On Appeal from the Vice-Admiralty Court of the Virgin Islands, Tortola.

 

 

COUNCIL: The Attorney-General (Sir R. P. Collier, Q.C.), The Queen’s Advocate (Sir Travers Twiss, Q.C.), and Mr. T. D. Archibald, for the Crown

Sir R. Palmer Q.C., and Mr. H. P. Semper (Attorney-General for St. Kitts), Mr. Shortt, Mr. G. F. Blake, and Mr. G. D. Shee, for the Respondent

 

SOLICITORS: Her Majesty’s Procurator-General, F. H. Dyke, for the Appellant.

For the Respondent: J. & C. Robinson.

 

JUDGES: Lord Romilly (Master Of The Rolls), Sir James William Colvile, And Sir Robert Phillimore (Judge Of The High Court Of Admiralty).

 

DATES: 1871 Feb. 13, 14, 15.

 

 

Piracy – Seizure by the Crown of Ship for alleged Piracy – Bonâ fide sale of, before conviction or condemnation – Jurisdiction of Vice-Admiralty Court.

 

Though goods piratically taken, cannot be transferred to a third party as against their legitimate Owner, yet that rule does not apply to a Ship belonging formerly to a Pirate, as the taint of Piracy does not, in the absence of conviction or condemnation, continue, like a maritime lien, to travel with the Ship through her transfers to various Owners.

 

A Ship was arrested by the Crown in Tortola, on a charge of Piracy. The affidavit which led to the Warrant of arrest alleged, that the Ship was bought at St. Marc, in Hayti, from a British subject by the Revolutionary Government of Hayti, and that the Ship, having been equipped as a Ship of War, was afterwards employed in acts of hostility. It appeared that the Ship had been sold by public auction, six months before seizure, to a bona fide purchaser, a British subject. The Vice-Admiralty Court of Tortolasustained a protest to the jurisdiction of the Court, and decreed restitution of the Ship, but without costs or damages. On appeal, held, by the Judicial Committee (affirming such decree), that there was no authority to be derived from principle or precedent, for a Ship sold by public auction to a bonâ fideinnocent Purchaser, before any proceedings have been taken on the part of the Crown against the Ship, being afterwards arrested and condemned on account of having been engaged previously in piratical acts.

 

In this case the appeal was brought from a decree of the Vice-Admiralty Court of the Virgin Islands, in a cause promoted on behalf of the Queen, in her Office of Admiralty, against the Steamship Telegrafo or Restauracion, her tackle, apparel, and furniture, as a forfeiture to Her Majesty, as being the goods of Pirates. The Respondent, of the Island of Tortola, one of the Virgin Islands, a [*674] Planter and Merchant, appeared under protest to the jurisdiction of the Court. By this decree the Vice-Admiralty Court confirmed the protest, and decreed restitution of the Ship, which had been arrested under Warrant, at the instance of the Crown, by the Administrator of the Government of Tortola, on a charge of Piracy, but without costs and damages.

 

The facts of the case, as stated in the affidavits, were in substance, as follows:–

 

The Steamship Restauracion, formerly called the Telegrafo, was built at Greenock, in Scotland, in the year 1863. In the month of May, 1869, the revolutionary Government of Hayti purchased the Ship at St. Marc, in the Island of Hayti (a Port then in possession of Nissage Saget and the revolutionary Government of Hayti, then the established Government of that Country) from a British subject, whereupon the British Consul went on board the Ship and withdrew the British Register, the British Flag, and all papers relating to the Ship as British property. The Haytian authorities at St. Marc then went on board of the Ship, and such of the Crew as chose to remain under the nationality she was about to assume were enrolled, and the Haytian flag hoisted. The nationality of the Ship being changed, she received from the revolutionary Government of Hayti her commission as a Ship of War, and was placed under the charge of General Luperon, General-in-Chief of the National Armies of San Domingo, who, in accordance with a convention entered into at the National Palaceof St. Marc, Hayti, dated the 11th of March, 1869, proceeded, with the assent, aid, and protection of the revolutionary Government at Hayti, to establish a provisional Dominican Government in the northern part of the Republic of St. Domingo.

