1784.
and is the fole queftion afterwards, to be, prize or not ? What neceffity is there for determining whether the Betʃey was prize or not? Is it not evident from the cafe of Combs, againft the Hundred of Bradley, in Salkeld's Reports and of Goʃs and another, againft Withers, in Burrow, and many other cafes, that an action will Iye on poʃʃeʃʃion by the plaintiff? and with what peculiar force does the reafon apply in this cafe, for the action being maintained merely on the poffeffion? This Court,, and the Court of Admiralty are competent, not only to direct proceedings, but to afcertain facts, judge of them, and the law upon them, and affefs damages, as juftice may require. As to the notion of miʃtakes excufing, it is a petitio principii. The miʃtake doesnot appear—the crime does. So far from behaving as partners in the capture, with the Argo, the Commanders of the three Brigs, who faw the furrender to her, chafe her off ; fend the Betʃy as prize to themʃelves only, for a port diʃtant from the home of the captors, and in the eye of the wind, though in a part of the fea where fhe was particularly expoʃed to dangers from the enemy, with orders to avoid certain ports, ƒor ƒear oƒ the Argo's ƒalling in with her. In fact, it was not a real but a pretended capture, as prize, by them. Are we then bound, in ʃuch a caʃe, to call it a cauʃe oƒ prize becaufe the original taking was a capture, as prize ? Or are we to refufe to call it a treʃpaʃs though the fecond taking was not a capture, as prize ?
How far foever,, the learned Judges in England have carried the juftification of captures, from the circumftance of their being made as prize, yet they never have carried it as far as this cafe extends. That they have gone a great way is evident. In the cited cafe of Vanderwoodʃt and others, againft Thompʃon, the defendant, is an action of trefpafs, having a letter of Marque; took a veffel that made fome refiftance, and carried her to Newcaʃtle, where fhe was feized by the Cuftom-Houfe Officers ƒor having ʃmuggled goods on board; and fhe was afterwards condemned in the Exchequer. It was contended for the plaintiff, that the capture was unlawful, becaufe the defendant did not belong to the Cuʃtom-Houʃe, and he could not juftify the feizure under the hovering act of 6 Geo. I ch. 11 as King's ʃhips only can seize under ʃuch circumʃtances. It was held, ‘‘ As there was reafon to ʃuppoʃe that the fhip was a pirate, though the Jury ʃhould be ʃatisƒied ʃhe was not really ʃo, yet the action would not lye. ’’ Afterwards, ‘‘ there was a notion for a new trial, which upon confideration, was denied by the Court.’’
If that caufe was cognizable in the Prize Court, and it that Court determines folely by the law of nations and treaties, as is laid down by the Judges, how were other nations interefted in the principle of fuch a decifion ? If it was not congnizable in the Prize Court, how can it be applied to the prefent cafe, in favor of the Refpondent ?
To proceed—If the Courts of Weʃtminiʃter Hall, in an action for fuch a trefpafs as this, ʃhould refufe to take cognizance becaufe the original taking was a capture as prize, or under colour that the
