sidered her as prize to the Eurotas, wliich alone engaged her, and
was prevented from taking first possession only by the superior
sailing of the Dryad.
The luncfs Advocate and Burnalji/, counsel for the Dryad.
Jenncr and Phillimore for the Eurotas.
Sir W. Scott. — If the Court were at liberty to consult merely
its own inclination, there are circumstances that might dispose it
to decide this case in favour of the Eurotas, for she had certainly
done most and suffered most in this transaction, but the Com-t is
bound to follow where the authority of decided cases leads it, and
must adhere to that whicli, by a series of decisions, has become the
fixed rale of law.
The subject of head-money has undergone some valuations. It
is true, as stated by Dr. Phillimore, that originally it was the
reward of actual combat only; in later times the necessity of actual
combat has been dispensed with, and capture itself, whether \>xo-
duced by actual combat or not, has been held a sufficient founda-
tion for the claim. But there is no case in which head-money has
been gi'anted where the act of capture has not been consummated ;
there may have been great demonstrations of valour, but if they
have not ended in the actual surrender of tlio enemy tliey have not,
that I know of, been held sufficient. In all cases a successful con-
summation of the engagement is rtMjuired, and if it does liapjx'n
that other vessels come in at a later hour, all that the Court can do
is to confirm the capture as one common act, and, looking to its
202 THE FAMNY.
iHii (iiniinoncoraoiit, its process, and its riiiiil accomplislimont, to hold
'^"'•' ^•*- tliat jdl parties arc entitled. It cannot weigh minutely the
The La different proportions of merit; tlioy may be, as in this instance,
* signal and marked, or tliey may be such as no exactness of atten-
Sir w . Scott, ^j^^j^ could conveniently distinguish. It is possible to suppose an
extreme case in which the whole conflict had been sustained by one
vessel and the possession taken by another which casually came up ;
it may seem hard in such a case that one vessel should run away
with any portion of the fruits of another's victory, but I fear that
if no indication of siu'render had been made, and the victor was in
such a state as to be unable to compel it and to take possession, a
decision could not easily be found that would authoiise the Court
to exclude the vessel that consummated the capture. What was
the case in the present instance ?
[The Court then examined the evidence, and concluded :]
Upon these grounds I reject this allegation claiming the head-
money for the Eiirotas exclusively, but pronounce for her interest
in conjunction with that of the Dri/ad, inasmuch as by her conflict
immediately preceding she is entitled to be considered as a joint
taker, and I do not understand that the Dryad opposes it.
[iDod..443.] THE FANNY.
riecajitiin—Sa/L'a;/r— Neutral Propertji on Anr.id IShip of Belligerent.
If a nciitirtl places goods on a belligerent f^hip of force wHcli he may
presume will be defended by force, lie thereby adheres to the belligerent,
and loses the benefit of his neutrality. The neutral property if cap-
tured is liable to condemnation, and on recapture is subject to salvage.
isu This was a question of salvage upon neutral (Portuguese) pro-
â– ^'*-y ^"- perty on board a British armed ship, which had been taken by an
American schooner, and was afterwards retaken by one of his
Majesty's ships of wai-. The vessel sailed on her outward voyage
under convoy with a cargo from Liverpool to Eio de Janeiro,
where the master increased his crew by hiring thirty additional
men for the purpose of fighting his way home without the pro-
THE FANNY. 203
teution of convoy, which he had obtained permission to do from the i«h
British admiral commanding on that station. The slii}) was fur- " ^
nished with a letter of marque, had sixteen guns mounted, with The Fanny.
small-arms and ammunition in proportion. On her return voyage
with a cargo consisting partly of Portuguese and partly of British
property, she was eaptm^ed on the 17th of April, 1814, by the
American schooner General Aniisfronr/, but did not siu'ronder till
after a very severe action, in Avliicli the mate was killed and several
of the seamen, and the merchant himself, who happened to be on
board, was dangerously wounded. The ship and cargo were recap-
tured on the 10th of May, 1814, by his Majesty's ship Sceptre, and
for this service a salvage was demanded upon the Portuguese as
well as the British property. The demand for salvage was resisted
on the part of the Portuguese owners.
For the recaptors, the Kuh/h Advocate and Jen iter.
