distress, &c, 10. If the enemy, being in possession of any ship or cargo, Abandonment shall not have deserted it voluntarily, but shall have been by the enemy. obliged to abandon it by storm or tempest, or on account of any ship or vessel by whom he may have been alarmed, the same rule shall be observed as if the enemy had quitted the same voluntarily, and of his own accord. 11. If the enemy, after a capture, comes to any place where Captured prohe takes a ransom for his prize, if the proprietors wish to have perty ransomtheir vessel or cargo again, he or they, who have ransomed her, are bound to deliver her up to the original owners, on payment of the debt and charges, and some further allowance besides, if they choose to accept it. ed. A gift of cap tured property; when va 12. If an enemy, on capture of a ship or cargo, shall make a gift of it; such a donation or gift shall not be valid on any account; except that if a gift is made of the ship or cargo, to lid. those to whom it belonged, such donation shall be valid. But if the captor bargains with the master in these words, "We are willing to give you your ship for nothing, but must have a ransom for the cargo," such a donation shall not be good; because, in the case of which we are now speaking, the enemy had not carried it to a place of security, so as to say, that he might not lose it; notwithstanding that he might so far have obtained power over his prize, as to be able to burn or sink it; though, in such case, it would be totally lost both to him and to the owner; it is to be understood, therefore, that if the cargo is ransomed, the master to whom his ship has been so given, is bound to contribute to the ransom paid for the cargo according to the value of the ship; and the same rule shall be observed, e contra also, and applied equally to the ransom of ship or cargo. 13. If the captor shall have taken the prize to a place of Gift, or sale of a vessel, in a security; that is, if it shall have been carried out of the seas of place of secu the enemy, where a recapture might be effected; if when the rity. captor shall have it in safe possession, and in his own power, he shall make a donation, or sale of the ship or cargo, such a donation or sale shall be valid, without exception, from any quarter; unless he, to whom the donation was made, should have accepted it with an intention of doing a kindness to the Cases of fraud excepted. Sale in a place of security; proof of sale. ed. owner, and for his benefit; in that case, he may restore it if he pleases; but otherwise, he is not compellable by any person, nor on any account. 14. If, however, he, to whom the property belonged, can show that there has been any fraud in the business, the donation shall not, on any account, avail; but he, to whom it was made, ought to be seized by the lord of the country, and punished in goods, and in person, according to the circumstances of the case; and the ship or cargo shall be restored to the for mer owner. 15. If the ship or cargo shall have been sold by the enemy to any one, the sale shall be valid, provided that he, who has purchased, can show that the sale was made to him by the enemy in a place of security, that is, where the enemy held the goods in question, in suo dominio; and in case any one, who pretends to have acquired the ship or cargo by a just title, cannot prove the asserted sale, it shall not be valid; and if the former owner appears, and can make proof of his property, it shall be restored to him. The evidence of these disputed claims shall be discussed before two reputable persons of the country where the dispute arises, and without fraud; and if any fraud is discovered, the party against whom the fraud is proved, shall be bound to pay to the other party, costs, damages, and interest; and besides, the party consenting to the fraud shall be delivered over to the justice of the country. Property reco16. If the master, or person acting for him, recovers the vered by the master restor- ship or cargo by any means, he is bound to make restitution to the proprietors, according to their several proportions, on payment of the expenses pro rata. Redemption by the master, 17. If the master shall redeem any part of the cargo, or with the con- make any agreement with the consent of the major part of his sent of the proprietors, or the copartners, by which he shall regain the ship or cargo, he major part. Without their consent, may compel them to contribute, by course of justice, because they are as much under an obligation to him, as if they had agreed to take part in building or purchasing a new ship. 18. But if the master makes any agreement, without the consent of his partners, or the major part of them, they are not bound to any thing, unless they like it; nor is the master answerable to them for the rights and interests which they had in the ship at the time of capture; saving for any previous accounts which might be still remaining unsettled, respecting their shares in the ship or cargo at the time it was taken by the enemy. the owner, 19. If the original proprietors are disposed to resume their Resumption by shares, and the master makes any opposition, the justice of the country may compel him to acquiesce; for there can be no ground of reasonable resistance on his part, if they are willing to pay their proportion of the expense; and it would be manifestly unjust that any one should dispossess the rest of their property. refusal. 20. But if the master, or any one for him, redeems his ship or In case of their cargo, after the enemy has gained a just title in it, and those who were part owners refuse to pay, as before specified, the master, or his agent, ought to repeat his demand upon them several times, and call upon them to pay their share; and if they still refuse, it shall be put up to auction, with permission of the government, and be disposed of to the best bidder. after refusal. 