 

On the 7th of June, 1869, the Restauracion entered the Bay of Samana, in San Domingo, and having communicated with the authorities on shore, and not receiving a reply, hostilities commenced; and after four hours of fighting in the Port and Town of Samana, the Town and fortifications, together with the garrison, surrendered to General Luperon, and a provisional Government was established in the Town of Samana, and the establishment of such Government duly communicated to the Agents of the Revolution abroad. An English Brig, an English Schooner, a Dutch Schooner, [*675] and an American Schooner, together with several foreign Merchants, were all aided and protected by General Luperon and the Restauracion while General Luperon was so in command of the same. On leaving Samana the Restauracion proceeded to the port of Azua; while there several of the followers of President Baez took refuge in the British Schooner Pomona. Officers were sent to demand their surrender; but as the Captain of the Pomona, an unarmed Vessel, claimed for them the protection of the British Flag, that Flag was respected, and the Dominicans allowed to remain unmolested in the Pomona. At no time during the period that the Restauracion was engaged in hostilities against the Government of President Baez did she pass out of the waters and legal limits of the Dominican Republic, nor did she commit any acts of hostility against the Government of President Baez beyond the Municipal jurisdiction of San Domingo. On the 6th of July, 1869, the Restauracion, having been dismantled as a Ship of War in the Port of Barahona, and obtained a Sea pass by the authorities of that Port, was sent on her voyage as a Merchant Vessel for the Ports of Tortola and St. Thomas, to be put at the disposal of the Agents of the Revolution at those places, carrying a certificate to that effect under the hand of the General Military Commander, countersigned by General Luperon and the Manager of Finances pro tem.,and also an authority of the same date from General Luperon and the other authorities to M. Domingo Accevedo, the Captain of the Restauracion, then a Merchantman, so as to enable him to transfer, sell, or lease the Ship to Messrs. Costa, Hermanos, & Co., or to such person as they might authorize. The Restauracion arrived at the port of Road Town, Tortola, on the 12th of July, 1869. Shortly after her arrival she was seized and detained under the authority of the Administrator of the Government of Tortola, but was shortly after restored to the Captain by the authorities of the Island. After her restoration the Captain, being largely indebted to the Crew, and the Ship being further liable for necessaries, stores, and supplies, and the Captain unable to pay such liabilities, he, with the authority of the Firm of Costa, Hermanos, & Co., of the Island of St. Thomas, placed the Vessel in the hands of oneShirley, a licensed Auctioneer in the Colony of Tortola, to dispose of the same at public sale. Proper notification of the sale was made [*676] and circulated by him in the respective Islands of St. Thomas and Tortola. On the 21st of July, 1869, the Restauracion was put up to public sale, when the Respondent, being the highest bidder, became the Purchaser for the sum of $10,025; and upon payment of the purchase-money a Bill of sale of the same was executed by the Auctioneer and Captain of the Ship, by virtue of which the Respondent was put in possession thereof. After the Respondent had been declared Purchaser of the Steamship, he paid to Shirley the sum of $501.25c., to be by him paid into the hands of the Treasurer and Comptroller of Customs of the Island of Tortola, being the percentage on the purchase-money of such Steamship, under the provisions of an Ordinance of the Island of Tortola in such case made and provided; and that sum was paid by Shirley, as such licensed Auctioneer, to the Treasurer and Comptroller of Customs of the Island. Some time after such purchase of the Ship by the Respondent she was seized in the port of Road Town, Tortola, by the Treasurer and Comptroller of Customs on a charge of piracy. It appeared that after the purchase at public sale, and previous to the arrest, steps were about to be taken to compel the Comptroller of Customs, by Mandamus, to grant a British Register to the Steamship; but as Farrington, the Comptroller of Customs, was at that time Acting Chief Justice of the Island of Tortola, the Counsel of the Respondent, retained to appear at the Bar of the Court of the Acting Chief Justice failed to obtain a meeting of the Court, the Chief Justice alleging, that he was a party interested, and could not, therefore, preside. The Counsel then waited on the Officer administering the Government, who expressed himself satisfied with the papers produced, but stated he was bound by the public notice which he had given, in obedience to the instructions of the Governor-in-Chief, to the effect that only Vessels built in the Virgin Islands should for the future be permitted to obtain a Register in the Island of Tortola. On the return to Antigua of the Counsel for the Appellant, a promise was given by the Governor-in-Chief of the Leeward Islands that a properly qualified legal Gentleman should be sent down to Tortolato preside as Chief Justice. This promise was not fulfilled for several months, and on the 11th of November, 1869, arrangements were entered into with His Excellency the Governor-in-Chief, by [*677] the Counsel of the Respondent, that the Ship, which had, after the departure of the Counsel from the Island of Tortola, been arrested on a charge of piracy, should be surrendered to the Respondent on his giving Bonds for £5,000 sterling, conditioned that the Ship should not, for the space of two years, be engaged in any illicit trade or occupation, and that no proceedings should be taken by the Respondent against any person or public Officer concerned in the detention of the Ship, or concerned in refusing to grant her a Register. On the part of the Crown it was stipulated that the Attorney-General of St. Kitts should prepare the Bonds and forward them to the Officer administering the Government at Tortola, to whom instructions were to be sent to release the Steamship, and to grant her a British Register as soon as such Bonds were duly executed by the Respondent. The Counsel for the Respondent proceeded to St. Thomas, en route for the Island of Tortola; but on arriving at the former Island he was informed that the Attorney-General of St. Kitts had failed to forward the Bonds to the Officer administering the Government at Tortola, and that the arrangement was therefore at an end. On the return of Counsel to Antigua, the Governor-in-Chief, through the Colonial Secretary, expressed regret that the Attorney-General of St. Kitts had failed to forward the Bonds to Tortola, and, notwithstanding the alleged strong reasons given by that Officer for not doing so, renewed the offer His Excellency had previously made; but the counsel stated that the Respondent would readily sign the Bonds, but he was instructed to decline to receive the Register if any other condition was annexed to its acceptance, as the course pursued by the Government and its Officers had already inflicted a serious loss on the Respondent. The Ship was held by the Government of Tortola without any Warrant issuing from any Court of the Colony of Tortola until the 20th of January in the succeeding year, when a Warrant was issued from the Vice-Admiralty Court of the Island.

