the capture existed; although restitution should be decreed, at the hearing, on the proofs, in the first instance.

It was therefore considered that the legislative enactment, providing for the payment of the costs and expenses out of the proceeds of a sale of the property, "in the event of its condemnation," would not only secure their payment without great delay, but would be manifestly just, and in accordance with the theory of prize proceedings, and the practice of prize-courts.

This statute has, however, received a judicial construction at variance from all this.

otherwise con

the

of the United

The Sarah Starr and The Aigburth, having been The statute condemned upon the hearing in the first instance, strued by by the decrees of the District Court of the United Circuit Court States for the Southern District of New York, the States in the several claimants in each case appealed from the in the cases of decrees to the United States Circuit Court.

Second Circuit

The Sarah

Starr and

The cargoes had been sold on interlocutory order, The Aigburth. and the proceeds deposited in court. The claimants and appellants then moved the Circuit Court for an order for the appraisement of the vessels, and their delivery to them, upon executing a bond for their appraised value.

The marshal then intervened, and prayed for an order for the payment of the expenses and disbursements out of the proceeds in court in the several causes, and which he had individually disbursed; consisting of pilotage, towage, wharfage, keeper's fees, &c.

After reciting the provisions of the act of March, 1862, the learned judge says:

"It will be seen, from the above provisions, that

the claimant is not responsible for the costs and expenses attending the seizure, detention and safe custody of the vessel seized by the government, unless followed by a decree of condemnation, or restitution on payment of the costs.

"The government is the libellant, instituting proceedings against the vessel, and, like any other party instituting a suit, is responsible for the ex penses incurred in the progress of the litigation, accompanied with the right of reimbursement in the event of success, namely, the condemnation of the vessel, &c.

"The claimant acts on the defensive, and is not subject to any portion of the costs and expenses incurred by the proceeding of the libellant, except his own, in the progress of the defense, till adjudged against him by the court in the final adju dication.

"It is true that these costs and expenses are a charge upon the property seized, whether vessel or cargo, and which remains in the custody of the law, or its proceeds, in case of an interlocutory sale, or the bond, as representing the property, in case it is bonded, as a security for the reimbursement of these costs and expenses; and this charge upon the res continues until the final adjudication of the case. If favorable to the libellant, they are paid out of the proceeds; if not, they are exempt, and the property, or proceeds, restored to the claimants.

"Applying these principles to the case before us, it is quite clear that the marshal's bill presented, which includes charges for his own services, for wharfage, towage, &c., cannot be allowed. He must look to the government, the libellant, for

these expenses, or postpone his claim to the final adjudication, when, if against the claimant, he may be paid out of the proceeds, otherwise not."

By the language of this opinion, it is apparent that the learned court regards a proceeding in a prize-court, in adjudication upon a maritime capture, as analogous to an instance-suit in Admiralty, in this, that neither the capture, nor the decree of condemnation after hearing, upon the proofs, furnish any presumption against the claimant; and further, that the framers of the statute, in providing for the payment of the expenses out of the proceeds of the property "in the event of condemnation," intended a decree of condemnation, affirmed by the Circuit Court, and again affirmed by the Supreme Court of the United States.

If the intention of the act was such as it was supposed to be prior to this decision, the effect of this authoritative construction was to render. it nugatory; and thus the question of the payment of the costs and disbursements incident to adjudications. in prize, remained in the like situation as before the statute, and continued to impose serious and increasing embarrassments upon the respective officers charged with the administration of the law.

dered inopera

quent attempt

An attempt was made to provide a remedy for Incongruous this, by further legislation during the same session legislation renof Congress; but it was unfortunately postponed to tive a subsethe last day of the session, and then, as is too often to provide a the consequence of such delay, the provisions which remedy. passed into a law were ill considered, and of a char acter so ambiguous and contradictory, as to be inoperative in accomplishing the purpose designed. A brief but comprehensive legislative enactment

which should supersede all present statute provisions, and be a full execution of the power conferred upon Congress by the 10th subdivision of the 8th section of the Constitution of the United States, "to make rules concerning captures on land and water," is imperatively required at the earliest practicable moment.

APPENDIX.

NO. I.

LETTER FROM SIR W. SCOTT AND SIR J. NICHOLL TO MR. JAY.

SIR-I have the honor of sending the paper drawn up by Dr. Nicholl and myself; it is longer and more particular than perhaps you meant; but it appeared to be an error on the better side, rather to be too minute, than to be too reserved in the information we had to give; and it will be in your excellency's power either to apply the whole or such parts as may appear more immediately pertinent to the objects of your inquiry.

I take the liberty of adding, that I shall at all times think myself much honored by any communications from you, either during your stay here, or after your return, on any subject in which you may suppose that my situation can give me the power of being at all useful to the joint interests of both countries. If they should ever turn upon points in which the duties of my official station appear to impose upon me an obligation of reserve, I shall have no hesitation in saying that I feel them to be such. On any other points on which you may wish to have an opinion of mine, you may depend on receiving one that is formed with as much care as I can use, and delivered with all possible frankness and sincerity. I have the honor to be,

COMMONS, Sept. 10th, 1794.

With great respect, etc.,

WILLIAM SCOTT.

PAPER ENCLOSED IN THE FOREGOING LETTER.

SIR: We have the honor of transmitting, agreeably to your excellency's request, a statement of the general principles of proceeding in prize causes, in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as a prize within their jurisdiction.

The general principles of proceeding cannot, in our judgment, be stated more correctly or succinctly than we find them laid down in the following extract from a report made to his late majesty in the year 1753, by Sir George Lee, then judge of the prerogative court, Dr. Paul, his majesty's advocate-general, Sir Dudley Rider, his majesty's attorney-general, and Mr. Murray (afterward Lord Mansfield), his majesty's solicitor-general:

"When two powers are at war, they have a right to make prizes of the ships, goods, and effects of each other, upon the high seas. Whatever is the property of the enemy, may be acquired by capture at sea; but the property of a friend cannot be taken provided he observes his neutrality.

"Hence the law of nations has established,

"That the goods of an enemy, on board the ship of a friend, may be taken.

"That the lawful goods of a friend, on board the ship of an enemy, ought to be restored. "That contraband goods, going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality.

"By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, a lawful prize.

"Before the ship, or goods, can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard; and condemnation thereupon as prize, in the court of admiralty, judging by the law of nations and treaties.

"The proper and regular court, for these condemnations, is the court of that state to which the captor belongs.