Page:The English Reports v1 1900.pdf/1058

the said Sir George Brydges and John Vaughan were guilty thereof accordingly; and they assessed the damages of the said John Mitchell and John Gay, by occasion of the premises, over and besides their costs and charges by them about their suit in that behalf expended, to £5689 10s. 4d. and for those costs and charges to 40s.: but if the said court should be of opinion, that the said Sir George Brydges and John Vaughan were not guilty of the premises in the declaration mentioned, or that the said John Mitchell and John Gay ought not to have or maintain their said action against them the said Sir George Brydges and John Vaughan, then the said jurors said, that the said Sir George Brydges and John Vaughan were not guilty thereof.

In Easter term 1782, the Court of King's Bench gave judgment upon this verdict for Sir George Rodney and General Vaughan, the defendants in the action; and their costs were afterwards taxed at the sum of £75.

Upon this judgment the plaintiffs brought their writ of error, returnable in parliament.

And on their behalf it was insisted (Ll. Kenyon, J. Wilson, A. Piggott, G. Wood), that the plaintiff's, as subjects of the Crown of Great Britain, had a clear and undoubted right to seek satisfaction and redress for a wrong committed by the defendants, likewise subjects of the Crown, in the Courts of Common Law; and to have that satisfaction and redress administered to them in those courts, according to the ancient, known, and approved course of the common law of this land. That the objection taken to the plaintiffs recovery in this action was, in its nature, an exception only to the jurisdiction of the court in which the action was brought; and it is not by law permitted to defendants who plead in chief to an action, as the defendants here had done, (and by which act they admitted the jurisdiction and competency of the court, to decide upon the subject matter of such action,) afterwards at the trial, or other subsequent period of the action, to object to the jurisdiction of the court. That though this injury was, in its nature, transitory, and the defendants amenable to the Common Law, whenever found within its reach, yet there was no ground for the pretence [428] of its being committed under a foreign jurisdiction, either at land or at sea; this atrocious and unexampled violation of the rights of property having been committed at land, within an island which had then become part of his Majesty's dominions, by Commanders to whom his Majesty's fleets and armies had been intrusted, for the protection and security, not for the annoyance and plunder of his Majesty's subjects. That it did not appear by the special verdict, that as between these parties, and as to the goods which were the subject of this action, any question of prize actually existed. That the question of prize cannot exist between subject and subject, nor can the property of any subject of the King, under his Majesty's allegiance, taken at land, be considered as lawful prize of war; for the property of the subject cannot be forfeited but for some crime, the conviction of which works a forfeiture; or for the non-observance of some positive regulation, enforced by a specific forfeiture; in neither of which cases has the Court of Admiralty, either as an Admiralty or Prize Court, any pretence to jurisdiction. That the extravagant claims of the Court of Admiralty to a jurisdiction over all wrongs committed beyond the sea, to the exclusion of the Common Law, have been for ages disallowed and reprobated, by the laws of this land. And its jurisdiction as to prize is established by treaties with foreign nations, for the decision of questions between subjects of different states, and not for the decision of questions of property between subjects of the same state; and be sides, by the terms of the warrant by which it is called forth or exercised, is evidently confined to ships taken at sea, and goods in such ships. That the jurisdiction of that court, as settled for much more than a century, has been confined to the high seas; and the Common Law has denied it any participation of jurisdiction over injuries committed on land beyond the seas. That the defendants, were the question a subject of prize, merely by having sold and disposed of the property in question arbitrarily, before they took any steps to bring the same to condemnation by any prize jurisdiction, had forfeited all pretence of a protection from such jurisdiction; and the specific effects being disposed of, the prize jurisdiction could not operate; and as it was not found by the special verdict, that any necessity existed for such an abrupt and arbitrary disposal of the property in question, so neither could it be presumed. That though it should be true, that as to all the spoil taken at St. Eustatia, both on