declared himself to have been put on board as a prize master, saying that if the ship should fall in with a French vessel he should be obliged to show his commission. This seaman further testified, however, that he did not know that the vessel had been made a prize of till her arrival at Boston. The alleged prize master swore that he was present at the capture, and that the master of the ship was ordered aboard the schooner with his papers; and that he (the prize master) was then directed by his commander, in the presence of the master, to go on board of the ship, but that the master was to keep possession of the ship's papers and navigate her into port. He further testified that the suggestion that he should be represented to be a passenger proceeded from the master of the ship, with a view to a possible meeting with a British cruiser. Washington, J., delivering the opinion of the court, said that the facts necessary for deciding upon the validity of the capture were not sufficiently clear, and that it would be proper to order further proof, to be furnished by the captors and the claimants, with respect to all the circumstances of the capture.

The Grotius (1814), 8 Cranch, 456.

Where the court is satisfied from the evidence in the case that property ought to be restored, it will not require further proof of the claimant's right.

The Mary and Susan (1816), 1 Wheat. 5.

A cargo, condemned as British property, was claimed to be Swedish and neutral, the appearance of British ownership being, as was alleged, simulated for the purpose of avoiding capture. The court, however, refused a motion for further proof to show that the property was really neutral, saying that the evidence, as it stood, was not susceptible of any satisfactory explanation, and that the captors had made out “a clear title" to the cargo.

Cargo of the ship Hazard v. Campbell (1815), 9 Cranch. 205.

Further proof will be allowed where the nationality and ownership of recaptured goods do not distinctly appear.

The Adeline (1815), 9 Cranch, 244.

The court will order further proof in a revenue or instance cause, where the evidence is so contradictory and ambiguous as to render a decision difficult.

The Samuel (1816), 1 Wheat. 9.

See, also, The Venus (1816), 1 Wheat. 112.

It is a general rule in prize causes that the decision should be prompt, and should be made, unless some good reason for departing from the rule exist, on the papers and testimony afforded by the cap

tured vessel, or which can be invoked from the papers of other vessels in possession of the court. But in cases of joint and collusive capture, the usual simplicity of the prize proceedings is necessarily departed from; and where, in these cases, there is the least doubt, other evidence may be resorted to.

The George, 1 Wheat. 408.

In a certain case in which the claimant had the benefit of further proof in the court below, and upon the evidence as it then stood there seemed to be "no fair and reasonable explanation" of the doubts cast upon his claim of an exclusive proprietary interest in the property, the Supreme Court declined to make an order for further proof, Mr. Justice Story, who delivered the opinion of the court, saying:

"We are not satisfied that it would be a safe or convenient rule, unless, under very special circumstances, to allow parties who have had the benefit of plenary proof in the court below, to have an order for farther proof in this court upon the same points. Much less should we incline to allow it in a case of pregnant suspicion, where the evidence must come from sources tainted with so many unwholesome personal interests, and so many infusions of doubtful credit."

The Dos Hermanos (1817), 2 Wheat. 76, 98.

"The proceedings in the district court were certainly very irregular; and this court can not but regret that so many deviations from the correct prize practice should have occurred at so late a period of the war. The ship's papers ought to have been brought into court, and verified, on oath, by the captors, and the examinations of the captured crew ought to have been taken upon the standing interrogatories, and not viva voce in open court. Nor should the captured crew have been permitted to be re-examined in court. They are bound to declare the whole truth upon their first examination; and if they then fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give colour to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule. "It is upon the ship's papers, and the examinations thus taken in preparatory, that the cause ought, in the first instance, to be heard in the district court; and upon such hearing it is to judge whether the cause be of such doubt as to require farther proof; and if so, whether the claimant has entitled himself to the benefit of introducing it. If the court should deny such order when it ought to be granted, or allow it when it ought to be denied, and the objection be taken by the party and appear upon the record, the appellate court can administer the proper relief. If, however, evidence in the nature of farther proof be introduced, and no formal order or objecH. Doc. 551-vol 7-40

tion appear on the record, it must be presumed to have been done by consent of parties, and the irregularity is completely waived. In the present case, no exception was taken to the proceedings or evidence in the district court; and we should not, therefore, incline to reject the farther proof, even if we were of opinion that it ought not, in strictness, to have been admitted."

The Pizarro (1817), 2 Wheat. 227, 240.

Affidavits to be used as farther proof in causes of admiralty and maritime jurisdiction in this court must be taken by a commission. The London Packet (1817), 2 Wheat. 371.

A bill of lading, consigning the goods to a neutral, but unaccompanied by an invoice or letter of advice, is not sufficient evidence to entitle a claimant to restitution; but is sufficient to lay a foundation for the introduction of further proof. A bill of lading gives the person to whom it is addressed a right to receive the goods, and lays the foundation for further proof that the property is in him. To admit such proof, in the absence of an invoice or letter of advice, does not endanger the fair rights of the belligerent. These papers themselves are so easily prepared that no fraudulent case would be without them.

