VAnsovifc,. p],j^j.(3 . j(- ig jjq{; even an honest and anxious endeavour to share in
Sir W.Scott. (],L^ ppi-ii f]j;it shall hring tlie i)arlic3 witliiu tlie extent of the
beneficial title, if the endeavour does not bi-ing them within the
capacity of actual sharing in that peril. If two sliips of war,
otherwise unconnected, chase, and the one comes up and fights and
captures before the arrival of the otlier, the latter is not held
entitled, because she liad not, tliougli using her best endeavours,
brought herself within the sphere of action ; but if she had so
done, and only refrained from actually mixing in the fight then
terminating, because the force immediately applied was already
more than was necessary and the addition of any more could only
have injured the value of the property in contest or produced an
useless effusion of blood, and if such a state of facts were clearly
established to the satisfaction of the Court, the Court would not
consider tliat the party who withheld the use of his force upon
such considerations only, being otherwise perfectly ready and
disposed to combat, was disqualified from taking an interest in the
head-money pronounced for thereon. The Court has gone still
further, and upon principles from which it feels no disposition to
recede it has pronounced for the interest of a vessel which had
not been shown with any degree of certainty to have arrived
within gunshot. Such was the case of the TTeser, in which the
lllppon, a large ship of force, was called in to assist two others
which had contended a long time in vain with the enemy. On the
appearance of the Bippou the Wescr surrendered at once, and
although there was no further action the immediate submission
was held to entitle the JRippo)! to share in the head-money.
In the case of an united force acting for a general purpose, I
take the rule to be, that it is a conflict of all with all. In point of
fact, particular ships must and will be engaged at particular times
during the engagement with particular ships ; but as the co-opera-
tion and conflict are both general, and it may be hardly possible to
distinguish the particular combats that take place in the course of
a long mixed engagement which is varying its face every moment
of its duration, it is considered by the law as tlu'oughout the com-
THE VILLE DE VARSOVIE. 223
bined effort of every one against every one, without particular 1813
attention to particular merits or sufferings. In the battle of '"^
Aboukir one ship which gallantly led the way into action grounded The Ville de
Vaesovie,
upon a shoal, and was prevented by that accident from taking any
further share in that memorable engagement. That ship, I pre- ^^ • • <:t> •
sume, sliarcd in the head-money. At least, I am confident that
this Court would have felt no hesitation in pronouncing for her
interest, any more than for that of any other ship which had been
disabled in the course of the action. It may happen, and I have
reason to believe often does happen in fact, that in general engage-
ments ships which are mutually engaged recede to a great distance
from the general fleet and far out of its sight ; but that elongation
does not at all affect the unity of the transaction ; it is still a
general engagement, and the ship belonging to the superior party,
wliether successful or not against her particular ojiponent, shares
with all the rest of the body of the fleet in the fruits of the general
triumph of the day.
The rules, therefore, as to head-money differ widely as they
regard claims arising out of general engagements, and as they
regard those which are founded on particular combats; and in
questions respecting that title, it is very necessary to distinguish to
which class the case in question is to be referred. If to that of
particular combat, it must be shown that the claimant has directed
his force to the particular object in the requisite degree ; not so if
founded on something of the nature of general engagement.
There it is only necessary to show that the claimant composed a
part of the general body ; that he was present within a sufficient
distance to have given assistance still more active, if required, to
that part of the common force which was immediately employed ;
