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![handle is hein.slavery/ssactsengr0432 and id is 1 raw text is: THE DOLORES
the measure of justice ; for it does not contain even the passage expenses, which
must fall upon the owners ; for they cannot discharge their crews in a foreign country
on other terms than sending them home, and paying their wages up to the time of
their actual arrival. I therefore pronounce the tender to be insufficient, and that
the seaman is, under the special circumstances of this case, entitled to wages from
the time of his entry on board this ship until his return to England, together with
his costs.
[413] DOLORES -(Carbonnell). Dec. 10, 1819.-Flag officer entitled to share
of bounty given for seizure of slaves.
This ship, with a number of slaves on board, was captured on the 4th of April
1816, after a short action, by His Majesty's sloop-of-war Ferret, James Stirling,
Esquire, commander, and carried to Sierra Leone ; where the ship itself, and about
250 African slaves, men, women, and children, were condemned on the 13th day of
May following, as English and American property, and as good and lawful forfeiture.
The Ferret was one of the squadron which, under the orders of Rear-Admiral
Sir George Cockburn, conducted Bonaparte to St. Helena, and she remained under
his orders until her return from that island, when the admiral, on 27th of March
1816, gave Captain Stirling an order to proceed to Spithead, and on his arrival to
acquaint the Secretary of the Admiralty therewith, and to transmit to him the
accompanying dispatch.
The Ferret was on her way to Spithead, in pursuance of this order, when she
captured this vessel; but Captain Stirling had no directions from the admiral to
capture such vessels, and the Ferret had passed the limits of the admiral's
station before the capture was effected.
Admiral Cockburn claimed the flag share of the proceeds of the ship and stores,
and also of the [414] bounty money, which was opposed by Captain Stirling.
Judgment-Sir W. Scott : In this case I am called upon to pronounce upon the
disputed claim of the flag share of Sir G. Cockburn, in the estimated value of slaves
taken by the Ferret sloop-of-war, which sailed under his orders to England from
St. Helena, and made the seizure in the course of that voyage. There can be no
doubt that Sir G. Cockburn would be so entitled, if this was prize of war, and not
a seizure ; because the proclamation for distribution of prizes would have given it
under the established construction which it has received. By that construction
the flag officer is entitled to the benefit of a flag share, in all captures made during
the prosecution of a voyage which he had directed, and which, at the time of the
capture, continued without having been superseded by any other authority. It
was not necessary, for the support of his interest, that he should have directed either
this capture or any other ; for in intendment of law he was concluded to be directing
everything that lawfully took place in the prosecution of the voyage he had so
directed. It was not necessary that the capture should have been made within
the limits of any particular station that had been assigned to him ; for his authority
travelled along with the vessel during her whole voyage, unless overruled by some
controlling authority. In prize, therefore, the claim would have been indisputable
under the proclamation (for the authorised construction of the proclamation is the
pro-[415]-clamation itself, whatever be its letter). He must have taken his flag
share. The question now is, whether the same rule applies to seizure ? This subject
may have rules of its own ; for the whole matter in both depends upon the judgment
and will of those who established the rules. They may direct the same rules, or
they may see differences which ought to introduce variations, or indeed total de
partures, from what had been prescribed upon the other subject. Looking at the
subject with a private eye, one hardly discovers in the two subjects any such radical
difference as ought to have led to the establishment of a different rule respecting
them. If one great foundation of the interest so given in prize, is that it may act
as a stimulus to superior officers, to send the ships under their command to places
where they are most likely to make captures, the same stimulus is given by the same
interest assigned to them in a matter of seizure. The rule, if it exists in both cases,
has much outgrown any such consideration ; for it is to be applied where no such
prospect is held out-where the voyage was determined for reasons totally inde-
pendent of any such motives-and where the capture or the seizure was a matter
of the merest and most unexpected casualty. But the rule is founded (so far as it
2 DODS. 413.
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