 

The affidavit which led to the Warrant of arrest was made by Philip Williams, one of the former Crew of the Telegrafo. It stated that, on the 3rd of May, 1869, he shipped on board her at St. Marc, a Haytian Port; that she then had a British Flag [*678] flying; that at Magna a British Schooner supplied the Telegrafowith Cannon, Powder, and Shot; that after visiting St. Marc the Telegrafo went to Puerto Plata, whence a Pilot and a number of men came on board, some of whom were detained, one being sent back with a Letter; that the next day the Telegrafo fired upon the Town, and again the following day; that thence, hoisting the Colombian Flag, she went to Samana, whence two Boats with men came off, who were detained; that the Telegrafo there landed armed men and fired upon the Town; a Boat with a white Flag came alongside, and the Telegrafo entered the Port and lay there for eight days; that during that time she took possession of a Dominican Sloop, armed her, and sent her on the coast; also took by force men from Samana and compelled them to work on board; that an American Schooner was made to bear to, by a Shot, and armed men were sent on board her, who afterwards returned, and the Schooner was allowed to proceed, after an interview with the Captain and General Luperon, who was on board the Telegrafoduring the whole of her alleged piratical acts; that the Telegrafofired upon two Dominican Schooners of War, and took possession of a Dominican Sloop laden with Wood, and also stopped, by firing at them, an English Sloop and a Spanish Schooner; that the Telegrafotouched at Agna and fired on a number of People on shore, killing one of them, and carried off a Dominican Sloop and Schooner to Barahona, a Port in the Island; that about eight days after, the Telegrafo returned with an English Schooner, to which were transferred the arms and ammunition from on board the Telegrafo, the latter Vessel thus disarmed going to Tortola.

 

On the 26th of January, 1870, the Respondent entered an appearance under Protest, and the following claim in the Registry of the Court of Vice-Admiralty:–

 

“The claim of Augustus McCleverty, a British subject, a native of and resident in the Island of Tortola, by occupation a Planter and Merchant, the sole Owner and Proprietor of the Steamship called the Restauracion, or Telegrafo, her tackle, apparel, furniture, and cargo, at the time of the seizure of the said Steamship by Order and Warrant of the Vice-Admiralty Court of this Island, in the Harbour of Road Town, Tortola, in the Virgin Islands, for the [*679] said Steamship, her tackle, apparel, furniture, and cargo, and for all costs, charges, damages, demurrage, and expenses as have arisen, or shall or may arise, by reason of the seizure and detention of the said Steamship.”