Adams and Stoddart, contra.
Sir W. Scott. — This ship, liaving a commission for war, but
employed likewise for purposes of commerce, sailed under the pro-
tection of a British convoy from Liverpool to Pio de Janeiro, and
there obtained permission from the admiral on the station to return
homo without convoy. Thirty men Avere hired, and some addi-
tional guns were put on board for the express pm-pose of enabliug
the ship to fight her way home, and it was upon the prospect of
her being competent to defend herself that the admiral permitted
her to sail without convoy ; tlie fact of her beiug armcil must liave
been notorious at Kio de Janeiro, and consequently witliin tlie
knowledge of the merchants who put their goods on board. It
appears tliat the sliip actually sustained an engagement, for the
Avitness says that *' she did not surrender till after a very severe
action of fifty-five minutes, during whicli man}' guns were fired on
both sides and the ship had her second mate killed, four men
dangerously wounded, as was also the merchant liimsi-lf, who
happened to be on board, and her standing and running rigging
all cut to pieces, so that they had no longer any command of the
ship." Being so taken by the Americans and afterwards re-
taken by liis Majesty's ship Sceptre, the question is, wliether the
204 TIIK FANNY.
ISM Portugiioso lader is entitled to tlio restitution of his goods abso-
^M/yiO. lui(>ly^ or subject to tlie payment of u salvage to the recuptors.
The Fanny. Now, upon principle, I cannot but think that the goods would have
Sir W. Scott, been in very great danger of condemnation in an American court
of prize, lleference has been made to an Act of the American
Congress rdativo to salvage, but I do not think that it can have
mucli bearing on the present case ; the Act does not define the
cases to which it is intended to be applied : that is left to the Courts
to determine at their discretion. I shall tlierefore lay the American
law entirely out of my consideration and consider the case upon
the general principle. Is there a high degree of probability (for
certainty is not required) that this property would have been con-
demned if it had been carried into an American port ? In evory
point of view in which I can see the matter I cannot help thinking
that it would have run a very considerable risk of condemnation,
and that the Portuguese merchant would have no ver}^ good
ground of complaint if it had actually been condemned ; the ship,
being furnished with a letter of marque is manifestly a ship of
war, and is not otherwise to be considered because she acted also in
a commercial capacity ; the mercantile character being superadded
does not predominate over or take away the other. There was
formerly, indeed, a distinction made between privateers and mer-
chant vessels furnished with a letter of marque, the one being
entitled to head-money and the other not, but that distinction has
since been entirely done away. A neutral subject is at liberty to
put his goods on board a merchant vessel, though belonging to a
belligerent, subject, nevertheless, to the rights of the enemy who
may capture the vessel, but who has no right according to the
modern practice of civilized States to condemn the neutral pro-
perty ; neither will the goods of the neutral be subject to con-
demnation, although a rescue should be attempted by the crew
of the captiu-ed vessel, for that is an event which the merchant
could not have foreseen ; but if he puts his goods on board a
ship of force, which he has every reason to presume will be
defended against the enemy by that force, the case then becomes
very different. He betrays an intention to resist visitation and
search, which he could not do by putting them on board a mere
merchant vessel, and so far as he does this he adheres to the bel-
THE FANNY. 205
ligerent ; he witlidraws himself from his protection of neutrality, is 14
and resorts to another mode of defence ; and I take it to bo quite '^"^'J '-^-
clear tliat if a party acts in association with a hostile force, and The Fan-nt.
relies upon that force for protection, he i% pro hue vice to be con- sir W. Scott.
sidered as an enemy. It is not a sufficient excuse to say that the
Portuguese are not possessed of shipping- of their own sufficient for
the whole of their commerce, and are therefore under the necessity
of making use of those belonging to others. If they choose to
take tlie protection of a hostile force instead of their own neutral
character, they must take the inconvenience with the convenience ;
they must abide by the consequences resulting from the course of
conduct which, upou the whole knowledge of the matter, they have
thought proper to pursue. It could not in this case have been a
secret that force was to be used for the protection of the property ;
it must have been known to the laders of the cargo that this ship
was to sail as a single ship, and to fight her way home, since a
large number of men were openly and publicly collected for the
purpose of enabling her to resist a hostile force. I cannot entertain
a doubt that the Americans might, upon just and sound principles,
liave condemned this property. The case wliich lias been cited
from the American Reports [a) is much too indistinct to assist the
Court in forming its judgment upon the practice of the American
Court. The ground upon which salvage was there given does not
appear to be of great authority either one way or the other. I
decree restitution of this projierty on payment of the usual salvage
to the recaptor.
