Page images
PDF
EPUB

question of prize, and within the scope of the regular prize allegation."

The Adeline (1815), 9 Cranch, 244, 285.

In every case of a proceeding for condemnation upon captures made by the public ships of war of the United States, whether the same be cases of prize strictly jure belli, or upon public acts in the nature of captures jure belli, the proceedings are in the name and authority of the United States.

The Palmyra, 12 Wheat. 1.

Prize proceedings should be in the name of the United States; but if conducted in the name of the captors until the Supreme Court is reached, they will not be reversed on that ground.

Jecker . Montgomery, 18 How. 110.

"Where merits clearly appear on the record, it is the settled practice, in admiralty proceedings, not to dismiss the libel, but to allow the party to assert his rights in a new allegation." For that purpose a cause may be remanded to the circuit court with directions to allow an amendment of the libel.

The Adeline (1815), 9 Cranch, 244, 284.

A test affidavit ought to state that the property at the time of shipment, and also at the time of capture, did belong, and will, if restored, belong to the claimant, but an irregularity in this respect is not fatal.

A test affidavit by an agent is not sufficient if the principal be within the country and within a reasonable distance from the court. But if test affidavits liable to such objections have been acquiesced in by the parties in the courts below, the objections will not prevail in this court.

The Adeline (1815), 9 Cranch, 244.

In admiralty proceedings by libel for an offense under the nonimportation act of March 1, 1809, it suffices to describe the offense in the words of the law and to set forth the facts in such manner that if they be true the case is within the statute. Technical nicety is not required in such proceedings.

The Samuel (1816), 1 Wheat. 9.

Where an inspection and comparison of original documents is material to the decision of a prize case, the Supreme Court of the United States will order the original papers to be sent up from the court below.

The Elsineur (1816), 1 Wheat. 439.

An agreement by the parties to a prize cause will, like an agreement made in a court of common law or of chancery, be set aside, if made clear under a clear mistake.

The Hiram (1816), 1 Wheat. 440.

The commander of a French privateer, whose crew had been unlawfully enlisted in the United States, captured on the high seas a Spanish brig with a cargo of slaves, and, after taking out and selling fourteen slaves, conducted the brig and the rest of the slaves towards Belize. On the way a gale was encountered, and the captor then proceeded to New Orleans, arriving there in safety. The Spanish owner having libeled the brig and the remaining slaves for restitution, and restitution having been ordered, the captor claimed salvage. His claim was denied. Washington, J., delivering the opinion of the court, said that nothing could be more remote from the intentions of the captor than to render a service to the brig and her cargo; that he committed a spoliation of the cargo by selling some of the slaves, and intended to smuggle the rest on some part of the coast; that it would ill become an American court to reward a person who had thus violated the laws of the United States in one instance and meditated a violation of them in another; and that it would be still worse to reward him at the expense of the injured Spaniard.

The Alerta r. Moran (1815), 9 Cranch, 359.

With reference to a complaint of the British consul at Key West, Florida, that the prize master in charge of the British ship Twickenham had refused to permit him to come on board of that vessel, the Department of State explained that the refusal in the first instance was due to a misunderstanding, and that the consul feeling aggrieved afterwards declined to come on board when allowed to do So. The Department of State added that reasonable facilities would be afforded for the visits of consular officers to prize ships when such ships were brought into court.

Mr. Day, Sec. of State, to Sir Julian Pauncefote. British ambass., per-
sonal, June 18, 1898, MS. Notes to British Leg, XXIV. 225.
See, also, same to same, No. 1038, May 31, 1898, id. 208.

2. EXAMINATION IN PREPARATORIO

§ 1233.

If, upon the hearing on the ship's papers and the evidence taken in preparatory, the property appears to belong to enemies, it is immediately condemned; but, if its national character appears doubtful, or even neutral, and no claim is interposed, the court will postpone

the cause for a year and a day after the proceedings were begun, in order that an opportunity may be afforded to claimants to appear.

The Harrison (1816), 1 Wheat. 298.

"It is the established rule in courts of prize, that the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured ship. On this account it is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the district court, and to have the examinations of the principal officers and seamen of the captured ship taken before the district judge, or commissioners appointed by him, upon the standing interrogatories. It is exclusively upon these papers and the examinations, taken in preparatorio, that the cause is to be heard before the district court. If, from the whole evidence, the property clearly appear to be hostile, or neutral, condemnation or acquittal immediately follows. If, on the other hand, the property appear doubtful, or the case be clouded with suspicions or inconsistencies, it then becomes a case of farther proof, which the court will direct or deny, according to the rules which govern its legal discretion on this subject. Farther proof is not a matter of course. It is granted in cases of honest mistake or ignorance, or to clear away any doubts or defects consistent with good faith. But if the parties have been guilty of gross fraud or misconduct, or illegality, farther proof is not allowed; and under such circumstances, the parties are visited with all the fatal consequences of an original hostile character. It is essential, therefore, to the correct administration of prize law, that the regular modes of proceeding should be observed with the utmost strictness; and it is a great mistake to allow common law notions in respect to evidence or practice, to prevail in proceedings which have very little analogy to those at common law.

