if insured, was as little affected by the total loss of the ship, as the insurance of the ship itself. The mariner, on the other hand, by the policy of our law, was not permitted to insure his wages, in order that he might be stimulated by the strong incentive of his own interest to make every possible exertion for the preservation of the ship to which he belonged, and to keep with it as long as possible. The mariner, therefore, as compared with the owner, embarked under circumstances of great comparative disadvantage. The owner was certain of his freight at all hazards; for if he did not derive it from the freighters, he could get it under his insurance; and it must be a matter of indifference to him, under which security he took it. But the mariner went to sea on his own single security, and that of the freight. He had nothing else to depend upon, but the freight. Freight, it had been truly said, was the mother of wages; it was the only source of wages. If that was lost, every thing was lost to the mariner; he had no step further to make, in order to escape from the general loss. It had also been the policy, as well as the anxiety of the law, to support the claims of the crews of merchantmen on the general freight of vessels. The time of payment might, from various motives, be postponed; but where voyages were divided into various ports of delivery, that claim was held to attach to such freights in almost every case; and the courts of maritime law had been much in the habit of supporting this title against all attempts to invade it. Such attempts had usually manifested themselves in the shape of renunciations of those rights, which

the law had conferred upon mariners-without there being any compensation made to them for such surrender. It was hardly necessary, his lordship continued, for him to state cases in support of the position-that the Admiralty court did not allow such stipu lations between the owners and the mariners to protect the owners, in certain cases, from the payment of wages. It had been stated by lord chief justice Holt, that this was a point upon which the Admiralty court, and the courts of common law, were divided. He (lord Stowell) could not find the authority for that position, because the doctrine he now laid down appeared to him to have been a doctrine extensively recognized in both courts; and to this effect was the case of "Buck and Collis," in Brown's Parliamentary Reports, case 6, f. 137. In December, 1692, the respondent, owner of the ship called the Royal James and Mary, and Appleby, as captain of the said ship, entered into a charterparty with the East India Company for the James and Mary to make a voyage to the East Indies out and home. It was, amongst other things, agreed, that the company were not to pay any freight, until six days after the ship should have returned to the port of London, and made a good delivery of her cargo; and that if the ship should be lost, the master and mariners were not to expect any other satisfaction, in the way of wages, than what might arise from impress money and demurrage. The ship proceeded on her voyage; and having delivered part of her cargo at Fort St. George, went on to Bengal, but in her passage up the river she was lost. On their return to England, a suit was

commenced by the sailors against the captain, for wages due on the outward-bound voyage. The owners refused to defend him, and he exhibited his bill (both against them and the mariners) in chancery, for injunction and relief; and for payment of certain monies by him advanced during the voyage. This injunction was at first granted, but afterwards dissolved by that great master of law and equity, lord chancellor Somers; his lordship deeming, that he could not stay the sailors from proceeding for their wages, and that if they recovered in the Admiralty, the captain would have his remedy against the owners. Lord Stowell then proceeded, in a very elaborate sentence, to cite a variety of authorities and adjudged cases, in order to show that mariners had a right to their wages, notwithstanding they might have entered into a stipulation of the kind alluded to. Among others, he quoted a dictum of the lord chief justice, sir Nathan Wright, to this effect; and the decision of the House of Lords in the same case of "Buck and Collis;" and he referred to the cases of "Morrison and Hamilton," "Appleby and Roberts," and the sentence of the Court of Session in Scotland in the case of the Glasgow. He observed, also, that the Scotch courts, which, like the court of Admiralty, proceeded on equity, had expressed their strong disapprobation of these stipulations between mariners and owners, and an opinion of their inhumanity and illegality. Finally, lord Stowell decided, that that article of the counter plea, which set forth the stipulation between the owners and the mariners must be rejected, as the court was not disposed to lend its sanction to such

a principle, or to allow that such a stipulation could be sustained.

PREROGATIVE COURT, JUNE 26.

In the Goods of His late Majesty King George III.-Sir John Nicholl gave sentence on the first stage of the proceeding instituted on behalf of the individual describing herself as, and claiming to be, princess of Cumberland.