{a) Talbot v. The Shi'p Amelia, 4 Sir W. Scott concluded: "On the [EJw. 251.]
Dallas, 34. whole of the circuiiistances of this
The Act(eo)i, July 2nd, 1810, was case, -vrithout looking minutelj- into
also cited. In this case salvage was the varying policy of France, 1 think
decreed in respect of the recapture that there is very rational ground to
of American ships not proceeding to apprehend that the French Prize
a French port, but taken by the Court would have considered theso
French. These ships had not on ships as legal captures, and thcivforo
board certificates of origin as required I shall pronounce for the usual sal-
by the French decrees. After ex- vage." See also vol. i. j). 231).
amining the facts put before him.
206 THE FOLTINA.
[ii).Mi.M..ir.o.] THE FOLTINA.
Caj'tnrf — JLtrhonr in JfcMih' Tcrrifori/ in PoKseesidn of British Furcn — hr<
of AdmiraUii.
Ships seized in the harbour of an island conquered and taken posses-
sion of by British forces arc condemnablc as droits of Admiralty, though
the conquest of the island may not have been confirmed to Great Britain
by a treaty of peace.
1814 This was the case of a ship and cargo seized on the loth of
•^"^■^ '^^' . December, 1811, whilst lying at anchor in the roadstead of
Heligoland, which island had been surrendered to his Majesty's
forces on the 5tli of September, 1807. The question was whether
the ship and cargo should be condemned as droits of Admiralty or
otherwise.
Sir W. Scott. — This is the case of a vessel which was taken in
the roadstead of Heligoland, not at the time of the siu-render of
the island, but afterwards, and the seiziu-e is represented to have
taken place within the harbour. The locality of the transaction is,
I think, sufficiently described by the term made use of by the wit-
nesses, who must be understood to mean that portion of the sea to
which vessels are carried for the pm-pose of landing then- cargoes at
Heligoland ; and whether the same portion of the sea is more or
less inclosed, whether it is completely land-locked or not, does not
appear to be material to the issue in the present case. The Gazette,
too, describes the place as a haven, a compliment to which it is
certainly not in strictness entitled ; but it is used as a haven, and
may therefore faMy be considered as such, at least for the purposes
of the present question. There is certainly no reason for saying
that the property is not within the grant of the Crown to the Lord
High Admiral, so far as the locality of the seizure is concerned ;
for it is the ordinary rule that ships taken in such places during
the existence of hostilities become di'oits of Admiralty.
But the chief point to be considered is, whether at the time this
seizure was made, Heligoland formed part of the dominions of the
Crown of Great Britain or not. The island, it appears, had been
conquered and taken possession of by British forces, but the con-
quest had not been confirmed to this country by a treaty of peace.
THE FOLTINA. 207
It was a firm captm^e in war, but was still subject to a kind of 18U
latent title in the enemy, by which he might have recovered it at "^ '
the conclusion of the war, provided this country would, have con- "^^^ Foltika.
sented to its restitution. SirW. Scott
It is somewhat extraordinary that in the course of the numerous
and long wars in which this country has been engaged, no case
should have been determined which might serve as a guide to the
Court in the decision of tlie present question. It does not appear that
any case of the kind has hitherto occurred, with the solitary exception
of that which has been mentioned in the argument [the £■■:>])€ ranza),
and that is admitted to have passed with very little notice, and
Avitliout opposition. A case thus passing sub silentio cannot be
considered of great weight in point of autliority. I observe that
the grant from the Crown to the Lord High Admiral applies to
the King's dominions generally, and that there is nothing which
points to a distinction between those parts of the King's dominions
over which the Crown has pic nil ni dominium or other^A-ise. No
point is more clearly settled in the Courts of Common Law than
that a conquered country forms immediately part of the King's
dominions. {Campbell v. Hall, Cowper's Rep. 208.) In a late
instance we know that an island so acquired (Guadaloupe) was
transferred to a third power, subject, undoubtedly, to the shadowy
right of the former proprietor. It is said that a conquest of this
kind may be re-acquired fagranlc hello by the State from which it
was taken ; but so may any other possession, tliough forming part
of the original and established dominions of the Crown of this
country, if the enemy has it in his power to make tlio conquest.
