Inf. Charles Hutton. Lord Eskgrove reporter. April 22. 1783. Information for Charles Hutton, shipmaster in Culross, suspender, against William Palmer of Great Yarmouth, in the county of Norfolk, and David Maclaren, merchant in Leith, his attorney, chargers

[Lord ESKOROVE Reporter.]

April 22, 1783.

INFORMATION FOR CHARLES HUTTON, Shipmaster in Culross, Suspender, AGAINST WILLIAM PALMER of Great Yarmouth, in the County of Norfolk, and DAVID MACLAREN, Merchant in Leith, his Attorney, Chargers.

LORD ESKGROVE is to report to your Lordships a question with regard to the property of a vessel captured by a French privateer, and purchased from the captor by the suspender. The circumstances of the case are somewhat singular, and are as follow.

In May 1782, the suspender sailed from the frith of Forth to Gottenburg, in a vessel of which he himself was owner. He arrived in safety at Gottenburg, where he took in a cargo of timber and iron; but on his voyage home had the misfortune to be taken by a French privateer, the Fearnought of Dunkirk, Joseve Magray commander. The suspender was taken upon the 10th July 1782; and Captain Magray having put part of his crew into the suspender's vessel, sent her into a port in France or Holland. The suspender and his crew were kept prisoners aboard the French privateer.

Captain Magray having in this manner disposed of his prize, continued his cruise; and upon the 20th July he gave chace to a vessel, the crew of which, upon his approach, took to their longboat, and made their escape. Upon boarding the vessel, Captain Magray found that there was not a single person in her: but a variety of circumstances, independent of the flight of the crew, put it beyond all doubt that she was a British vessel, and as such Captain Magray seized her as lawful prize.

Upon examining the prize he had thus made, Captain Magray found that she was of no great value. She was in ballast, had no cargo whatever on board, and did not seem to be a vessel of much value. Had she been more valuable than she was, Captain Magray could not have spared a sufficient number of hands to carry her into port: he therefore took her in tow, and carried her along with him. This however proved troublesome; and after having kept her in company for some days, Captain Magray took a resolution to sink her, that he might be more fully at liberty to proceed in his cruise. After he had formed this resolution, and when he was about to put it in execution, it occurred to the French captain, that perhaps the suspender and his prisoners might give him something for the vessel, as thereby they would recover their liberty sooner than otherwise they could expect to do. The suspender, as might be expected, very readily listened to the proposition, and by the terms of the bargain it was at length settled, that the suspender should pay 150 guineas, as the price of the vessel; and in security of that sum one of the suspender's crew offered to go as a hostage.

This agreement was reduced into writing, and is conceived in the following terms:

The 25 day of Julay 1782.

Know all men by thies preseants, That I Joseve Magray, Comandar of the Fearnoght provitear of Dunkirk, have fond a tow-masted vasial at sea, and not one living soal one bourd the sead ship: I therfor shuld a sounk the prayes emedetlay; but Capt. Hutton bing one bourd a prisiner, I therfor med offir to him for the sead ship for one hundred and fiftey gineas. I then askiet him what sukiuratey hi wold give mi for the sead ship. In whear, his boaye replayed, He wold go for the ship, give him tow shilings pr day whill in prison. And all thies is trouth.

JOSEVE MAGRAY.

- John Merser, prisiner one burd, witteness. John Mercer.

- John Craford, prisiner one burd, witteness. John Crawford.

In consequence of this agreement, which the suspender consisidered as in every respect to be fair, legal, and proper, he got possession of the vessel, and brought her home to Scotland. Upon examining into her condition, he found that she was in bad order, and stood greatly in need of repairs. He thereupon, in the full belief that she was his absolute property, proceeded to give her a thorough repair, and then made one voyage in her to Gottenburg. Upon his return, the vessel was arrested at the instance of the charger, Mr Palmer, who alledged, that he was the original owner of the vessel, and insisted that in that character he was intitled to reclaim her, the property not having been properly vested in the French captor, or legally transmitted to the suspender by the transaction above mentioned. The charger thereupon brought an action before the high court of admiralty, against the suspender, concluding, ‘That it should be found and declared by sentence and decreet of the judge of the said high court of admiralty, that the brigantine or vessel formerly called the Peggie of Yarmouth, now the Peggie of Culross, was, and is still, the property of the pursuer and Nathaniel Palmer, and ought to be delivered up to them: And, further, the said Charles Hutton ought and should be decerned and ordained to make payment to the pursuer, or his attorney, for his behoof, of the sum of L. 300 Sterling of profits and freights earned by him while he has been in the illegal possession of said brigantine, as also of the sum of L. 50 Sterling of expences of process,’ &c.

Defences were given in upon the part of the suspender; on advising which, with answers, the judge of the high court of admiralty pronounced the following interlocutor.
Finds,
Dec. 6.1782.

That the property of the ship in dispute must be held to have remained with the pursuer; therefore repels the defences, and ordains the brigantine or vessel libelled, with her float-boat, furniture, and apparelling, to be forthwith restored and delivered up by the defender to the pursuer, to be disposed of by him as he shall think proper; and decerns and ordains the foresaid brigantine or vessel libelled, with her float-boat, furniture, and apparelling, to be forthwith restored and delivered by the said Charles Hutton to the said pursuer.

The suspender offered a reclaiming petition; upon advising which, with answers, the judge pronounced the following interlocutor. ‘Having considered the foregoing petition, and the answers made thereto, refuses the desire of the said petition, and adheres to the former interlocutor and decreet of date 6th December last; ordains the defender, against the 2d February next, to give in to court a particular account of the debursements made, and the profits gained by him, on the voyage or voyages made by the ship libelled, during the time he was in possession of her; with certification.’