The Friendschaft (1818), 3 Wheat. 14, 48.

"The farther proof in the claims 108, 109, 141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices-all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission."

The Friendschaft (1818), 3 Wheat. 14, 49.

"The French prize practice not allowing farther proof, but acquitting or condemning upon the original evidence consisting of the papers found on board and the depositions of the captors and captured. The only exception to this rule is, where the papers have been spoliated by the captors, or lost by shipwreck, or other inevitable accidents. Valin, Traité des Prises, ch. 15, n. 7. But the Spanish law admits of farther proof in case of doubts arising upon the original evidence. De Habreu, part 2, ch. 15."

Note by Wheaton, The Friendschaft, 3 Wheat. 14, 50.

It is a relaxation of the rules of the prize court to allow time for further proof in a case where there has been a concealment of material papers.

The Fortuna (1818), 3 Wheat. 236.

The carpenter and cook of a captured vessel asserted that she was taken while at anchor about a mile from a neutral shore. The captors testified that she lay from four to five miles from shore. Counsel for the claimant contended that the captors, whose testimony had been taken on an order for further proof, were not competent witnesses, by reason of their interest. Mr. Justice Story, delivering the opinion of the court, said that, upon the original hearing, no evidence was admissible but that of the ship's papers and the preparatory examinations of the captured crew; but, upon an order for further proof, where the benefit of the order was allowed to both parties, other testimony was clearly admissible. Such was the ordinary course of the prize courts, especially where it became material to ascertain the circumstances of the capture, in which case the facts lay within the knowledge of both parties, and the objection of interest applies equally to both. Unlike the courts of common law, prize courts consider no one incompetent on the ground of interest. They admit the testimony, subject to all exceptions as to its credibility.

The Anne (1818), 3 Wheat. 435.

An order for further proof in prize cases is always made with extreme caution, and only when the ends of justice clearly require it, A claimant forfeits the right to ask it, by any guilty concealments in the case.

The Gray Jacket (1866), 5 Wall, 342.

Regularly, in cases of prize, no evidence is admissible on the first hearing, except that which comes from the ship's papers or the testimony of persons found on board. If, upon this evidence, the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or on motion. and proper grounds shown, to introduce additional evidence under an order for further proof. If, preparatory to the first hearing, testimony was taken of persons not in any way connected with the ship, such evidence is properly excluded, and the hearing takes place on the proper proofs.

The Sir William Peel (1866), 5 Wall. 517.

In the case of a vessel captured by a United States cruiser during the war with Spain, the master, after the preparatory, proofs were taken, appeared on behalf of the owners and made a claim to the vessel and moved for leave to take further proof on the ground that, although a majority of the stock of the Spanish corporation, to which the vessel ostensibly belonged, was registered in the names of Spanish subjects and only a minority in the names of British subjects, one of the latter had possession of all the certificates of stock, in consequence

of which he was, under the charter of the company, the sole beneficial owner of the steamer; that the transfer from British to Spanish registry was made solely with a view to facilitate her engaging in commerce with the Spanish colonies; that it was the intention of the British stockholders to restore her to the British registry and flag whenever the trade might be disturbed; and that the steamer was insured by British underwriters, by whom, if she should be condemned, the loss would be borne. The court below refused to allow further proof to be taken, and this ruling was affirmed by the Supreme Court. The vessel, said the Supreme Court, belonged to a Spanish corporation, had a Spanish registry, was sailing under the Spanish flag and a Spanish license, and was officered and manned by Spaniards. Nothing was better settled than that she must, under such circumstances, be deemed a Spanish ship and treated accordingly. When the stockholders elected to take the benefit of the Spanish navigation laws, they must be held also to have elected to rely on the protection of the Spanish flag. The alleged intention to restore the vessel to British registry, if war should render the change desirable, could not be regarded, since it had not been carried into effect when she was captured. The Spanish ownership having been made out, the facts that the stock of the corporation belonged legally or equitably to British subjects, and that the loss would eventually be borne by British underwriters were, said the court in conclusion, immaterial.

The Pedro (1899), 175 U. S. 354.

Citing Story, Prize Courts (Pratt's ed.), 60, 66; The Friendschaft, 4
Wheat. 105; The Ariadne, 2 Wheat. 143; The Cheshire, 3 Wall, 231;
Hall, Int. Law, § 169.

An order for further proof, in case of the libel of a vessel as a prize for trying to violate a blockade, is not an abuse of discretion, where the circumstances created a suspicion of an intention to enter the blockaded port. Decree (D. C. 1898) 89 Fed. Rep. 510, reversed.

The Newfoundland (1900), 176 U. S. 97.

If an examination of the ship's papers and the testimony of the crew, taken in preparatorio, make a case for condemnation, an order, for further proof is only made where the interests of justice clearly require it. Held, in this case that there was no error in denying the motion of the claimant for further proofs.

The Adula (1900), 176 U. S. 361.