the trial of questions of Prize or no Prize, and it exercises this jurisdiction as a Court of Prize under a commission from the Crown; and if that Court make an unsatisfactory determination, the appeal lies to the Crown in Council, for the Crown reserves the ultimate right to decide on such questions by its own authority, and does not commit its determination to any Municipal Court of Justice. In like manner, Booty taken under the colour of military authority, falls under the same rule. If property be taken by an officer under the supposition that it is the property of an enemy, whether of a State or of an individual, which ought to be confiscated, no Municipal Court(n) can judge of the propriety or impropriety of the seizure; it can be judged of only by an authority delegated by the Crown. CXXXI. The English Privy Council gave a solemn decision to this effect, by the mouth of a very distinguished judge, Lord Tenterden, in the year 1830. The cause which called forth this important decision, was an appeal from a judgment of the Supreme Court of Bombay, which their lordships reversed. The substance of the case was as follows:-The members of a provisional government of a recently-conquered province seized the property of a native who had not been allowed to benefit by the articles of the capitulation of a fortress of which he was governor, but who had been permitted to reside under military surveillance in his own house, in the city, in which the seizure was made, and which was made at a distance from the scene of actual hostilities. In the Court of Bombay the representatives of the governor [*194] *had brought a civil action for damages against the seizors, and had succeeded in recovering a certain sum of money awarded as damages. The circumstances which appear to have principally influenced the decision of this court were, first, that at the time of the seizure the city in which it was made had been for some months previously in the undisturbed possession of the provisional government; and secondly, that courts of justice under the authority of that government were sitting in the city for the administration of justice. But in the Appellate Court Lord Tenterden said : "We think the proper character of the transaction was that of hostile seizure, made, if not flagrante, yet, nondum cessante bello, regard being had both to the time, the place, and the person, and consequently that the Municipal Court had no jurisdiction to adjudge upon the subject; but that if anything had been done amiss, recourse could only be had to the government for redress. We shall therefore recommend it to his majesty to reverse the judgment."(o) CXXXII. In the case which has just been mentioned, a distinction was taken by the Court of Bombay between the public and the private property of the Prince (the Peishwa.) The Privy Council in the case of the Advocate-General of Bombay v. Amerchund, declared that distinction to be unfounded. In that case the Advocate-General of Bombay (n) Le Caux v. Eden, Daug. Rep., p. 592. (0) Elphinstone v. Bedreechund, 1 Knapp's Priv. Coun. Rep., pp. 360-1. [*195] filed an information against Amerchund, who was a banker at Poonah, to recover, on behalf of the crown, a large sum of money, which had been deposited with him by the Peishwa previously to the conquest of that city by the British troops. The court below gave a verdict and judgment against the crown. The Advocate-General appealed from that judgment, and the case was argued before the Privy Council on the 28th March, 1829. The ground of defence taken by the respondent's counsel, independently of some technical *objections to the information and general arguments on the evidence, was, that part of the money was the private property (Khasgheet) of the Peishwa, and not belonging to or used by him for public purposes; and that, not having been seized by the Government during the war, it could not be recovered after the termination of it.(p) The Privy Council reversed the judgment of the court at Bombay. In the course of the argument, Lord Tenterden asked: "What is the distinction between the public and private property of an absolute sovereign? You mean by public property, generally speaking, the property of the State; but in the property of an absolute sovereign who may dispose of every thing, at any time, and in any way he pleases, is there any distinction ?" And in delivering the judgment of their lordships, he also observed: "Another point made, which applies itself only to a part of the information, is, that the property was not proved to have been the public property of the Peishwa. Upon that point I have already intimated my opinion, and I have the concurrence of the other Lords of the Council with me in it, that when you are speaking of the property of an absolute sovereign there is no pretence for drawing a distinction, the whole of it belongs to him as sovereign, and he may dispose of it for his public or private purposes in whatever manner he may think proper." (q) In this case it was strongly argued that the Privy Council had no original jurisdiction in the matter, and that they could not exercise jurisdiction as a Court of Appeal from the decisions of the Lords Commissioners of the Treasury, as to grants by the crown of property accruing to it by virtue of its prerogative.