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(5 Rob. 215). The cases of "Rodney” and “ Nelson" were, if not conformable to Admiralty orders, splendid exceptions, justified by the magnitude of the services performed and by the subsequent applause of the Admiralty and the nation; such exceptions as create a rule for themselves alone, but cannot be carried further where the same happy circumstances do not exist.

It adds much to the disinclination of the Court to support such a claim, that Sir Alexander Cochrane had not arrived within the limits of the station at the time when any one of these captures [138] was effected. If an Admiral is appointed by the Admiralty, and actually has given an order to a fleet, he is entitled, though not within the limits at the time of capture. But I know of no such indulgence having been shewn to an admiral who has issued a command without such an authority; and unless such a practice were shewn, I should not hold myself at liberty to apply it. Upon the whole, therefore, I must pronounce against the claim of Sir Alexander Cochrane to a flag-share in any of these captures.

Costs refused.

"WILHELM FREDERICK "-(Noorman). May 13, 1823.-Mariners' wages claimed by subjects of the King of the Netherlands. Objections to the jurisdiction overruled.

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[Distinguished, The " Golubchick," 1840, 1 W. Rob. 149.]

This was a cause of subtraction of wages, in which the ship, her tackle, apparel, furniture, and the freight due for the transportation of the cargo lately laden therein, were arrested on the part of the late mate, and one of the seamen on board the "Wilhelm Frederick.' An appearance was given under protest for the owners, merchants of Amsterdam; and alleging that they were subjects of the King of the Netherlands, and that the said ship sailed under Dutch colours, and regularly documented as a Dutch ship: that, in the prosecution of her voyage from Amsterdam to a port in France, she put into the Isle of Wight in great distress, where she was arrested under warrant from this Court, without the sanction or consent of the [139] Dutch ambassador in this country; and further alleged, that previously to the sailing of the said ship, the whole of the crew duly executed certain articles of agreement, by which the mode of enforcing the payment of their wages is particularly set forth - That none shall have a right to take proceedings at law against the master in foreign ports, but all disputes and complaints against the master shall be settled or prosecuted on arrival in this country. In case the ship, whilst abroad, should be sold, condemned, or the continuation of the voyage be suspended, so as to render it necessary to discharge the crew, the master shall be bound to make a settlement with everyone, at such place, and to deliver to each of them an order upon the ship's husband, or correspondent, for the wages due to each, with a proper allowance for travelling expenses, or passage money, proportioned to the distance to this place; and no one of the crew shall demand of the master any further payment, much less his whole wages, on pain of punishment according to law; and in case the master should be remiss in performing what is above mentioned, the injury thereby occasioned shall be made good to the crew by the master at this place. That on the arrival of the ship at Cowes, she was surveyed, and, in consequence of the damage she had received, was found to be utterly unable to proceed on her voyage that the cargo was there unladen, and the further prosecution of the voyage was abandoned, when the men were discharged, upon a tender of their wages and a free passage home, which they refused to accept. The other side alleged, that the action was prosecuted with the previous sanction and consent of [140] the Dutch Consul-General for Great Britain and Ireland: that upon the ship being obliged to put into Cowes, James Day, the Dutch vice-consul at that place, undertook to act as agent for the master and the ship: that the ship was repaired and refitted for sea, and subsequently the cargo was sold and disposed of at Cowes ; that the said owners abandoned the ship, and advised the master and their agent to that effect; that, accordingly, the master executed an assignment of the ship, her tackle, &c. to the agent and others, in trust for, among other purposes, the payment of the seamen's wages; that the men continued in the service of the ship, and were victualled by the said master, through the agent, until the provisions were withheld; and they submitted that, although the articles of agreement might

operate to preclude a suit or action against the master, they would not affect the action now prosecuted against the ship, her tackle, &c., &c.

In support of the protest, Lushington.-The ambassador of the Netherlands has not given his consent to the institution of this suit. In The " Mexicana," Arkenson,*1 which was the case of a ship arrested in a cause of wages, the Court said that the consent of the Spanish consul was not sufficient to authorise the Court of Admiralty to entertain a suit between Spanish subjects"; and it moreover added, “that the sanction of the Spanish minister was necessary." He also cited the previous case of The "Courtney," English (Edw. 240). 2dly, The particular articles of agreement bar the seamen from resorting to a foreign jurisdiction. [141] But, besides these objections, here is an affidavit that these men were paid their wages on the 30th April, and their receipt is in the following terms: We have finally settled for, and received the wages due to us respectively, and have no further nor other claims upon the ship."

