Dutch and English fleets, which is alluded to by Lord Mansfield, C. J. in the Omoa case, Le Cras v. Hughes, Park. 358. In another case of the Starling, W. C. Pinnegar master, a vessel taken by the ship of an ally serving with a British squadron, the sentence of the Court of Admiralty, pronounced on the 29th of June 1798, declared, "that the cargo belonged "to enemies of the crown of Great Britain, and as such, "or otherwise, the same was condemned as good and lawful "prize, (not saying to whom,) taken by a Russian ship of war "called the Ratizan, being one of a squadron then acting under the command of rear-admiral Macbride," an officer commanding an English squadron. In this instance it is observable that the cargo was not condemned as prize to the king; evidently, because upon such a sentence the prize acts would attach, and vest the whole property of the prize in British subjects, to the exclusion of the Russian captors. In the principal case the proper authority has determined that the captured ships were taken by the vessels of his majesty, and they are condemned as lawful prize to his majesty alone. It was competent to the Marquis de Niza to question this position in that place, where alone it could be questioned with effect, a prize court; he might have made himself party to the original suit, or he might have appealed against the decree, under the provisions of stat. 33 G. 3. c. 66. ss. 28, 29, 30.; but as long as it stands, it is binding on the common law courts, and on all the world. But if the Court could examine this case on the ground of the law of nations, which it cannot, yet it would be found that the Marquis de Nisa would have no title to a share in the proceeds of this capture. It may be admitted that the forces of two allies effecting a naval capture in conjunction, are entitled to share the prizes; for that is common justice and the law of nations: in what proportion they would share, it is unnecessary to discuss, probably in the proportion of their respective forces employed in the capture. But this proposition must be confined to the case where an ally affords actual and effective co-operation in the conquest: and that co-operation did not subsist here. No other rule than this can be adopted; for if it be urged that the Marquis was virtually assisting to the capture, because he was acting on the same station, why is the reward for that service to be raised by reducing the share of the plaintiff alone? Why are not the portions of every captain and every sailor to be reduced in equal 1809. DUCK WORTH TUCKER. [ 17 ] 1809. DUCKWORTH v. TUCKER. [ 18 ] equal proportion? and in that case the plaintiff will still be entitled to recover to a certain amount in the present action. The limits of our stations are only the arbitrary institutions of our own government: the giving a share to flag officers who are supposed to assist by their counsels, is merely the consequence of our exposition of our own municipal law; it is a result arising from our construction of the words of his majesty's proclamation; and the criterion which our Admiralty Courts have adopted, to determine whether a ship lends assistance to a capture or not, is to enquire whether she was within sight, or within the hearing of the guns. [Mansfield, C. J. suggested, that that was merely a rule of evidence, adopted to expedite the decision of causes between British subjects.] If the claim be not confined to allies actually co-operating, the right of participation must be extended to all allies, in whatever quarter of the globe their arms may be employed: for when it is said that the assistance of the Marquis de Niza in Malta and Sicily, enabled the British commander in chief to concentrate his own forces for other services, it might with equal truth be said that the fleet of an ally, serving in the Baltic or in the East Indies, would produce the same effect: it certainly would enable the Lords of the Admiralty to make a distribution of the British naval forces different from that which they could make but for such a co-operation; no doubt every ally in arms virtually cooperates with the allied state; yet it would be absurd to contend, that an allied fleet in the East Indies should share in prizes made in the Mediterranean. And no other line can be drawn, than either actual and effective co-operation, or this most extended and universal claim, which will equally entitle all allies so long as the alliance continues. If the claim of the Marquis de Niza is founded upon the prize acts and proclamations: it is necessary to see what they are. The right to prize at common law was vested in the king jure corona; the captors had no right whatever in it; the king might grant it to whomsoever he pleased: if he had granted the whole to the plaintiff, except for the prize acts, no one could have contested the grant. Several acts have been passed at various times, respecting the prizes taken from different nations with whom we have been at war; they are all similar. The objects of them throughout are purely and solely British, and do not even glance at the interest of allies. The earliest are those of ́6 Ann. c. 13. and 10 Ann. c. 17. ss. 9 & 13. the first," for the "encouragement encouragement of the sea service," enacts, that officers and ❝seamen of queen's ships, privateers, &c. shall have the sole "property in all prize ships ;" the latter provides for the application of the proceeds of prizes" to and among the flag officers, "captains, and other officers and companies, of her majesty's "said ships, their executors or administrators, entitled thereto "as aforesaid, if the same shall be decreed to them by the High "Court of Admiralty," and the surplus of the monies, after paying the rewards therein-mentioned, is appropriated " to the use of the royal hospital at Greenwich." The statute 33 G. 3. c. 66. which is the subsisting act regarding French prizes, and the 37 G. 3. c. 109. which is the subsisting act regarding Spanish prizes, are intitled, "acts for the encouragement of 66 seamen, and for the better and more effectually manning "his majesty's navy;" and both enact," for the encouragement "of the officers and seamen of his majesty's ships of war, and "the owners, officers, and seamen of all other British ships and "vessels having commissions and letters of marque, and for "inducing all British seamen who may be in any foreign ser. "vice, to return into this kingdom and become serviceable to "his majesty, and for the more effectual securing and ex"tending the trade