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![handle is hein.slavery/ssactsengr0403 and id is 1 raw text is: With respect to privateers, the shares of different persons concerned are regulated
by articles of agreement, and when those articles are not literally applicable to the
circumstances of the capture their [218] place must be supplied by the principles of
natural equity and reason. By the 13th article of the agreement in this case, it
is specially provided, that those who are embarked on board prizes taken, and
made prisoners, or shipwrecked, shall share in everything taken by the privateer
in their absence. The article is rather strangely worded, because being in the
conjunctive, it might seem to imply that it would be necessary, that persons should
be BOTH EMBARKED and TAKEN PRISONERS to be entitled to the benefit of it: though,
I presume,.it was not so understood, but that it would be sufficient, that they were
embarked in a service, on which either of such consequences might be apprehended
to ensue. The concluding part of the article is very comprehensive, that they
shall share en tout ce que serafait, the articles being drawn up in French, as the vessel
was a Jersey privateer. If that benefit awaited those who were detached from the
vessel, it is to be inferred, I think, that the persons on board the privateer must
expect to share in any capture or recapture made by these individuals. If not,
there would be an entire want of reciprocity, and a danger of that iniquitous equity,
which has been so much apprehended on the other side.
In answer to all arguments drawn from the personal merit and gallantry displayed,
it is obvious to observe, that these qualities might have been as conspicuous in any
capture made by the privateer. She might have engaged a vessel of superior force,
and have exerted as much address and bravery, and with equal success. The personal
merit of the recaptors, therefore, will not affect the legal consideration of the [219]
question before the Court. It is said, that it will be hard on these individuals to
have the fruits of their enterprise diminished, by dividing them with the privateer,-
but have they not had an equivalent in their right to partake in the intermediate
exertions of the privateer ? They cannot expect to reap the benefit of their agree-
ment, and to be permitted to renounce the disadvantages resulting from it. They
must take both together. It is said, that they might have been captured in that
enterprise, out of the line of their duty, and that then they might have forfeited
the benefit of the agreement.-I will not take upon myself to say, what might have
been the consequences, as to any enterprise wildly undertaken. This is not such
a case. It is admitted that the design was wisely and prudently accomplished;
and there is no Court, in which the recapture of British property out of the hands
of the enemy, could, I conceive, be considered as a violation of duty, in the situation
in which these persons were placed. On these grounds I am of opinion, that the
reward of salvage enures to the benefit of all united in the common cruise, as part
of that undertaking; and that the principle of reciprocal equity applies to one
description of capture, as well as to another. It never could be the meaning of the
articles, that persons embarked on board a prize ship, should share with the privateer
in her captures, and that the privateer should not share with them in any captures
which they might make.
[220] (INSTANCE COURT.)
THE L'EoLE -(Rosseau, Master). Dec. 3, 1805.-Slaves sent as proceeds
of a prize cargo, captured on the coast of Africa, to Barbadoes, for condemna-
tion, as prize there, seized, under the revenue laws, and condemned as forfeited, &c.
This was a case of appeal from the Vice-Admiralty Court of Barbadoes, which
had condemned the cargo of slaves, as imported into Barbadoes contrary to the
provisions of the Acts, 12th Ch. 2d, 7th & 8th W. 3d, and the 26th and 39th of his
present Majesty.(a)
In support of the sentence of the Court below, the King's Advocate and Swabey.-
(a) When the cause came first before the Court, it was observed, that the sentence
of the Court below pronounced the condemnation of the goods as good and lawful
prize.-From which term it appeared doubtful whether the proceedings had been
in the Prize Court, or in the Revenue Court of Admiralty. The Court directed
the matter to be referred back for information. It was now certified by the Judge
of the Vice-Admiralty Court, that the proceedings had been in the Revenue Court;
that there had been a mistake in recording the terms of the sentence as good and
lawful prize, instead of seizure.
908
TH-E L'EOLE
6 C. ROB. 218.](ViewImageLocal?handle=hein.slavery/ssactsengr0403&div=1&collection=&method=preview&ext=.png&size=3)