that he was present, giving not a remote encouragement, but an
immediate support, to the enterprise, as far as it was necessary for
him so to do. It might happen, as it most certainly does in the
present instance, that the active use of the whole force miglit bo on
many accounts extremely unadvisable ; that the space for such an
employment miglit, on account of its limits, be attended with much
inconvenience and risk ; that the use of one d^'Si-ription of tlie com-
ponent force might be more proper to sustain only an auxiliary and
protecting part, though equally necessary to the success of the
224 Tiir. villi: dk vausovik.
isiH goiu'val enterprise; tliat tlio disposition of tlio ^vllole force corn-
'^""'' ^°- bined for the general purpose rested witli the skill and discretion
The ViLLK DK of tlio coiiinmuder, "svlio had assigned to each portion its proper
" station; tliat such a station had been assigned to the claimant in
SirW. Scott. ^|j,^^ transaction ; and that the duties imposed upon him by such an
assignment of station, whatever they were, had been adequately
performed. If such be the character fairly attributable to the
transaction, it will subject the case to the rules that apply to a
combined force acting in the nature of a general engagement. If
not— if it is to be understood upon the common principles applied
to a separate force, or to a force that must be considered as acting
separately — it must be considered less favourably for the fleet in
this instance ; for it has been established to the entii-e satisfaction
of the Court, assisted in its judgment by gentlemen of the Trinity
House, that the fleet never approached within gunshot of the scene
of action. At no period did the Caledonia and the ships imme-
diately associated with her do so, and therefore they could with
great difficulty, if at all, support a claim to head-money for ships
captured by other vessels, unless upon principles that in no degree
belong to unassociated ships.
The questions proper to be considered in order to determine this
case are therefore —
1. Whether these were the transactions of a fleet originally
associated for one common purpose, to which these transactions
immediately relate ?
2. If so, whether a severance and dissociation was produced by
any occurrence afterwards, at any period at which the fleet could
be excluded from the benefit that it would have taken if it had
continued in its original united character ?
The first question refers necessarily to the origin of the trans-
action. [The Court examined the e\-idence on this point.]
Man}' other circumstances tend to support the conclusion that
this must be fairly considered as a joint enterprise in which all con-
curred, though in very different degrees of hostile activity. It is
not ahvays the degree of hostile activity that determines the conflict.
In the case of the Iiij)pon, it is perfectly clear that it did not.
That ship, of much superior force, had hardly arrived within gun-
THE VILLE DK VARSOVIE. 22-3
shot, aud had not fired a shot, when the enemy which had beat off 1818
the former combatants, who had called in the Rippon, struck his ^""^ ^^'
colours, and yielded a submission which their efforts could never Thk Ville de
Vajisovie
have compelled. It is therefore by no means accm-ate to lay it
down universally that intimidation and encouragement are out of ' "" • "^"^ •
the question. They are certainly out of the question so far as
concerns the general presumption raised by the more construction
of the law, that they necessarily operate on every jiresence ; but if
tlie matter does not rest there — if it is proved in fact that they did
operate, and compelled a surrender which would not otherA\'iso
have taken place— to say that because they did not actually fire
they are not entitled, is what cannot be maintained upon any other
principle than such as ought to exclude all title to head-money in
every case in which the enemy submitted without resistance to a
superior force. Nobody, I presume, would contend that you cannot
have head-money without a battle for it. The utmost length to
which the Courts have gone is this : that if there has been a
battle, they will not raise the presumption of intimidation from
mere presence as in cases of prize. A ship unassociated must
show a concurrence by actual proof of engaging in the combat,
or of having actually contributed mainly to produce a sur-
render by her appearance at the scene of action. In this case
there has been a contribution of endeavours on the part of the
fleet that goes much beyond mere sight and presence. Every
ship engaged is a member of the fleet at the time of action,
and is so engaged by the directions of the commander of the fleet.
How is the connection broken ? Not by elongation of distance ;
for that often takes place in general engagements to a mucli
greater extent. Not by being detached on a distinct service ; for
the whole fleet is instant and imminent, and with all its attentions
and all its energies, as far as necessary, concentrated in the pursuit
of this one object ; not by being placed under a separate connnand,
for the control and superintendence remain entirely with Lord
Gambler. Different degrees of activity are assigned by liim to
different ships; for it would be inconvenient to them nil to act in
the same place and upon the same scale of eff
tributing in those degrees to the general operation. The number
and quality of the ships mixing immediately in tlie contest ore
K. — VOL. 11. *-»
VAUSOnB
Sir W. Scott.
226 rriE vh^lk dk varsovik.