of his majesty's subjects, that the flag "officers, commanders, and other officers, seamen, marines, "and soldiers, on board every ship and vessel of war in his "majesty's pay, shall have the sole interest and property of and "in all and every ship, vessel, goods, and merchandizes, to be "captured during the continuance of hostilities, after the same "respectively shall have been finally adjudged lawful prize to his "majesty, in any of his majesty's courts of admiralty in Great Britain, America, or elsewhere, which shall be duly autho"rised to take cognizance of such captures, to be divided "in such proportions, and after such manner, as his majesty by "proclamation shall think fit to order and direct:" and it is worthy of remark, that the case of a capture not made by the British navy alone, did not escape the notice of the legislature; for by the third section, in all conjunct expeditions of the navy and army "against any fortress on land, directed by in"structions from his majesty, the flag and general officers, and "commanders, and other officers, seamen, marines, and "soldiers, acting in such conjunct expedition, shall have such "proportionable interest and property as his majesty under his "sign manual shall think fit to order and direct, in all enemies' 66 property 1809. DUCK WORK V. TUCKER. [ 19 ] property taken in such fortress, or in the adjacent harbour, "after final adjudication thereof as lawful prize," These acts operate as a parliamentary grant of the property of all prizes to the persons therein described, and vest in them, instantly upon the sentence of condemnation pronounced, the property of all prizes taken, subject to the power reserved to his majesty, and to be executed by proclamation, of appointing the shares in which this vested interest shall be distributed. But the objects of the bounty are distinctly defined: they are British subjects only, the officers of his majesty's ships of war, in his majesty's pay. The plaintiff satisfies this description; the Marquis de Niza does not. And since these vessels have been pronounced lawful prize to his majesty, the king could not, even by express words, if he had issued a proclamation after the capture of these prizes, have executed the power in favour of a new class of objects not designated by the original grant: if in derogation of this statute, he had by his proclamation expressly declared that the Marquis de Niza, by name, was entitled to a share in the proceeds, it would have been of no effect, because the Marquis was not, at the time when the prizes were taken, an officer in his majesty's pay. A fortiori, inasmuch as before the capture of these vessels, the proclamation had issued, which defined the very shares and proportions of the flag officers, captains, seamen, marines, and soldiers, serving in the fleet, and had absolutely and irrevocably vested them, is it impossible that any other person should acquire any interest in them. It is true that this marked distinction subsists between the share of a captain and that of a flag officer; the captain must be actually on board, to entitle him to a share; a flag officer may either be on board, or directing and assisting in the capture. But the flag officer must be such an one as the act describes ; he must be in his majesty's pay, and the proclamation cannot give it to any others. And since the captures were not effected by vessels under the command of the Marquis de Niza, nor was he aiding or assisting by his counsels, there is no pretence to complain of any hardship in the case. As to the claim made of a share in the Spanish prizes, nothing can be more preposterous, inasmuch as Portugal was not then at war with Spain, and express orders were given to the British admiral, to employ the Portuguese force on such services only as could give no umbrage to the Spanish nation, with the exception of the sole case of the French and Spanish fleets effecting a junction; junction; and the reason given for that exception is, that the Portuguese would then be necessitated to act for self-defence; and would be placed in a new relation with the Spanish court. If the English commander in chief had come to action with the Spaniards alone, he was bound to detach his Portuguese allies; and he was not even permitted to carry a Spanish prize into one of their ports; yet they contend that they are entitled to a share in Spanish prizes. Arguments for the defendant.-This is not an action brought by the Marquis de Niza, nor does the defence rest upon his title merely; but the plaintiff is bound to establish his title to recover, and if it can be shewn that the defendant is liable to pay over these sums to any other person whatever, the action fails. He is entitled to retain these sums either in order to satisfy the rights of the Marquis de Niza, who has a double claim, 1, by the law of nations; 2, as a British admiral; or, 3, in order to satisfy the rights of the crown of Portugal, or to discharge the share to which the king may be entitled, either as a droit of admiralty, or in trust for the Marquis de Niza, or in trust for the queen of Portugal. 1. The Plaintiffs have made a fatal concession in admitting that in certain cases of capture by a conjoint force, the allies would be entitled to a share of the prize on other grounds than those of the prize acts and proclamations. Unless, indeed, this had been admitted, it must have been contended that if any Portuguese force, however superior in number, had joined the smallest British squadron, all the prizes that they might conjointly make would devolve to the British captors alone. But the sentence of our Admiralty Courts cannot vest that in the king which is the property of another sovereign state; and the order for service issued to the Marquis de Niza declares the destination of the fleet to be for the services of their majesties the King of England and Queen of Portugal, not for the King of England alone, nor can the prizes taken by a joint force be his only. In the case of the Cape of Good Hope, 2 Robins. 281. the criterion of title to prize is laid down to be, whether the ships were to act in a military character or not. It will not be questioned but that the Portuguese squadron was destined to act in a military character. But the prize acts in fact, do not touch the question, for they provide only for the cases in which the prizes are captured solely by a British force, and which on that account are wholly vested in the crown: they do VOL. II. C not 1809. DUCKWORTH V. TUCKER. [ 22 ] |