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ceeds logically, but its next step is, in their Lordships' opinion, open to considerable criticism. If, say the appellants, neutral ships are assimilated, as on principle they should be, to neutral territory, British ships ought to be in like manner assimilated to British territory. Whatever may have been the case in earlier times, no one will now contend that the private property of enemy subjects found within the realm at the beginning of a war can be seized and appropriated by the Crown. The same ought, therefore, to hold of enemy goods found in British ships at the beginning of war.

This part of the argument is, in their Lordships' opinion, quite fallacious. The Declaration of Paris, in effect, modified the rules of our prize courts for the benefit of neutrals. It was based on international comity, and was not intended to modify the law applicable to British ships or British subjects in cases where neutrals were not concerned. Its effect may possibly be summed up by saying that it assimilates neutral ships to neutral territory, but it is impossible to base on this assimilation any argument for the immunity of enemy goods in British ships.

The cases are not in pari materia. If the Crown has ceased to exercise its ancient rights to seize and appropriate the goods of enemy subjects on land, it is because the advantage to be thus gained has been small compared with the injury thereby entailed on private individuals, or in order to ensure similar treatment of British goods on enemy territory. But one of the greatest advantages of sea power is the ability to cripple an enemy's external trade, and for this reason the Crown's right to seize and appropriate enemy goods on the high seas or in territorial waters or the ports or harbors of the realm has never been allowed to fall into desuetude. In order to attain this advantage of sea power in the fullest degree our Courts have always upheld the right of seizing such goods even when in neutral bottoms, and neutrals have always admitted or acquiesced in the exercise of that right, either because it was deemed to be a legitimate exercise of sea power in time of war or because on some future occasion they themselves might be belligerents and desire to exercise a similar right on their own behalf.

Those who were responsible for the Declaration of Paris had not to weigh the advantage to be gained by the seizure of enemy goods in neutral ships against the injury thereby inflicted on private owners, but against the demands of international comity. The fact that we sacrificed on the altar of international comity a considerable part of the

advantages incident to power at sea is no legitimate reason for making a further sacrifice where no question of international comity can possibly arise.

Their Lordships hold, therefore, on this part of the case, that enemy goods in British ships, whether on board at the beginning of the hostilities or embarked during the hostilities, always were, and still are, liable to be seized as prize, either on the high seas or in the ports or harbors of the realm. It follows that the petroleum seized on board the Roumanian was properly condemned as prize.

The next point to be considered is the jurisdiction of the Prize Court so far as the petroleum was, when seized as prize, warehoused in the tanks of the British Petroleum Company, and no longer on board the Roumanian. The appellants contended that it is the local situation of the goods seized as prize which determines the jurisdiction of the Prize Court. If such goods be, at the time of seizure, on land and not afloat, it is not, they contended, the Prize Court but some court of common law which has jurisdiction to determine the rights of all parties interested. In their Lordships' opinion this contention also fails.

The chief function of a court of prize is to determine the question "prize or no prize," in other words, whether the goods seized as prize were lawfully so seized, so as to raise a title in the Crown. In determining this question, the local situation of the goods at the time of seizure may be of importance, but it is the seizure as prize, and not the local situation of the goods seized, which confers jurisdiction.

If authority be needed for this proposition, it may be found in Lord Mansfield's judgment in the case of Lindo v. Rodney, reported in a note to Le Caux v. Eden (2 Doug., p. 612). It must be remembered that the jurisdiction of the Prize Court is based in every case on a commission under the Great Seal. Lord Mansfield pointed out that, in the case before him, the commission under which the court derived jurisdiction conferred jurisdiction in all cases of prize, whether the goods sought to be condemned were taken on land or afloat. The same may be said of the commission in the present case. In his opinion, however, it was necessary to draw a distinction in this connection between the jurisdiction of the Court of Admiralty as a court of prize and its jurisdiction apart from the commission which constitutes it a court of prize.

To give the Court of Admiralty as such jurisdiction, the matter complained of must have occurred on the high seas, but in all matters of prize it was not the Court of Admiralty as such, but the Court of Ad

miralty by virtue of the commission which had jurisdiction, and this jurisdiction was exclusive, whether the goods seized as prize were on land or afloat. The only authority which, at first sight, appears to be in conflict with Lord Mansfield's decision is the case of The Ooster Eems (1 C. Rob., 284n.), to which no great weight can be given.

Their Lordships will now proceed to consider the appellants' contention that even if the Prize Court had jurisdiction it ought nevertheless to have decided against the condemnation of the petroleum so far as it was not actually afloat in the Roumanian at the time of seizure. They admitted that during the war no order for restitution or release could properly be made in favor of the German owners, but they suggested that the proper course was to hand the petroleum over to the public trustee or some other official for safe custody until the restoration of peace. No case where any such course has been pursued was cited.