18IS clctcrmined hy him. Tlioy arc sent in successively as the occasion
•^'"'^ ''^^- appears to mature and to rcr^uire co-operation. On board the
TnK ViLLEDE ships so scut in (the inshore squadron, as it is called) there are the
usual traces of a battle — returns of killed and wounderl. The fleet
that stayed behind is looked to by Lord Cochrane for assistance
and support as that which is co-oporating. lie is of opinion that
he ditl not receive all that ought to have been afforded, and that
had half the fleet been sent in, it would have effected the whole
purpose. Those are opinions on which the other jurisdiction has
decided in a way that excludes any judgment of mine upon such
a question. I am bound to take it that as much was done as was
proper to be done, and by all the means that were proper so to be
applied. The other ships fled up the Charente by throwing over-
board their guns and heavy stores ; and this, I am to presume,
could not be prevented by any efforts which a sound discretion
should direct. Then how stands the whole of this matter ? An
expedition originally confided, in the material parts of its plan, as
well as of its execution, to Lord Gambier — carried throughout
under his care and superintendence — every movement directed by
him — every situation assigned by him — every part of the business,
principal or auxiliary, executed by ships which were as much
members of his fleet as the Caledonia herself — from the beginning
to the end, no interruption of command or association.
Servatur ad imuin
Qualis ab inccpto • — —
To this view which I take, it adds a great corroboration that it
appears to be the "view which everyone else takes of it who has no
interest in taking another. The opinion of the British fleet may
be supposed to be produced or influenced by concurrent interests
of their own. But what shall be said to the captured witnesses of
the French fleet, attributing the disastrous events of the night and
day to the fleet under the command of Lord Gambier ? They
have no interest in this matter of head-money. What shall be
said to the inshore squadron who have all the same interest as the
InfpericKse to deny the title of the fleet ; but to them it never
occiirs to claim any title either to glory or profit from this trans-
action, but in partnership with the fleet. These are strong iudica-
THE LA BELLONK, 227
tions of wheat was dictated by common reason, and hy common 1818
and just feeling upon the subject, and cortainly len«l no small '^""' ^^-
confirmation to the more artificial conclusions of law- upon it. TukVilledk
With respect to the cases that have been cited and commented on,
I do not think it necessary to enter into them minutely. I know '-'^ "^- ^'^°**-
of no general doctrine, nor of any particular dicta that, being
fairly weighed, can be considered as adverse to the opinions I have
intimated. Those that relate to unassociated ships are all foreign
to the present question whicli I take to arise entirely upon the
footing of a combined enterprise connected in its origin, and carried
on throughout without any breach of continuity in its progi-ess to
its termination. If I am wrong in this \iew of it, I am wrong
altogether in tlie foundation of my judgment, but I think I am
warranted and compelled by the facts to assume it, and to decide
by that assumption the disputed interests.
The Court accordingly pronounced against the cause shown by
Lord Cochrane, and in favour of the right of the whole fleet to
share in the hoad-money.
Bfrrmbrr 4.
THE LA BELLONE. [•2Do1<.3I3.]
Ilead-mouy — 45 Geo. III. c. 72, 8. 5 — Limitation to Officers and Crew of the
Navy — Conjunct Naval and Military Expedition.
The bounty awardablo under 45 Geo. III. c. 72, s. 5, is not distributable
to ofiBcers and crews of the Navy after conjoint naval and military
operations (o).
This was the case of one of the French ships of war which was isis
lying in the harboui' of Port Louis, in the Isle of France, when that
island was blockaded by his Majesty's land and sea forces, under
the command of Vice- Admiral Bertie and Lieutenaut-General the
Honom-able Ralph Abercrombie, and was surrendered and de-
livered up on the 3rd of December, 1810, together witli the town
and fortress of Port Louis and the other iiublic property belonging
to the French Government, by virtue of a capitulation, under
which the French officers and crew ^^■ere permitted to proceed to
France.
{<() The operative words of 45 those of the Naval Prize Act, l^^tl
Geo. III. c. 72, 8. 5, are similar to (27 & 2S Vict. c. 25), s. 42.
q2
228 TRE LA inCLLONK.
18IS On Iho 12tli of December, 181], tlie ship and cargo were con-
December 4. Jemnod to bis Majosty, as liikon by lii.s Majesty's sea and land
Tine forces.