The suspender offered a bill of suspension, which was passed of consent. The charger afterwards applied by petition to the court, for a remit to discuss the reasons summarily upon the bill; and the court did accordingly remit ‘to Lord Eskgrove Ordinary, before whom the bill of suspension was presented, to call and hear parties thereon, and to discuss the reasons thereof summarily, and to do therein as he shall see just.’

In consequence of this remit,
Mar. 1.1783.

parties were heard in his Lordship's presence, when he appointed both parties to give in memorials; and upon advising these memorials, his Lordship pronounced the following interlocutor.
Mar. 11.1783.

‘The Lord Ordinary having considered this memorial, with the memorial for Captain Charles Hutton, and caused call the cause, makes avisandum to the whole Lords with the whole cause; and appoints the parties to prepare informations, and lodge the same in the Lords boxes against the 22d day of April next.’

In obedience to this appointment, this information is humbly offered upon the part of the suspender.

The charger Mr Palmer claims the vessel now in question upon two separate grounds, 1mo, He contends, That by the capture, the property of the vessel was not vested in the captor, so as to intitle him to transfer the same to the suspender by the transaction above mentioned; 2do, The charger maintains, That the present case falls under an act passed in the last session of parliament, intitled, ‘An act to prohibit the ransoming of ships or vessels captured from his Majesty's subjects, and of the merchandise or goods on board such ships or vessels;’ and that on that account it was unlawful and improper in the suspender to enter into this transaction with the captor.

In considering the first of these points, a general question occurs, at what time the property of goods taken from an enemy vests in the captor? With regard to this general question, which, from its nature, must ever be arbitrary, the writers on the law of nations have dissered widely in opinion; and the practice of different states has been equally various. Thus much is plain, that the only purpose of fixing any rule, is to ascertain and determine the interest of the original owner and of the recaptor, where ships or goods seized by an enemy, happen to be retaken. It is only in this case that it is of importance to establish any rule; for where the thing taken remains with the enemy, the original owner, from whom it was seized as lawful prize, has no claim. The only right that remains with him is a right to follow, and to recover, if he can, the ship, or other subject, which was seized by the enemy. If he succeed in this, the subject returns to him, and again becomes his property; but if he fail, if it be retained by the enemy till the conclusion of the war, his right is gone for ever, and never can again revive. Between, therefore, the subjects of states engaged in a war, the general rule is, that quae ab hostibus captae statim capientium fiunt. The moment a prize is made, the property vests in the captor; and all that remains with the original owner is the chance of retaking what has thus been seized by the enemy. When therefore the prize remains with the enemy, there is no room for any doubt, or for any nice discussion as to the time when the property vests in the captor; for if it be lawful to seize the goods of an enemy, those goods must of course remain the property of the captor, where the enemy is not so fortunate as to retake them. But on the other hand, in the case of a recapture, it is of importance to ascertain what effect the capture by the enemy is to have. If the simple act of seizing a ship divest the original owner, and vest the property in the captor, it must necessarily follow, that where the ship is retaken, the recaptor is intitled to consider it as the property of the enemy, and as such to insist that it shall remain with him as a lawful prize, to the exclusion of the original owner.

To ascertain therefore, in such cases, the interest of the original owner, and of the recaptor, it became necessary to establish regulations with regard to the effects of a capture, and how far it ought to divest the original owner, and to vest the property in the captor. Upon this point, there is an equal diversity in the opinions of lawyers, as in the practice of different nations. With regard to the Roman law, it has been a matter of much doubt, and of much controversy, what rule truly obtained by that law. Upon the one hand, it has been maintained by many eminent writers, that the property of moveables was not vested in the captor till they were brought infra praesidia. On the other hand, it has been maintained with equal confidence, that the single act of seizing them instantly transferred the property to the captor. This opinion Voet lays down in the most express terms. His words are: ‘Et quamvis Hugoni Grotio, de jure belli, liber 3. cap. 9. num. 16. aliisque placeat, praedam per hostes captam tum demum eorum fieri propriam naturali ratione, cum intra praesidia hostium delata fuit; Arg. L. t. 44. ff. De acquir. rer. domin. l. 8. § ult. ff. familiae ercisc. l. inii 5. § 1. ff. h. t.; verius tamen, etiam ante per solam occupationem dominium praedae hostibus acquiri; cum naturali ratione dominia rerum a possessione coeperint; et uti coelo, mari, terra capta statim capienti cedunt, ita quoque bello capta, quae superioribus in eo comparantur a Paulo in l. 1. § 1. ff. De acquir. vel. amit. possess. Adest certe in hoste capiente naturalis apprehensio, adest animus acquirendi, adest justa acquirendi causa in belli jure, adeoque concurrunt ea omnia quae ad dominium acquirendum sunt necessaria, etiam antequam res captae intra praesidia deductae fuerint. Et sane ni ita statuas, dominiumque hostibus neges donec intra praesidia res delatae fuerint, dicendum foret id quod unus militum manipulus occupavit, per alium manipulum socium et amicum, sed numerosiorem, posse iterum auferri, quasi id nondum manipuli primo capientis, sed adhuc hostium res esset; quod utique absurdum est. Nec repugnat d. l. 5. § 1. ff. h. t. cum tantum dicat civem per hostes captum liberum manere quamdiu intra praesidia delatus non est, quod ita favore libertatis ut multa alia inductum ad res trahendum non est;’ lib. 49. tit. 15. De captiv. § 3.