"These remarks have been drawn forth by an examination of the present record. The court could not but observe with regret that great irregularities had attended the cause in the court below. Neither were the ship's papers produced by the captors, nor the captured crew examined upon the standing interrogatories. Witnesses were produced by the libellants and the claimant indiscriminately at the trial, and their testimony was taken in open court upon any and all points to which the parties chose to interrogate them, and upon this testimony and the documentary proofs offered by the witnesses, the cause was heard and finally adjudged. In fact there was nothing to distinguish the cause from an ordinary proceeding in a mere revenue cause in rem.

"This court can not but watch with considerable solicitude irregularities, which so materially impair the simplicity of prize proceedings, and the rights and duties of the parties. Some apology for

them may be found in the fact, that from our having been long at peace, no opportunity was afforded to learn the correct practice in prize causes. But that apology no longer exists; and if such irregularities should hereafter occur it may be proper to adopt a more rigorous course, and to withhold condemnation in the clearest cases, unless such irregularities are avoided or explained. In the present case the first fault was that of the captors; and if the claimant had suffered any prejudice from it, this court would certainly restore to him every practicable benefit. But in fact no such prejudice has arisen. The claimant has had, in the court below, the indulgence and benefit of farther proof and of collateral aids to verify the truth of his claim; and he stands at least upon as favourable a ground to sustain it as if the cause had been conducted with the most scrupulous form."

The Dos Hermanos (1817), 2 Wheat. 76, 79, Mr. Justice Story, delivering the opinion of the court.

"It is a general rule of the prize law, not to admit claims which stand in entire opposition to the ship's papers, and to the preparatory examinations, where the voyages have originated after the war. The rule is founded upon this simple reason, that it would open a door to fraud in an incalculable extent, if persons were not required to describe their property with perfect fairness. The rule, however, is not inflexible; it yields to cases of necessity, or where, by the course of the trade, simulated papers become indispensable, as in a trade licensed by the state with the public enemy."

Mr. Justice Story, delivering opinion of the court, in The Dos Hermanos (1817), 2 Wheat. 76,90.

It is exclusively upon the proofs taken in preparatorio that the cause is to be heard before the district court. If, from the whole evidence, the property clearly appear to be hostile or neutral, condemnation or acquittal immediately follows. If the property appear doubtful, or the case be clouded with suspicions or inconsistencies, further proof may, in the discretion of the court, be taken. If the parties have been guilty of gross fraud or misconduct, or illegality, further proof is not allowed, and the parties are visited with all the fatal consequences of an original hostile character.

The Pizarro, 2 Wheat. 227.

Frankness and truth are especially required of the officers of captured vessels when examined in preparation for the first hearing in prize.

The Springbok, 5 Wall. 1.

3. ORDER FOR FURTHER PROOF.

§ 1234.

Further proof was refused where it contradicted, in a "suspicious" manner, the original evidence, and the manner in which it was obtained or produced was "mysterious" and unexplained.

The Frances (1814), 8 Cranch, 335.

The original evidence having left the transaction in doubt, and an order for further proof having been made, the affidavits thereupon produced referred to certain letters which were not exhibited. On a promise by counsel for the claimant to produce the correspondence, and such other proof as would be entirely satisfactory to the court, the case was ordered to stand for further proof.

The Frances (1814) 8 Cranch, 348.

The question having arisen as to whether certain goods should be condemned in which funds had been invested for the alleged purpose of withdrawing them from Great Britain, the claimant was allowed to make further proof on certain points. No question was decided except that of making further proof.

The Mary (1814), 8 Cranch, 388.

The omission of papers, by inadvertence or mistake, does not preclude an order for further proof.

The St. Lawrence (1814), 8 Cranch, 434.

The intentional suppression of papers is a ground for refusing further proof.

The St. Lawrence (1814), 8 Cranch, 434.

The master of an American ship, which was alleged to have been captured by an American privateer, swore that he had never considered his ship as having been taken as prize, the facts being that he was overhauled by an armed schooner under English colors, whose commander represented her to be a British privateer and requested him to take a man on board and treat him as a gentleman until the ship arrived in the United States. To this he consented. The master's testimony was confirmed by the mate, who added, that the man who was put on board conducted himself not as a prize master, but simply as a passenger. A seaman testified that he never knew that the ship was seized as prize till after her arrival within the Boston light-house. Another seaman testified that the ship was met by an armed schooner under English colors, which obliged the mate to come on board, and then sent him back with a man who next day

« PreviousContinue »