 

On the 3rd of February, 1870, the Respondent filed his Act on Protest and affidavit in support thereof, and prayed leave to refer to certain affidavits, exhibits, and other proofs brought into and left in the Registry of the Court of Vice-Admiralty, wherefore he prayed the Judge to admit the validity of his Protest, and to be dismissed from all further observance of justice, and to condemn the Seizor in costs. In the answer to the Act on Protest it was averred that the matters and things charged against the Ship Telegrafo, or Restauracion, were true and notorious, whereupon the Respondent in his rejoinder, inter alia, alleged that the acts, matters, and things charged against the Ship were not true and notorious, and in verification of what he so alleged he (the Claimant) prayed leave to refer to certain exemplifications of proceedings in conformity with the Protocol of the special Courts of St. Thomas, held on the 1st and 4th of February, 1870, before His Honour P. M. Andersen, Chief Judge of the Danish Island of St. Thomas, concerning the matters and things in the cause. Objection being taken by the Queen’s Advocate to this passage, the Court directed it to be struck out, but allowed the passage in the answer to remain, namely, that the matters and things charged against the Ship were true and notorious, to remain.

 

The cause was argued on the Act on Protest, Answer, and Rejoinder, on several days; and on the 27th of April, 1870, the Judge of the Vice-Admiralty Court (The Hon. J. R. Semper), by his judgment, confirmed the Protest, and decided that he had no jurisdiction. The learned Judge was of opinion, that Piracy jure gentiumcould only be committed where all Nations have a common right, and no Nation an exclusive jurisdiction upon the High Seas; that when piracy was so committed it mattered not where or by whom it was done so long as it is within the general jurisdiction. That a Pirate could be, by the Law of Nations, tried and punished in any Country where he might be found; but that piracy by Municipal Statute, or any other offence against the Municipal Laws of a State, could only be tried by that State within whose territorial jurisdiction, [*680] or on board of whose Vessel, the offence so created was committed; citing an opinion of Sir James Marriott, in Forsyth’s Cases and Opinions on Constitutional Law, p. 217; In re Terman (1); Wheaton’s International Law, § 32 [Ed. 1866, by Dana]; Kent’s Comms. vol. i., pp. 186, 196; Lindo v. Rodney (2); and that the alleged piratical acts, having been committed by a Foreign Ship within the Municipal and Maritime jurisdiction of San Domingo, were not justiciable by the Vice-Admiralty Court; citing Wynne’s Life of Sir Leoline Jenkins,vol. i. p. 94; Co. 4th Inst. 134; Statute, 28 Hen. 8, c. 15; Browne’s Civ. & Ad. Law, vol. ii., p. 27; The Maria Françoise (3); Opinion of Sir Richard Lloyd, Forsyth’s Cases and Opinions on Constitutional Law, p. 111. The learned Judge was also of opinion, though it was unnecessary expressly to decide the point, that the evidence negatived the existence of any piraticus animus, and considered that the acts were not piratical but belligerent; and held that the question of piracy should first be tried either in the Court of the Country where the property is seized, or some other Court recognised by the Law of Nations as competent to try the question of piracy, and that not till then did the right of the Crown to the property of Pirates attach: and pronounced for the Protest, dismissing the Respondent, and decreed restitution, but without costs.

 

From this decision the Queen’s Advocate in open Court protested an appeal to the Judicial Committee of the Privy Council, and the Court, on his application, dispensed with the customary Bond, Her Majesty being the Appellant.

 

The Respondent afterwards adhered to the appeal, on the ground that no costs or damages were awarded him.

 

The appeal now came on for hearing.

 

The Attorney-General (Sir R. P. Collier, Q.C.), The Queen’s Advocate (Sir Travers Twiss, Q.C.), and Mr. T. D. Archibald, for the Crown:–

 

Upon the facts disclosed in the affidavit to lead the Warrant of arrest, we maintain, that the Vice-Admiralty Court had jurisdiction to entertain the suit. It cannot be denied that this Ship was a piratical Vessel. The Revolutionary Government of Hayticould be considered as a belligerent Power. Firing on the People

 

(1) 33 L. J. (M.C.) (N.S.) 201.

 

(2) 2 Doug. 613, n.