But although Grotius was of opinion, that by the Roman law deductio intra praesidia was necessary, in order to transfer the property to the captor; yet he is equally clear, that it is not necessary now among the modern nations in Europe. With regard to ships particularly, he lays it down in the most express terms, that ‘recentiori jure gentium inter Europeos populos introductum videmus, ut talia capta censeantur, ubi per horas viginti quatuor in potestate hostium fuerint.’

This rule has been followed by most of the writers on the law of nations, and has been adopted in many of the states of Europe. It must however be admitted, that it has not been approved of by all the writers on the law of nations. Bynkershoeck, in particular, has laboured with much ingenuity, and with much learning, to show that it was absurd to make the right of the captor depend upon the number of hours the vessel was in his possession: and though he admits the difficulty of establishing any general rule, he seems to be of opinion, that so long as the original owner has a reasonable spes recuperandi, the property should not be held to be vested in the captor: and in the case of a ship taken at sea, he inclines to think that this spes recuperandi should be held to continue till the vessel be once brought into some place of safety, without distinguishing whether she was a longer or shorter space in the possession of the captor.

But however much those ingenious and speculative authors may have differed upon this general point, in this they all agree, that it is in the power of every particular state to establish such regulations with regard to this matter, as shall appear to be most proper and best adapted to promote the interest of that state. Accordingly, in almost all the maritim nations in Europe, this point has been fixed by some particular enactment or regulation. In Scotland, it does not appear that ever any statute was passed with regard to this point; but it appears, that at a very early period the possession of a vessel taken as prize, for the space of twenty-four hours, was held sufficient to vest the property in the captor. This plainly appears from the following passage in Balfour's practicks, where, treating of an ship taken by enemies, and recovered by ane friend, it is said, ‘giff it happens ony ship or vessel to be taken be the enemies, and thereafter, within the space of twenty-four hours, to be recoursit and taken again be any of our Sovereign Lord's leiges, the said ship, with all the guides and geir contenit in her, aucht and should be restored to the owners; but gif the said ship was in the enemies hands and possession be the space of twenty-fours, and thereafter is recovered by any subject or friend, the samen is just and lawful prize, with all the guides and gair contenit in her, and fall pertain to him quha recoverit her out of the enemies handes.’

A similar regulation was established in France by the following ordinance of Lewis XIV. ‘Si aucune navire de nos sujets est reprise sur nos ennemies, après qu'il aura demueuré entre leurs mains pendant vingt-quatre heures, la prise en sera bonne. Et si elle est faite avant les vingt-quatre heures, il sera restituè au proprietaire avec tout ce qui estoit dedans, à la reserve du tiers, qui sera donné au navire qui aura fait la recourse.’

In England, for more than a century past, this matter has been regulated by special statute. In the beginning of every war it has been customary to pass an act, commonly called the prize-act, for determining all questions as to the legality of prizes, and particularly for ascertaining, in the case of a recapture, the rights and interests of the original owner and of the recaptor. Thus, by the 5th of William and Mary, it is provided, ‘That if any ship, vessel, or boat, taken as prize, or any goods therein, shall appear and be proved in the court of admiralty, to be belonging to any of their Majesties subjects of England, Scotland, or Ireland, or any of the dominions and territories thereunto belonging, remaining and continuing under their Majesties protection and obedience, which were before taken or surprised by the subjects of the French King, or any of their Majesties enemies, and afterwards again surprised and retaken by any of their Majesties ships of war, or any private man of war, or other ship, vessel, or boat, under their Majesties protection or obedience; that then such ships, vessels, boats, and goods, and every such part and parts thereof as aforesaid, belonging to such their Majesties subjects, shall be adjudged to be restored, and shall be by decree of the said court of admiralty accordingly restored to such former owner or owners, or proprietors, he or they paying for, and in lieu of, salvage, if taken by one of their Majesties ships of war, an eighth part of the true value of the ships, vessels, boats, and goods respectively so to be restored; which salvage shall be answered and paid to the captains, officers, and seamen, in the said man of war, to be divided in such manner as before in this act is directed touching the share of prizes belonging to the captains, officers, and seamen, where prizes are taken by any of their Majesties ships of war; and if taken by a privateer, or other ship, vessel, or boat, after having been in the possession of the enemy twenty-four hours, an eighth part of the true value of the said ships, vessels, boats, and goods; and if above twenty-four hours, and under forty-eight, a fifth part thereof; and if above forty-eight hours, and under ninety-six, a third part thereof; and if above ninety-six hours, a moiety thereof: all which payments to be made to any privateer, or other ship, vessel, or boat, shall be without any deductions: And if such ship so retaken shall appear to have been, after the taking by the enemy, by them set forth as a man of war, the former owners and proprietors, to whom the same shall be restored, shall be adjudged to pay, and shall pay, for salvage, the full moiety of the true value of the said ship so taken and restored, without deduction, as aforesaid, any law, custom, or usage, to the contrary notwithstanding.’

Acts containing similar regulations have since been repeatedly passed by the parliament of Great Britain, upon occasion of the different wars in which this nation has since been engaged.

Such being the rules adopted by different states, the suspender, were the question to turn upon that point, would maintain with confidence, that the charger is mistaken in supposing that, till condemnation, the property remains in the original owner, and till then is not transferred to the captor. Even Bynkershoeck does not carry the matter that length; and, so far as the suspender can learn, no nation in Europe now follows that rule. It is indeed true, that it appears that anciently, before the matter was regulated by act of parliament, the court of admiralty in England, in some instances, held, that the property was not changed till condemnation. The charger has quoted a very respectable authority to show that such was the ancient practice in the court of admiralty in England. But it is obvious, that this ancient practice cannot in any shape support the plea of the charger. For a century past, the matter has been regulated by special acts of parliament, and put upon a footing altogether different. If therefore the ancient practice were at all to be attended to, it is the law and the practice of Scotland, not that of England, which your Lordships would think yourselves bound to regard. The suspender has shown, that in Scotland possession of a prize for the space of twenty-four hours was sufficient to vest the property in the captor, to the exclusion of the original owner, in the case of a recapture. But in truth, now that the matter is regulated by British statutes, they must have effect in every case to which they apply, without regard to what was the ancient practice, either in England or in Scotland.

