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"The evidence to acquit or condemn, with or without costs or damages, must, in the int 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 or admiralty in all the considerable 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 enemy, there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful, that it is reasonable to go into farther 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.
h. 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 affdavits 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 justified 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 soa 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 forwarded 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 ronition is returned into the registry with a certificate of its service, and if any claim has been given, the cause is then ready for hearing, 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 margo, are as
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 London 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 believes, 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 immediately 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 place as the registry 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 "viis et modis," that is, by affixing 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 proceedlings 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.
Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined by their clerks and others acquainted with the transaction and with the real property of the goods claimed. In corroboration of these affidavits may be annexed original correspondence, duplicates of bills of lading, invoices, extracts from books, etc. These papers must be proved by the affidavits of persons who can speak to their authenticity. And if copies or extracts, they should be collated and certified by public notaries. The affidavits are sworn before the magistrates or others competent to ad. minister oaths in the country where they are made, and authenticated by a certificate from the British consul.
The degree of proof to be required depends upon the degree of suspicion and doubt that belongs to the case. In cases of heavy suspicion and great importance, the court may order what is called "plea and proof," that is, instead of admitting affidavits and documents introduced by the claimants only, each party is at liberty to allege in regular pleadings such circumstances as may tend to acquit or to condemn the capture, and to examine witnesses in support of the allegations, to whom the adverse party may administer interrogatories. The depositions of the witnesses are taken in writing; if the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are not often resorted to.
Standing commissions may be sent to America for the general purpose of receiving examinations of witnesses in all cases where the court may find it necessary for the purposes of justice, to decree an inquiry to be conducted in that manner.
With respect to captures and condemnations at Martinico, which are the subjects of another inquiry contained in your note, we can only answer in general, that we are not informed of the particulars of such captures and condemnations, but, as we know of no legal court of admiralty established at Martinico, we are clearly of opinion that the legality of any prizes taken there, must be tried in the high court of the admiralty of England, upon claims given, in the manner above described, by such persons as may think themselves aggrieved by the said captures. We have the honor to be, etc.,
[Signed] WILLIAM SCOTT,
JOHN NICHOLL. COMMONS, September 10th, 1794
THE PRIZE RULES OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.
RULE 1.—There shall be issued, under the seal and authority of this court, commissions to such persons as the court shall think fit, appointing them severally commissioners to take examinations of witnesses in prize causes in preparatorio, on the standing interrogatories, which have been settled and adopted by this court, and all other depositions which they are empowered to require, and to discharge such other duties in relation to ships, or vessels, or property brought into this district, as prize, as shall be designated by the said commissioners, and the rules and orders of this court.
RULE 2.—The captors of any property brought into this district as prize, or some one on their behalf, shall, without delay, give notice to the district judge, or to one of the commissioners aforesaid, of the arrival of the property, and of the place where the same may be
RULE 3.-Upon the receipt of notice thereof from the captors, or district judge, a commissioner shall repair to the place where the said prize property then is; and if the same be a ship, or vessel, or if the property be on board a ship or vessel, he shall cause the said ship or vessel to be safely moored in sufficient depth of water, or in soft ground.
RULE 4.—The commissioner shall, in case the prize be a ship or vessel, examino whether bulk has been broken; and if it be found that bulk has been broken, one of the said commissioners shall take information upon what occasion, or for what cause, the same was done. If the property captured be not a ship or vessel, or in a ship or vessel, he shall examine the chests, packages, boxes, or casks, containing the subject captured, and shall ascertain whether the same has been opened, and shall, in every case, examine whether any of the property originally captured has been secreted or taken away subsequently to the capture.
RULE 5.—The commissioner in no case shall leave the captured property until he secure the same by seals upon the hatches, doors, chests, bales, boxes, casks, or packages, as the case may require, so that they cannot be opened without breaking the said seals; and the said seals shall not be broken, or the property removed, without the special order of the court, excepting in case of fire and tempest, or of absolute necessity.
RULE 6.-If the captured property be not a vessel, or on board a vessel, the commissioner shall take a detailed account of the particulars thereof, and shall cause the same to be deposited, under the seals as aforesaid, in a place of safety, there to abide the order or decree of this court.
RULE 7.-If no notification shall, within reasonable time, be given by the captors, or by any person in their behalf, of any property which may be brought as prize within this district, and the commissioners, or either of them, shall become informed thereof by any means, it shall be the duty of the said commissioners, or one of them, to repair to the place where such property is, and to proceed in respect to the same as if notice had been given by the captors.
RULE 8.-The captor shall deliver to the judge—at the time of such notice, or to the commissioner or commissioners, when he or they shall, conformably to the foregoing rule, repair to the place where such captured property is, or at such other time as the said commissioners, or either of them, shall require the same-all such papers, passes, sea-briefs, charters, bills of lading, cockets, letters, and other documents and writings, as shall have been found on board the captured ship, or which have any reference to, or connection with the captured property, and which are in the possession, custody, or power of the captors.