 

(3) 6 Rob. 283. [*681]

 

at Samana, as deposed to by Williams, was clearly a piratical act. The questions involved are, first, whether the Vice-Admiralty Court of the Virgin Islands had jurisdiction; and, secondly, whether the Telegrafo, or Restauracion, had committed acts of piracy which would justify tee seizure of this Ship. The acts alleged in the affidavit of Williams, who was one of the late Crew on board the Telegrafo, or Restauracion, and whose affidavit lcd to the arrest of the Ship, were clearly piratical, and justified the proceedings in the Vice-Admiralty Court. The Vice-Admiralty Court had jurisdiction, as the Common Law and the Admiralty territorial jurisdiction are concurrent, extending to the High Water-mark on the coast, even of Foreign Countries, where the High Seas commence, and not to a distance of three miles from the shore, as has been erroneously supposed. 3 Co. Inst. ch. 49, as to piracy, p. 113; Bla. Com. by Hargrave, vol. i., p. 111; Russell on Crimes, vol. i. p. 153 [4th Ed.]; 2 Hale, 17; 2 Hawk. c. 9, s. 14. If an act of piracy has been committed within three miles of the Admiralty jurisdiction, a Vice-Admiralty Court can arrest the Ship. [SIR JAMES W. COLVILE:– That is as regards English Ships and within English Waters. How is it with regard to Foreign Vessels in Foreign Waters?] This is a Foreign Ship, and when the Ship came within the Vice-Admiralty jurisdiction of the Island of Tortola she became liable to seizure. The extent of the Admiralty jurisdiction in cases of piracy, whether on the High Seas or not, cannot be disputed: Forsyth, Cases and Opinions on Con. Law, pp. 93, 111, 217; Phillimore on International Law, p. 418: Bacon’s Abr. tit. “Piracy;” Sir John Friend’s Case (1); The Magellan Pirates (2); Russell on Crimes, p. 153 [4th Ed.]; Lindo v. Rodney (3), reported in note to La Caux v. Eden (4); The Salvador (5); Wynne’s Life of Sir Leoline Jenkins, Vol. i., p. 94. The jurisdiction of the Vice-Admiralty Court is also recognised by American Writers: Wheaton’s International Law, §§ 177, 180, 189; Kent’s Comm. vol. i. p. 196. The question of the sale to the Respondent being bona fide is one we ask, on the part of the Crown, to be tried. We do not take issue on the mere fact of sale. The proposition on the other side will be, that a Privateer by selling in overt market can get rid of the piratical

 

(1) 13 State Trials, 3.

 

(2) 1 Spinks, Ec. & Ad. Rep. 81.

 

(3) 2 Doug. 613, n.

 

(4) Ibid. 618, a.

 

(5) Ante, p. 218. [*682]

 

character of the Vessel. But, on the assumption that the Ship was a piratical Vessel, the rule which applies to goods taken by Pirates is equally applicable to a Ship, and we submit, that no sale by Market overt binds the Crown: Com. Dig. tit. “Market Overt,” (E. 5); 2 Co. Inst. 713; Browne’s Civ. and Ad. Law, Vol. ii. p. 461. A sale of a Ship by auction is a sale in Market overt; therefore, the sale of this Ship, though by auction, does not affect the rights of the Crown: Com. Dig. tit. “Admiralty” (E. 2) [SIR R. PHILLIMORE:– The Crown delayed seizure for six months.] It is not a question of time, but of the right of the Crown. Substantially the question involved in this appeal is, whether the Court will permit us to establish by plea and proof the merits of the case.

 

Sir R. Palmer Q.C., and Mr. H. P. Semper (Attorney-General for St. Kitts), Mr. Shortt, Mr. G. F. Blake, and Mr. G. D. Shee, for the Respondent:–

 

The Judge of the Vice-Admiralty Court rightly came to the conclusion that the Court had no jurisdiction, and we submit, that the Crown has no jurisdiction within three miles of the shore. That was the opinion of Sir James Marriott in the case cited by Mr. Forsyth in his Cases and Opinions on Constitutional Law, p. 217. The argument on behalf of the Crown assumes that our Admiralty jurisdiction extends to the high water-mark all over the world. If that contention is right, a Foreign Ship can be seized and condemned, even after there has been a bonâ fide sale to an innocent Purchaser, and no proceeding either in rem against the Ship or against the alleged Pirates has been taken. Such a position cannot be maintained. As to the jurisdiction with respect to acts committed on the High Seas, there is no proof that the Telegrafo, or Restauracion, was a British Ship. The affidavit of Williamsis no evidence of piracy, neither is the use of the Haytian Flag conclusive of the Ship’s nationality; the acts deposed to are only indicative of an intention to commit warlike acts as a belligerent, and not to be treated as War. The Ship was never taken flagrante delicto on the High Seas, as is contemplated by the form of the affidavit to precede the Warrant of arrest of Ships and goods of Pirates(1). The Statute, 13 & 14 Vict. c. 26,

 

(1) Rules and Regulations of the Vice-Admiralty Courts abroad, 1842; App. 123. [*683] relates only to bounties for destroying Pirates. There is nothing like piracy to be found in these proceedings. The certificate describes this Ship as a Merchant Ship. [The further argument was stopped, their Lordships intimating that they would consider their judgment.]