(r) [*196] CXXXIII. The tribunal of trustees recommended by the Lords of the Treasury appears to be open to many objections, some of which are well stated by Lord Stowell, in the case of the Buenos Ayres.(s) "It has been usual (he says) of late to introduce a clause in the grant, appointing certain officers of elevated rank, who have themselves been concerned in the capture, to act as trustees for the division of the property which may be captured, and as arbitrators of any disputed claims that may arise; and their decision is considered as binding and final, unless it (p) In support of these propositions, they cited Puffendorff, book viii. c. vi. ss. 22, 23, and the Attorney-General v. Weeden and Shooles, Parker, p. 267. The Solicitor-General and Serjeant Bosanquet for the appellants, cited e contra Bynk., Quæst. Jur. Pub., 1. i. c. iv: "Ecquando res hostium mobiles et præsertim naves fiunt capientium;" and c. vii: "Hostium actiones et credita quæ apud nos inveniuntur an exorto bello recte publicentur." (2) Elphinstone v. Bedreechund, 2 Knapp's Priv. Coun. Rep., p. 329, n. AUGUST, 1857.-12 should be reversed by an order from the king. It is not for me to say how far this is a convenient mode of proceeding; it seems at least liable to suspicions of error, and even perhaps of some partiality. It must be intended that the decisions should be made in conformity to known and fixed principles of law; and these principles of law are contained in the decisions of this court, and the Court of Appeal, with which it is almost impossible that the trustees should be personally and accurately acquainted. In what way these principles of law are to travel to the minds of these gentlemen, unassisted with legal advice, or how they are to steer their way through the difficulties which may occur, it is not easy to say. determinations must, of necessity, sometimes occasion dissatisfaction to the parties interested, to whom no right of Appeal is given. His majesty has indeed preserved the right of control; and may, if he pleases, ex mero motu, or upon petition from any of the individuals interested, take the matter into his consideration, but he is not bound so to do." Their In this case of the Buenos Ayres, the crown made a grant to trustees of the booty; and they drew up a scheme, a petition against which was presented to the king in council: it was received and referred [*197] to a committee, and in consequence of their report, it was referred for adjudication to the High Court of Admiralty. In the cases of Seringapatam(t) and Toulon original jurisdiction appears to have been exercised by the Privy Council, without any reference to the Court of Admiralty.(u) And by a statute passed in 1833, intituled, " An Act for the better Administration of Justice in his majesty's Privy Council," it is enacted,(x) "that it shall be lawful for his majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit, and such committee shall thereupon hear or consider the same, and shall advise his majesty thereon in manner aforesaid." CXXXIV. By a statute passed in 1840, "to Improve the Practice and extend the Jurisdiction of the High Court of Admiralty," it is enacted, (y) "that the said High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning Booty of War, or the distribution thereof, which it shall please her majesty, her heirs and successors, by the advice of her and their Privy Council, to refer to the judgment of the said court; and in all matters so referred the court shall proceed as in case of Prize of War, and the judgment of the court therein shall he binding upon all parties concerned." CXXXV. The mention of Seringapatam naturally leads us to the consideration of the peculiar status of the English East India Company with respect to the distribution of Booty, inasmuch as that extraordinary and anomalous corporation has an army of its own which co-operates with that of the crown. [*198] After the capture of Seringpatam by General (afterwards *Lord) Harris, Lord Mornington,(z) the Governor-General directed the (t) Vide post. (u) The Army of the Deccan, 2 Knapp, p. 152 and n. †. (x) 3 & 4 Will. IV., c. 41, s. 4. (y) 3 & 4 Vict. c. 65, s. 22. (2) Better known as Marquis of Wellesley. Secretary to write to General Harris an exposition of the law and practice of the East India Company upon this subject in the following letter: "To Lieutenant-General Harris, Commander-in-Chief, &c., &c., &c. "Fort St. George, June 2nd, 1799. “SIR, "The Right Honourable the Governor-General in Council having considered your report upon the ordnance, ammunition, military stores, treasure, and jewels, taken in the Fort of Seringapatam, directs me to acquaint you that his Lordship in Council has resolved to order an immediate distribution of the treasure and jewels which have fallen into