I,V BlCU-ONK.
Sir W. Scott. — This is a question of the riglit of head-money
claimed by the captors of the vessel in question, and I consider it
as not put by the one side or the other on any particular circum-
stances distinguishing the present from similar cases, but upon the
general title of the army and navy to head-money on ships
captured, not at sea and by ships alone, but in harbours and rivers
and other such places as are the objects of joint attack, in conjunct
expeditions conducted by both species of force acting on the
common service in tlie way that their instructions or the discretion
of their commanders may concur in deeming most effective for the
common purpose.
All specialties, therefore, are entirely out of tlie case. It is a
sufficient statement of the facts necessary to found the question
that these ships, for the capture of which head-money is claimed,
were taken at the surrender of tlie Isle of France to a conjimct
force acting imder the command of Vice-Admiral Bertie and
Lieutenant- General Abercrombie, and that the claim is given on
behalf of these officers and of the persons under their command.
The number of men to wliich head-money is proportioned on board
the captured ships has been ascertained by the Court, not certainly
by way of helping out the claim in any manner, but merely for
the purpose of removing the difficulties that might otherwise be in
the way of applying the decision to tlie facts if the decision should
prove favourable to the claim.
The question is referred to this Court for decision by the Board
of Treasury, and expressly for a legal decision, thereby meaning
certainly to intimate that nothing that could be so deemed had to
their knowledge taken place, and therefore clearly that no opinions
or acts of their own were so to be considered.
The statute enacts that in cases in which doubts shall arise
whether the parties claiming head-money are entitled thereto, the
same shall be siunmarily determined in the course now taken, the
legislature probably thinking that the history of this j)articular
subject being more familiar to this Coui't, a question of this kind
THE LA BELLONE. 229
might probably receive a readier illustration from its knowledge of 1818
the liistory of the law than might possibly bo within the immediate "'^"' ^'' *'
view of those judicatures which are the more regular and constitu- The
La Belloxe.
tional interpreters of statutes.
SirW. Scott.
The decision Avhieh is required is a legal decision, and if a deci-
sion so to be qualified had been given before, it would be the duty
of tliis Court, in the consideration of the present question, to weigh
that decision, and to allow it all the authority which is justly due
to all former legal considerations of the same matter. But no
sue) I decision has been offered to the view of the Court. All that
is alleged is a practice that has obtained in some instances by tlie
will of persons who, whatever be the respect due to their stations
and characters, are in law incapable of giving a legal decision. It
appears that on applications for head-money in some cases of con-
junct expeditions to the Commissioners of the Navy, they have not
submitted immediately to the claim as they would have done in
pursuance of the Act of Parliament upon a clear judgment of its
validity, but have invoked the judgment, or at least the authority
of the Treasury, to sanction an}' payment, and the Treasmy has in
some instances exercised either its judgment or its authority in
sanctioning such payments. The number of instances in which
this has been done is not exactly ascertained ; the Commissioners
in their return made to the Treasury mention but two, the industry
of the claimants has furnished several more, and two or three of
them are in the cases of some other ships taken upon the very
same occasion with those for which the present claim is instituted.
I should have tliought that the whole niunber for which the head-
money had been so given bore a very small proportion indeed to
the number of those which had occurred in the numerous expedi-
tions of this kind that took place in the course of the hitc jirotracted
wars, and for which no such claim had been made, or if made had
not been assented to ; the contrary, however, is asserted, and I
have not the means of either contradicting or confirming that
assertion. Take it any way, it is impossible to ascribe to such a
limited practice as this the reverence duo to a course of legal
decisions.
The first board to which ai»plication is made plainly licsitatrd in
opinion. It refeiTcd the matter to another authority, ami that
La Bellone.