This, he said, was an application to the court for its process to call upon the king's proctor, to see the last will and testament, or testamentary schedule, of his late, majesty, bearing date the 2nd of June, 1774, propounded and proved in solemn form of law. In order to found the process of the court, the proctor for the party appearing in support of this application, had alleged that his late majesty did execute a certain will, or testamentary paper or writing, under his royal sign manual, in the manner required by law; that such will, or schedule, bore date on the 2nd of June, 1774; that thereby he bequeathed the sum of 15,000%. to his niece, Olive, the daughter of his late majesty's deceased brother, his royal highness, Henry Frederick, duke of Cumberland; but that he did not, of such his said will, appoint any executor, or dispose by it of the residue of his personal estate. Affidavits were brought in proof of the hand-writing, of the royal sign manual, of the signature of the late Mr. Dunning, subscribed to this instrument, and of that of the earl of Warwick, also subscribed to it. There was no affidavit in regard to the signature of the late lord Chatham, by whom also it was signed. But the affidavit of lord Warwick's subscription set forth, that the body

of the instrument was also in that nobleman's hand-writing. The party herself had also made an affidavit, stating the manner in which that instrument came into her possession; that on an evening in the month of May, 1815, the duke of Kent being at the deponent's house, No. 74, Seymour-place, the said earl of Warwick came there, and in presence of the duke of Kent, after requiring and receiving a most solemn pledge, both on the part of his royal highness and the deponent, not to divulge the purport of the communication he was about to make, until after the death of his majesty, king Geo. III., did inform the deponent of her illustrious birth to wit, that she was the natural and lawful daughter of his royal highness the late duke of Cumberland deceased; that the proofs thereof had been deposited with him (lord Warwick) for her benefit, in case she should survive his late majesty, by the late earl of Chatham, and the rev. Dr. Wilmot (both since dead), to preserve safely and to keep secret until the demise of his said majesty; that lord Warwick afterwards informed the deponent that these several papers and documents were then at Warwick-castle; that shortly afterwards the said lord Warwick, on his return from Warwick-castle, delivered a part of these papers into the deponent's hands, the duke of Kent being present; and among others, the paper writing annexed, under the royal sign manual: and then the party recited the paper. The question, therefore, now was, whether this court was required by law to issue its process as prayed.

The party making this application had alleged, that his late ma

jesty did not appoint any executor, or dispose of the residue of his personal property; but that his present majesty had become entitled, in right of his crown, to all the personal estate and personalty of his said late majesty remaining undisposed of. Now the paper itself directed the sum named to be paid by the royal testator's heir and successor. This, therefore, was not a question between the asserted legatee and any subject, either in the character of executor, or of residuary legatee, or of next of kin. No subject was interested in opposing the present paper, but the claim was directly on the reigning sovereign. Consequently, the process prayed, was, in substance, a process against the sovereign; though in form it was described to be " a business of citing the king's proce tor." But it was added, 66 on behalf of our sovereign lord, the king, as the heir and successor of his late majesty." When this application was first mentioned, the court asked the counsel, whether they had any precedent to adduce. The object of the court in this inquiry was, at the earliest stage of the proceeding, to set all possible research in motion; not, however requiring a precedent in all its circumstances precisely similar to the present case; but in order to as certain (if such could be found either in the records of this court, or elsewhere), whether any principle or analogy could be extracted, that should furnish the court with a legal authority to govern the present case. The history of the wills of our sovereigns, from the Saxon times-from the reign of Alfred the Great, for instance down to the present day, had aecordingly been diligently searched

and examined; but no instance had been produced of probate being taken in the ecclesiastical courts of the will of any of these sovereigns, much less of such wills having been contested there against a reigning sovereign. In the rolls of parliament a single instance occurred, having something of a reference to such a jurisdiction; and this was the instance mentioned by lord Coke (in the 4th inst.), and by other text writers before him. But what did this amount to? In the rolls of parliament (1st Henry V.) it was set forth, that Henry IV. made a will, and thereof appointed executors; that such executors, fearing the insufficiency of the assets, declined to act; that under these circumstances the deceased king's effects would be to be disposed of by the archbishop of Canterbury, as ordinary, who should direct them to be sold; but that Henry V, instead of allowing such effects to be sold, took to them, and agreed to pay the appraised value of them. This was all, which he (sir John Nicholl) had been able to collect from the rolls of parliament, as to the case referred to. There, how ever, subjects were executors; subjects alone were interested in the effects so bequeathed; and the sovereign agreed to take the whole of them, paying the value. Except this case, mentioned in the rolls of parliament, and occurring nearly 400 years ago, when the matter could neither have been very much discussed, nor very well considered, the court did not find the slightest trace, or allusion to, and still less exercise of, jurisdiction over the wills of sovereigns. The only royal will deposited in the registry of that court, was the will of Henry VIII, and that was