The same observation is applicable to tlie Isle of Wight as well as
to Ueligoland, for the enemy has the .same right to make a con-
quest of the one as the other. It is said that the enemy may
recover back the island of Heligoland wlien peace takes place ; but
it is equally true that the conqueror maj' retain it if lie can ; and
if nothing is said about it in tlie treaty, it remains with the pos-
sessor, whose title cannot afterwards be called in question. Tlio
distinction between the two species of territories is, in fact, rather
more formal than real and substantial ; at least, I must profess my
inability to see any distinction between them that can materially
affect the present question. T1h> power of the British Government
208 Tm; iii'MKU.
1814 was full and complete ; and thougli tlie Lords Commissioners of
•^"^^ ^^- tlio Admiralty miglit not liavo interposed the particular authority
Thk Foltina. -with â– \vliicli they are invested, yet the Crown had exercised its
SirW. Scott, authority, and the Admiralty, as the grantee of the Crown, would
succeed to its rights. It might have erected a Court there for the
exercise of Admiralty jurisdiction; and if it did not, I presume
that it only refrained from so doing because it was not thought
that ])ublic convenience required it. The enemy cei-tainly had no
right to say that a Court of that kind should not be there erected.
Under the circumstances, I think there is no solid ground for the
distinction that has been taken ; and though I am by no means
disposed at this time of day to enlarge the bounds of the ancient
grant from the Crown to the Lord High Admiral, which is now
become of less consequence, yet it is the duty of the Court to
maintain ancient landmarks. I shall pronounce for the claim of
the Admiralty, and condemn this ship as droits of Admiralty.
[iDods.480.] THE HUNTER.
Sjpoh'ation of Papers.
By the law of every maritime Court of Eui-ope, spoliation of papers
not only excludes further proof, but does per se infer condemnation ;
English, law has, however, modified the rule to this extent, that if all
other circumstances are clear, this circumstance alone shall not be
damnatory, particularlj' if the act was done by a person who has interests
of his own that might be benefited by the commission of this injurious
act.
1815 [In the course of the judgment the following dictum is
^P'-^i 15. stated:—]
Sir "W. Scott. — It is certain that by the law of every maritime
Court of Europe spoliation of papers not only excludes further
proof, but does per se infer condemnation, founding a presump-
tion j'ln-is ef lie jure that it was done for the pui-pose of fraudu-
lently suppressing evidence, which if produced would lead to the
same result, and this surely not without reason, although the lenity
of our code has not adopted the rule in its full rigom-, but has
modified it to this extent, that, if all other circumstances are clear,
this circumstance alone shall not be damnatory, particularly if the
THE ACT.T^ON. 209
act was done by a person who has interests of his own that might 1815
he benefitted by the commission of this injurious act. But tliougli ^^'"'^ ^^'
it does not found an absolute presumption Juris ct dc jio'c, it only The Huntzb.
stops short of that, for it certainly generates a most unfavourable Sir W. Scott,
presumption. A case that escapes with such a brand upon it is
only saved so as by fire ; there must be that overwhelming proof
arising from the concurrence of every other circumstance in its
favour that forces a conviction of its truth, in spite of the
powerful impression which such an act makes to its entire reproba-
tion. It is the less necessary to examine this minutely, because
the Com't has admitted the introduction of proof not professedly
and formally in that character of further proof, but manifestly so
to be considered in substance and effect, consisting of affidavits
and papers that do not appear to have been on board this vessel.
The question remains, whether, with the advantage of all the
evidence that has been admitted, it answers the description of a
case in which an unfortunate act of spoliation occurs, but which
in all other respects wears the aspect of perfect sincerity and truth.
In considering that question it may be proper to consider the
conduct of the parties, for conduct is a good expositor of facts ; if
the parties act in a way consistent with their statement, it greatly
confirms the statement ; if, on the other hand, they conduct them-
selves in a way that appears utterly irreconcilable with it, then it
is not too much to say that the credibility of the statement is
deeply affected by the contradiction of tlie facts.
