can execute arrests in any cause purely civil upon the sea in the flux and reflux thereof. But that the High Court of Admiralty upon the realm hath only jurisdiction upon the sea, and that the civil authority only extends to arrests on board of vessels above sea-water mark, that is, on board such as lie . . . . . . in the bed of the ooze or sand, being so left dry at land by the water being at low-water mark, so that the said ship may be intended or understood to be infra corpus comitatus. Upon the whole, as far as appears from the aforesaid case, it does not seem to us that any peace officer of municipal jurisdiction only could legally execute an arrest on board the ship in question, or of any ship (whether his Majesty's or not), under the same circumstances, riding upon the sea. With regard to the expediency or impropriety of permitting his Majesty's ships, or any other ships, to be asylums against actions of debt, or any other prosecutions, it is a matter which relates to the manning his Majesty's ships and the rules and regulations of the navy; and it is submitted to superior wisdom whether it may be fit by any new law to make alterations therein. The Right Hon. the Earl of Rochford, &c. &c. &c. - December 1770. JAMES MARRIOTT. (2.) OPINION of the King's Advocate, SIR JAMES MARRIOTT, on the right of property in a Vessel derelict on the Ocean (1). 1772. To the Lords Commissioners of His Majesty's Treasury. MY LORDS,-In obedience to your Lordships' commands, I have taken into my consideration a letter of Charles Lutwidge, Esq., together with the affidavits enclosed of Thomas Nunns, Robert Cornate, Castill Corus, and James Howard, belonging to the snow Henry, of Liverpool, Thomas Saratt, master, in regard to a ship found by them and others floating on the high seas about twentythree leagues to the south-west of the rock called Tuscar, and by them brought to anchor in the Bay of Peel, in the Isle of Man, (1) From the saine M. S. where she afterwards parted from her cables and was lost, but the greatest part of the cargo was saved :—whether the ship and cargo are to be considered as derelict, and as such the property of the finders, under the reservation of the claim of the original owners, if any shall appear?—or, whether the same are flotsam taken upon the high seas, and as such the property of his Majesty, under the right of salvage, by the finders, according to the law and custom of the Isle of Man ? I have the honour to observe to your Lordships, that this case is not to be considered as at all affected by the place where the cargo was saved, but by the place where the vessel was first found; for to whomsoever the cargo and vessel belonged at the time of finding, to that person the cargo saved must belong, subject to salvage as usual, according to circumstances attending the degree of risk and labour in saving; so that, if the ship and cargo belonged, at the time and place when and where first found, to his Majesty or to the finders, to the same will belong, being once vested, the cargo which was saved after the ship was anchored in any harbour wheresoever and afterwards cast away. For the greater clearness and precision, the two questions may be reduced into one,-In whom, whether in the King or the finders, did the property vest when first found? The principal facts which seem to deserve attention are the distance of the vessel from the shore (twenty-three leagues), and that the vessel was not in a wrecked condition at the instant of time when found. These circumstances occasion a nicety in the question in point of law. On the authority of the cases in Lord Coke, Sir Henry Constable's Case, pt. 5, fol. 107, 5 Co. 106 a-5 Co. 106 b.; and of Bracton on the Laws and Customs of England, lib. iii., c. 2, fol. 138, de Corona; and of Molloy, de Jure Maritimo, b. 2, c. 5, flotsam is when the ship is sunk, or otherwise perished, and the goods float upon the sea-viz., at the time of finding. Now it is there said that the King shall have flotsam and jetsam, what is flung out to lighten the ship, and lagan, what is sunk in shoal-water when the ship perisheth, but when the ship perishes not, e contra. The authority of Bracton as to the common law of the realm i doubtless very great, who, according to Selden, was a Judge of the Common Bench or Pleas in the reign of Henry III., and wrote a book, De Legibus et Consuetudinibus Angliæ. He lived in the time Magna Charta was made, according to my Lord Coke (4 Instit. 72), and was a strong favourer of the liberty of the subject, as is said by Justice Crawley in Hampden's trial. In lib. iii., fol. 128, tit. de Corona, he makes it to be an essential quality of wreck in right of the King or his grantee, "Si navis frangatur," that the ship should be broke to pieces unless any proprietor can be made out; so that if there is a dog alive, and a person can prove property in the dog, he shall be presumed to be the owner of the ship, and cargo too, so as to oust the Crown. However, the statute 3 Edw. 1, which was made after Bracton's time, gives no further effect to the circumstance of man, dog, or cat escaping alive out of a ship than that it shall suspend judgment of wreck for a year and a day, for persons having interest to prove their property for restitution, otherwise the goods to be seized for the King's use. But that part of Bracton which is most applicable to the present question is, the distinction which he makes of distance from the shore. If, says he, the ship or goods are found at a great distance from the shore, so that it is perfectly uncertain