not an original, but a copy; but it' bore on the face of it no trace of having had probate of it granted to it under this jurisdiction. Since the date of that will, during a period of 300 years, no instance had occurred of the will of any English sovereign having been brought into that court. The statute of the 24th Henry VIII., cap. 12, was evidently passed, only with the view of checking the then frequent appeals to Rome, which appeals it for the future entirely cut off. But its object was certainly in no degree to subject the sovereign to the ordinary jurisdiction of the spiritual courts. During 300 years, then, there was no instance of the will of a sovereign taking probate, or of probate being claimed of such a will, in the archbishop's court. If it was true-as, indeed, it was enacted in the 16th Richard II., by the bishops, lords, and commons in parliament assembled that by the constitutions of this country the kings had at all times a right to make their wills, it was to be presumed that they had, in many instances, exercised their right of testacy; and one case had occurred so late as the time of George I., who executed such a testament. But if no instance was to be found of a probate having ever issued from that court, or of any sovereign's will, since the copy of the will of Henry VIII. having been deposited in the registry of this jurisdiction, pretty decisive proof was furnished, that this court had really no jurisdiction whatever in these subjects. The learned judge proceeded to say, that supposing even that from the reign of Henry VIII to the reign of George IV, all intermediate sovereigns, ex cepting only George I, had died

intestate, still the inference appeared to be the same with regard to the jurisdiction of this court; that of the effects of all other persons dying intestate, the ordinary granted administration, and anciently he might do so to whom he would, but under the 1st Henry VIII, administration was directed to be granted to the widows and next of kin of intestates; that by 22nd and 23rd Henry VIII, cap. 2, called the Statute of Distributions, the administrator became a trustee for the purpose of administering the property, and distributing it, as therein required; but that of a departed sovereign, dying intestate, the successor was exclusively entitled to the personal property. But in order to have legal authority to collect and recover the property, there was no instance of succeeding sovereigns-like ordinary persons coming to this court for letters of administration. It would indeed be contrary to all principles of law, that the authority of the ordinary should be recessary to give his majesty legal powers to act. All this appeared to furnish abundant evidence, that such a jurisdiction, as that which had been attributed to the court, did not, in truth, exist. The tes tamentary courts of the archbi shops of England, in their respective provinces, were described as prerogative courts;" each archbishop having the prerogative of granting probate and administrations, in the case of persons dying seized of bona notabilia within his province, Still these were only inferior and subordinate jurisdictions. The style of these courts had no connexion whatever with the royal prerogatives of the crown; for though, derivatively, they were the king's ecclesiastical

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courts, the sovereign being the fountain of all justice, ecclesiastical and civil, and the king being the supreme head of the church, yet immediately they were only the courts of the ecclesiastical ordinary. The ordinary, and not the crown, appointed their judges: they were subject to the control of the king's courts of chancery and common law, in case they exceeded their jurisdiction. That this court, therefore, should now, for the first time, presume to entertain a suit for so delicate an office as that of deciding on the will of his late majesty, would, under any circumstances, and in any form, require much caution and consideration, before it could be resolved upon. But it was a suit not merely to try the validity of the will of his late majesty, but to grant also the process of this court against the reigning sovereign. It was a demand upon his present majesty, which was to be enforced adversely. That such a process could not issue directly against his majesty, seemed to be admitted by the party; who prayed it, not as against the sovereign himself, but as against the king's proctor. It would of course be quite a novelty in constitutional law to attempt to implead the sovereign personally. No principle of that law seemed to be more directly laid down than this-that no one could proceed directly as against the king. The common law methods of obtaining possession or restitution from the crown of either real or personal property, are-1, by petition of right; 2nd, by monstrans de droit, manifestation of plea or right, both of which may be preferred or prosecuted either in the chancery or exchequer. It was not necessarv in the present case, for the court