The Sun.
London, England, 1818-10-14 00:00:00

NOVA SCOTIA.

The SUBSTANCE of a JUDGMENT delivered in the COURT
of VICE-ADNURALTY at HALIFAX, in Nova Scotia,
on the 24th day of August, 1818, in the CASE of the
Schooner NABBY, THOMAS STANDLEY, Master, by
CROF lON UNIACKE, Esq. Judge of that Court.

This vessel was seized by his Majesty's ship
Saracen, Joint Gore, Esq. Commander, and has
been brought into this Court for adjudication.
An allegation has been filed, on behal► of his Ma,-
jesty, containing several charges, and a claim has
been made by Thomas Standley the roaster, a
citizen of the United States of America, on be-
half of himself, Joseph Standley, and ;Initiel
ilildlock, also citizens of the United States; as
the owners of this vessel.
In con,idering the case which is ♦ubmitted to
the Court in this allegation and claim, it will he
found to rest upon two grounds, which have burn
brought forward, and supported with great Icain-
ing and ability on the pais of the prosecution.
First.-11 is contended, that this vessel having
been taker► while engaged in the fishery a the
_ _

coast of Nova Scotia, has violated the teat itorial
tights of (rent Britain, and should therefore be
condemned : and secondly,—that having enured
one of the harbours of this Province without any
justifiable cause, she• has infringed the laws of
trade and navigation, %ehich prohibit foreignets
from trading with the Colonies, and has, there-
fore, incurred the penalties of those laws.
The Court is called upon in this case, during a
period of profound peace, to enter into the con-
sideration of a subject which involves the inte-
rests of a foreign nation, and to apply, in their
utmost sit ietness, those general principles of ab-
stract and universal law, which are appealed to
in questions between contending nations. It
presented to the Court in its most grand and im-
posing aspect, not as a collateral point, growing
Out of private interests, and arising out of con-
siderations of municipal law, but as a direct and
solemn question, in which the high and import-
ant tights of one nation ate to be defined and sup-
ported, and the claims and privileges of another
to be confirmed or annihilated. The violated
rights of Great Britain are'represented as seeking,
in the dignity of insulted greatness, the protec-
tion of its sacred tribunals, and as Clailning
the time of peace, front public justice, that de-
fence which they have ever found in war beneath
the arms of their braee defendcrs. Certain acts
of the citizens of the United States arc held up to
the Court as the infringement of territorial rights,
made under the pretext of pi ivileges become ob-
solete aod now unacknowledged ; and the con-
fiscation of property is demanded as the just and
unavoidable penalty of the offence.
In this view of the subject it becomes one of
the highest importance,•and it will require the
Most serious attention on the part of the Conti,
nei!her to shrink from its dotits from: au appre-
hension of consequences, nor to exert its autho-
rity beyond its proper limits, from the influence
of feelings which the subject may be supposed tt.
excite. As it is the cleat only of the Court to take
cognizance of all questions legally within its juris-
diction, and to administer the law to cooteinting
parties, so it is highly improper in it to entertain
and determine those whicri belong to, other
nals, or which ate not within the settled limits of
its own authority.