The form of condemning prizes in courts of admiralty has been adopted in almost every nation in Europe, and has been introduced for the most wise and salutary purposes, to prevent neutral ships from being seized as prizes, and detained as such. To prevent this, it has been made a general rule, That every prize, whether taken by a ship of war or by a privateer, shall be tried in a court of admiralty, where the owner has an opportunity of showing that the vessel is not a lawful prize, because she does not belong to the enemy, but to a neutral or a friendly state. This is the only purpose of condemnation; and it has no effect whatever upon the rights of parties, where the vessel truly belonged to the enemy. That in the case of a recapture the circumstance of the prize being condemned or not condemned has no effect upon the right of the original owner, is plain to demonstration; and, without going further, must be evident from attending to the practice of Great Britain and of France. By the prize-act, the original owner, in the case of recapture, is intitled to get back his ship upon paying the salvage, without any distinction, or without any inquiry whether she has been condemned or not. In all cases, the British owner is intitled to have his ship restored, if she be retaken at any time during the war. If the vessel be carried into France, condemned there in a court of admiralty, then sold to a French merchant, and then sail, and be re-retaken, the British owner is intitled to recover his vessel, upon paying the stated salvage, in the same manner that he would be intitled to recover her, had she been retaken before condemnation, or even before she was carried into the French port.

In like manner, it has been shown, that by an ordinance of the King of France, possession of a French ship, taken by an enemy for the space of twenty-four hours, transfers the property, so as to exclude the original owner altogether in the case of a recapture; and yet by the laws of France condemnation of prizes in a court of admiralty is as strictly enjoined as it is in Great Britain. This sufficiently shows that the regulations as to the condemnation of prizes, introduced for the protection of ships belonging to neutral or to friendly powers, have no influence whatever, in the case of a lawful prize, upon the right and interest of the original owner in the case of a recapture.

In judging therefore of the present question upon the principles of sound sense and reason, it seems to be evident, that where a British ship is taken by an enemy, nothing more remains with the owner than a right to retake her, or a chance of her being retaken, in which case the recaptor is obliged to restore her to the original owner, upon payment of the salvage fixed by act of parliament. But if the vessel be never retaken, if she remain in the hands of the enemy till a peace, it is of no consequence to the British owner whether the vessel was condemned in France or not. Supposing the French captor had neglected that form, that circumstance would not intitle the British owner, upon the conclusion of the war, to insist that the vessel should be restored to him, because she had not been condemned in a court of admiralty. The plain answer to that demand would be, that although the French captor had acted irregularly, and had disregarded the laws of his own country, in not bringing his prize before the court of admiralty; yet that circumstance could never intitle the British owner to insist for restitution of the vessel, which, from his own statement of the case, from the terms of his own claim, plainly appeared to be a lawful prize.

This leads the suspender to observe, that the charger has fallen into a mistake in supposing that every irregularity upon the part of the captor is to have an effect upon the right of the original owner, and to intitle him to insist for restitution, because every form may not have been strictly complied with upon the part of the captor. There are many cases in which the captor will have no right to the prize, and yet the original owner will have no title to insist for restitution. For example, no ship belonging to any private individual is intitled to seize the vessels, even of a declared enemy, unless authorised to do so by letters of marque issued for that purpose. Accordingly, if a British ship, during a war with France, seize and bring into port a French vessel, the captor, if not furnished with letters of marque, cannot appropriate the prize to himself, and has no claim to any share of it: but the owners of the French vessel have no right to insist, that she shall be restored to them, upon this footing, that she was illegally seized. The French owners could not avail themselves of that circumstance, and the vessel would be considered as a droit of admiralty, and as such would be detained.

In like manner, were a British privateer furnished with letters of marque against France only, to take a Spanish prize, the owners of the privateer would have no right to that prize: but, on the other hand, the original owners would have no title to insist, that it should be restored to them, because it had been seized without authority; and because the commander of the British privateer had acted illegally in making the seizure.

Many other cases of the same kind may be figured; but the suspender shall satisfy himself with mentioning one other case. With us, in the case of prizes, whether taken by ships of war or by privateers, it is required, that every prize shall be condemned in the court of admiralty before she is disposed of. The reason of this regulation has already been explained. Let us suppose, that, without attending to this regulation, the captain of a man of war, or of a privateer, should advertise a prize for sale, and actually sell her without using the form of a condemnation; in that case, he no doubt does an illegal and an unwarrantable thing, and the purchaser runs a manifest risk; for notwithstanding that sale, it must at any time be competent to the owners of the prize to show, that she was not a lawful prize; that she did not belong to the subjects of France, or of any other power at war with Great Britain; but that in truth she was the property of the subjects of a neutral or of a friendly power. In that case, there is not a doubt that the owners would at any time be intitled to reclaim the vessel; and that the purchase, though made bona fide, could not warrant the purchaser to with-hold her from them. But, on the other hand, upon the supposition that the vessel, did in truth belong to the enemy, and was in fact a lawful prize: it is not obvious, upon what principle of sound sense or reason the original owners could reclaim her, merely because the form of trying her in a court of admiralty had not been complied with. The very terms of their claim must show that the prize was a lawful prize, and therefore they could not insist for restitution in this supposed case, any more than they could do in the case of a prize taken by a privateer not provided with letters of marque, or in any other case where the forms introduced for the protection of neutral vessels had not been complied with.

