INFORMATION FOR CHARLES HUTTON, Shipmaſter in Cul⯑roſs, 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 ar⯑rived 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 Ma⯑gray 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 pri⯑vateer.

Captain Magray having in this manner diſpoſed of his prize, continued his cruiſe; and upon the 20th July he gave chace to a [2]veſſel, the crew of which, upon his approach, took to their long⯑boat, 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 reſo⯑lution, and when he was about to put it in execution, it occur⯑red to the French captain, that perhaps the ſuſpender and his pri⯑ſoners might give him ſomething for the veſſel, as thereby they would recover their liberty ſooner than otherwiſe they could ex⯑pect 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 ſuſ⯑pender's crew offered to go as a hoſtage.

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

In conſequence of this agreement, which the ſuſpender conſi⯑ſidered [3]as in every reſpect to be fair, legal, and proper, he got poſ⯑ſeſſion of the veſſel, and brought her home to Scotland. Up⯑on 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, pro⯑ceeded 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 cha⯑racter 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 there⯑upon 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 ad⯑miralty, 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 ad⯑viſing which, with anſwers, the judge of the high court of admi⯑ralty 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, furni⯑ture, 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 inter⯑locutor. ‘Having conſidered the foregoing petition, and the anſwers made thereto, refuſes the deſire of the ſaid petition, and ad⯑heres to the former interlocutor and decreet of date 6th December [4]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 ſum⯑marily, and to do therein as he ſhall ſee juſt.’

In conſequence of this remit, Mar. 1.1783. parties were heard in his Lord⯑ſhip's preſence, when he appointed both parties to give in memo⯑rials; and upon adviſing theſe memorials, his Lordſhip pronoun⯑ced 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, in⯑titled, ‘An act to prohibit the ranſoming of ſhips or veſſels cap⯑tured 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 oc⯑curs, 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 dif⯑ferent ſtates has been equally various. Thus much is plain, that [5]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 a⯑gain revive. Between, therefore, the ſubjects of ſtates engaged in a war, the general rule is, that quae ab hoſtibus captae ſtatim capien⯑tium 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 recap⯑ture, 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 ne⯑ceſſarily follow, that where the ſhip is retaken, the recaptor is in⯑titled 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 exclu⯑ſion of the original owner.

To aſcertain therefore, in ſuch caſes, the intereſt of the origi⯑nal 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 [6]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. do⯑min. l. 8. § ult. ff. familiae erciſc. l. inii 5. § 1. ff. h. t.; verius tamen, etiam ante per ſolam occupationem dominium praedae ho⯑ſtibus 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, adeo⯑que concurrunt ea omnia quae ad dominium acquirendum ſunt neceſſaria, etiam antequam res captae intra praeſidia deductae fuerint. Et ſane ni ita ſtatuas, dominiumque hoſtibus ne⯑ges donec intra praeſidia res delatae fuerint, dicendum foret id quod unus militum manipulus occupavit, per alium mani⯑pulum ſocium et amicum, ſed numeroſiorem, poſſe iterum au⯑ferri, 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 li⯑berum 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 ex⯑preſs terms, that ‘recentiori jure gentium inter Europeos popu⯑los introductum videmus, ut talia capta cenſeantur, ubi per ho⯑ras 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 Eu⯑rope. It muſt however be admitted, that it has not been appro⯑ved of by all the writers on the law of nations. Bynkershoeck, in particular, has laboured with much ingenuity, and with much [7]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 ta⯑ken 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 regula⯑tions with regard to this matter, as ſhall appear to be moſt pro⯑per and beſt adapted to promote the intereſt of that ſtate. Ac⯑cordingly, in almoſt all the maritim nations in Europe, this point has been fixed by ſome particular enactment or regulation. In Scot⯑land, 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 ap⯑pears 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 ſub⯑ject 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.’

[8]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 recap⯑tor. Thus, by the 5th of William and Mary, it is provi⯑ded, ‘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 be⯑fore 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 a⯑foreſaid, 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 an⯑ſwered 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 poſſeſ⯑ſion of the enemy twenty-four hours, an eighth part of the true value of the ſaid ſhips, veſſels, boats, and goods; and if a⯑bove 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 pri⯑vateer, or other ſhip, veſſel, or boat, ſhall be without any de⯑ductions: And if ſuch ſhip ſo retaken ſhall appear to have been, [9]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 ſal⯑vage, 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 con⯑demnation, 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 regu⯑lated by act of parliament, the court of admiralty in England, in ſome inſtances, held, that the property was not changed till con⯑demnation. The charger has quoted a very reſpectable autho⯑rity to ſhow that ſuch was the ancient practice in the court of ad⯑miralty in England. But it is obvious, that this ancient practice cannot in any ſhape ſupport the plea of the charger. For a cen⯑tury paſt, the matter has been regulated by ſpecial acts of par⯑liament, 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 Lord⯑ſhips 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 cap⯑tor, to the excluſion of the original owner, in the caſe of a recap⯑ture. 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 Eng⯑land or in Scotland.