 

Their Lordship’s judgment was now pronounced by

 

SIR ROBERT PHILLIMORE:–

 

Feb. 20. This is an appeal from a Sentence of the Judge of the Court of Vice-Admiralty in the Virgin Islands.

 

By that Tribunal a Warrant of arrest had been decreed, on the motion of the Advocate for the Crown, in a prosecution against a Steamship called the Telegrafo, or Restauracion, as a Pirate Vessel. Her Owner appealed, under Protest, to the jurisdiction of the Court, and, after hearing an elaborate argument from Counsel which occupied several days, the leaned Judge pronounced for the Protest, and decreed restitution to the Claimant, but gave no damages or costs. From this sentence the Crown has appealed, and the Claimant has adhered to the appeal, so far as the Sentence affected the question of damages and costs.

 

The proceedings in the Court below were confined to what is known in the Admiralty Court as an Act on Petition, in which the Protest was set out. An Answer to that Act was given in on behalf of the Crown, and a Rejoinder on behalf of the Claimant.

 

The averments in these summary pleadings were supported, as is usual, by affidavits from both parties; some of those filed on behalf of the Claimant were set aside by the Court as having been, in the circumstances, improperly filed, and these have been printed in the papers laid before this Tribunal. Their Lordships have, however, been careful to confine their attention to those affidavits and documents which the Court below admitted and referred to. Even these, it must be observed, exceeded, to a certain extent, the technical limits within which, having strict regard to the character of the proceeding, namely, a Protest to the jurisdiction, they would have been kept by a Court more accustomed to exercise jurisdiction of this kind; and it has been contended at this Bar by the Law Officers for the Crown, the Appellant, that the Protest upon the question of jurisdiction, the only question for consideration in [*684] the Court below and here, is not sustained by the evidence, that that Protest should be overruled, and that they ought to be allowed on behalf of the Crown to establish by plea and proof in a formal manner, and according to due course of law, the merits of their case against the Steam-ship.

 

The Protest and the Answer, however, raise various important questions of public and interational law, which appear to have been fully argued in the Court below, and are referred to in the judgment of that Court; some of which have been much insisted upon by the Appellant before this Tribunal, namely, whether the acts of the former Master and Crew of this Vessel were of a piratical or belligerent character, whether, if piratical, they were done within the territorial waters of a Foreign State, and, therefore, justiciable only by that State, or whether, being, done upon the Seas, though within territorial waters, they were not, according to the Law of Nations, justiciable, as piratical, by the Tribunals of every State.

 

It appeared, however; to their Lordships, during the course of the argument that there were facts admitted or proved in this case, as it was conducted by both parties in the Court below, which rendered any decision upon these grave and important matters unnecessary.

 

The Protest among other allegations contained the following:– “Nor had the said Isaac Farrington, the Seizor, in the absence of any adjudication pronouncing the said Steamship to have been engaged in acts of piracy, or to have been the property of Pirates, any authority to seize and detain the said Steamship, which had been purchased at public auction by the said Augustus McCleverty,nor can the said Steamship Restauracion, late Telegrafo, thus illegally seized, be brought within the jurisdiction of, or her alleged acts of piracy be recognisable by, this Honourable Court.”

 

The Answer does not deny the facts of the sale and ownership as here stated, but alleges that the Ship being found in the Port, justified the seizure, and warranted the jurisdiction of the Court.

