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ha, on appeal from a decree of condemnation, rendered by the District Court for the Southern District of New York, are as follows:
First—That where they find the property perish• ing, they must make a motion for its sale, and notify the district attorney, and the proctor for the claimants, of the motion to 1 )e made.
Second—That their power is joint, and that the concurrence of both is necessary to the validity of their acts.
Third—That the power to report to the court as to the condition of the property as they examined the same, from time to time during the litigation, makes them the representatives of all parties in interest; and therefore, although the act requires the sale of the property to be made by the marshal, it must be made under the direction and superintendence of the prize commissioners.
Fourth—That they must attend the sale of captured property, as the representatives of all parties in interest, and see that the property is not sacrificed thereat.
Fifth—That where a cargo is to be discharged and appraised before sale, this is to be done under the superintendence of the .prize commissioners. That they must take an accurate list of each item of the cargo, when it is discharged, with a view to appraisal. That they must separately appraise, and cause to be separately sold, the separate parcels of each bill of lading.
It may be, and on many accounts it undoubtedly is, very desirable, that the prize commissioners should be clothed with this power, and be charged with these duties; but if it were the intention of Congress that such duties should be devolved upon these officers, it is to be regretted that other language was not employed to express that intention.
By the terms of the act of Congress in question, Witnesses to
. . , , p . . . ■ . be examined
it is the duty 01 the prize commissioners to examine without the the several witnesses upon the standing interroga- ^unscT °f tories, not only apart from each other, but "unattended by counsel."
This is believed to have always been the rule of the English prize-courts; but in consequence of some looseness of practice in this respect, arising out of a question made as to the, true construction of the rule, it was probably thought advisable that a provision so salutary, should receive the sanction of legislation. «
THE PRIZE LIBEL AND CLAIM.
The doctrine that the libel in prize should con- The rule as to tain no special averments of the grounds on which character of condemnation is claimed, but be altogether general1,10 averm,ent«
', , r . & of the libel and
in its allegations, and that the claim interposed, the claim suaniust consist exclusively of a simple statement of recent de-d"> ownership, and a general denial of the validity ofclslonathe capture—was briefly stated in the previous edi- * tion of this work.
In the case of The Revere, decided in the Massachusetts District Court, and in the case of Empress, as well as in a large number of other cases decided in the District Court of New York, in which the claimants were British subjects—the libels filed pursuant to this rule, were objected to by claimants' counsel as insufficient, in not setting forth special cause for capture or condemnation—and the claimants insisted upon their right to file elaborate answers, as in instance causes, in addition to the claim of ownership.
The doctrine, however, as laid down, was, upon elaborate argument, affirmed in every case.
In the case of The Hevere, the learned judge says: "The libel need not set forth specifically the grounds on which condemnation is sought. General allegations are sufficient. The vessel is to be condemned if at all, on any grounds that the examination may disclose. Prize proceedings are not subject to the same rules of pleading as suits on the instance side of the court. This hearing is upon the preparatory evidence, as it is called, that is, upon the papers found on board the vessel, and the answers of her officers and crew upon the standing interrogatories. The claimants are not entitled to further proof, nor are the captors, unless in special and peculiar cases, upon motion and cause shown. The answer, in the nature of pleading, is therefore irregular; and so much of the document called a test affidavit as goes beyond the facts of the claim, I shall not regard as evidence."
DELIVERY TO CLAIMANTS ON BAIL.
The delivery of captured property to claimants Delivery of
. -. . • .7 1 1 • /, captured prop
On bail, before a hearing, is so utterly subversive or erty to claim
the policy of the law of maritime capture, that the^foreaX
desismation of the practice by Mr. Justice Story as"* Sl>bver
a "gross irregularity, is one of mild reproof. policy and
The naval power of the nation is employed in the^tStimecapcapture of the property of its enemy, or that whichtureis being used in aid of its enemy, upon the high seas. The purpose of such capture is the sole basis of the belligerent right, namely, to compel the enemy to peaceful submission by destroying his means of aggression or resistance. Oftentimes at great hazard, always at no inconsiderable expense, the captured property is sent into a port of the captor's country for adjudication. That it should be then, by judicial fiat, forthwith surrendered to the claimant on credit, is a defeat of the manifest design of the law, so entirely obvious, that it seems hardly credible that such a practice should prevail, or be adopted by any court, which does not at the same time ignore the existence of the belligerent right. But that a court of appellate jurisdiction in prize, should entertain a motion for the delivery of captured property to a claimant, after a decree of condemnation of the property, on the first hearing, would seem still more extraordinary.
One reason among many, given by the courts for Reasons for the inflexible rule of the non-delivery of captured non-^Uvery property to claimants on bail, before a hearing, is,stm m°re c°
, . , ...... ° 'gent after
that it cannot then be judicially known that the hearing and
i • . • ,. n • condemnation.
claimants are not enemies or acting for enemies.
permitted to bend, when it has become known, by the violent presumption resulting from a solemn decree, after a hearing, that the property is either that of an enemy or of one acting for an enemy.
The inveterate practice of fifty years of peace in the Courts of Admiralty of the United States, of the delivery to claimants, on bail, of property seized for the violation of a municipal regulation, may account for the difficulty, both on the part of courts and practitioners, to realize at once the necessity of a total departure from this practice.
Indeed, it appeared to be regarded so pertinacious ly as a matter of course, that claimants of property captured as prize, were as much entitled to have it delivered to them on bail, after appraisement, as claimants of property seized for the violation of a revenue law, or the laws for the suppression of the slave trade, that the Congress of the United States, in " an act for the better administration of the law of prize," passed on the 25th of March, 1802, provided for the sale of captured property, and the deposit of the proceeds in the registry of the prizecourt, when it was perishable or in a perishing condition, in terms adapted to preclude any other disposition of such property 1 tefore a final condemnation.
To secure this beyond a doubt, and to place the policy of maritime, capture beyond the possibility of defeat, in this respect, by judicial construction, it would be wise in future legislation, to provide in express terms, that the disposition of perishing captured property, by sale, was designed to interfere with and to exclude its delivery on bail, and and other mode of disposition of the subject-matter of litigation pending the suit.