To illustrate this farther, let us suppose, that a French privateer takes a British vessel, carries her into port, and there sells her to the subject of a neutral state, a Russian, or a Swede, for instance. After making the purchase, and paying the price, the neutral purchaser sails to a British port, considering the vessel as his undoubted property; could it, in that case, be maintained, that the British owner is intitled to seize that vessel, and to claim her as his property, because the purchaser could not show that she had been tried and condemned in a court of admiralty in France? In such a case, it would be an undoubted good answer, upon the part of the purchaser, that the very facts on which the original owner founded his claim showed to demonstration that he had no title to insist for restitution of a prize lawfully made by an enemy with whom he was at open war; and that, so far as he was concerned, it was altogether immaterial whether the forms of a trial and condemnation in a court of admiralty had been complied with or not.

In a word then, there cannot be a doubt that the purchase of a lawful prize, though made before condemnation, must stand good, and no law has said that the want of condemnation can ever have the effect to intitle the original owner to evict the vessel from the purchaser, merely because that form had been omitted. A person purchasing before condemnation, runs a certain degree of risk. He runs the hazard of the vessel proving to be neutral, in which case she may be claimed by the owner. That is the only risk which a person who purchases, even before condemnation, runs.

After all that has been said, however, the present case does not seem to turn upon the general question, when the property of a prize is supposed to vest in the captor, or what is to be the effect of a recapture, so far as concerns the interest of the original owner, and of the recaptor? Had the suspender recaptured this vessel, there could not have been room for a moment's doubt in the case. By special act of parliament, by the terms of the prize-act, the charger would have been intitled to insist for restitution of the vessel, upon payment of the salvage fixed and ascertained by that statute. But here there is no recapture, and the statute does not apply. It is a special case, which must be judged of upon its own circumstances, which are extremely peculiar. Those circumstances have already been explained, and shall not now be repeated. The suspender submits, that under all the circumstances of the case, the transaction he entered into with the commander of the French privateer, was a fair, a proper, and a rational transaction, prohibited by no principle of material justice, nor by any positive law which the suspender knows of. In entering into the transaction, the suspender did not conceive that he was doing an injury to any human being, and he did not understand that he was counteracting the laws of his country in any particular. If the suspender had not made the purchase, the vessel would have been instantly sunk. It is a certain fact that the French commander had formed that resolution, and was preparing to put it in execution, when this agreement was entered into; and had it not been for that circumstance, would infallibly have carried his intentions into execution. That he had it in his power to do so, cannot be disputed; and that he might have done it with propriety, is equally clear. In the situation in which he stood, he had no alternative but to fink the vessel, or to return into port with her; for the charger himself admits, that the commander of the French privateer had weakened himself so much, by sending the suspender's vessel into port, that he could not with any safety to himself spare a sufficient number of hands to carry the vessel in question into port.

Let us then suppose, that instead of selling the vessel to the suspender, Captain Magray had actually sunk her, agreeably to his original intentions, could the charger in that case have had any claim against the Captain, or the owners of the French privateer, for damages? The suspender believes, that the charger will not seriously pretend to maintain, that in such a case he could have followed Captain Magray to France, and complained that he had acted illegally in sinking the vessel. He might, with reason, have said, that in the circumstances in which he stood, he could not act otherwise with any propriety. He would have been intitled to say to the charger, Mr Palmer, ‘how are you injured, or what right have you, a British subject, to complain of my conduct? Were you the subject of a neutral power, and could you show that I had wilfully sunk your vessel, knowing her to be a neutral ship, you might have reason to complain of my conduct, and to demand damages from me. But that not being the case, as your vessel was a lawful prize, what earthly reason can you have to complain of me for disposing of that prize in the way which, all circumstances considered, to me appeared to be the most proper and advantageous to myself, to my employers, and to my country.’

The suspender maintains, That upon the plain principles of reason and common sense, the French captain would have been intitled to hold this language, and could not have been subjected in damages to the charger, had he actually sunk the vessel, as he once intended to have done, and as every body knows, is often done in such cases. But if this be once admitted, it must seem extraordinary to maintain, that he could not sell a vessel which he might with impunity have sunk or destroyed. So far as the interest of the charger may be supposed to be concerned, it was certainly the same whether the ship was sunk or sold to the suspender. The charger suffered equally in both cases, and can have no more reason to complain in the one than in the other.

Let us suppose, that in place of selling the vessel to the suspender, the French captor had happened to meet at sea with a vessel belonging to some neutral power, a Russian for example, and had said to the commander of the Russian vessel, here is a prize I have taken, which the crew have abandoned, I find she is an incumbrance to me, and I am going to sink her; but if you will pay me some consideration for her, you may have her. If the Russian had agreed to this proposal, had paid the price, received the vessel, and afterwards, at the distance perhaps of years, sent her upon a voyage to Great Britain, the suspender desires to know, if, in that case, there be any principle of justice or of reason on which the courts of admiralty of Great Britain could proceed to seize this vessel, to take her from the foreigner, who had purchased her fairly, and ordain her to be delivered up to the chargers? The suspender humbly apprehends, that no court of admiralty could pronounce such a decree. Upon the part of the foreign purchaser, it would be a good answer to the charger's claim to say, that the very terms of that claim plainly showed, that the vessel was a lawful prize, that she was lawfully taken by the enemy, and therefore that he had no reason to complain, and indeed no interest to inquire in what manner the vessel was afterwards disposed of; and that to him it was immaterial whether she was sunk or blown up, or sold to a purchaser.

