"on public convenience, I think that suggestion might "easily be furnished from the obvious policy to be observed "in reference to a newly-constituted Government in a remote "and newly acquired possession. The act then states, that "since the said surrender or capitulation, the said property "has been illegally taken possession of by Baron Hompesch "and others, concerned in the Salamine privateer; which "treasure and other public property was and is within the "true intent and meaning of Government property, as 666 66 specified in the third article of the Capitulation, and that "if any part of the property taken was private property, "it is protected from capture and confiscation under the said "third article.' Now what was the condition of this island "under the Capitulation? I conceive that nothing can "be more clear, than that if the Capitulation was not dis"avowed by the British Government, it was binding upon "the respective parties: it was a stipulation operating on "the Danes to give up all public property, and on the "British to respect all private property. Suppose that the English Government, without disavowing the Capitulation, "had sent a force the next day to take possession of the "property in the island, could there have been a more out"rageous breach of public faith? On the other hand, what "was the obligation on the part of the Danes?-they were "bound to give up all public property, and if any was kept "back, as it is alleged on the part of the privateer that this "was, it was kept back in fraud of the British Government, "in whom it already vested by compact, and being fraudulently withheld, it did not become again the property of "the Danes. By the Capitulation the English Government "became legally entitled to the whole of the public property, "and this seems to be admitted in the act on petition, for it "is there stated, that the said ship Salamine having arrived at Thorshaven, the said Thomas Gilpin, the captain of "the privateer, and part of his crew, immediately landed, "in order to storm and take possession of the fort, but "found that it had been about a fortnight before partly 66 666 666 "destroyed by His Majesty's ship Clio: that the Clio had "quitted the said town without having left any part of her "crew, after having taken on board such of the public "stores and property as were found in the said town and "delivered up to the said Thomas Baugh as Government "property under the articles of Capitulation, the purport of "which Capitulation was communicated to the said Thomas "Gilpin; that in consequence thereof, and in full persua❝sion that all public property had been given up to the "said Thomas Baugh, he the said Thomas Gilpin, his "officers and crew, the following day reimbarked and went "to sea.' The act then goes on to state, that having been "afterwards informed that certain goods and moneys be"longing to the King of Denmark had been kept back, "the said Thomas Gilpin returned and took possession of "the property in question.' Here, then, is a distinct ad"mission that the Capitulation operated, and was intended "to operate, upon the whole of the public property; but, "say they, some of the public property was not delivered up! Whether it was fraudulently withheld, or whether it "was left there for the purposes of Government, or the con"venience of the captor, does not appear; but supposing "that it was surreptitiously detained, what was the duty of "the privateer? Certainly, upon making the discovery, the only proper course was to take possession of the property "as salvor for the Crown, and to notify the circumstance. "To say, that in this short period of time, the Capitulation "and all its consequences were gone by, while the inhabi"tants claimed protection under it, and while this qualified possession of the island still continued, is contrary to all If private individuals had at that period a right "to shelter their property under the Capitulation, the British "Government had also a title to all public property under "the same Capitulation. It is clear, that if the property "was fraudulently withheld, it ought to have been taken "possession of for the Crown of Great Britain, and the "private captors ought not to have attempted to appropriate 66 66 66 reason. It is "it to themselves by setting up a title of their own. "hardly necessary for me to enter into the other topics which "have been thrown out in the argument; but as they have "been touched upon, I will just state my opinion upon one 'point, which is, that the commissions of privateers do not "extend to the capture of private property upon land; that "is a right which is not granted even to the King's ships. "The words of the third section of the Prize Act extend 66 66 66 66 only to the capture by any of His Majesty's ships of any "fortress upon the land, or any arms, ammunition, stores "of war, goods, merchandise, and treasure belonging to the "State, or to any public trading company of the enemies "of the Crown of Great Britain upon the land.' Here, "then, the interests of the King's cruisers are expressly "limited with respect to the property in which the captors "can acquire any interest of their own, the State still reserving to itself all private property, in order that no "temptation might be held out for unauthorised expeditions against the subjects of the enemy on land. With regard "to private ships of war, the Lords of the Admiralty are "empowered, by the ninth section, to issue letters of marque "to the commanders of any such ships or vessels-for what "purpose? Why, for the attacking and taking any place "or fortress upon the land, or any ship or vessel, arms, ammunition, stores of war, goods, or merchandise, belonging to, or possessed by any of His Majesty's enemies,' "—where?