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these expenses, or postpone his claim to the final adjudication, when, if against the claimant, he may be paid out of the proceeds, otherwise not.”
By the language of this opinion, it is apparent that the learned court regards a proceeding in a prize-court, in adjudication upon a maritime capture, as analogous to an instance-suit in Admiralty, in this, that neither the capture, nor the decree of con. demnation after hearing, upon the proofs, furnish any presumption against the claimant; and further, that the framers of the statute, in providing for the payment of the expenses out of the proceeds of the property “in the event of condemnation,” intended a decree of condemnation, affirmed by the Circuit Court, and again affirmed by the Supreme Court of the United States.
If the intention of the act was such as it was supposed to be prior to this decision, the effect of this authoritative construction was to render it nugatory; and thus the question of the payment of the costs and disbursements incident to adjudications in prize, remained in the like situation as before the statute, and continued to impose serious and increasing embarrassments upon the respective officers charged with the administration of the law.
An attempt was made to provide a remedy for Incongruous this, by further legislation during the same session den
be como socio legislation renof Congress; but it was unfortunately postponed to tive a subse
quent attempt the last day of the session, and then, as is too often to provide a the consequence of such delay, the provisions which remedy. passed into a law were ill considered, and of a character so ambiguous and contradictory, as to be inoperative in accomplishing the purpose designed.
A brief but comprehensive legislative enactment
which should supersede all present statute provisions, and be a full execution of the power conferred upon Congress by the 10th subdivision of the 8th section of the Constitution of the United States, “ to make rules concerning captures on land and water,” is imperatively required at the earliest practicable moment.
LETTER FROM SIR W. SCOTT AND SIR J. NICHOLL TO MR. JAY.
SIR:- I have the honor of sending the paper drawn up by Dr. Nicholl and myself; it is longer and more particular than perhaps you meant; but it appeared to be an error on the better side, rather to be too minute, than to be too reserved in the information we had to give; and it will be in your excellency's power either to apply the whole or such parts as may appear more immediately pertinent to the objects of your inquiry.
I take the liberty of adding, that I shall at all times think myself much honored by any communications from you, either during your stay here, or after your return, on any subject in which you may suppose that my situation can give me the power of being at all useful to the joint interests of both countries. If they should ever turn upon points in which the duties of my official station appear to impose upon me an obligation of reserve, I shall have no hesitation in saying that I feel them to be such. On any other points on which you may wish to have an opinion of mine, you may depend on receiving one that is formed with as much care as I can use, and delivered with all possible frankness and sincerity.
I have the honor to be,
SIR:-We have the honor of transmitting, agreeably to your excellency's request, a statement of the general principles of proceeding in prize causes, in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as a prize within their jurisdiction.
The general principles of proceeding cannot, in our judgment, be stated more correctly or succinctly than we find them laid down in the following extract from a report made to his late majesty in the year 1753, by Sir George Lee, then judge of the prerogative court, Dr. Paul, his majesty's advocate-general, Sir Dudley Rider, his majesty's attorney-general, and Mr. Murray (afterward Lord Mansfield), his majesty's solicitor-general:
“When two powers are at war, they have a right to make prizes of the ships, goods, and effects of each other, upon the high seas. Whatever is the property of the enemy, may be acquired by capture at sea; but the property of a friend cannot be taken provided he observes his neutrality.
"Hence the law of nations has established,
“That contraband goods, going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality.
"By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, a lawful prize.
“Before the ship, or goods, can ho disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard; and condemnation thereupon as prize, in the court of admiralty, judging by the law of nations and treaties.
“ The proper and regular court, for these condemnations, is the court of that state to which the captor belongs.
"The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken, viz.: the papers on board, and the examination on oath of the master, and other principal officers; for which purpose there are officers of admiralty in all the cousiderable seaports of every maritime power at war, to examine the captains, and other principal officers of every ship, brought in as prize, upon general and impartial interrogatories. If there do not appear from thence ground to condemn, as enemy's property or contraband goods going to the eneny, there must be an acquittal, unless from the aforesaid evidence tho property shall appear so doubtful, that it is reasonable to go into further proof thereof.
" A claim of ship, or goods, must be supported by the oath of somebody, at least as to belief.
" The law of nations requires good faith. Therefore every ship must be provided with complete and genuine papers; and the master at least should be privy to the truth of the transaction.
" To enforce these rules, if there be false or colorable papers; if any papers be thrown overboard; if the master and officers examined in preparatorio, grossly prevaricate; if proper ship's papers are not on board; or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehavior, or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant, in case of acquittal and restitution. On the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages. For which purpose all privateers are obliged to give security for their good behavior; and this is referred to, and expressly stipulated by many treaties.
