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"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.

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"field in Lindo v. Rodney (y), that there is no instance in "history or law, ancient or modern, of any question ever 'having existed respecting Booty taken in a continental "land-war before any legal judicature in this kingdom,' "that in very early times causes respecting it were deter"mined in the Court of Chivalry held before the Constable "and Marshal. In the MS. Treatise of Lord Hale, De "Prærogativâ Regis, cap. 12. s. 3. fol. 191., he says, In "matters civil, for which there is no remedy by the "common law, the military jurisdiction continues as well "after the War as during the time of it; for that part "of the jurisdiction of the Constable and Marshal stands "still, notwithstanding the War determines as concerning 'right of prisoners and Booty, military contracts, ensigns, ""&c.'

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"The only direct instance of the exercise of this jurisdic"tion which the reporter has been able to find, is one "mentioned in a MS. Treatise of Lord Hale, in Lincoln's "Inn Library, which is headed, Upon certain petitions of "late exhibited in the Court of Chivalry, there have been "raised divers questions of law,' and afterwards proceeds "to discuss the power of that Court to fine and imprison, "and give costs and damages in an action commenced there "for opprobrious words, and whether the Earl Marshal " alone might in that, and in such like cases, hold pleas. In page 33 of this manuscript, amongst the precedents cited "to prove that this Court might give damages, there is the "following passage: About the 17th year of Richard II., "in a cause depending in the Court of Chivalry between "John Haulce and John Rosque, concerning certain

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goods taken from a captain of a castle beyond the seas, "the plaintiff in the libel demanded costs and damages "according to the custom of the Court of Chivalry.' "There are, however, many instances on record of its

(y) Douglas's Reports, 592, but see the case of Banda & Kirwee Booty at the end of this chapter.

exercising a jurisdiction in the analogous cases of disputes respecting the right to or ransom of prisoners, whom "their captors were, by the usual custom of those times, "allowed to ransom for their own benefit. Thus in "Edward III.'s reign, there were special commissions to "Guido de Brien and Richard de Stafford, in the place "of the Constable of England, who was then a minor, to "hear, together with Edward de Mortimar, the Marshal, "two cases respecting the right to prisoners: Rot. Pat. 48. "Edw. III. in dorso p. 2, m. 10, mentioned in an anony"mous treatise in Hearne's Curious Discourses, vol. ii. "p. 150; and in the 2nd Henry IV., there was a com"mission to delegates to hear an appeal from the Court of "Chivalry held before the Constable and the Marshal respecting the custody of a hostage and for the ransom "for the Count of Denia (8. Rym. Fœd. 211), in which case there was subsequently a commission to co-delegates "(ibid. 423); and in the same volume of Rymer, p. 292, "there is a commission, in 4th Henry IV., to judges appointed to determine the rights of persons claiming "the prisoners taken at the battle of Humbledon Hill, in "the room of the judges of the Court of Chivalry, the "Earl of Westmorland, the Constable, and the Earl of "Northumberland, the Marshal. The reason of this "appointment is stated to have been because these peers "were absent in the Marches of Scotland, and interested

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in the cases; and the issuing of it probably was one of "the principal causes of their rebellion in the course of the "same year. Since the time of Henry VIII., when the "office of Constable of England ceased, the jurisdiction of "the Court of Chivalry was frequently disputed, on the "ground that it could not be held before the Earl Marshal alone; and it seems to have confined itself wholly to "questions of pedigrees, escutcheons, pennons, and coat"armour, with occasionally a few actions for slanderous words, as to which, however, its jurisdiction was expressly "denied by the King's Bench, on an application for a pro

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"hibition in the case of Chambers v. Jennings (z). In the same case it was decided, that it could neither fine nor "imprison; and it was determined in the House of Lords, "in Oldis v. Donmille (a), that it had no power to prevent persons who were not heralds from painting escutcheons " and marshalling funerals. After these decisions the Court appears to have fallen into desuetude. The last case "tried in it was Sir Henry Blunt's case, in 1737 (b). The "best account of it is to be found in the various discourses "concerning the antiquity and offices of the Constable "and Earl Marshal of England, and the defence of the "jurisdiction of the Earl Marshal's Court in the vacancy "of a Constable, by Dr. Plott, which are printed in the "second volume of Hearne's Curious Discourses by eminent "Antiquaries" (c).

The Court of the Constable and Marshal was limited by the Statute of the 13 Richard II. chapter 2, to a contract touching "deeds of arms and War without the realm, and

things that touch War within the realm, which cannot be "determined by the Common Law, as touching prisoners, "Prize, &c.; and in these proceedings the customs and "laws of War ought to direct their judgment (d).

CXXX. The maxim "bello parta cedunt reipublicæ" (e) is recognised by all civilised States. In England all acquisitions of War belong to the Sovereign, who represents the commonwealth. The Sovereign is the fountain of Booty and Prize.

The law upon this subject has been laid down by Lord Stowell and by Lord Chancellor Brougham (ƒ), in a manner

(z) 7 Mod. p. 127.

(a) Show Parl. Cas. p. 58.

(b) 1 Atkyns, p. 296.

(c) 2 Knapp's P. C. Rep. pp. 149–151.

(d) Cap. 12 f. 186.

(e) Bynk. Q. J. P.

(f) See also the decision of Lord Eldon in Nicholl v. Goodall, 10 Vesey's Rep. p. 156.