THE ACTiEON. [2 DocU. 48]
Keidrnl Ship — Dcsirudion J»j Belligerent — Damaf/cs an
Damages.
If a belligerent ship destroys a neutral vessel, tlio owner thereof is
entitled to be put in the same position as ho was before the destruction
of liis vessel, that is, to recover damages and costs.
The commander of a belligerent ship may have good reason fi«r
destroying a neutral vessel, but this fact does ni
responsibility to the Tieutral owner for damages.
This was the case dl' an American ship, which on tlie 2 Hh of i^i-''
January, 1813, sailed from Norfolk in Virginia to tlio ]iort nf
M. — \o\ .11. r
210 THE ACTION.
1815 Cadiz, ladon witli a cargo of about 4,200 barrels of flour, wliith
^^ ^^' had been shipped under a Bntish (a) licence, dated the 13th of
The Acmcon. August, 1812, and was to be in force for nine months from the
time of its date. On tlie 27th of February the vessel arrived at
Cadiz, and the master having delivered his cargo produced the
licence under which he had sailed, to the British Minister resident
at that place, who granted liim a further licence, permitting him to
shij) a cargo of lawful merchandise and to return with it to any
port in the United States of America. The master having taken
on board a few boxes of fruit, four quarter casks of wine, and some
other trifling articles, set sail on the 1st of April, bound to Boston,
in America. In the course of his voyage he was boarded by
several British ships, the commanders of which examined his
licence and permitted him to proceed on his voyage, which he
accordingly did until about noon of the r2th of May, when he was
captured by his Majesty's ship La Hague, commanded by the
Honourable Captain Capel, who on the evening of the same day
set fire to the vessel and destroyed it.
A claim was given for the ship and cargo as the property of
citizens of the United States of America, protected by licences
granted by his Majesty's Government, and by his Excellency the
Minister Plenipotentiary of Great Britain at the Court of Spain,
and at the instance of the claimant a monition was issued, calling
{a) In the year 1812, the Britisli same miglit belong, and to receive
Government being very desirous tliat their freight, and to return to any
the port of Cadiz should receive a port not blockaded, upon condition
constant supply of American floiu-, that the names and tonnage of the
granted numerous licences authoriz- vessels, and the names of the masters
ing any vessels, except French ves- should be endorsed on such licences
sels, being unarmed, and not less at the time of the vessels clearing
than 100 tons burthen, and bearing from theii- ports of lading, and such
any flag, except that of France, to licences were to be in force for nine
import into Cadiz, from any port of months from the time of their date,
the United States of America, cargoes These licences were transmitted from
of grain, meal, flour, or rice, without this country, by the various mer-
raolestation on account of any hostili- chants, brokers, or agents who applied
ties which might exist between his for them, to the United States of
Majesty and the United States, not- America, where they were disposed
withstanding such ships and cargoes of. and used as occasions might
might be the property of any Amcri- require,
can citizens, and to whomsoever the
THE ACTION. 211
upon the captors to proceed to the legal adjudication of the ship isii
and cargo. An appearance was given under protest for the captor, _ "'-^ '
and the case now came on for hearing. It was understood that The Act^ox.
the captors did not contend against a sentence of restitution, but
objected to the payment of costs and damages.
For the captors, the Ki)i(j\ Adrocate and Adamn.
Joiner and Lushijififon, contra.
Sir W. Scott. — This question arises on the act of destruction of
a valuable ship and cargo by one of his Majesty's cruisers. On
the part of the claimants restitution has been demanded, and there
can be no doubt that they are entitled to receive it ; indeed, I
understand that it is not now opposed by the captor himself ; but
it remains to be settled what is to be the measure of restitution —
how far it is to be carried. The natm-al ride is, that if a party bo
unjustly deprived of his property he ought to bo put as nearly as
possible in the same state as he was before the deprivation took
place ; technically speaking, he is entitled to restitution with costs
and damages. This is the general rule upon the subject, but like
all other general rules it must be subject to modification ; if, for
instance, any circumstances appear which show that the suffering
party has himself fm-nished occasion for the capture, if he has by
his own conduct in some degree contributed to the loss, then he is