* Though from the ship's papers, and the preparatory examinations, the property does not sufficiently appear to be neutral, the claimant is often indulged with time to send over affi. davits to supply that defect; if he will not show the property by sufficient affidavits to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captor is justitied in bringing her in, and excused paying costs, because he is not in fault; or, according to the circumstances of the case, may be justly entitled to receive his costs.
"If the sentence of the court of admiralty is thought to be erroneous, there is in every maritime country a superior court of review, consisting of the most considerable persons, to which the parties who think themselves aggrieved may appeal; and this superior court judges by the same rule which governs the court of admiralty, viz., the law of nations, and the treaties subsisting with that neutral power, whose subject is a party before them.
"If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive.
“This manner of trial and adjudication is supported, alluded to, and enforced, by many treaties.
" In this method, all captures at sca were tried, during the last war, by Great Britain, France, and Spain, and submitted to by the neutral powers. In this method, by courts of admiralty acting according to the law of nations, and particular treaties, all captures at sea have immemorially been judged of in every country of Europe. Any other method of trial would be manifestly unjust, absurd, and impracticable."
Such are the principles which govern the proceedings of the prize courts.
The following are the measures which ought to be taken by the captor, and by the neutral claimant upon a ship and cargo being brought in as prize:
The captor immediately upon bringing his prize into port, sends up or delivers upon oath to the registry of the court of admiralty all papers found on board the captured ship. In the course of a few days, the examinations in preparatory of the captain and some of the crew, of the captured ship, are taken upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought, and which are also forwarted to the registry of the admiralty as soon as taken. A monition is extracted by the captor from the registry, and served upon the royal exchange, notifying the capture, and calling upon all persons interested to appear and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry with a certificate of its service, and if any claim has been given, the cance is then realis l'or Luar ing, upon the evidence arising out of the ship's papers, and preparatory examinations.
The measures taken on the part of the neutral master or proprietor of the aargo, are as follows:
Upon being brought into port, the master usually makes a protest, which he forwards to London, as instructions (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship, and such parts of the cargo as belong to his owners, or with which he was particularly intrusted. Or the master himself, as soon as he has undergone his examination, goes to Lon. don to take the necessary steps.
The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by an affidavit of the claimant, stating briefly, to whom as he helietes, the ship and goods claimed, belong, and that no enemy has any right or interest in them. Security must be given to the amount of sixty pounds to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein.
If the captor has neglected in the mean time to take the usual steps (but which seldom happens, as he is strictly enjoined both by his instructions and by the prize act to proceed innmediately to adjudication), a process issues against him on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual way.
As soon as the claim is given, copies of the ship's papers and examinations are procured from the registry, and upon return of the monition the cause may be heard. It however seldom happens (owing to the great pressure of business, especially at the commencement of a war) that causes can possibly be prepared for hearing immediately upon the expiration of the time for the return of the monition. In that case, each cause must necessarily take its regular turn: correspondent measures must be taken by the neutral master, if carried within the jurisdiction of a vice-admiralty court, by giving a claim supported by his affidavit, and offering security for costs, if the claim should be pronounced grossly fraudulent.
If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the court where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence) and he afterward applies at the registry of the lords of appeal in prize causes (which is held at the same plice as the regis. try of the high court of admiralty) for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the high court of admiralty, and within nine months, if in a vice-admiralty court, but may be taken out at later periods, if a reasonable cause can be assigned for the delay that has intervened. This instrument directs the judge whose sentence is appealed from, to proceed no further in the cause; it directs the registrar to transmit a copy of all the proceedings of the inferior court; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for this inhibition, security is given on the part of the appellant, to the amount of two hundred pounds, to answer costs, in case it should appear to the court of appeals, that the appeal is merely vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party and his proctor, by showing the instrument under seal, and delivering a note or copy of the contents. If the party cannot be found, and the proctor will not accept the service, the instrument is to be served "virs et modis," that is, by afixing it to the door of the last place of residence, or by hanging it upon the pillars of the royal exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed upon the back of the instrument, sworn before a surrogate of the superior court, or before a notary public, if the service is abroad.
If the cause be adjudged in a vice-admiralty court, it is usual, upon entering an appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in England, who carries it to a proctor, and the same steps are taken to procure and serve the inhibition, as where the cause has been adjudged in the high court of admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition may be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account of the time and substance of the sentence.
Upon an appeal, fresh evidence may be introduced if, upon hearing the cause, the lords of appeal shall be of opinion, that the case is of such doubt, as that farther proof ought to have been ordered by the court below.