If, in the present case, the charger could say that the vessel was not lawfully seized; that she did not belong to a British subject, but to a subject of Denmark, or of Russia, or of some other neutral power, then there might be reason to say that the purchase made by the suspender could not give him a right to the vessel, to the exclusion of the neutral owner, the subject of a power who had no concern in the war, and whose vessel therefore was not liable to be seized. But what is the case here, or what is it that intitles Mr Palmer of Yarmouth, in the county of Norfolk, to complain that he has suffered any injustice, or sustained any injury? Will he pretend to say that his ship was not lawfully seized? Will he pretend to maintain, that he is intitled to take her from the suspender, because, instead of sinking her, the French captor sold her to the suspender, at a just and equal price?

The charger has been pleased to say, That the vessel in question was not a lawful subject of commerce, because, during a state of war, commerce is not understood to take place between the subjects of the hostile nations; and therefore that every purchase, and every contract, entered into in such circumstances, is illegal and void.

The suspender, however, must be pardoned to dispute the justness of this general proposition. That war is an obstruction to commerce, no man can deny; but that it renders void in all circumstances, and in all cases, every transaction between the subjects of the hostile states, the suspender cannot admit. Every body knows, that according to the present practice, commerce is carried on to a certain degree, and in a certain manner, even between nations engaged in an open war. Of this many examples, and many instances, might be given. If the suspender, upon the capture of his own vessel, had sent a power of attorney, authorising any person in France to purchase for his behoof, either the vessel itself, or any part of the cargo, when exposed to sale, he cannot believe that there would have been any thing unlawful, any thing improper, in that transaction; and if the vessel had been sent home, or the cargo purchased for his behoof had been shipped on board a neutral vessel, and sent home to any port in Great Britain, the suspender knows of no law by which he could have been prevented from availing himself of that transaction: as he might have ransomed her at sea when taken, so he might have purchased her after she was carried into port.

In like manner, if the suspender had been carried into the port of Dunkirk, if his ship and cargo had been condemned there, and there exposed to sale, he knows of no law which could have prevented him from appearing as an offerer at that sale, and purchasing either the ship or the cargo.

Thus also, if a subject of Great Britain had happened to be at Dunkirk at the time of the sale, he would have been at full liberty to have purchased either the ship, or any part of the cargo, and might either have sent them home to Britain, or sold them again, as he thought most for his own interest.

The suspender shall put another case. Suppose, that instead of purchasing the vessel in question at sea, in the manner he did, the vessel had been carried into a French port, tried there, regularly condemned, and then exposed to sale, and that at that sale the suspender had been the highest offerer, and either remained there till the conclusion of the war, or obtained the release of himself and his crew, and then returned to Great Britain in the vessel he had thus purchased. In either of those cases the suspender submits, without any argument, that there is no principle of justice, and no law which he knows of, on which the contract could have been challenged. The charger admits, that if the purchase had been made by the subject of a neutral state, it would have been effectual, and must for ever have excluded his claim. But the suspender owns, that he cannot see any reason for the distinction, or any solid principle on which it can be maintained, that a British subject may not lawfully enter into transactions of this nature. The argument maintained upon the part of the charger, if there be any thing at all in it, must go farther than he has thought it prudent to push it. He admits, that the subject of a neutral state may lawfully purchase prize-goods, but not the subjects of that state from which they are taken. But unless he go a little farther, the rule for which he contends could have no force or effect whatever. For example, were a cargo of British prize-goods exposed to sale at Dunkirk or Bourdeaux, the charger admits that they might be lawfully purchased by the subject of a neutral power, so as to exclude the claim of the original owner. Supposing then they were purchased by a neutral merchant, he might, the next hour, or the next day, sell them again upon the spot to a British merchant. The charger has not said that this transaction could be voided as illegal; but unless he could maintain the illegality of it, the distinction for which he contends would be attended with no effect, because the British merchant, if prohibited to purchase directly, might do it at second hand, by the intervention of a neutral person.

But it is needless to detain your Lordships longer upon this point. The distinction for which the charger contends, seems, with submission, to be founded neither in the sound principles of common sense and reason, nor on any positive law which the suspender knows of.

Without farther argument, therefore, the suspender, upon this branch of the cause, submits, that there is nothing either in the general principles of the public law of nations, or of material justice, on which his claim to the vessel can be set aside; and that, considered in either of those views, his plea must appear well founded. It only now remains to inquire, in the second place, How far the present case falls under the statute passed in the last session of parliament, prohibiting the ransoming of British vessels taken by the enemy.

The history of that statute is well known. It had long been a matter of dispute amongst speculative men, whether the practice of ransoming vessels taken by the enemy was beneficial or prejudicial to the commerce of this country. On the one hand, it was maintained, that by the practice of ransoming, the merchants of this country were gainers, because it enabled them, upon paying a sum, in general much under the value of the ship and cargo, to carry on their commerce to advantage, and to fulfil the engagements they had come under to furnish goods at a certain time and place. On the other hand, it was maintained, that by the practice of ransoming the enemy were enabled to take many more prizes, a circumstance which overbalanced all the advantages arising from the practice. In all our former wars, the arguments in favour of ransoming prevailed. The practice was encouraged, and effect was uniformly given to the ransoming contracts. The same practice prevailed during the whole course of this last tedious war, till 1782, when the subject became matter of deliberate discussion in parliament, and when the arguments against ransoming appeared to be best founded; and accordingly the act now in question was passed, which proceeds upon a narrative, ‘That the practice of ransoming is found by experience to be liable to great abuses, and there is reason to apprehend that, upon the whole, it operates more to the disadvantage than for the benefit of his Majesty's subjects.’

