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"well in point of interest as in point of authority. Prize "❝is altogether a creature of the Crown. No man has, or can have any interest, but what he takes as the mere 'gift of the Crown; beyond the extent of that gift he "has nothing. This is the principle of law on the subject, "and founded on the wisest reasons. The right of making "War and Peace is exclusively in the Crown. The "acquisitions of War belong to the Crown, and the "disposal of these acquisitions may be of the utmost "importance for the purposes both of War and Peace. "This is no peculiar doctrine of our Constitution: it is "universally received as a necessary principle of public ""jurisprudence by all writers on the subject," Bello parta "cedunt reipublica" (h). Upon that principle, accord"ingly, and holding that right not to be devested by the proclamation, and Order in Council, and the Prize Act, "Lord Stowell decided, that up to the period of final ad"judication the Crown can restore the Prize, without thinking of consulting or taking the consent of the captor, "who at his peril, and at the expense of his own blood and "treasure, won that Prize from the enemy " (¿).

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CXXXI. The mode by which the Crown usually exercises its jurisdiction over Booty is to refer the claims of those who petition for a share in the distribution of it to the Lords of the Treasury; who generally submit a recommendation to the Crown that a grant may be made of the Booty to trustees, to be appointed by the Crown for the purpose of ascertaining and collecting the Booty, and for preparing a distribution thereof conformably to certain principles which the Lords lay down as fitting to govern the whole case; and this scheme, so prepared by the Trustees, the Lords submit to the Crown for

(h) 5 Rob. Adm. Rep. p. 581.

(i) Alexander v. The Duke of Wellington, 2 Russell & Mylne's Rep. p. 54. This case grew out of the Booty captured by the army of the Deccan in the war carried on by the Marquis of Hastings, GovernorGeneral of India, against the Pindarees and Mahratta Princes, in 1817.

its final approbation and sanction under the Royal sign-manual warrant (k).

Though the Lords usually consider that they have no authority to interfere with the exercise of the discretion of the Trustees, it has sometimes happened that a memorial has been presented by a particular claimant to the Crown in Council, and that the Privy Council, as in the case of the Army of the Deccan, have advised the Crown to allow the Lords of the Treasury to hear counsel upon points arising between the claimants and the Trustees, as to what shall, or shall not be considered legal Booty. But, in the same case, the Privy Council determined that they would 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 (1).

CXXXII. It should also be observed that, according to the English Law, which is in this respect in accordance with the principles of general law and public jurisprudence, no action can be maintained in a Court of Municipal Law against the captor of Booty or Prize (m). If an English naval commander seizes property as belonging to the enemy, which turns out clearly to be British property, he forfeits his Prize in the Court of Admiralty, and that Court awards the return of it to the party from whom it was taken; but the case of Le Caux v. Eden (n) decided the question that no British subject can maintain an action against the captor. The Court of Admiralty is the proper tribunal for the trial of questions or 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

(k) The Army of the Deccan, 2 Knapp's P. C. Rep. p. 106. (1) In the war waged against Russia in 1855 the distribution both of Prize and Booty captured by the allied forces of France and England was the subject of specific convention between these two Powers.

(m) Sir James Scarlett (Att. Gen.), arguendo in Elphinstone v. Bedreechund, 1 Knapp, p. 357. (A.d. 1830).

(n) Douglas's Rep. p. 573.

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 (o) can judge of the propriety or impropriety of the seizure; it can be judged of only by an authority delegated by the Crown.

CXXXIII. The English Privy Council gave a decision to this effect, by the mouth of a 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 at a distance from the scene of actual hostilities.

In the Court of Bombay the representatives of the governor 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:

(9) Le Caux v. Eden, Doug. Rep. p. 592.

"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" (p).

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CXXXIV. 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 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 (q).

(p) Elphinstone v. Bedreechund, 1 Knapp's Priv. Coun. Rep. pp. 360-1.

(q) 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,'

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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 everything, 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 in"formation 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" (r). In this case it wa 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 (s).

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CXXXV. 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 (t). "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 con"cerned in the capture, to act as trustees for the division of

and c. vii., "Hostium actiones et credita quæ apud nos inveniuntur an exorto bello recte publicentur."

(r) Elphinstone v. Bedreechund, 2 Knapp's Priv. Coun. Rep. p. 329. n. (s) Elphinstone v. Bedreechund, 2 Knapp's Priv. Coun. Rep. p. 159. (t) 1 Dodson, Adm. Rep. p. 29.