upon what coast they might be cast, then whatever is found shall be the property of the finder-on this ground, because it cannot be said to be the property of any man, and which, therefore, by law is given to the taker, because no man hath privilege therein; and the King hath not any more than a private person: and the reason hereof is the uncertainty of the event where the goods may stranded. I believe this is a tolerably exact translation of Bracton's Latin. be Now this, with submission to such great authority, I take not to be law, because it is founded upon a false reason, if true reason only makes law and false reason cannot alter it; for the property of the ship does not depend upon the uncertainty upon what shore and into what dominion the ship or cargo may be carried, but it depends upon the certainty of what dominion it is found in, and by whose subjects, for the dominion of the King is over all the narrow seas, as we assert even with respect to foreigners passing through them: and, à fortiori, it follows the person of the subject there and everywhere else, so that over the whole globe the jurisdiction of the Admiralty, which is the jurisdiction of the Crown, extends to every British subject both as to matters civil as well as criminal-for what can be so high a degree of property as a man's life, for which he is tried for offences committed on the high seas? Therefore, I conceive that the same analogy of the law of the realm that holdeth for treasure-trove upon land, holdeth for ships and goods found upon the high seas. The law in both cases, as I conceive it, goes upon the feudal principle of vassalage—all property being an emanation of the supreme power paramount, which is the complex of all association and government centred in the person of the great public representative. And, therefore, the rule is just "quicquid acquiritur servo acquiritur domino," unless the former holds it by privilege of especial grant expressed by written deed, or tacit which is the common usage. For all these reasons I am induced to be of opinion that the ship and cargo in question, being found within the narrow seas, and within the dominions of the Crown of Great Britain, are a public acquisition by British subjects to the use of the Crown, and the same are to be deemed to be, according to the course and style of the High Court of Admiralty, a droit of Admiralty, but that the finders thereof are entitled to the usual salvage, in the discretion of the Court, according to the circumstances of the case. I have further to observe to your Lordships, that although things so found are styled droits of Admiralty, yet the same are not necessarily inherent in the Lord High Admiral, nor in the Commissioners of the Admiralty, to whom, by the statute and commission in consequence, the power to execute the office of Lord High Admiral is granted; but that all droits and perquisites of Admiralty, by the terms of his Majesty's present commission, appear to be reserved "to the only use and behoof of his Majesty, although," as it is therein set forth, "they were heretofore granted to the Lord High Admiral by express words." In consequence of all which, I am of opinion that the cargo of the ship in question must be proceeded against in the High Court of Admiralty, according to due course of law, in his Majesty's name, and that all persons having interest therein may appear to show cause why the same should not be condemned as a droit and perquisite of the Crown; otherwise, in pain and in default of appear ance, the sentence of condemnation to pass as usual with salvage to the finders. Doctors' Commons, July 25, 1772. JAMES MARRIOTT. P.S.-Vide Britton, fol. 26. This distinction, grounded upon the authorities of Britton & Bracton, is taken by Lord Coke between treasure found at sea and land: 2 Instit. p. 168. But, says he, if treasure be found in the sea the finder shall have it at this day. Doubtless if foreigners find anything upon the main ocean, being independent of the King, they shall have it; but quære, as to a subject in the narrow seas within the jurisdiction of the Admiralty of England. As to treasure found in the sea, the finder may have it, although a subject, because that is not fortuitous, but gained by the peril and labour of the person in diving or fishing. (3.) JOINT OPINION of the Queen's Advocate, SIR JOHN DODSON, and the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR THOMAS WILDE, on the seizure of a Spanish Vessel which had put into a port of Jamaica in distress with Five Slaves on board. Doctors' Commons, March 2, 1841. MY LORD,-We are honoured with your Lordship's commands, signified in Mr. Vernon Smith's letter of the 27th ultimo, stating that he was directed to transmit to us the copy of a despatch from the Governor of Jamaica, with its several inclosures, reporting the proceedings adopted in the case of a Spanish schooner, named the Industria, which had put into the port of Black River in that island in distress, with five slaves on board. Mr. Vernon Smith further states that the vessel was seized by the local authorities, and subsequently released by order of the Governor; but doubts having arisen whether the vessel was not liable to seizure, the Governor referred the case to the Attorney General of Jamaica, who reported that he should not advise the re-seizure of the Industria, although his opinion seemed to be that she was liable to confiscation. Mr. Vernon Smith is pleased to request that we would report to vour Lordship, whether the vessel was liable to seizure and confis |