—in any sea, creek, river, or haven.' I perfectly "well recollect that it was the intention of those who "brought this Bill into Parliament, that privateers should "not be allowed to make depredations upon the coast of the "enemy for the purpose of plundering individuals, for which 66 6 666 66 reason they were restricted to fortified places and fortresses, "and to property water-borne; and, therefore, although I "am not sufficiently informed as to the precise nature of "this property, yet taking it to be private property, and "not within the reach of the Capitulation, it is that in which "the privateer has acquired no legal interest under her 66 "commission. I cannot dismiss this subject, without at the "same time observing upon the conduct of the persons con"cerned in this privateer, in terms of some disapprobation. "When they found this public property, which under the Capitulation enured to the benefit of the Crown of Great "Britain, it was their duty to have given notice to the "Crown Officers of the fraud which had been practised, limiting their own expectations to the interest which they "would derive as salvors for the Crown. The only witness "brought forward to speak to the circumstances of the cap"ture, and the nature of the property, is Baron Hompesch, "a releasing witness, who was rated on board this privateer “as chaplain; no one person has been produced who from "his own knowledge can speak to the nature of the pro"perty. Upon any supposition, I am of opinion that the "privateer has no interest, and I shall therefore condemn "the public property to the Crown conformably to the "terms of the Capitulation, and reserve the consideration "of the private property till it is claimed." CXXVIII. After the general reverses that befell the arms of France in the spring of 1814, and the consequent withdrawal of her troops from Italy, Lord William Bentinck was instructed to occupy the territories of the Republic of Genoa, "without committing his Court or the Allies with "respect to their ultimate disposition" (r). Of the proclamation which he issued upon the occasion of carrying these orders into effect, dated March 14th, Lord Castlereagh had himself observed, that "an expression or two, taken "separately, might create an impression that his views of "Italian liberation went to the form of the government, as "well as to the expulsion of the French. On the success "of the military movement, the General reported that he "had, in consequence of the unanimous desire of the "Genoese to return to their ancient state,' proclaimed the "old form of government.' (r) See Ann. Reg. 1814, pp. 32-84. It was the object of Sir James Mackintosh, in his admirable speech already referred to (s), on the Annexation of Genoa to the Kingdom of Sardinia, to show that this "unanimous desire" had been unjustly thwarted, and that these expectations, fairly raised by Lord William Bentinck's proclamation, had been wrongfully disappointed by the final territorial settlement of the Allies at Paris (t). CXXIX. When we arrive at the description of Maritime International Law in time of War, the constitution, authority, functions, and mode of procedure of the Prize Court will be found worthy of close attention and careful investigation. It will be seen that by this tribunal International justice is wisely, carefully, and honestly dispensed; and it is matter of reasonable surprise that such a jurisdiction should have been strictly confined to sea-prize (u), and without power of cognisance over land-booty, except in cases where the two, owing to the co-operation of the army and fleet, had been blended together (r). It is not surprising that in great maritime kingdoms the jurisdiction of the Admiral's Court should have thrown into the shade the tribunal of the General. But that the latter should have left such faint traces of its origin and mode of procedure, and should so soon have fallen into desuetude, is a very remarkable fact in the history of jurisprudence. The features of this curia militaris in England are perspicuously stated in the following learned and curious note of Mr. Knapp appended to his report of the great case of the Army of the Deccan, argued before the Privy Council in 1833: "It is probable, notwithstanding the dicta of Lord Mans (s) Delivered in the House of Commons on 27th April, 1815.— Mackintosh's Works, vol. iii. p. 311. Vide ante, pp. 189-191. (t) For the papers referred to, see Hans. Parl. Deb. vol. xxx. p. 387, and for the resolutions moved, ib. p. 932. (u) How far the powers of this Court have been extended by 3 & 4 Vict. c. 65., will be seen hereafter. () The Ships taken at Genoa, 4 Rob. Adm. Rep. p. 388. |