To remedy this evil, it is provided, ‘That from and after the 1st June 1782 it shall not be lawful for any of his Majesty's subjects to ransom, or enter into any contract or agreement for ransoming, any ship or vessel belonging to any of his Majesty's subjects, or any merchandise or goods on board the same, which shall be captured by the subjects of any state at war with his Majesty, or by any power committing hostilities against his Majesty's subjects.’

The more effectually to prevent this practice, it is further enacted, ‘That all contracts and agreements which shall be entered into, and all bills, notes, and other securities, which shall be given by any person or persons for ransom of any such ship or vessel, or of any merchandise or goods on board the same, contrary to this act, shall be absolutely void in law, and of no effect whatever.’

It is further enacted, ‘That if any person or persons shall, after the said 1st day of June 1782, ransom, or enter into any contract or agreement for ransoming, any such ship or vessel, or any merchandise or goods on board the same, every person so offending shall, for every such offence, forfeit and lose the sum of L. 500, to be recovered, with full costs of suit, by any person or persons who shall sue for the same, by action of debt, in any of his Majesty's courts of record at Westminster, in which action no essoin, protection, imparlance, or wager of law shall be allowed.’

Such being the terms of the statute, it is plain that it extends no farther than voiding all ransoming contracts or agreements entered into subsequent to the 1st June 1782, and imposing a penalty of L. 500 Sterling on every person who shall enter into any such contract. It statutes nothing with regard to the property of the ransomed vessel or goods; and therefore although the charger could show that the suspender had acted in open violation of this statute, it could not aid his plea in the smallest degree. The only consequence of the supposed violation of the statute would be, to found the suspender in a defence against Captain Magray, when pursuing for implement of the contract; and it might farther subject the suspender to the penalty of L. 500 Sterling. This is the only effect the statute could have, allowing that the present case fell under it; and that it was in force when the contract now in question was entered into.

This leads the suspender to observe, that, in point of fact, the statute was not in force when the contract now in question was entered into upon the 25th July 1782. It is indeed true, that the act declares, that from and after the 1st June 1782 it shall not be lawful for any of his Majesty's subjects to ransom, &c. But then it is equally true, that the act contains a clause of limitation, by which it is provided, ‘That nothing herein contained shall extend, or be construed to extend, to make void any contract or agreement which shall be entered into, or any bill, note, or other security, which shall be given by any master of a captured ship or vessel, or by any other person or persons on board, or belonging to the same, for ransom thereof, or of any merchandise or goods on board said ship or vessel, or to inflict any penalty upon any master of any captured ship or vessel, or any other person or persons on board belonging to the same, for ransoming or entering into any contract or agreement for ransoming such ship, or vessel, or merchandises, or goods on board the same, until after the expiration of two months after the passing of this act, for any ship or vessel sailing from any foreign European port, or until after the expiration of four months from the passing of this act, for any ship or vessel sailing from any foreign port out of Europe.’

The present case falls directly under this clause. The suspender sailed from the frith of Forth, in May 1782, to Gottenburg, before this act had passed. He took in his cargo there; and on his return was taken on the 10th of July; and on the 25th of July, within the two months from the 1st of June, entered into the contract now in question.

The charger has attempted to maintain, that the clause of limitation does not apply to the present case, because his vessel sailed from a British and not from a foreign port. But this circumstance seems to be of little moment. The cause of the limitation in the act was the evident hardship of subjecting persons to high penalties, who were ignorant of the regulations introduced by the act, and who thought they were doing a proper and a legal thing, which had been encouraged by all former laws, as beneficial to the trade and to the commerce of this country. In judging therefore of the present question, your Lordships will take into your consideration the situation of the suspender, who entered into the contract, and will not inquire whether the hulk of the vessel, which was the subject of that contract, sailed from a British or from a foreign port.

Suppose the French privateer had taken the vessel now in question before he had sent the suspender's vessel into port, it must be admitted, that it would have been lawful in the suspender to ransom his own vessel, because she had sailed from a foreign port; and therefore, under the authority of the clause of limitation in the act of parliament, he was intitled to ransom her. In that situation, might not the commander of the French privateer have said, with great propriety, to the suspender, there is a cargo on board your vessel, which I wish to carry into France, and therefore I will not ransom her; but here is another prize, in which there is no cargo, and which the crew have abandoned, I will therefore allow you to purchase her, if you incline to do so. The suspender submits, without any argument, that there is nothing in the act of parliament founded on by the charger to have prevented the suspender in the case supposed, to take this prize which the crew had abandoned, instead of his own vessel, which the captor wished rather to detain. To all this it may be added, that, in no view of the case, the statute can affect the present question, because the object of it certainly was to prevent the masters and owners of vessels captured from ransoming their own ships; and not to prevent third parties from afterwards purchasing such vessels.

The suspender has detained your Lordships longer than perhaps was necessary on this branch of the cause. He was led to do so from this circumstance, that from the proceedings in the court of admiralty, it appears that this statute was the chief ground on which judgement was given in that court in favour of the charger. But now that the terms of the statute have been explained, the suspender is advised, that it is impossible, upon any solid principle, to maintain that it can have any influenee whatever in the decision of the present question.

The charger has been at some pains to show, that supposing his claim to the property of the ship to be sustained, he would not be liable to defray either the expence incurred by the suspender, in repairing her, or to relieve the suspender from the obligation he came under to the commander of the French privateer.