The jurisdiction of the Court of Adiuiralty in
foritor times '.%'ai a Stlbjvet CoilliMer.y.
and many very violent and unbecoming conten-
tions have at diffetent periods existed, as to the
nature of the subjects to which its authority ex •
tended. Those discussions, which hare so re-
peatedly laid open the subject to the in vesti-
gatiou of the most able lawyers, have removed
many of the errors which once prevailed, and
little doubt can now he entertained as to the sub-
jects of its ordinary jurisdiction. It will be ue-
cessarv, however, for the satisfactions of those
%rho have urge.: the Court to take cognizance
of this subject, and to proceed to adjudication on
the merits of this case, to suits tier, in the fullest
manner, whether the Court of Vice-Admiralty
has, within its ordinary jurisdiction, any power
to proceed to the adjudicatiou of foreign vessels,
charged with the violation of tetritorial rights.
The Court of Admiralty takes cognizance of
matters arising either within its civil or its prize-
jurisdicton. The Instance Court embraces all
matters of a priva e nature, arising out of mari -
time affairs, but does not extend to subjects which
grow out of a s' ate of war, nor can it StlStat:i
questions in which the political interests of Ils-
tions are involved. Without determining the pre-
else boundaries of the Instance Court,which in many
cases may, even at this day, be difficult to ascertaio,
as respects subjects of a private nantre, it is sutii.
dent in this case to spew, that_ the subject Low sub-
mitted to it does not come ‘vititio its jorisdic! o
By the special provisions of an Act of Parliament
the important interests of trade and nivigation
are placed width' its jurisdiction, and full power
is given to confiscate the property of individuals
found violating any of the positive regulations of
British trade. limier those laws the interests of
foreigners may be involved, and their rrop!.rt
I
condemned, but all such cases are confined to
private interests, and the otreuces, as well .us the
consequent peoallies, are expressly settlud and
defined by those very laws with the violation of
which they may be charged. This vessel has
been seized by one of his Majesty's ships, tinder
an order from the Lords Commissioners of the
Admiralty, for fishing- within the territory of
(heat Britain, and I itti not informed of ailV
uiu-
iticil):al law which gives the Court eognizaoce of
such it subject, or which could justify it in con-
fiscating property so employed. It bus been urged,
that an order ti tun the Lords Commissioners of
the Admiralty having been given to the Com-
man.ter-in•Chief of the North American Squrnl-
ron, to seize Rod detain all vessels found fishing
within the British territory, this Court is bound
to give effect to it by condemning this vessel and
her appurtenances; but, however high the autho-
rity may be, front which such order may have
emanated, and however strictly bound the Com-
mander-in-Chief may be to carry it itoo exe-
cution, this Court must wait until its powers, a 3
.-to uta~tter3 of prize, are called forth to the 1136 u-

I.r.lind":legl manner: Tb.a therse powers are in-
lia cot in its comini”,ion there can be no doubt,
-Rod it may be :proper for me to state an what
MOllliCr they are brought into Nil operation. In
•the'first place, commission, under the great seal
of the United Kingdom, goes directed to the
Lords Commissioners of the Admiralty, autho-
rising the seizure and detention of the vessels of
ally couotry, saving such exceptions as may after-
wards be declared ; aid authorizing the same to
be hronghr to jodgmenrin any of the Courts of Ad-
miral! y within tire don+iniona, which shall he dilly
co:nnossionrat ; and the Lords `Commissioners of
lit Admiralty are thereby atitlimised and enjoin-
ed., to will and require the High Court of Admi-
ralty of England, and also the several Courts of
Admiralty within the dominions, which shall be
duly commissioned to take cognizance of, and
indicially proceed noon, all ships, vessels, and
goods as shall he seized and detained, and to ad-
jiidge and condemu the sante, saving such excep-
tions as may he, at any time, after declared.
consequence of this commission a %vat rant issues,
tinder the ,eai of the office of Admiralty, with a
copy 01 sock conooksioo usually annexed, requir-
ing his iN •Ftv'S vice-AdMintity Coma at Ha-
•litax (co. whatever piace it may be), to take cog-
zatice of, anti judicially to proceed upon, all ship,
and goods, that are or shall he taken within the
limits of said (;hurt, arid to hear and determine the
same, and according to .the course of Admiralty
alai law of natioos to adjudge and cooderun the
same, sating always, such. exceptions as his Ma-
jesty may, at any time, be pleased to declare.
Thus ,the Court of At!tnitalty becomes fully
authorised to take cognizance of, and to proceed
judicially upon, all vessels seized jure Belli, or
under any orders his Majesty's Government may
Isaiie deemed it expedient to issue. But, until the
Court receives authority to act through the regu-
lar and legal channel, it cannot undertake to ad.
minister the law as applicable to prize, and to
settle the coollicting interests of nations. This
Conic caotrot penetra;e into the secrets of the
British Cabinet to ascertain what the political
views of • his Majesty's Government may be on
this subject, but as no regular steps have been
adopted, to give the Court a power to proceed
to adjodication and to condemn these vessels,
it might lie inferted, that it was not the intention
to confiscate them at present, but merely to de-
tain them until further instructions should be
given. It must be well known to those who
administer the British Government, advised as
they are by the most learned civilians of the
age, that the Court of Vice-Admiralty has not
power, in the exercise Of its ordinaty jorisdic-
tioo, to take cognizance of subjects of such a
stature. Uninfluenced, therefore, by any colt-
siderations, arising from the necessity or expedi-
ency of what has been proposed, and paying every
respect to the order which has been produced,
this Court will endeavour to perform its duty with
fittnness, within the proper ',mks prescribed to
its jurisdiction, but will not allow itself to be led,
by any plausible view of the subject, into a
vague, iiregular, and unjustifiable exercise of its
power.
That these opinions are not merely the result
of my own unassisted deliberations, but that they
are supported by the decisioi,s of the most
learned and aide judges, both of the civil and
common law Courts, I shall proceed, in the next
place, to :hew.
The first case I shall notice on this subject is
the Curlew (Stetvait's Report, 31'?), in which Sir
_Alexander Croke, in speakint: of vessels detained
in con;equetice of a declaratiou of war, but be-
fore any commission to coudeinn, uses these words: •
" This then is property which has been seized and
detained, in consequence of a tfeclaratibn of tvar
made by the United States against Great Britain,
hut before any orders have been given by his Ma-
jesty in Council for general reprisals, and before
any commission had been issued to require this
Court to adjudge and condemn such ships, ves-
sels, and goods as shall belong to the United
States." Again, " 'fill the British Government
has declared the subjects of the U.!ited States to
be enemies, by its order for general reprisals, and
by a warrant to condemn their goods, this Court
cannot consider them as enemies' property. Even
an order from the British Government to seize and
detain vessels would out have that effect. That
might be,ouly provisional, and must depend upon
subsequent explanation, having a retro-active
power., Seizures made may be declared to have ,
been only oat the footing of a temporary seques-
tration."

