Page:Royal Naval Biography Marshall v1p2.djvu/23

Rh On the 5th June, four days after his arrival, he was promoted to the rank of Post-Captain, and soon after appointed to the Carysfort of guns and 197 men, in which ship, on the 29th May, 1794, he fell in with, and after a well fought action of an hour and a quarter, captured the Castor French frigate (formerly British) of  guns and 200 men, 16 of whom were killed, and 9 wounded. The Carysfort had only 1 man slain, and 6 wounded.

Upon the arrival in port of Captain Laforey, the principal officers and commissioners of the navy put in a claim for the prize to be restored to the service, on payment of the customary salvage. To this claim, an opposition was made on the part of the commander, officers, and crew of the Carysfort. The French Captain, in answer to the 4th interrogatory, stated, that he had been appointed to the command of the Castor by the French Admiral, commander of a division of the naval army of the French republic, by whose orders and commission he took possession of her at sea, as of a ship of war in the service of the republic; the said Admiral having been invested with the power and authority to condemn prizes, and to arm, fit out, and equip such ships as he might take, and think calculated for the purpose as ships of war in the service of the French republic, without first sending them to France to pass through any formal process; and that the said frigate, the Castor, had been so armed, equipped, and fitted out accordingly.

The question therefore was, whether, under the circumstances of the case, the recaptors should have the whole of the prize, or only proportional salvage?

Sir James Marriot, judge of the High Court of Admiralty, in a speech of some length, in which he made several observations on the unequal distribution of prize-money in like cases between his Majesty’s ships of war, and privateers, wherein the latter are entitled to a sixth, as salvage for re-captures, while the former have only oneeighth; at the same time instanced, that in former wars, ships belonging to his Majesty, re-taken by his Majesty’s ships, were entitled to only a salvage of one-eighth. But as there is a general sweeping clause in the latter part of the section in the present prize-act, which says, “That if any ship or vessel re-taken,