 

On the 3rd of May, 1869, the Telegrafo was at St. Marc, a Haytian port; at which time it would appear that a civil war existed, or an insurrection had broken out, in the Island of San Domingo. The Telegrafo, afterwards equipped as an armed Vessel, [*685] did various acts of hostility, alleged on the one side to be piratical, and on the other to be belligerent, upon various parts of the coast of San Domingo. She was then owned and commanded by one Domingo Accevedo. On the 8th of June she was commissioned by the Revolutionary Government of San Domingo, having on board her Gregorio Luperon, General-in-chief of the Republican forces; on the 6th of July she landed Troops at Barahona on the Island, and about the 12th of July she came into the port of Road Town,Tortola; on the 21st of July she was sold by public auction for $10,025, in a formal and regular manner, by her Owner to her present possessor MeCleverty, and she paid to the British Government certain dues upon the auction according to the law of the place; and it was not till the 19th of January, 1870, that she was arrested by a Warrant from the Court of Vice-Admiralty, as a piratical Vessel; she was at that time, and had been since the month of July, in the possession of a British Owner, not connected in any way with her previous action, whether piratical or belligerent, on the coast of San Domingo; not an Agent acting, collusively for her former Owner, for no such suggestion is made in the affidavit which led to the warrant, or in the subsequent affidavits filed by the Court, but a bonâ fide Purchaser at a public sale for value. This being the state of facts, apparent on the face of the proceedings, and taken into the consideration of the Court, their Lordships were anxious to know on what authority, principle, or precedent this Vessel could be arrested as belonging to a Pirate.

 

No precedent has been cited to their Lordships, but it has been strongly contended that the principles of law applicable to the eases of piracy warrant the arrest. Many authorities were cited for the purpose of establishing, the position that the goods of Pirates cannot be transferred by the Pirates to a third party. That goods piratically taken cannot be transferred to a third party as against their legitimate Owner is an undoubted proposition of public and of international law, but the further and different proposition, that the Ship of the Pirate which has not been taken from another person cannot be transferred to an innocent Purchaser for value, is not supported by any of the authorities cited. The goos of Pirates are forfeited to the Crown in its Office of Admiralty, but not until [*686] after conviction, and the Ship of the Pirate, but not until after condemnation; or, as it is correctly stated in Bacon’s Abr., tit. “Piracy,” “the goods of Pirates not taken from others, belong, after attainder, to the Crown or its Grantee: and those of which others have been despoiled will be forfeited in the same manner if the Owners come not within a reasonable time to vindicate their property.”

 

The cases establish this position, that the Court of Admiralty has jurisdiction to entertain a suit, usually though not always instituted in a civil form, for restitution of goods piratically taken on the high Seas. The question of restitution might, in fact, be raised by two modes of civil proceeding – either by what is technically called a “cause of possession,” as in the Segredo, otherwise Eliza Cornish (1), in 1853, and in a recent case, the Mary, otherwise Alexandra, in which the United States of North America were the Claimants; or by a cause of piracy, civil and maritime (“causa spolii civilis et maritima.”) In the case of The Hercules (2), Lord Stowell considers the whole question of the authority of the Court of Admiralty in this matter. And it is necessary to observe, how clearly the important distinction is taken between private Owners seeking a restitution of their goods, and the Crown or Lord High Admiral proceeding pro publicâ vindictâ, for condemnation or conviction.

 

In The Hercules (3), an application was made to the Court on behalf of Spanish subjects, who prayed restitution of certain moneys in possession of the Court, alleged to be the proceeds of goods piratically taken. Lord Stowell, in the course of his judgment, observed: “The objections stated in argument are principally three: first, that there should be a preceding conviction of piracy. That this has not been generally required is sufficiently clear. 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 shew that the party has been attainted of piracy: Prinston and others v. The Admiralty (4); but where a person, so despoiled of his own goods, proceeds merely for restitution, no such preliminary is required. Some of the proceeding

 

(1) 1 Spinks, Ec. & Ad. Rep. 36.

 

(2) 2 Dod. 369.

 

(3) 2 Dod. 373.

 

(4) 3 Bulstr. 147. [*687]

 

here are by articles, which of themselves are of a criminal nature, and, therefore, could not have been preceded by a conviction. Others, as in the case of Radly and Delbow v. Eglesfield and Whital, merely civil, by libel, or without reference to any antecedent conviction, nor has any such antecedent conviction been traced. In the case reported in Bulstrode, p. 327 (Pelaye’s Case), likewise in the 4th Institute, p. 152, where the Spanish Ambassador proceeded for the restitution of Spanish goods taken on the high seas from Spanish subjects (and the Ambassador of that Country appears to have been a frequent party in suits of this nature), and where the adverse party, Pelaye, was a Jew, setting up a commission from Morocco, the Court said he could not be proceeded against criminally, for it was not a robbery (I presume on account of his commission), but that they might deal civilly with him for them in the Admiralty, and that he ought to answer for them there civilly. And, per Curiam, he may answer the suit as to the point of restitution. And 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.”(1)

