there was, that the ship must sail with convoy, according to the usage of the trade; that is, convoy destined to go as far as usual in that voyage. The present is the clearest case that can be. The warranty is, that things stand so at the time, not that they shall continue."

The postea was delivered to the plaintiffs.

And afterwards in a subsequent case of Saloucci v. Johnson (a), in the course of the argument Mr. Justice Buller said, "I do not agree with the counsel, who contend, that the property must continue neutral during the whole voyage; if it be neutral at the time of sailing, and a war break out the next day, the underwriter is liable."

And in a still later case of Tyson v. Gurney (b), which came on for trial before Lord Kenyon at Guildhall, this point was one amongst others saved for the opinion of the Court of King's Bench. But when the case came on to be argued, the counsel for the defendant abandoned the objection upon the authority of Eden v. Parkinson, and Saloucci v. Johnson.

I now propose to consider the important question which has met with much discussion, viz., how far the Courts of Law in this country have held the sentences of foreign Courts of Admiralty, to be conclusive evidence that the property was not neutral; so as to discharge the underwriters? and I shall first refer to some important cases decided in the Court of Admiralty on this point.

The first case which I shall mention is that of "The Flad Oyen, Martenson, master," in which judgment was delivered in the High Court of Admiralty, January 16th, 1799 (c). This was the case of an English prize ship carried into a neutral country and there sold under the sentence of condemnation by the French consul, and taken the 12th January, 1798. The claim was given on behalf of the purchaser a Danish merchant. For the claimant it was contended that there was nothing illegal in a sentence of condemnation in a neutral

(a) See ante, p. 307, and post.

(b) 3 T. R. 477. (c) 1 Rob. A. R. 134.

country, into which the captors had carried the prize ship: and they quoted books of authority on this point (a). Sir W. Scott now delivered judgment. "This is the case of a ship taken by a French privateer and carried into Bergen in Norway, where it appears she underwent a sort of process, which terminated in a sentence of condemnation, pronounced by the French consul; and under that sentence she is asserted to have been transferred to the present neutral proprietor. The sale was conducted by public auction: but it appears that the very person who was the purchaser in that case, was likewise the actual seller, and stood in the capacity of general agent, at this place, for the French nation. She was put up to auction, there was no bidder whatever, and she was purchased by himself under the denomination of agent. It appears that the ship was sent immediately to France, which of itself colours the nature of the purchase, and shews that it could not be for a mere Dane, and for Danish commerce; but on behalf of persons resident in France. It appears, likewise, that he sent this vessel with papers for the island of St. Martins; but in fact, gave verbal directions to the master to get her into the port of Havre, if he possibly could. From the depositions of the master, I think it was entirely with the knowledge of the pretended purchaser that that was a blockaded port, and that there has been a fraudulent intention to break the blockade, which was at the time actually existing. Under these circumstances, I am of opinion, that this does amount to that fraudulent conduct on the part of the purchaser which would debar him from the advantage of further proof. I am of opinion that it was no actual transfer but was going to France, as the property of the French captors to be put into their possession, and therefore, on that part of the case I should have little doubt in pronouncing a sentence of condemnation.

But another question has arisen in this case upon which a great deal of argument has been employed; viz., whether the

(a) Cons. del Mare. 287. Vattel, b. iii, c. 7, 8. 132.

sentence of condemnation which was pronounced by the French consul is of such legal authority as to transfer the property, supposing the purchase bond fide made? I apprehend that the general practice of the law is, that a sentence of condemnation is at present deemed necessary, and that a neutral purchaser in Europe during war, looks to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man having a prize vessel of a belligerent has thought himself quite secure, merely because the ship has been in the enemy's possession 'twenty-four hours,' or carried 'infra presidia.' The contrary has been more generally held; and the instrument of condemnation is amongst those documents which are most universally produced by a neutral purchaser, and if she has been taken as prize, it should appear that she has been in a proper judicial form, subjected to adjudication. Now in what form have these adjudications constantly appeared? They are the sentences of Courts acting and exercising their functions in the belligerent country; and it is for the first time in the world that in the year 1799, an attempt is made to impose upon the Court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country. Now, it having been the constant usage that the tribunals of the law of nations shall exercise their functions in the belligerent country; if it was proved to me in the clearest manner, that on mere general theory such a tribunal might act in the neutral country; I must take my in the belligerstand on the ancient and universal practice of mankind, and say that so far as that practice has gone, I am willing to go; and where it has thought proper to stop, there must I stop likewise. I am of opinion upon the whole, that this ship must be restored to the British owners upon the usual salvage."