The form of condemning prizes in courts of admiralty has been adopted in almoſt every nation in Europe, and has been introdu⯑ced for the moſt wiſe and ſalutary purpoſes, to prevent neutral ſhips from being ſeized as prizes, and detained as ſuch. To pre⯑vent this, it has been made a general rule, That every prize, whe⯑ther [10]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 ſhow⯑ing that the veſſel is not a lawful prize, becauſe ſhe does not be⯑long 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, with⯑out 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 up⯑on 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 car⯑ried 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 ene⯑my for the ſpace of twenty-four hours, transfers the property, ſo as to exclude the original owner altogether in the caſe of a recap⯑ture; 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 neu⯑tral 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 reta⯑ken, in which caſe the recaptor is obliged to reſtore her to the o⯑riginal owner, upon payment of the ſalvage fixed by act of par⯑liament. [11]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 cir⯑cumſtance would not intitle the Britiſh owner, upon the conclu⯑ſion 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 ad⯑miralty; 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 be⯑longing 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, can⯑not 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 own⯑ers 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 with⯑out authority; and becauſe the commander of the Britiſh priva⯑teer had acted illegally in making the ſeizure.

[12]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, with⯑out 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 pur⯑chaſer 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 ſup⯑poſition 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 in⯑troduced for the protection of neutral veſſels had not been com⯑plied 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 pur⯑chaſer ſails to a Britiſh port, conſidering the veſſel as his undoubt⯑ed property; could it, in that caſe, be maintained, that the Bri⯑tiſh 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 [13]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 concern⯑ed, 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 circum⯑ſtances, which are extremely peculiar. Thoſe circumſtances have already been explained, and ſhall not now be repeated. The ſuſ⯑pender 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 tranſ⯑action, 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 particu⯑lar. If the ſuſpender had not made the purchaſe, the veſſel would have been inſtantly ſunk. It is a certain fact that the French com⯑mander had formed that reſolution, and was preparing to put it [14]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, can⯑not be diſputed; and that he might have done it with propriety, is equally clear. In the ſituation in which he ſtood, he had no alterna⯑tive 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 ſuſ⯑pender, 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 in⯑titled 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 pro⯑per 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 da⯑mages 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 extra⯑ordinary to maintain, that he could not ſell a veſſel which he might with impunity have ſunk or deſtroyed. So far as the in⯑tereſt of the charger may be ſuppoſed to be concerned, it was cer⯑tainly [15]the ſame whether the ſhip was ſunk or ſold to the ſuſpend⯑er. 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 ſuſ⯑pender, 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 di⯑ſtance perhaps of years, ſent her upon a voyage to Great Britain, the ſuſpender deſires to know, if, in that caſe, there be any prin⯑ciple 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 im⯑material whether ſhe was ſunk or blown up, or ſold to a purcha⯑ſer.

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 neu⯑tral 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 ex⯑cluſion 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 pre⯑tend to maintain, that he is intitled to take her from the ſuſpend⯑er, becauſe, inſtead of ſinking her, the French captor ſold her to the ſuſpender, at a juſt and equal price?

[16]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 ſub⯑jects 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 juſt⯑neſs of this general propoſition. That war is an obſtruction to commerce, no man can deny; but that it renders void in all cir⯑cumſtances, and in all caſes, every tranſaction between the ſub⯑jects 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 be⯑tween nations engaged in an open war. Of this many ex⯑amples, 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 li⯑berty 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, regu⯑larly 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 him⯑ſelf [17]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 ju⯑ſtice, 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 ſub⯑ject 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 ori⯑ginal owner. Suppoſing then they were purchaſed by a neutral merchant, he might, the next hour, or the next day, ſell them a⯑gain 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 ſe⯑cond 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 ſuſ⯑pender 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 ju⯑ſtice, 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 [18]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 preju⯑dicial 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 en⯑gagements 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 ari⯑ſing 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 ap⯑peared to be beſt founded; and accordingly the act now in que⯑ſtion 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 en⯑acted, ‘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, con⯑trary [19]to this act, ſhall be abſolutely void in law, and of no ef⯑fect 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 con⯑tract 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 per⯑ſon 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 pe⯑nalty 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 ſub⯑ject 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 cap⯑tured ſhip or veſſel, or by any other perſon or perſons on board, or belonging to the ſame, for ranſom thereof, or of any mer⯑chandiſe [20]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 ran⯑ſoming 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 ſail⯑ing 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, be⯑fore 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 limi⯑tation does not apply to the preſent caſe, becauſe his veſſel ſailed from a Britiſh and not from a foreign port. But this circum⯑ſtance 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 there⯑fore 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 que⯑ſtion 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 ſi⯑tuation, 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 there⯑fore I will not ranſom her; but here is another prize, in which [21]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, be⯑cauſe the object of it certainly was to prevent the maſters and own⯑ers 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 char⯑ger. But now that the terms of the ſtatute have been explained, the ſuſpender is adviſed, that it is impoſſible, upon any ſolid prin⯑ciple, 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 con⯑viction 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 ar⯑gument upon the point. Had it not been for the tranſaction en⯑tered 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 [22]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 de⯑cided, becauſe if the charger prevailed, it would then be incum⯑bent on him to fulfil the obligation the ſuſpender had come un⯑der. 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 ſen⯑tence and decreet of the judge of our ſaid high court of admi⯑ralty, inſtantly to make payment to the complainer James Ma⯑ſterton, 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 obliga⯑tion 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 [23]the charger or the ſuſpender would be obliged to fulfil that ob⯑ligation. 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 pro⯑nounce the following interlocutor: ‘Having adviſed proceſs, de⯑fences, 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 interlo⯑cutor the judge afterwards adhered. Whether Maſterton will be adviſed to acquieſce in this judgement, or whether it would ap⯑pear 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 pre⯑ſent queſtion, he muſt conſider himſelf as under a moral obliga⯑tion 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 e⯑qually incumbent upon him to fulfil that obligation, in conſe⯑quence 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 im⯑proper.