Phillimore and J. Addams, contra.-It appears, from a search into precedents, that the authority of the Consul-General has always been held sufficient for suits of this kind. That is considered to be the consent of the accredited agent of the Government to which the suitors belong, as was observed in the case of The "Courtney," which has been cited. The "Mexicana was a case essentially different in its circumstances from the present. There, the vessel was about to proceed on her voyage; here, the vessel was abandoned by her owners for they write thus to the master; We cannot interfere, as the survey of repairs exceeds the value of the ship you ought to have abandoned her, and had her sold to break up, in which case the crew would have been paid out of the proceeds." This is a complete recognition of the right of the seamen to sue; and the ship having been assigned over to English creditors, the men are without a remedy, if not assisted by this Court. We admit that they have received their wages; and they now apply for their costs.

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Judgment-Lord Stowell: I believe the ambassador's consent has been given in this case, though it may not appear upon the proceedings. But I am of opinion, that this was not the arrest of a foreign ship, but of a British. The owners had abandoned her to the [142] discretion of the captain, who assigns her over to British creditors at Cowes. Here was then a disclaimer by the owners, of their own articles of agreement; their contract with the seamen was at an end; and I am satisfied that the seamen may, under these circumstances, proceed, on the general law, to establish their claims. It is not, therefore, necessary for the Court to enter further into the case. I overrule the protest; and decree to these men their costs, to the time when they gave a full and final receipt.

"HELEN "(Cornish). May 13, 1823.-Property found on board a pirate ship, and condemned as droits of Admiralty, granted to the original owners upon a memorial to the Crown.

This vessel, with an assorted cargo, sailed in July 1819, on a voyage from Liverpool to Genoa and Leghorn. On 3d August, while off Cape de Gatt, she was piratically boarded and plundered of a quantity of bales, cases, and various other goods, by the master and crew of the brig "William "; who afterwards disposed of the goods in the islands of Sardinia and Malta. The brig was subsequently boarded and taken possession of at Smyrna, by H.M. ship "Spey," and Delano the captain, and the crew of the brig were severally convicted at a Sessions of oyer and terminer held at Malta; and, on 4th February 1820, were executed.

[143] The proceeds of the goods that arose from the several sales, had been paid to the pirates principally in gold coin, which, with other effects found on board, were deposited in the hands of the Government treasurer at Malta. On 30th June 1821, a monition issued *2 calling on all parties to shew cause why this property should not be condemned as droits and perquisites of the Admiralty. An appearance was given for certain British and foreign merchants, as the lawful and sole owners of the cargo late on board the "Helen," praying the payment of the proceeds to their

*1 Decided July 15th, 1814.

*2" HERCULES," otherwise " DUKE OF PARMA "-(Brown). April 6, 1819. In this case the Court decreed two warrants to arrest the proceeds of the cargo of a Spanish ship, unlawfully and piratically taken possession of on the high seas.

use. On 23d October, in the same year, the Court rejected the prayer of the claimants, together with their petition for costs to be paid out of the proceeds in the registry; and condemned the goods as droits of the Admiralty. From this sentence the

claimants appealed.

In support of the sentence, the King's Advocate shortly opened the case by stating, that even if the fact were established, that the money found on board the pirate vessel, proceeded from the goods of the asserted owners; a question would arise, whether, in strictness of law, they could claim it. The owners may pursue their own property, but they cannot make out a claim to money arising from it. The goods themselves, and not the proceeds of those goods are liable to be attached. [144] Goods of pirates go to the Crown, as droits of Admiralty.

Arnold on the same side.

Adams, contra.-I admit that the Crown is, generally speaking, entitled to all bona piratarum. It is, however, a right so far qualified, that if any persons can establish a title to the goods, the possession of the Crown ceases. It cannot hold them as against the lawful owners. If, in the present case, the owners should succeed in convincing the Court, that the specie found in possession of the pirates, was the proceeds of goods taken piratically from the "Helen," they would then be met with that question of law thrown out by the King's Advocate; and they could not contend against it successfully. It is quite manifest that these proceeds did result from the goods of these claimants. The indictment at Malta was against the eight prisoners, for their offence against this ship, and this ship only. Although the parties have no strict right, it must be admitted that they have an equitable title; and we therefore hope, that the Crown will graciously hold this property, as a great trustee, for the use and benefit of the owners. It is almost impossible that there can be any other co-claimants.

Lushington on the same side.