RULE 9.-The said papers, documents and writings, shall be regularly marked and numbered by a commissioner, and the captor, chief officer, or some other person who was present at the taking of the prize, and saw that such documents, papers and writings, were found with the prize, must make a deposition before one of the said commissioners, that they have delivered up the same to the judge or commissioner as they were found or received, without any fraud, subduction, or embezzlement. If any documents, papers or writings, relative to, or connected with the captured property, are missing or wanting, the deponent shall, in his said deposition, account for the same, according to the best of his knowl. edge, information and belief.
RULE 10.—The deponent must further swear, that if, at any time thereafter, and before the final condemnation or acquittal of the said property, any further or other papers relating to the said captured property shall be found or discovered, to the knowledge of the deponent, they shall also be delivered up, or information thereof given to the commissioners or to this court, which deposition shall be reduced to writing by the commissioner, and shall be transmitted to the clerk of the court, as hereinafter mentioned.
RULE 11.-When the said documents, papers and writings, are delivered to a commissioner, he shall retain the same till after the examination in preparatorio shall have been made by him, as is hereafter provided, and then he shall transmit the same with the same affidavit in relation thereto, the preparatory examinations, and the information he may have received in regard to the said captured property, under cover and under his seal, to this court, addressed to the clerk thereof, and expressing on the said cover to what captured property the documents relate, or who claim to be the captors thereof, or from whom he received the information of the capture; which said cover shall not be opened without the order of the court.
RULE 12.-Within three days after the captured property shall have been brought within the jurisdiction of this court, the captor shall produce to one of the commissioners three or four, if so many there be, of the company or persons who were captured with, or who claim the said captured property; and in case the capture be a vessel, the master and mate, or supercargo, if brought in, must always be two, in order that they may be examined by the commissioner in preparatorio upon the standing interrogatories.
RULE 13.-In the examination of witnesses in preparatorio, the commissioner shall use no other interrogatories but the standing interrogatories, unless special interrogatories are directed by the court. He shall write down the answer of every witness separately to each interrogatory, and not to several interrogatories together; and the parties may personally, or by their agents, attend the examination of witnesses before the commissioners; but they shall have no right to interfere with the examination by putting questions or objecting to questions; nor to take notes of the proceedings before the commissioner, to be used otherwise than before the court. All objections to the regularity or legality of the proceedings of the commissioners must be made to the court.
RULE 14.-When a witness declares he cannot answer to any interrogatory, the commissioner shall admonish the witness that by virtue of his oath, taken to speak the truth, and nothing but the truth, he must answer to the best of his knowledge, or when he does not know absolutely, then to answer to the best of his belief concerning any one fact.
RULE 15.—The witnesses are to be examined separately, and not in presence of each other, and they may be kept from all communication with the parties, their agents or coun. sel, during the examination. The commissioners will see that every question is understood by the witness, and will take their exact, clear, and explicit answers thereto; and if any witness refuses answer at all, or to answer fully, the examining commissioner is forthwith to certify the facts to the court.
RULE 16.—The captors must produce all their witnesses in succession, and cannot, after the commissioners have transmitted the examination of a part of the crew to the judge, be allowed to have others examined without the special order of the court; and the examination of every witness shall be begun, continued, and finished in the same day, and not at different times. Copies of the standing interrogatories shall not be returned by the commissioner with the examinations, but it shall be sufficient for the answer of the witnesses to refer to the standing interrogatories by corresponding numbers.
RULE 17.-Before any witness shall be examined on the standing interrogatories, the commissioner shall administer to him an oath in the following form: “You shall true answer make to all such questions as shall be asked of you on these interrogatories, and therein you shall speak the whole truth, and nothing but the truth, so help you God." If the witness is conscientiously averse to swearing, an affirmation to the same effect shall be administered to him.
RULE 18.-Whenever the ship's company, or any part thereof, of a captured vessel, are foreigners, or speak only a foreign language, the commissioner taking the examination may summon before him competent interpreters, and put to them an oath, well and truly to interpret to the witness the oath administered to him, and the interrogations propounded, and well and truly to interpret to the commissioners the answers given by the witness to the respective interrogatories.
Rule 19.—The examination of each witness on the standing interrogatories shall be returned according to the following form: " Deposition of A B, a witness produced, sworn and examined in preparatorio, on the day of in the year at the
on the standing interrogatories established by the district court of the United States for the southern district of New-York; the said witness having been produced for the purpose of such examination by C D, in behalf of the captors of a certain ship or vessel called the
(or of certain goods, wares, and merchandise, as the case may be.) "Ist. To the first interrogatory the deponent answers, that he was born at
&c. “2d. To the second interrogatory the deponent answers, that he was present at the time of the taking, &c."
RULE 20.-- When the interrogatories have all been answered by a witness, he shall sign his deposition, and the commissioner shall put a certificate thereto in the usual form, and subscribe his name to the same.
RULE 21.-No person having or claiming any interest in the captured property, or having any interest in any ship having letters of marque or commissions of war, shall act as a commissioner. Nor shall a commissioner act either as proctor, advocate, or counsel, either for captors or claimants, in any prize cause whatever.
RULE 22.-If the captain or prize-master neglect or refuse to give up and deliver to the commissioners the documents, papers, and writings relating to the captured property, according to these rules, or refuse or neglect to produce, or cause to be produced, witnesses to be examined in preparatorio, within three days after the arrival of the captured property within the jurisdiction of this court, or shall otherwise unnecessarily delay the production of