 

In another part of his judgment Lord Stowell says(2):– “A third objection is, that the act of piracy, being a crime, could not be considered by the Common Law as the proper subject of a civil suit for restitution. And it is certainly a known principle of the Common Law that a civil suit cannot be founded on a Felony, for that would approach to what is termed a compounding of a Felony. The civil demand merges in the Felony. The Common Law rather, perhaps, considers that demand as in the nature of a debt arising upon something like a contract, and ex maleficio non oritur contractus. Whether this principle was imported (though with a more technical meaning) from the Civil Law (where I am not certain it is to be found in terms), or whether this mode of considering the demand as merged, is hot a principle coeval and congenial with the fundamental principles of the Common Law itself, is more than I can presume to say. But I take the rule to be confined to such maleficia as the law technically considered as felonies, or as felonies and something more than felonies, as high treason. To misdemeanors, or other offences differently qualified,

 

(1) 2 Dod. 373.

 

(2) Ibid. 375. [*688]

 

the policy of the law has not applied it. Now, piracy is certainly not considered as a Felony at the Common Law. It is expressly so laid down by Lord Hale (Passim, Pleas of the Crown, Part I., 388; Part II., 18 and 370.) Pardon of all felonies reacheth not piracy. The principle, therefore, does not reach it, at least in its ordinary extent; and, looking to what has taken place in the cases of prohibition alluded to, I am led rather to infer that it could not be extended to a crime belonging to, and defined by, another system of jurisprudence, and where reasons of legal policy and convenience rather appear to oppose its introduction; for though the law may very justly and commodiously apply its own peculiar principles to its subjects in their ordinary transactions, governed immediately by its own rulers, and may, therefore, compel such individuals to give up, pro publicâ vindictâ, and for the protection of the community, their own private claim of indemnification for any wrong they may have suffered, it by no means follows that where the wrong done is contra jus gentium, and the foreign sufferer, standing upon that law, requires a reparation, the Common Law of this country would impose upon him the burthen of sacrificing his private rights, so founded, to the duty of protecting the interest of the Country of the offender, by confining the whole of his remedy to the useless privilege of a criminal prosecution. As far as I am enabled to infer from the cases of attempted prohibition, the Common Law has made no such demand, but has admitted the prosecution of a civil suit for the point of restitution, either exclusively of a criminal prosecution, or in conjunction with it.”

 

To the same effect is the old case Radly and Delbow v. Eglesfield and Whital, reported in 1 Ventris, p. 173, and referred to by Lord Stowell in this judgment.

 

The present case, however, is clearly distinguishable from all these cases; here no private Owner is seeking restitution of his Ship, but the Crown is proceeding pro publicâ vindictâ, without previous condemnation or conviction, against a Vessel neither now piratically owned, nor stated to have been piratically taken from any previous Owner.

 

There is no authority, their Lordships think, to be derived either from principle or from precedent for the position that a Ship duly sold, before any proceedings have been taken on the part of the [*689] Crown against her, by public auction to a bona fide and innocent Purchaser can be afterwards arrested and condemned, on account of former piratical acts, to the Crown. The consequences flowing from an opposite doctrine are very alarming. In this case, six months have elapsed between the sale and the arrest; but, upon the principle contended for, six or any number of years and any number of bonâ fide sales and purchases, would leave the Vessel liable to condemnation on account of her original sin. Their Lordships are of opinion that the taint of piracy does not, in the absence of conviction or condemnation, continue, like a maritime lien, to travel with the Ship through her transfers to various Owners.

 

Assuming, therefore, that this Ship had been piratically navigated previous to her transfer, (a fact which their Lordships are very far from saying appears upon the affidavit which led to the warrant of arrest,) their Lordships have arrived at the conclusion, that the Court ought not to have arrested the Ship, which for many months had been in the undisputed possession of a bonâ fide Purchaser by public auction, on account of piratical acts alleged to have been committed from on board of her before the sale took place. Their Lordships, therefore, will humbly advise Her Majesty that the sentence of the Court below should be affirmed, so far as relates to the dismissal of this suit.

 

Their Lordships will direct that the Respondent have his costs of the appeal to Her Majesty in Council, but not the costs of his own adherence to the appeal, and no costs in the Court below, and no damages.