as evi- dence of intention, it is ſomething ; when the portus, ad quem is not a port of the country to which the' £ colony belongs, and is itſelf a place of great general | trade, there is not the ſame preponderance of evidence, the proof of intention is flighter, I will not ſay how much lighter, but it is a circumſtance to be taken iuto conſideration in forming a judgment on the whole: BB 2 caſe, —— —U CASES DETERMINED IN THE caſe, Itis ſomething alſo, that the goods are not the whole of the former cargo; ſince the inference of origi- nal intention is not ſo ſtrong as to goods which compoſe a part only, though a large part of a miſcellaneous cargo, picked up 1n different places, and belonging to different proprietors. On theſe grounds it does appear to me that the preſent caſe is ſubſtantially diſtinguiſhed from other caſes, determined by the Lords of Appeal, or in this Court, and that it has not the ſame proof to be collected from circumſtances, on which a Judicial mind is bound to acquieſce. There is room to let in the ſuppoſition that there might be an intention of ſelling in America, and that in conſequence of the failure of that proſpe& only, the deſign way taken up of ſending on theſe goods to the Eurepean market. Without abandoning the principle, or being in the leaſt diſpoſed to let it out to a degree of laxity, which may endanger the ſtability and conſiſtency of the general rule, I think that the claimant may in this caſe be admitted to prove the averment of an intention of ſelling in America, which is not ſhewn to be incre- dible, or inconſiſtent with any circumſtance which is at preſent in evidence before me. As to the other parts of the cargo, on which no queſtion is raiſed, they muſt be reſtored. The queſtion as to the ſhip will tand over to wait the judgment, which the Court may | ultimately form on the real intention of the owner 3 to the cargo. On the aad of April 1806, This cauſe came on again upon farther. proof; when it was admitted on the part of the captor, that the proofs were ſufficient, and the Court decreed rellitution. . | | 4 3 P I. Mn States. ERE HIGH COURT OF ADMIRALTY. 373 THE AKA, L. War- 4% AN 4 | N 20th 20th s was the caſe of a ſhip under American colours, . 1805. with a cargo of logwood, and about 13,000 dollars Chin of nk. on board, bound from the Spaniſh main to New Or- reftrion, with leans, and captured by the Minerva privateer near the 2 1 mouth of the River Miſiſinpi. A claim was given under the direction of the Anerican Ambaſſador for the ſhip and cargo, as taken within the territory of the United States, at the diſtance of a mile and a half from the weſtern ſhore of the principal entrance of the Mi/i/#ppi, and within view of a poſt protected by nnn A GE CES » On the part of the Captors, Arnold and Robinſon.— The claim of territory, which has been aſſerted in this caſe, involves ſeveral queſtions of fact and of law: Firſt, as to the place of capture; ſecondly, as to the nature of the neighbouring ground—whether it is ſuch as can ſupport a claim of territory; and thirdly, a queſtion as to the time from which the capture is to be dated, whether from the time of actual ſeizure, or from the firſt ſummons, and commencement of the chaſe. As to all theſe points the evidence is v contradictory. The place of capture is deſcribed * : the maſter in his depoſitions to have been ©! about two Engliſh miles from land, at the moutn of the Mie fppi.” The ſecond witneſs ſays, cloſe to the bar of the Miſh/ippi very near the ſhore; and the third It 3 18 witneſh CASES DETERMINED IN THE witneſs ſays, near the buoy at the mouth of the River of New Orleans.” The deſcription which the 2002 commander of the privateer gives in his affidavit is, that about five P. M. 14th July, he diſcovered the Anna at the diſtance of about nine miles, north weſt and by north; that he immediately gave chaſe, and about half paſt fix the Anna altered her. courſe; that about three quarters paſt ſix he ordered a gun to be fired; that no notice being taken he order- ed another, when finding that the Auna, inſtead of taking notice, hoiſted her ſtayſail to favour. and oſſicers of the Cuſtoms, who uſed to viſit all ve nr” ſels at their entrance. Upon this ſtatement it appears that the moſt favourable repreſentation of their own vitneſſes places the fituation of tho veſſel at the time of the firſt purſuit, but juſt within the bounds uſually aſcribed to the extenſion of territory, at two miles and a half, or ſcarcely leſs than three miles from the near- eſt coaſts and ſhores. The laws of -the United States on this queſtion are laid down with exact preciſion, and direct (a) * that their diſtrict Courts ſhould take cognizance of complaints by whomfoever inſtituted in cafes of captures made within the waters of the United | States, or within a marine league of the coaſts and ſhore thereof.