The valuable effects of enemies do not belong to the seizers, but the custody of them to the Judge in whose territory they are found.
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During the Rebellion a French ship came into the river of Montrose, where she run a ground, and was damaged, so as to be unfit for sailing; but the rebels and crew having found means to seize the Hazard sloop of war, what of her furniture and rigging could be removed was carried on board the sloop; which the crew took possession of, and carried off; and their own hulk was left in the harbour, till the rebels were driven from Montrose.
Captain Thomas Dove of the Hound sloop of war seized the hulk, and left a commission with James Bisset to dispose of it.
The Earl of Panmure on a deputation of Admiralty, the bound whereof comprehended Montrose, from the Earl of Findlater, Vice-Admiral of Scotland, pursued James Bisset as intromitter with the ship.
The Judge-Admiral found “That in all cases of wreck, or where ships were stranded on the coast, and deserted by the crew, the Vice-Admiral, and his deputes, had the sole right of keeping, preserving, and intromitting therewith; and found, as the facts were stated by the defender, that the ship libelled was a stranded vessel deserted by her crew, to which neither Captain Dove, nor any other of the commanders of his Majesty's ships of war could claim a right; therefore found that the pursuer had good right to the custody of the said ship, or the price thereof, if sold, preferably to any of the commanders of his Majesty's ships of war, or the defender, subject always to the claims of those who could thereafter make appear they had right to the same.”
A decreet being pronounced in terms of this interlocutor, was craved to be suspended, for that the ship was not wreck, but the property of Frenchmen, the King's enemies; and continued in the possession of the rebels their adherents, till they were driven from Montrose, where it was left by them; that Captain Dove being in the King's service, was entitled to seize ships and other things left by the enemies; and had right to the ship by his Majesty's proclamation; that considering it as in the case of other things left by an army on their retreat, these may be seized by the pursuers, or by any person, though not in the service; and by the custom of war, are allowed to the capturers; neither is the Sheriff entitled to take them into custody, nor in this case the Admiral.
Answered: Captain Dove has no right to, this ship by the King's proclamation: It was lying in the harbour of Montrose in the possession of nobody; so he could not be said to have taken it from the enemy: It was a wreck, being deserted by the crew; but considering it as left by the enemy, it did not belong to the seizer: The spoils of war belong to the King; and though it may be ordinary to allow captors to retain what they can carry away, yet a person, by saying he had seized the enemy's artillery, would not make it his own: The Admiral is entitled to the possession, as it was left in his jurisdiction.
The Lords considered it neither as capture, nor as wreck, but as res hostium and escheat to the King, of which the Admiral had the custody; and therefore refused the bill.
