The Hercules. but that was the only part so removed. All the civil CHAP. VI. authority remained as before, for neither that statute nor any other affected it. "All practice of its civil authority since that enactment proves the existence of the same practice before,” for nothing occurred to give it new powers. All the cases produced as authorities were posterior to the statute, and the stronger on that account, proving, not only that such a jurisdiction must have existed before it, but, likewise, that it was unaffected, either by that statute itself, or by any succeeding statute then existing. And what seals their authority the more strongly, is, that, upon references to the courts of common law for prohibition, the jurisdiction has been uniformly supported. Suits in such cases against the purchaser of goods piratically The only question on which doubts have been entertained (and which in one case only was otherwise determined) was, whether goods so illegally taken, could be recovered in a causa spolii civilis et maritima, taken. as well against the person who purchased them from the spoliator, as against the spoliator himself. The warrants of arrest in such cases, of which some were referred to by the Court, went out in terms of great latitude" to arrest the goods in whatever hands they may be found, per mare vel terram, or to seize them, aut provenientia a venditione eorum in the hands of A. B. of London, or wherever else they may be found." This appears to have been the question in the anonymous case reported by Croke*, and in most succeeding cases and upon the ground that piracy does not convert property, it appears to have been generally held in the courts of common law, that the extent of the warrants (mentioned above) was perfectly legal. It was otherwise held in the case of the Spanish Ambassador v. Joliffe and Tucker and Sir R. Bingley, where Joliffe The Hercules. CHAP. VI. and Tucker, the spoliators, were held bound to answer, but Sir R. Bingley, the purchaser, was discharged by Lord Hobart*; but in the later case of Egglefield†, Sir M. Hale held clearly, that if goods are taken piratice and sold afterwards at land, the Admiralty hath cognisance thereof; for that which is incident to the original matter, shall not take away the jurisdiction, though there were another resolution in Bingley's case; and said that an hundred such suits had been determined in the Admiralty, &c. In proceeding for restitution there need be no preceding conviction of piracy. It is not required that there should be a preceding conviction of piracy. It is true that where the Lord Admiral proceeds pro interesse suo upon his royal grant of bona piratarum, i. e., their own proper goods, not goods of others unlawfully taken on the seas, he must show that the party has been attainted of piracy.‡ But where a person, so despoiled of his own goods, proceeds merely for restitution, no such preliminary is required. "It appears, as far as I can collect it, the settled law that, without a conviction, the party might proceed for what is termed the point of restitution. An objection, that no cases in favour of this practice in the Admiralty Court later than the time of Charles II., were to be found in the reports, was dismissed by Lord Stowell with the following remarks: "In truth it is hardly to be expected that they should have occurred in the common law reports, after the law had been so defined and settled in the several cases of prohibition attempted and decreed; for it could only be in cases of prohibition that they could have appeared in these books. In our own jurisdiction printed reports are only of yesterday, and little of any standing is to be found, but in the records at the Tower, many of them very obscure or imperfect, or in occasional references to * Hob. Rep. 78. † 1 Ventris, 173. 2 Keble, 828. Peinston and others v. the Admiralty, 3 Bulstrode, 147. tradition or personal memory, or written notes collected CHAP. VI. by former industry. It is to be observed, likewise, that piracy has long ceased to be practised in any considerable extent. There is said to be a fashion in crimes; and piracy, at least in its simple and original Time was when the spirit * form, is no longer in vogue. * Scaliger. † Selden has observed that "pirates" did not mean sea robbers in its modern sense, but that the term was used originally for distinguished seamen. Mare Claus. lib. ii. c. x. "The pirates of the eleventh and twelfth centuries were common to all the maritime nations of Europe, and appear to have consisted of bodies of skilful seamen, whose ships committed hostile aggressions, as well against their own countrymen and allies as against the enemies of their sovereign, whenever an opportunity of obtaining booty presented itself. That they were not always, as has been supposed, outlaws, is nearly certain, for the king often availed himself of their services, though his efforts to control or punish their outrages were sometimes vain." Sir H. Nicolas, History of the British Navy, vol. i. p. 240. In relating some maritime excursions of William II. against his brother Robert of Normandy, both Hoveden, 264., and Bromton, 986., call the English ships "piratæ." “William jam mare munierat suis piratis qui venientes in Angliam tot occiderunt et in mare merserunt,”—“Anglici vero piratæ qui curam maris a rege susceperant,” &c. M CHAP. VI. occurrence, hardly visible for above a century past, but in the solitary instances of a few obscure individuals. Pirates, in the ancient meaning of the term, are literally rari nantes on the high seas. Under these circumstances, both of the settlement of the law and of the rarity of the fact, it is no marvel that cases of piracy, turning at all upon this question of jurisdiction, should hardly present themselves at all in the later books. If the cases had occurred, in fact, one sees no reason for posing that they should not have received the same consideration to which their predecessors had been subjected." Damage by collision, &c. sup But another species of damage to the property, for the reparation of which a frequent recourse is had to the Court of Admiralty, arises in causes of collision or injury done to or received by a ship; here, as in all other cases of damage, the locality in which the damage occurred was the test by which the jurisdiction of the Court was confined and limited; for those damages, which occurred within the bodies of counties, the Adralty had no jurisdiction. But by a recent statute, which has often been mentioned in this treatise and is printed in the Appendix, a more rational principle was applied to these causes, by which the locality in which the injury was received does not found the jurisdiction of the Admiralty Court; for, by the 6th section of that statute, it is enacted that the Court of Admiralty shall have jurisdiction to decide all claims and demands sea-going vessel, whatsoever, in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county or upon the high seas at the time when the services were rendered or damage received in respect of which such claim is made; all the old statutes and other authorities respecting locality, infra corpus comitatus, The Court of Admiralty has jurisdiction for damage done to a ship or whether or not such ship be infra corpus comitatus. infra primos pontes, flux and reflux of the sea, &c. &c., CHAP. VI. are thereby overruled. It becomes necessary that we should now mention the several statutes which relate to the reparation of those injuries which are the subject of discussion; some of them having been considered, it will be observed, restrictive of the jurisdiction of the Admiralty Court. The following sketch by Lord Stowell will bring them forward in the most succinct manner. "The quantum of reparation due in such cases has been differently measured in the maritime laws of different commercial countries, and of the same commercial country-amongst others, our own-at different periods. The ancient general law exacted a full compensation out of all the property of the owners of the guilty ship, upon the common principle applying to persons undertaking the conveyance of goods, that they were answerable for the conduct of the persons whom they employed, and of whom the other parties who suffered damage, knew nothing, and over whom they had no control. To this rule our own country conformed; and it is not to be denied that the term compensation is not very accurately applied to any restitution that falls short of a fair and full indemnification for the injury done. But Holland having introduced a law for the protection of its navigation, that persons interested in it should not be liable beyond the value of that property of their own which they exposed to hazard —their ship, freight, apparel, and furniture,— England followed in successive statutes by which it protected owners from responsibility beyond those interests, first, in the case of embezzlements committed by some of the crew of the ship herself *; and in a succeeding statute † this protection was extended to the † 26 Geo. 3. c. 86. *7 Geo. 2. c. 15. |