21. If the ship or cargo shall be sold for more, after such re- Case of surplus fusal, than the ransom paid, the surplus shall be paid to the owners, according to their shares, if the master chooses it; otherwise, he is not obliged. And the master shall have the privilege of retaining the goods in question at the price that others are willing to give for them. 22. If the sale shall not produce so much as the ransom; if Case of defithe master made the ransom without the consent of his part- ciency. ners, they are not bound for the deficiency, unless they choose it; and therefore it is reasonable that the master, or his agent, should have the privilege of retaining, at the price that any other person would give, as the deficiency would fall upon him; saving, however, that if any of the partners are inclined to resume their shares, they are bound to make good the deficiency to him pro rata. All the reasonings, and cases, and conditions above-mentioned, shall be taken under the supposition that the enemy had carried the prize into a place of secu rity; and that the ransom or sale had been made fairly, and without fraud. POSTSCRIPT. It may not be improper to add, as an observation pointing out the chasm between the regulations of this ancient code, and the prize ordonnances of particular countries, and the provisions made in public treaties, in later times, on the subject of prize; that neither the laws of Oleron, nor the ordonnances of Wisbuy, nor the Guidon, nor the ordonnances of the Hanse Towns, contain any regulations respecting the general Law of Prize; scarcely mentioning the subject, except incidentally, amongst the accidents to which merchant vessels are liable. There are, in the Black Book of the Admiralty, a few, and but a few, articles respecting it. In the ordonnances of Barcelona, of 1340, there are also a few articles, but relating rather to the division of interest between the captors, than to the general subject. EXTRACTS FROM THE CODE DES PRISES. Jurisdiction of the Admiralty, Articles relatifs aux Prises, Extraits de L'Ordonnance de Charles ARTICLE III.-Se aucun de quelque estat qu'il soit, mettoit as to captures sus aucun Nauire à ses propres despens pour porter guerre à of war, and other matters nos ennemis, ce sera par le congé et consentement de nostredit arising at sea. admiral ou son lieutenant, lequel a ou aura au droict de son dit office la cognoissance, iuridiction, correction et punition de tous les faits de ladite mer et des dependances, criminellement et ciuillement, &c. ART. IV. De toutes les prinses qui d'oresnauant se feront miral, or bis sur la mer, par quelques gens que ce soyent, tenant nostre ART. VI. Que d'oresnauant, s'aucune telle prinse se fait, ledit admiral ou son lieutenant s'informera deuement et le plus veritablement que faire se pourra, aux preneurs et à chacun à part de la maniere de la prinse, du pays ou coste où elle aura esté faite; verra et fera veoir les marchandises et les nefs par les gens cognoissans à ce. Et par bonne et meure délibération regardera par la conscience ou contention, les dépositions d'iceux preneurs ainsi faite en secret, ou par la veuë desdites prinses, s'il y a vraye apparence qu'elles fuissent de nos ennemis, auquel cas icelles seront déliurées aux preneurs, en prenant leurs noms pour en auoir recouure sur eux, s'aucune poursuite en estoit faite, auec inuentaire des biens. Et s'il y a mieux et plus éuidente présumption par aucuns des moyens dessusdits, qu'il y eust quelque faute, et que lesdites prinses fussent des contrées de nostre royaume, ou des pays de nos alliez, icelles prinses en ce cas seront par nostredit admiral mises en seure garde, aux despens de la chose, ou desdits preneurs, si le cas le requiert, jusques à temps compétent, dedans lequel sera fait diligence d'en sçauoir la vérité. Et si lesdits preneurs estoient gens soluables, et qu'auec ce ils baillassent bonne et seure caution desdites prinses, icelles deuëment appréciées et inuentoriées, se pourront bailler à iceux preneurs, s'il n'y a trop grande suspection. Proceedings before the ad lieutenant, in matters of prize. partie, ou souz ombre et couleur de nos guerres, leurs prisonniers en seront amenez ou apportez à terre deuers nostre admiral, ou son lieutenant, lequel tantost et incontinent les examinera auant que nulle chose se descende, pour sçauoir le pays dont ils sont, et à qui appartiennent les biens s'aucuns biens y auoit, pour garder iustice, et faire restituer ceux qui sans cause auroyent esté dommagez, si le cas estoit trouué tel. Examination on suspicion of enemy's property. captors to be punished in the Admiralty. ART. VII. Et si aucuns desdicts preneurs en leur voyage Misconduct of en especial auoient commis faute telle qu'ils fussent attaints d'auoir enfrondé aucuns Nauires, ou noyez les corps des prisonniers ou iceux prisonniers descendus à terre en aucune loingtaine coste, pour céler le larrecin et meffaict, voulons que sans quelque délay, faueur ou déport, nostredit admiral en face faire punition et iustice selon le cas. ART. VIII.-Lesdits preneurs empeschans aucuns marchands, Compensation damage Nauire ou marchandise sans cause raisonnable, ou qu'ils ne done, &c. soyent nos aduersaires, nostredit admiral fera deuëment restituer le dommage, et ne permettra plus l'usage qu'ont à ce contre raison tenuë, iceux preneurs, en quoy ils ont faict et donné de grands dommages à aucuns de nos alliez par feinte, on fausse couleur qu'ils mettoyent de non cognoistre s'ils es |