your hands. At the same time that the Governor-General in Council communicates this resolution to you, his Lordship thinks it expedient to impress upon your attention the principles of the Law of Nations, by which all property conquered from an enemy becomes the property of the State, and by which all idea of positive right in the captors to property in a fort taken by assault is exploded. In conformity to these principles, the king has been pleased to grant to the Company, by letters patent, bearing date January 14th, 1758, the right of all booty and plunder which shall be taken by their troops alone, reserving in express terms his royal prerogative of distribution in such manner and proportions as he shall think fit, in all cases in which the royal forces may have cooperated with those of the Company. "Although the orders of the Court of Directors, prescribing the mode of carrying these letters patent into execution, expressly prohibit their governments in India from disposing of the whole plunder and booty which shall be taken in wars, hostilities, or expeditions, by the Company's forces;' and although his majesty, by the letters *patent themselves, has reserved to himself in express terms his 'pre[*199] rogative royal to distribute the said plunder and booty in such manner and proportion as he shall think fit,' in all cases in which his own troops may have been employed; yet, having no doubt that the gracious bounty of his majesty, and the liberality of the Court of Directors, will be proportioned to the important services of the gallant army under your command, his Lordship has no hesitation in charging himself with the responsibility of anticipating the royal sanction, and the determination of the Court of Directors. In adopting this decision, his Lordship trusts that he will manifest to the army an unequivocal proof of the gratitude which he feels for the continued exertion of their matchless bravery and discipline, by the prompt distribution of a reward, which their decisive success has enabled him to bestow. In their letter of the 8th March, 1758, the Honourable Court of Directors have ordered that, in land operations all cannon, ammunition, and military stores of all kinds, are not to come into the division, but are to belong to the Company.' Upon a further consideration, therefore, of this positive injunction, as well as of the principles of the Law of Nations applied to the right of booty, plunder, and conquest, and to the expenses incurred by the Company for the support of the present war, the Right Honourable the GovernorGeneral in Council directs me to inform you of his Lordship's intention to reserve all ordnance, ammunition and military stores (including grain,) for the ultimate decision of his majesty, on such application as shall be made to him by the Honourable the Court of Directors. "It will accordingly be necessary that a proper board of officers should be selected and appointed for the purpose of valuing, and of taking an exact inventory of, all that part of the captured property which is included under the denomination of ordnance, ammunition, and military stores of all kinds, for transmission to the Honourable Court of Directors. In ordering the distribution of the treasure and jewels, the GovernorGeneral in Council directs you *to be guided by the established [*200] usages, which have been observed in the British service in all cases of a similar nature; and to take upon yourself the decision of all points whatever, referable to this distribution, without further communication to his Lordship in Council. The proportion of prize-money to be allotted to the contingent of his Highness the Nizam, is to be determined by the number of his highness's troops actually employed in the field with the army before Seringapatam at the time of taking that place. "The British subsidiary force, serving with the contingent of his Highness the Nizam, will, of course, be included in the Company's army, and receive its proportion of prize-money according to the distribution made to the rest of the British forces. As it is probable that Meer Allum Bahadur may not be inclined to dispense with the right of his sovereign over that part of the captured property which may be allotted to his Highness the Nizam, the Governor-General in Council directs you to consult him upon this point, and to give orders for the appropriation of the Nizam's share, in such a manner as shall be most agreeable to Meer Allum. "I have the honour to inclose a general order by Government, which the Governor-General in Council directs you to publish to the army, in order that the distribution of the prize-money may be immediately an CXXXVI. WE have next to consider the effect of War (a) Life and Services of General Lord Harris, by the Right Hon. S. R. Lushington, pp. 374-8. Nevertheless, Lord Harris appears to have sustained a most unjust and vexatious law-suit instigated by the East India Company, both in Chancery and before the Privy Council, upon the subject of this booty.-See cc. xxi. and xxvi. of his Life. |