A vessel (Lord of the Isles) supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law. The ship was subsequently forfeited by a Portuguese prize court. The Queen’s admiral happened to be a British subject, the adventurer Sir Charles Napier (‘not to be trusted except in the hour of danger’), and upon his return home he was sued in the King’s Bench for trespass.
Held: The action was dismissed.
Tindal CJ stated that ‘no one can dispute the right of the Queen of Portugal to appoint in her own dominions the defendant . . as her officer . . to seize a vessel which is afterwards condemned as a prize’
The decree of the prize court was a judgment in rem and conclusive. The CJ continued to reject an argument to the effect that having entered Portuguese service in breach of the Foreign Enlistment Act 1819, Napier was disabled from relying on the authority of the Queen of Portugal or the decision of her prize courts. A breach of the Act could not render the acts of the Portuguese state justiciable: ‘no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize; or can deny, that the relation of lord and servant, de facto, subsists between the queen and the defendant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country … For as we hold that the authority of the Queen of Portugal to be a justification of the seizure ‘as prize’, there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second.’
Judges:
Tindal CJ
Citations:
[1836] EngR 690, (1836) 2 Bing NC 781, (1836) 132 ER 301
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
International, Transport
Updated: 14 June 2022; Ref: scu.315022