Upon this point the suspender does not propose at present to trouble your Lordships with any argument. He declines doing it, for two reasons, 1st, Because he hopes he has shown, to the full conviction of your Lordships, that he has an undoubted right to the property of the vessel; 2d, That should the reverse be found, he holds it to be so clear that he is intitled to be indemnified, that it would be unnecessary to trouble your Lordships with any argument upon the point. Had it not been for the transaction entered into between the suspender and the commander of the French privateer, the vessel in question would instantly have been sunk. If therefore she be now to be restored to the charger, he is by every principle of justice bound to relieve the suspender of the consequences of that transaction.

Upon this head it may be proper to mention, that at the time when the charger arrested the vessel, the suspender was raising money, and taking the proper steps to pay the stipulated price, in order to relieve Masterton the hostage. He was advised, however, upon the charger's entering his claim, to proceed no farther till the point of right as to the property of the vessel should be decided, because if the charger prevailed, it would then be incumbent on him to fulfil the obligation the suspender had come under. In the mean time, an action was commenced in the court of admiralty, at the instance of Masterton, in which he concluded, That the suspender ‘should be decerned and ordained, by sentence and decreet of the judge of our said high court of admiralty, instantly to make payment to the complainer James Masterton, as attorney for, or having power from the complainer Peter Masterton, the foresaid sum of 150 guineas Sterling, with the interest that may be due thereon, to the end that the said Peter Masterton may be thereby relieved from his imprisonment as a hostage.’

The charger has been pleased to insinuate, that this action was brought by some collusion between Masterton and the suspender. But it is difficult to discover how this action could afford any aid to the suspender in the question depending between him and the charger. That in fact there was no collusion, is most certain. The action was raised by a brother of Masterton's, in consequence of a letter from him, dated, Dunkirk prison, 22d August 1782, before the charger had entered his claim to this vessel, and when there was no prospect that the present question would ever have arisen. That letter was produced by Masterton's brother, as his authority for carrying on the action against the suspender.

The suspender, in the action at Masterton's instance against him, gave in defences, in which he acknowledged the justness of the pursuer's title to insist, that the obligation the suspender had come under to the commander of the French privateer should be implemented, in order that the pursuer Masterton might obtain his liberation. But while the suspender acknowledged this in the most explicit terms, and admitted, that the terms of the obligation were as stated by the pursuer, (so far as respected the price of the vessel), the suspender, in justice to himself, submitted, that it would be proper to •i•t procedure in the action at the instance of Masterton, till the decision of the question in the case of Palmer, because upon the event of that question it would depend whether the charger or the suspender would be obliged to fulfil that obligation. The judge, however, of the high court of admiralty saw the matter in a very different light from that in which it had been viewed by the parties, and was, of this date,
Dec. 6. 1782.

pleased to pronounce the following interlocutor: ‘Having advised process, defences, answers, and writs produced, and having considered that the pursuer Peter Masterton agreed to become a hostage posterior to the date of the statute prohibiting the ransoming of ships or vessels captured from his Majesty's subjects, &c. finds, That the present action, at his instance, cannot be sustained; therefore dismisses the same, and decerns.’ To this interlocutor the judge afterwards adhered. Whether Masterton will be advised to acquiesce in this judgement, or whether it would appear to your Lordships to be well founded, if brought under your review, the suspender cannot pretend to say. If he has given a just interpretation of the statute, the admiral has proceeded upon a mistake, in supposing that that statute applied to the present case. But be that as it may, if the suspender prevail in the question with Mr Palmer, he will never attempt to avail himself of the judgement of the admiral, assoilzieing him from the action at the instance of Masterton. If the suspender prevail in the present question, he must consider himself as under a moral obligation to relieve Masterton, by fulfilling his obligation to the commander of the French privateer. That the suspender will think himself bound to do by every rule of justice, if he prevail in the present question. If, on the other hand, the charger should, contrary to the suspender's expectations, prevail, it would be equally incumbent upon him to fulfil that obligation, in consequence of which alone his vessel has been preserved.

The suspender shall not detain your Lordships longer. Upon considering the whole circumstances of this case, he humbly hopes you will be of opinion, that his plea is founded upon the plain principles of common justice, and that neither by the statute founded on by the charger, nor by any other law in this country, the transaction now in question can be considered as illegal or improper.

In respect whereof, &c. ALEX. ABERCROMBY.

Information about this book

Title statement

Inf. Charles Hutton. Lord Eskgrove reporter. April 22. 1783. Information for Charles Hutton, shipmaster in Culross, suspender, against William Palmer of Great Yarmouth, in the county of Norfolk, and David Maclaren, merchant in Leith, his attorney, chargers

Hutton, Charles, shipmaster in Culross.

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ID [ota]

http://ota.ox.ac.uk/id/5489

ID [isbn10]

1106024885

ID [isbn13]

9781106024886

ID [TCP]

K131582.000

ID [BIBNO]

CW3305994130

ID [ECSS]

1103901100

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— Inf. Charles Hutton. Lord Eskgrove reporter. April 22. 1783. Information for Charles Hutton, shipmaster in Culross, suspender, against William Palmer of Great Yarmouth, in the county of Norfolk, and David Maclaren, merchant in Leith, his attorney, chargers, Hutton, Charles, shipmaster in Culross., McLaren, David, merchant in Leith., Palmer, William, of Great Yarmouth.. 23,[1]p. ; 4⁰. [Edinburgh,. 1783]. [Drop-head title.] [The words "Lord Eskgrove reporter" in the title are enclosed in square brackets.] [Signed: Alex. Abercromby.] [Reproduction of original from the British Library.] [English Short Title Catalog, ESTCT224076.] [Electronic data. Farmington Hills, Mich. : Thomson Gale, 2003. Page image (PNG). Digitized image of the microfilm version produced in Woodbridge, CT by Research Publications, 1982-2002 (later known as Primary Source Microfilm, an imprint of the Gale Group).]

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