jurisdiction of necessity gives rise. In the name of the court they receive possession of the prize property when brought within its jurisdiction, as well as the papers and documents found and taken with it; and it is their duty to enclose the papers and documents in a secure enclosure, and the same to seal with their proper seal, and then to lodge them in the registry of the court. So, too, with regard to the prize property, it is their duty to place their seal upon the hatches of the vessel, and upon whatever doors, coverings or enclosures of any kind are used to shelter and protect the cargo, so that the same cannot be tampered with without violation of their seal. It is their duty to appoint proper custodians to be left in the charge and safe-keeping of the prize property, so long as the same shall remain in court, or until the possession of the commissioners shall be superseded by that of the ordinary officer of the court, the marshal.

testimony of

prize crew.

The papers, and documents, and prize property, To take the being thus secured, in the custody of the court as the master, of the guardian of the public interests, it is next the ficers, and duty of the commissioners to proceed without any delay whatever, that is to say, as soon as possible after the arrival of the vessel, to take the examination of witnesses, who are to be none others than the master, officers and crew of the captured vessel, or persons actually on board at the time of the capture. The examination is always confined to such persons in the first instance, and is never extended save by special permission or upon an order for further proof. Inasmuch as the hearing before the court is Rules as to to be primarily, in all cases, upon the papers and of witnesses. documents, and the examination of the persons on

examination

board brought in with the prize, and upon no other evidence whatever, the rules of the court require a strict adherence to all the prescribed formalities in the taking of this testimony. These rules are as follows:

First. The witnesses must be produced before the commissioners in succession, so that all may be examined, before the examination of any one is transmitted to and filed with the court. After such transmission no other witness can be examined without a special order of the court.

Second. The witnesses must be examined sepa rately and apart from each other, and without the instruction or presence of counsel, or of any other person than the commissioners, their clerk, secre tary or actuary, and agents of the parties, other than professional; and during the examination the witnesses are not allowed to communicate with or be instructed by counsel. If professional counsel were allowed to be present at the ex amination, and especially if they were allowed to take notes of the testimony, the purpose of the rule, which rigidly requires the witnesses to be examined apart from each other, might be entirely defeated.

Third. The examination of the witnesses is, in all cases, to be on the standing interrogatories in preparatorio, as they are denominated. The standing interrogatories used in the English courts of admiralty, have been drawn with great care and precision, and contain sifting inquiries upon every point which may possibly affect the question of prize. These interrogatories, which may be found in 1 Robinson's Reports, 381, have served as a

model for other courts. With some additions, but with little variation, they have been adopted by the several district judges in the courts of the United States, and with some modifications prepared by the learned judge for the southern district of New York, will be found in the appendix, together with the prize rules adopted by that court.

Fourth. In the taking of the examination of witnesses, it is the duty of the commissioners to require each question to be answered, and to write down the answers, or cause them to be written down, fully and perfectly, so as to meet the point of every inquiry, and not allow the witness to evade a searching question by vague or ambiguous statements. In the event of a refusal of a witness either to answer at all, or to answer fully, it is the duty of the commissioners to certify the fact to the court, in which case, not only is the witness subjected to the penalty of imprisonment for contempt, but the owners of the ship and cargo may be subjected to the consequences of a wilful suppression of evidence.

Fifth. After the examination is complete, it is the duty of the commissioners to read or cause to be read to the witness, each sheet of the same, and require him to sign each sheet separately, and also to affix thereto their own signatures, or the signa ture of one of them, if only one be present, or the commissioners jointly or separately, as they please, and as emergencies may require.

Sixth. When the examination of all the witnesses is concluded, it is the duty of the commissioners securely to enclose the same, and cause it to be sealed with their seals, and, together with any papers and documents found on board the vessel,

The libel in

proper form.

and not before lodged in the registry of the court, to be forthwith transmitted to the court; and no papers or documents found on board, and not de livered to the judge or the commissioners before, or at the time of, the examination, will be admitted in evidence.

These several rules of practice will be found to be recognized and established in many decided cases.1

As soon as the papers, and documents, and preparatory examinations are transmitted to the regis try of the court, it is the duty of the captors, without delay, to apply to the court for adjudication; and in case of neglect or refusal on their part, the claimants may do So. This is done by libel. The prize and its prize libel should be general in its allegation, containing no special averments of the circumstances on which the captors base their claim to condemnation; but simply setting forth the bringing the ves sel in, and the proceedings against her, and alleging generally that she is a subject of prize rights. They are not required to state their grounds. They are entitled to institute the inquiry, and take the chances of the benefit of any fact that the inquiry may elicit. This is considered an advantage in favor of the captors, but controlled by their liability for costs and damages, if the inquiry should prove fu tile; and over-balanced by the advantage in favor of the claimant, that all the evidence upon which the

The Eliza and Katy, 6 Rob., 185; The Henrick and Maria. 4 Rob., 43; The Speculation, 2 Rob., 243; The William and Mary, 4 Rob., 381; The Apollo, 5 Rob., 286; The Vigilantia, 1 Rob., 1; Jennings vs. Carson, 4 Cranch, 2.

The Adeline, 9 Cranch, 244; The Fortuna, 1 Dod., 81.

libel must be heard, in the first instance, proceeds from himself, his own documents, his own witnesses, -the captors not being permitted, except in cases marked by peculiar circumstances, to furnish any evidence whatever.

The prize libel is filed by a proctor for the cap- By whom tiled. tors. In England, in cases of capture by government ships, the libel is filed and the proceedings conducted by the officers of the government exclusively; for it is there held, that the crown possesses the power to release the prize, against the will and in defeat of the rights of the captors, at any time before adjudication. In the United States, although the courts have never been required to pass upon the question, it is not probable that the same exclusive authority would be recognized; for there, after the libel is filed, the power is vested in the court alone, and no release or restitution of the property can be made but by a decree of the court.2 It was suggested by Judge Story, that in such a case, and where the libel was filed by the district attorney, the court would, in the absence of the captors, appoint a proctor to represent their interests.

warrant.

Upon the filing of the libel, a monition forth- Monition and with issues, citing all persons interested, to appear at a day named therein (which, in England, is twenty days, but in the United States is fixed at the discretion of the district judge), and show cause why the property should not be condemned as

The Elsebe, 5 Rob., 155, 173.

* Vide Appendix of Supplementary Rules and General Principles announced by the United States Judge of the District of New York.