“ Conſidering that clajms of territory are claims of exception to the general rule of capture, and that they are required to be ſatisfactorily proved, it might be doubted whether, if there was no other point in difpute, the claimants had ſo clearly brought their caſe within the territory of the United States, as to induce the Court to ſuperſede the ordinary rights of war, and decree immediate reſtitution, as on a claim of this peremptory nature. This argument proceeds on a ſuppoſition that the-time of capture is to be dated from the time of purſuit, and that the immunity of territery is hot violated by, the capture of a veſfel which has been chaſed into territory, in the ſame manner as when the yeſſel is avowedly lyitg ano arab the firſt inſtance, - rae rene r — b + wv + 1 "4. 24 dot 376 n. KA NA. * —— care, & 20th Nev. 1805. CASES DETERMINED IN THE -- not merely fly to it as a place of refuge, from the operations of the enemy. - The fad is eſtabliſhed by the evidence. The law on this point, it is apprehended, is ſettled in the practice of this Court, and it is diſcuſſed at length by Bynker/boek with this reſult, © Uno verbo, ter- ritorium communis amici valet ad prohibendam vim que ibi inchoatur, non valet ad inbibendam, que extra terri- torium inchoata, dum fervet opus, in ipſo territoris conti. nuatur. Qu. Jur. Pub. page 66 But, as to the nature of the place, is the ſpot within any meaſurable diſtance of what can properly be called coaſts and ſhores? It was not far from the bar of the River, but that is no- thing more than a figurative deſcription which has been given to a collection of ſand, which may affect the | approach of. veſſels at certain times, but has no ne- ceflary connection natural or artificial with the bounds of territory. That it was not far from the buoys at the mouth of the River is alſo immaterial, as ſuch rights or rather duties of conſervancy over neighbours - ing waters may in many inſtances prevail, without _ affording any marks of a, territorial juriſdiction. [; 3 Adm, Rep. page 348.] From what ſpot then is it that the diſtance is to be computed Not from the fort of the Baliſe, becauſe that fort was above five miles from the place of actual capture. There i is no line of coaſt from which the. computation can be made to fall within the proper compaſs. The claim- down by the ſtream of that great River. Can Court recognize; in ſpots of ſuch an equivocal nature, ants reſort therefore to theſe iſtands, as they are called on one ſide, or temporary depoſits of logs. and drift, as they are repreſented on the other, that are bro under the * Aualities HIGH" COURT or ADMIRALTY, qualities of territory ? It is to be expected, that the outlines of territory ſhould be fixed and permanent, and that they ſhould form a viſible part of the coun- try to which they are aſcribed ; ie b. bean this they ſhould- have this conſpicuous permanent charac- ter, that neutrals may be affected with the obligation of obſerving them; and ſince the diſtance is reckoned according to the efficacy of protection, that is, within the reach of fire · arms, it might be natural to expect, that the land from which the extenſion is reckoned, ſhould be a'place from which this protection can be sforded. The ſpots in queſtion poſſeſs none of theſe ordinary requiſites of territory. Is the Julgment, The Lexrnct Judge over-ruled dafl wan- ' ments, and obſerved, That though in a maritime point of view, that interpretation of Coaſts might be correct, yet this' conftruftion would be too vague for any Court of Juſtice to adopt on 8 queſtion of this nature ; e coaſt, there would be no fixed rule which the boundary would be aſcertained ; the different Tae e of the United Statcr would be obliged to apply various diſtances to the terms of the Acts, which require them to watch over all violations of territory within a marine league from the coaſt. That $8 this was a new and important queſtion, his Honour had conſidered it with mature deliberation, and was clearly of opinion that the word Coaſts could not have ſuch an ↄperation as the Counſel for the, Libellants had given to it; but that it was intended to meas land as far as low water. —The- reſult was, that the Bill exhibited in behalf of the Africains was diſmifled, but without cofts, an it was deemed the duty of the Commercial Agent of the French Re- public to bring the ſybje& before the Court This Note in ee that Caſe, which appeared in the Churigſoavn papers, and