Ilow much stronger was that case than the one
before the Couit. The actual declaration of war,
by the Government of the United States, was
followed immediately by all the violence of war;
the treaty of peace between the two countries was
violated and broken ; the commerce of Great Bri-
tain was assailed and interrupted ; and all those
tights which at( most valuable to a nation were
infringed, in the haw spirit of national hostility
yet, in 'lilt case, the Court could not condemn
the property which 'guts very properly seized by
his Majesty's ships. In this case, it is alledged
that the citizens of the United States have vio-
lated the rights of Great Britain, by entering its
territory and fishing therein, and that, therefore,
the vessels so found should be condemned. Bit
if they had made an actual wrack upun our
shores, it they had captured and destroyed the
property of British snhjects both by sea and land,
this Court would not be authorized to condemn,
until it should he commanded so to do by the So-
vereign, in whom alone such power is reposed by
the Constitution of our country.
The next case I shall produce in support of my
opinion, is that of the fluidal, (3d Rob. Rep.
p. 235). That ship was carried into St. Domin-
go, and proceeded against ik Ihe Court of Aq-
iniralty. The Court there was ,properly consti-
rated as a civil Court of Admiralty, anti., his
je3ty's instructions were addressed to it tii'.'s'l.'rize
Court, but by a mistake no warrant had been is-
nued to give it a prize jurisdiction against France
and Holland, although there had been a prize
warrant against Spain. Sir %V. Scott.—" In this
case there is no imputation of misconduct ; the
captors went to a Court which was sitting at St.
Domingo, apparently with competent authority ;
in that Court he obtained a sentence of condemna-
tion, and distribution has taken place in conse-
quence of it. But that Court having no authority,

r
(host puccedings-ve t•Yri nb isgal eCret
whatsoever." Now at the-time the Court of Ad-
rniralry at St. Domingo was exercising a privz in-
Tisdietion over the ships • and - goods of tv74.7) rite-
ions, it could not extend that power to property
belonging 'to another. nation, although actual
hostilities existed, and the vessels and goods of
that nation were confiscated in outer Courts duly
authorised. The Court of Adm;raltv is , not to
look at the state of things between Great
and another station, and to infer front the exist-
ence of hostilities, or from the orders is‘oed to
the Naval Commanders, that its powers are called
tort's, and are to be exercised to their utmost ex-
tent. It does not sit to deliberate on the politi-
cal relations of states, but to administer the law
wheneter it shall be so required. That the per-
sons who have presided in the Courts of Vice-
Admiralty have often ventured beyond the limits of
their jurisdiction, and assumed the exercise of
powers with which they were not invested, it is
well known ; but this Court trill select higher
examples for its imitation, and will not easily
be led into those gross errors, which often prove
injm ions to the interests of individuals, and al-
ways lessen the respect due to the tribunals of
Jostice.