230 'im; la Jii:L],«>.\i:.
autliiiiity, iutiiij,' i»u its finauciMl ]h)Wois rather tliun on anytliing
tliiit can bo decincil judicial, and in a ju.st confidence that I'arlia-
TuE mont would ratil'y and confirm such exorcises of discretion in such
cases, directed tlio payments to Lo made in those instances. To
Sir "W , Scott, g^^^i^ exercises of discretion, if they were much more numerous
oven than they are, no judicial character can be applied ; the
utmost offcft that could be attributed to them in a legal discu.ssion
would bo to incline tlio judgment, in a case of extreme doubt, in
favour of the existing practice, countenanced as it was by oitinions
though not judicial yet respectable in themselves, and resting upon
considerations of apparent equity. But to admit them to that
operation it must appear that the question is one of extreme doubt,
and that the Court is not shut up from entertaining any such
remote grounds of interpretation by the intelligible language of
positive law ; for the whole of this subject is the creature of mere
positive law. Head-money is not property acquired in any manner
by the captors, or to be demanded on the ground of any antecedent
title ; it is a mere voluntary grant of public mone}', and the
grante3S must b3 content to take what is actually given and no
more. The Coui-t cannot amplify the gi'ant by constructive
analogy, and by so doing take upon itself the double impropriety
of imputing blame to the legislatiu'e for a supposed omission and
arrogating to itself the fm-ther disposal of public money. By
every rule of interpretation that can apply to such a matter the
Court is bound to confine its exposition within the ver}' letter of
the statute, if that letter speaks an intelligible language.
Now it has been admitted that in the present instance the case
does not come within the specific terms of the grant. The grant is
to naval persons acting in a capacity merely naval in the captm'e
of ships, and effected by persons acting on board the ships that
make tlie captm'e. Soldiers are not recognized as grantees in any
other manner than when they are clothed with a naval character
by serving on board ships. The grant in the whole of its extent
relates to naval capture only; where it is not purely naval the
statute has thought fit to be silent, and it is not for this Court to
introduce a different description of service into a grant wliere
it is not.
The whole history of this matter confirms the Kmitation. Till
late times the distribution of prize property was wholly within the
THE LA BELLONE, 231
authority of tlie Crown, and till very lately, in regard to conjunct is is
expeditions, the course was for the Crown to give instructions for -^^"'""^'"'"'^'
the distribution of all property taken on conjunct expeditions. AM The
Prize Acts until the last have been purely naval ; the parties '
entitled under thorn have been entitled by naval description only ; " '
they recite the royal grant on wliich the whole right is originally
founded as confined to naval captors. The subject-matter is
■within the maritime jurisdiction alone. The army is not re-
cognised in any one of these Acts until the very last (that of the
ooth of the King) as having any title to prize, much less to licad-
money. Head-money is a boimty Avhicli was first introduced into
what is called the Cruisers Act (passed in the Gth of Queen Anne),
and then rested on grounds of naval policy only. It had reference
to naval capture, and goes no further in its terms than to reward
services of that description.
It long remained a subject of some imeasiness between the two
services what was the claim of a military force acting with the
navy on conjunct expeditions. Certainly no such claim even to
prize could be maintained on the statutes (for, as I have said, they
pointed only to naval captors), and much less to head-money,
which, if granted at all, could be applied only to the naval service
in the very terms in which it was expressed. At length came the
case of the Iloogsliarpc/, which was one of several Dutch ships taken
in Saldanha Ba}', near the Cape of Good Hope, in 1781, by a con-
joint force under Commodore Johnstone and General Meadows,
acting according to instructions under the King's sign manual,
which directed that all the booty taken should be divided between
the land and sea forces. The question of interest in these captures
made at sea was first agitated in this Court, where the judgo,
according to the expressions used in his sentence, pronounced for
the interest of the army, agreeably to the spirit of his ^lajcsty's
instructions." On appeal to the Lords the case was argued with
great ability for several successive days, and an elaborate judgment
was pronounced on the 30th of June, 178G, by Earl Camden, then
President of the Council, assisted, as I best recollect, by Lords
Kenyon and Grantley. They laid it down that conjunct expedi-
tions were entirely out of the statute with respect to both the
services, and that the whole property captured was at the disposi-
Sir \V. Scott.
i^32 'IHK LA IJKLLONI:.
1818 tion of tlio Crown, whoso equity and liberality in justly estimating
i remieri. ^j^^ merits of both could not be doubted. The same arguments