is in- ſerted here, with the moſt refpectful defercnce- to the Gentlemen whoſe very able arguments are thys ſumwarily tated, far the pur poſe of introducing the reſult of a trial, not unconnected with the preſent queſtion, and decided in a manner, highly honourable to 8 3 the UA 8 15 enn EL HIGH COURT OF ADMIRALTY. the claim of territory is not made out in that clear and diſtin manner in which claims of this nature D ſnould be ſubſtantiated, and that the Court will there- fore proceed to ditcuſs the queſtion of property, as to which many defects, and ſome affirmative of ſuſpicion arife, [ as ſpecified}, which will make it a cafe of further proof. | 7 On the part of the Claimant, the King's Adwocate and Laurence. This is a claim of territory, alledged in the moſt ſolemn form by the direQions of the Am. baſſador of the United States, reſident in this country. li is a queſtion which is at all times deſerving of great attention ; and is in the preſent inſtance ſupported by ſo many. grounds of complaint againſt the conduct of the captors, that the Court cannot fail to conſider it as a caſe of peculiar aggravation, and deſerving to be marked with the /evers# reprehenſion and puniſh- ment which the judgment of this Court can inflict. It is not the caſe of a ſhip and cargo avowedly be- longing to the enemy, and without any claim to reſti- tution, but what ariſes as a_ matter of exception to the general courſe of law. It is, on the contrary, the cafe of a ſhip clothed with the moſt inconteſtible marks of neutral character, and belonging to the very ſhore which this captor was haunting, i in violation of the territory of the country—it is the caſe of a veſſel which could ſcarcely have fallen into his hands, but owing to the habits under which the captor had been fome time ing, of hovering upon the entrance of the River. That this had been the conduct of the privateer, is admit- ted in the affidavit of the commander himſelf, who, in we” % proach them. On theſe grounds it is ſubmitted, that .. deſcribing * : Anna. > ow CASES DECIDED IN THE - deſcribing the courſe of his proceedings in that river, —. inconſciouly drops the following expreſſion t— - &h,15tb, & 20th * Whilſt we were ſtanding on and off the Mii: * ppi. (a)? A violation of territory ariſing out of ſuch « a ſyſtem and continued plan of action, is not only more injurious to the honour and character, but more dangerous to the private trade, of the country aggrieved, and calls for the ſevereſt animadverſion of the Court. If there was any room to doubt as to the exact *diſtance at which this particular capture was made, the mere circumſtance that it aroſe out of a continu- ation of ſuch habits, would be ſufficient to induce - the Court to pronounce againſt the legality of ſuch a capture; but the place ſeems not to be ſubject to any ſuch doubt. The affidavit which has been given in by the claimant, in anſwer to the affidavit of the cap- tain of the privateer, deſcribes the courſe of his veſſel to have been along the line of coaſt which is bounded by theſe iſlands, ſo that the ſituation of the veſſel, at the commencement of the chaſe, was as much within the limits of-territorial protection as the place of actual ſeizure. But is it a clear point, that the protection of territory is ſuperſeded by a previous chaſe : No ſuch principle has been W in the pralice of lr N "TP, —_ . —_ 8 —. | % Wirkens n . fig ht PA eo eaſe, as the Court directed the log · book of the privateer to be introduced to explain that cireumſtance, and in the event con6- nl © % 2 principal. ground. of the fentives of fps r | | HIGH COURT OF ADMIRALTY. Court (a); and as to the. dictum conveyed in the Treatiſe of Bynkerſhoek on that ſubject, it muſt be ture of this Kind. It evidently points to a caſe of previous conteſt of an hoſtile nature, © dum fervet opus,” and muſt be underſtood only of caſes in which the act in queſtion was wholly - unimpeach- able on every other ground, and had ariſen only out of the unforeſeen flight of the enemy. The Court will perceive, however, that the place of the firſt purſuit is deſcribed, by reference. to the chart, to have been, within the limits of territory (c). If the Court ſhould be of opinion on the evidence contained in theſe papers, that this was a capture un- juſtifiable in its commencement, abundant cauſe will ariſe, in the ſubſequent conduct of the parties, to ag- gravate the queſtion of damages which uſually accom- pany a ſentence of reſtitution, on claims of this de- ſcription. Having made this capture, the captor - ſhould at leaſt have taken the prize to ſome of the prize juriſdictions that are eſtabliſhed in the We/t Indies. 