I shall mention one more case, on this point,
which was determined by that eminent judge
Lord Mansfield, a case in which the is ri!..dietion
of the Court Admiralty
v was, very tally consi-
dered. In the case of Lind() v. Rodney, Lord
MAn•field, speaking of the distinction of the civil
and prize just isdiction of the Admiralty says :
" The Court of Admiralty is called tie Instance
Court ; the other the Prize Court. The [Wanner
of proceeding is totally different. The whole sys-
tem of litigation and jurisprudence in the Prize
Court is peculiar to itself : it is no more like the
Court of Admiralty than it is to any Court in
Westminster Hall."

It is quite unnecessary to go farther into this
subject. Here are the decisions of the most
learned and eminent Judges, and they fully sup-
port the general position which,l must assume,
that the Court nf'Admiralty cannot, in the exer-
cise of its ordinary jurisdiction, entertain any
question which hears the character of prize. The
first ground in this case is clearly of that nature.
It is, that this vessel has been captured by one of
Isis Alv.jesty's ships of war, for the violation of
the rights of Great Britain, anti that such seizure
was made under orders from the Admiralty. The
whole quest ion arises out of a proceeding of a
military, and n►►t of a cirit nature. And ths it is
that mikes the distinction.

But it way be asked, whether the orders thus
Issued to the Naval Commander-in-Chief are to he

emit:red nfigHtory, and whether this determiva-

(ion is to operate to counteract the evident wishes
and intentions of his Majesty's Government• To
this the answer is plain. The Cowl has the power
to take the custody of the vessel, and to preserve
it in the usual manner, until the final determina-
tion. of GovernMent shall be made known, al-

though it cannot proceed to adjudication upon
this question. It can neither condemn nor re-
store. It is trite no positive instructions have
been sent to this Court to detain vessels of this
description, but sufficient has appeared to it, to
authorize the regular exercise of its ordinary cate
in the preservation of tl►e property. That I am
correct in this opinion 1 shall spew by au autho-
rity ditectly to the point. Upon the declaration
of %vat by the United States of America, his Ma-
jesty's ships captured American vcssels and
brought them into the custody of this Court. At
that time no order had been ;nude to seize Arne-
iean Property, nor had any instructions whatever
been sent to the Court of Admiralty in this pto-
vince. Sir Alexander Croke (Case of the Dart,
Stewart's Report, 301), under such circumstances,
said " They may possibly be declared to be ene-
mies in future, but their present situation is ambi-
guous Whilst this uncertainty continues, the
Court cannot reject the claim of the parties or
condemn their property. Neither in this state of
semi-hostilities with the United States would it
think itself justified in restoring goods." In the

, -
present case the Court is bound to take notice of
the orders which have been issued to the Com-
mander-in-Chief, and to give them an operation
to a certain extent. They have been communi-
cated to the Court, and feeling itself influenced
by the high respect it will ever have for the dis-
tinguished Officers to whom his Maj. sty may
confide the command of his fleets, it cannot hesi-
tate to hold the custody of such vessels as may he
brought within its care. In another case Sir
Alexander Croke recognized the orders which had
been issued to detain vessels, and gave them the
effect that I am willing to allow those to have
which have been communicated to me. In the
case of the Zodiac (Stewart's Report, 333), lie
said " If this was merely a claim as for American
property, this Court would certainly not proceed
to adjudicate upon it, because in the hostile or at
least ambiguous state of the two countries, under
his Royal Highness the Prince Regent's Order in
Council to detain, and bring into port all vessels
belonging to the citizens of the United States,
without giving any authority to condemn them,
no property of that description could either be
condemned or restored."

(To be continued.)

DREADFUL ACCIDENT.—On Monday evening,
as the engineer employed on the premises of Mr.
TATE, 01 Bermondsey New-road, was adju,ting
some part of the machinery of a steam-engine
einployed in lie dressing of leather, one of the
fly-wheels caught hold of his arm, and pulled hint
into the midst of the machinery. Before effectual
rissistance could be procured, to disengage Into
from his perilous situation, his body and limb,
were so lacerated, that he died shortly afterwards.
Yesterday morning Elder, a poor old
man, who was employed at Mr. Fletcl.er's wharf,
Wapping, while in the act of standing on a scaf-
folding, by some means his foot slipped, he fell
to the ground, and was killed on the spot. His
body was taken to the Dock Coffee-hc..we for the
Coroner's Inquest.
Thursday night, a soldier of the 88th regiment,
in a state of intoxication, attempting to let him-
self himself down the Castle rock at Edinburgh,
behind the new barracks, by means of a rope fas-
tened to his wrist, it unfortunately gave way,
wite.n he fell down, turd was killed on spot.

POLICE INTELLIGENCE.