The real question is whether the petroleum is, according to the law administered by prize courts in this country, properly the subject of maritime prize, although locally situated on shore. All enemy ships and cargoes which may, after the outbreak of the war, be found afloat on the high seas or in territorial waters or in the ports or harbors of the realm are liable to seizure as maritime prize. The petroleum was undoubtedly enemy property. It was undoubtedly on the high seas at and after the declaration of war. It became liable to seizure as prize as soon as war was declared. It did not cease to be so liable by being carried into Dartmouth or thence to Purfleet. It clearly remained so liable while still afloat. Did it cease to be so liable when pumped into the tanks of the British Petroleum Company? No satisfactory reason why it should cease to be so liable was suggested, and their Lordships. have been unable to discover one for themselves. The argument of counsel was based on the assumption that no enemy goods not actually afloat at the time of seizure could be lawfully seized as prize, unless possibly they could be considered as locally situate within a port or harbor, and that the tanks of the British Petroleum Company (Limited) could not be considered as part of the Port of London. There is, in their Lordships' opinion, no ground for this assumption. The test of ashore or afloat is no infallible test whether goods can or cannot be lawfully seized as maritime prize. It is perfectly clear, for instance, that enemy goods seized on enemy territory by the naval forces of the Crown may lawfully be condemned as prize. The same is true of goods seized by persons holding letters of marque, and even of goods seized by

persons having no authority whatever on behalf of the Crown, when the Crown subsequently ratifies the seizure. This is clear from the case of Brown and Burton v. Franklyn (Carth., 474), quoted in the judgment of Mr. Justice Buller in Le Caux v. Eden (supra). Brown and Burton, the masters of a vessel belonging to the East India Company, seized enemy goods on land. They had no letters of marque. The King's Proctor instituted proceedings in the Prize Court, and having obtained a condemnation of the property as prize proceeded against Brown and Burton for an account. The latter instituted proceedings at common law for a prohibition on the ground that the goods taken were on land, but relief was refused. Moreover, Lord Mansfield, in Lindo v. Rodney (supra), expressly approves of an admission made by counsel in that case to the effect that it would be "spinning very nicely" to contend that if the enemy left their ship and got on shore with money and were followed on land and stripped of their money this would not be a lawful maritime prize. If this be, as it seems to their Lordships to be, good law, the present is an a fortiori case. In the case put by counsel the landing of the goods was made by the enemy with the object of escaping capture afloat. In the present case such landing was by British subjects who had the enemy goods in their possession and did not know what else to do with them, and were pursuing a course recommended by the Board of Trade, and in no way intended to prejudice the Crown's rights.

With regard to the authorities quoted in this connection they have, in their Lordships' opinion, with one possible exception, no real bearing on the point. In The Hoffnung (No. 3) (1 Eng. Prize Cases, 583), the cargo seized on shore had been landed and sold prior to the declaration of war. These goods, therefore, even if enemy goods at all, were never liable to seizure as prize. They were not, in fact, seized, nor was any proceeding taken against them, but an attempt was made to recover against the ship which had brought them the value of the goods so sold, the ship itself belonging to a neutral. This claim was rejected by the court. It was held that unless it could be shown that the hand of capture had been employed on these goods in quality of cargo the court could not go back to affect them in any other character. The same principle was recognized in The Charlotte (1 Eng. Prize Cases, 585, note) in which it was held that the proceeds of goods landed and sold before the seizure of the ship, and never themselves seized, were not amenable to the jurisdiction of the court.

In Brown v. The United States (8 Cranch, 110), it was decided on the facts that the goods in question were in the position of enemy goods found on American soil at the beginning of the hostilities and not, therefore, the subject of maritime prize. That case, therefore, is clearly distinguishable from the present. The only case which raises any difficulty is that of The Ooster Eems (supra). There is no satisfactory report of this case. It is mentioned in the note on p. 284 of 1 C. Rob. and in the preface to Hay and Marriott's Decisions, p. xxvii. Their Lordships have, however, examined the papers relating to it preserved in the Record Office. The Ooster Eems was a Prussian and therefore a neutral vessel. It was stranded on the Goodwin Sands on a voyage from Texel to the East Indies. Before it broke up, part of its cargo was sent ashore including some boxes of silver coin. The latter were deposited by the master with the Prussian Consul at Deal.

One Jeremiah Hartley, an officer of the Court of the Cinque Ports, acting under an order of attachment issued by such court sitting as an Admiralty Court, seized and obtained possession of the goods so landed, including the boxes of silver, on behalf of the warden of the Cinque Ports. The seizure may have been intended to be a seizure of enemy goods as maritime prize, though their Lordships have been unable to ascertain that the Court of the Cinque Ports had any jurisdiction in prize. The warden took no proceedings either in his own or any other court with a view to having the goods lawfully condemned. The master, therefore, obtained from the High Court of Admiralty in England a monition requiring Jeremiah Hartley and the Warden and all others whom it might concern to appear and proceed to the legal adjudication in that court whether the goods seized were lawful prize or not.

The King's Proctor subsequently intervened. Certain depositions were filed which appear to raise some suspicion that the goods were Dutch and therefore enemy goods, but there was no real evidence to that effect. The master deposed that he did not know to whom the goods belonged, and in these circumstances one would have expected that the court would have acted on the presumption arising from the fact that the ship was a neutral ship. The court, however, made an interlocutory decree condemning the goods on the ground that the goods which apparently were assumed to be enemy goods were not at the time of seizure "in a privileged vehicle or on neutral territory."

All questions between the Crown and the warden were reserved. The master appealed to the Lords Commissioners of Appeal in Prize,

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