Lord Stowell observed. The course that is proposed, and not dissented from by His Majesty's Advocate, is most equitable. An application should be made to the Crown, in order that the distribution of the property may go in the way suggested; but leaving it entirely to the benignity of the Crown. It is, however, necessary to affirm the sentence; otherwise the Crown can do [145] nothing positively with respect to such an equitable disposition.*

Sentence affirmed.†

THE KING V. WHITTAKER. May 28, 1823.-Appeal from the Vice-Admiralty Court of Jamaica, sustained. Condemnation and forfeiture under the navigation and revenue laws. Penalty under 4 G. III, c. 15, s. 37, held to attach. This was an appeal from the Vice-Admiralty Court of Jamaica, in which a prosecution had been instituted by H. M'Dowall, late acting collector of Customs at Kingston, in that island, against William Whittaker, a pilot, for penalties incurred, by being concerned in landing 211 barrels of flour at Milk River Wharf in Jamaica, or by knowingly receiving them after they had been landed by some persons unknown, and before the duties had been paid.

The information, which was filed on the 28th December 1820, by Mr. M'Dowall, for himself, for the governor, and for the King, pleaded in five counts, that on the 6th October preceding, Whittaker was unlawfully concerned in the landing of these goods, which were of the value of £277, 4s. 2d. currency, by which offence, under the statute of the 4 Geo. III, c. 15, he became liable to a [146] forfeiture of the treble value, viz. £831, 12s. 6d. currency, the goods being charged in the three first counts to be prohibited goods; whilst the 4th and 5th counts charged the landing to be before the duties were paid. In the Court below, the penalties were held not to attach. On behalf of Mr. Whittaker, Arnold and Jenner made two points: 1st, that the burden of proof, in this case, did not fall upon the defendant; and 2d, that the libel and sentence of condemnation of the goods, being under other statutes than that which

* A memorial was accordingly presented to the Lords of the Treasury, who directed the proceeds to be paid over to the petitioners; the law expenses being first deducted.

† By 6 Geo. IV, c. 49, the capture or destruction of piratical ships is further encouraged.

inflicted the penalty, could not be received as sufficient evidence against him. It is a general rule of law, that the burden of proof rests with the accuser, subject to some legislative exceptions. Such exceptions are undoubtedly introduced into several of our revenue statutes, as in 13 & 14 Ch. II, c. 11, s. 28, and in 7 & 8 W. III, c. 22, s. 7 ; but these are laws of an odious and harsh nature, and these are special enactments, that it has been thought necessary to introduce into them for their support; but they are contrary to the general principles of justice and equity; and are, therefore, stricti juris, and cannot be carried one step further than the express words of the law. Here the information is grounded on the 37th section of the 4 G. III, c. 15, which is an enactment of a high and penal nature, imposing a forfeiture of treble value, and may therefore be said to be strictissimi juris. The statute itself draws a marked line of distinction, with regard to the onus of proof. By the 45th section it is enacted, that where a ship or goods are seized for any cause of forfeiture, and a dispute shall arise whether the duties have been paid or the goods [147] lawfully imported or exported, or concerning their growth, produce, or manufacture, or the place whence they were brought, there the burden of proof shall be on the claimant. This, therefore, is an exception to the general rule of law, this Act of Parliament having in its clauses, applicable to forfeiture, the same enactments that were to be found in the earlier statutes upon the revenue. But by section 36, where a penalty of treble value is imposed on the master of a ship, "in case it can be made appear, that he was in anywise consenting or privy to certain frauds or concealments"; there the burden of proof rests, according to the general law, with the prosecutor. The same mode of proof is there required, as in all other criminal cases, that where an offence is charged, it should be proved by those who assert it. The 37th section, on which the information rests, imposes the penalty on any person concerned in landing prohibited goods, or goods on which the duties have not been paid: this then being a case of penalty, the prosecutor must prove it. Now, what is the meaning of prohibited? It will be contended, that all goods are prohibited which may not be freely landed; but we contend that prohibited goods are such goods as are forbidden to be landed under any circumstances whatever. The article in question here is flour ; with regard to which commodity, the enactments have varied; but by 58 G. III, c. 27, flour is, among other things, admitted into the British colonies from any other colonies. It is true, that a sentence of condemnation has passed upon this flour; but we submit that this is not evidence that can be received in the present penal proceeding against Mr. Whittaker. Proof of the infraction of one statute is not [148] evidence to affect a person charged with penalties under another statute; and they cited the case of the Attorney-General v. King (5 Price, 214), that a record of conviction under one statute was not evidence, even against the same person, on a proceeding under another statute; and the reason of that rule applies here in support of our position. Here is, therefore, no evidence that the flour in question was prohibited in any sense of the word. It certainly was not universally prohibited; and if importable, under any circumstances, here is no admissible evidence that it was not so imported. As to the counts charging the landing of the goods before the duties were paid, evidence is certainly adduced that there was no payment, but what is this evidence ?—A clerk proves the searching of the Custom House books, and that he does not find any entry of payment: but on the first and principal point, namely, that this flour was liable to pay duties, there is no evidence at all before the Court.