And in the case of The Christopher (a), in which a British prize ship taken by the French, and carried into the Spanish

(a) 2 Rob. A. R. 210.

It has been the that the tribu

constant usage,

of nations shall

nals of the law

exercise their functions with

ent country.

in France of a British ship, taken by a

French privateer into a Spanish port, and lying there

Condemnation port, St. Sebastian; from whence the ship's papers were sent to France, and a sentence of condemnation passed at Bayonne, May 9th, the ship still lying in the Spanish port. The ship was then sold to the present claimant, a merchant of Altona; and was sailing at the time of the capture, July, 1799, in ballast from St. Sebastian to Altona. On the part of the captors it was contended that this was a purchase, resting on an illegal condemnation, and therefore could not transfer any right or just title to the neutral claimant.

at the time of condemnation, held valid.

Sir W. Scott now delivered judgment.-"This is a case materially differing from those in which condemnation has passed on ships carried into a neutral country; those proceedings have been held illegal, principally because it was to be presumed that a neutral government would not so far depart from the duties of neutrality, as to permit the exercise of that last, and crowning act of hostility, the condemnation of the property of one belligerent to the other. But this will not hold good with respect to condemnations passed on ships brought into the ports of an ally in the war. In such cases there is nothing to prevent the government proceeding to that last act of hostility; there is a common interest between them on the subject; and both governments may be presumed to authorize any measures conducing to give effect to their arms; and to consider each other's ports as mutually subservient. I am, therefore, inclined to hold such a condemnation sufficient in regard to property taken in the course of a common war." Ship restored.

In the case of the Betsy (a), 12th August, 1800, which was a case under circumstances precisely similar, the question of law was waived, and the legality of the condemnation being admitted by the Court, further proof was directed to be made of the fact of transfer. The principles laid down by the learned Judge of the Court of Admiralty, are agreeable to the decisions of the Courts of Law upon the subject. In the case of Donaldson v. Thompson (b), which was an

action on a policy of insurance on the American ship Maryland Mary, at and from Gibraltar to a market, with leave to call and land goods at two or more ports in the Mediterranean. The ship having landed some goods at Malta, proceeded thence with the rest of her cargo for Smyrna, but was the same day captured by a Russian privateer, and being afterwards carried into Corfu, was there condemned as lawful prize. The sentence of condemnation was pronounced at Corfu, in July, 1807. The condition of Corfu in that year and month, was described by a gentleman who had acted there as an English consul. He stated that, at that time there was a Russian garrison in Corfu, and the Russians had about 6,000 men in the different islands of the republic; that they had made Corfu a military station for four years, and they continued in possession of it till they delivered it up, at the peace of Tilsit, to Bonaparte: but that previously to that event, the flag of the Ionian Republic flew from the forts in the island; there was a Port-Admiral appointed by the Ionian Republic, and the witness was recognised as English consul by Prince and Senate of the Ionian Republic, who continued his functions till the Republic was dissolved by the French. Lord Ellenborough." I shall not receive the sentence." Under these circumstances the Russians must have been considered visitors in Corfu, and not as sovereigns. While a government subsists as this did, we cannot look to the degree in which it might be overawed by a foreign force. The sentence was pronounced by a belligerent on neutral territory, and is therefore void. I am by no means disposed to extend the comity which has been shewn to these sentences of Foreign Admiralty Courts. I shall die, like Lord Thurlow, in the belief that they ought never to have been admitted, The doctrine in their favour rests upon an authority in Shower (a), which does not fully support it: and the practice of receiving them often leads to great injustice. In the ensuing Term a motion was made to set the verdict aside,

(a) Hughes v. Cornelius, 2 Show. 232.