The King's Advocate and Adams, contra.-The rule of law attempted to be drawn from the case in Price's Reports does not at all apply here: that case related to two separate Acts of Parliament; but the condemnation of this flour cannot be said to have taken place under a distinct and separate statute from that which imposes the penalties that have been incurred; for though it may have proceeded under former revenue statutes, yet these have been adopted into the statute of 4 Geo. III, c. 15, which, in section 37, refers to forfeitures" under this or any other Act of Parliament." As to the word " prohibited," it is a word of large extent. Scarcely any one article is universally prohibited; [149] and, on the other hand, this article, flour, is clearly a prohibited article, unless imported as the law permits. For the general law of importation into the colonies is a law of prohibition, and to escape from that law the party must shew a law of permission. The words "prohibited goods," stand in opposition to "permitted goods," and permitted goods are always sub modo. The ship, in the

present instance, incurred suspicions by landing the goods at unusual places; she never entered herself at the Custom House, not did she venture to approach it; but deposited her goods in a way best calculated for smuggling. [Court.-Is there any proof of its being a foreign ship?] No. The ship was gone before the cargo was seized, so that there was no power of ascertaining her character. The prosecutor does not contend, that flour may not be sometimes importable; but he says, it could not be importable in this manner. As to its being liable to duties; if it was not so, it is singular that Mr. Whittaker himself does not assert that it was not. On the contrary, in his answers to the information, he admits that the goods may have been landed before the duties due thereon were paid "; and in a letter to the master of the ship,-" If the flour does not bring 14 dollars per barrel, it will not cover the duties and charges." As to the fact of landing them knowing the illegality, there was evidence enough to prove that Whittaker must have known that she could not have been up to the Custom House, and could not have imported legally. Admitting, therefore, for the sake of argument, that the burden of proof is upon us, we contend that we have entirely sustained it. It was competent to the party to have given an entire ex-[150]-culpation of himself; he might have given a plea, and have examined witnesses; instead of which, he has only admitted, in his answers, what he knew would be proved against him.

In reply, it was said, that the principal accusation against Whittaker was, that he was knowingly" concerned in an illegal landing; but the evidence clearly negatived such guilty knowledge, and there was no ground whatever to believe that he did not think it an open and fair transaction.

Judgment-Lord Stowell: This was a proceeding against the defendant in the ViceAdmiralty Court of Jamaica, for an offence against the revenue laws. In the papers before me I observe that something is said about an objection to the jurisdiction of that Court, as incompetent to proceed for penalties under the statute; but no such objection forms any part of the proceedings which have come up hither regularly by appeal, nor was it urged in the argument and I therefore do not think it necessary to take any further notice of it.*

In the present case, an information was filed in the Court below against the defendant, William Whittaker, and the information was contained in five counts, applying to the same fact. 1st, For [151] being concerned in unshipping certain prohibited goods, viz. 211 barrels of flour into Jamaica; 2d, for unlawfully landing said goods; the 3rd, 4th, and 5th counts described the unlawful act in different ways, by which, if any one is proved, the goods are forfeited, and also by 4 Geo. III, c. 15, subjects the party delinquent to a penalty of treble their value. The value of the goods in this case was £277, 4s.; the treble value, therefore, would be £831, 12s. The goods may be either simply prohibited goods, or goods prohibited sub modo, by being imported before payment of the duties. The penalty is the same regarding either, and attaches upon proof either that the party unshipped or landed them inwards, or received them knowingly into his hands. In this case there had been a proceeding against the goods, and a forfeiture decreed; and it is followed by the present procedure, which is for the treble penalty against this individual. The former proceeding proved only that an unlawful act had been done; it then left the matter short; for confiscation is not necessarily followed by penalty, because, to inflict the penalty, the offence must be traced to the individual; and it had not been proved to have been done by Whittaker. In order, then, to affect Whittaker, it must be shewn by proof that he is the person who did the interdicted act which draws down the penalty. It is possible that it may be sufficiently proved by the condemnation of the goods, if they are traced to his possession, and so declared in the record of the procedure; but if the record of the procedure avers nothing against him personally, it must be otherwise proved; for the proof that an unlawful act has been done, does not prove that he did it.

[152] There have been some considerations urged that may be safely dismissed ;

*The King's Advocate observed, that there was no objection to the jurisdiction of the Vice-Admiralty Court in the present case. With reference to the same objection, he mentioned the case of the King v. O'Hara, which was an appeal from the same Court, on similar proceedings, and in which the sentence of the Court below was affirmed, 25th July 1819: the doubt, he said, arose on a case from Antigua.