452

PRIZE PRACTICE IN 1793 AND 1794.

So exclusive is this jurisdiction that, where the question is prize or no prize, the United States Supreme Court will prohibit proceedings at common law.

Neither can prize courts of belligerents be erected by belligerents in a neutral country; nor, if erected, can they there rightfully exercise jurisdiction. The Flad Oyen, 1 Ch. Rob. 140; and 1 Johns. 471, Wheelwright v. Depeyster.

Nor have the Admiralty courts of neutrals jurisdiction over prize questions arising between belligerents. 1 Pet. Adm. 12, Findlay v. Williams.

But to recover prize money merely, prize agents may resort to the State courts.

Prior to the war of 1812, between Great Britain and the United States, the practice of the courts of prize in the United States was by no means regular and precise; but, on the contrary, rather loose and irregular; and, as such, it became the subject of animadversion and rebuke by the court.

In 1794, Sept. 10, when John Jay was the American Plenipotentiary at London, as an act of comity, a succinct summary of the course of proceeding in prize cases was prepared for him by Sir William Scott and. Sir John Nicholl, the former then presiding in the High Court of Admiralty, the latter subsequently succeeding Sir Christopher Robinson in the same high judicial position.

The basis of this summary was a paper prepared by Sir George Lee of the Prerogative Court, Dr. Paul, Advocate-General, Dudley Rider, Attorney-General, and Mr. James Murray, then Solicitor General and afterward Lord Mansfield.

That paper remained the foundation and guide of

IRREGULARITIES IN PRACTICE NOTICED IN 1817. 453

prize practice and proceeding until 1812, when the United States courts became considerably occupied by business in prize causes; some of which causes were carried up to the highest tribunal. Among them was the case of Dos Hermanos v. Basil Green, claimant (2 Wheat. 76), in which the court took occasion to comment on previous irregularities in prize proceedings, and judicially to admonish the bar against the recurrence of such irregularities in future. The decision was given in 1817, and the counsel engaged were Harper for claimant and Key for captor.

The language of the court was as follows: "It is the established rule in courts of prize, that the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured ship. On this account, it is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the District Court and to have the examinations of the principal officers or seamen of the captured ship taken before the district judge or commissioners appointed by him, upon the standing interrogatories. It is exclusively upon these papers and examinations taken in preparatorio that the cause is to be heard before the District Court.

"If, from the whole evidence, the property clearly appear to be hostile or neutral, condemnation or acquittal immediately follows.

"If, on the other hand, the property appear to be doubtful, or the case be clouded with suspicions or inconsistencies, it then becomes a case of farther proof; which the court will direct or deny, according to the rules which govern its legal discretion on the subject.

"Farther proof is not necessary as a matter of course.

It is granted in cases of honest mistake or ignorance, or to clear away any doubts or defects consistent with good faith.

"But if the parties have been guilty of gross fraud, or misconduct, or illegality, farther proof is not allowed; and, under such circumstances, the parties are visited with all the fatal consequences of an original hostile character.

"It is essential, therefore, to the correct administration of prize law, that the regular modes of proceedings should be observed with the utmost strictness; and it is a great mistake to allow common law notions in respect to evidence or practice to prevail in proceedings which have very little analogy to those at common law.

"These remarks have been drawn forth by an examination of the present record.

"The court could not but observe with regret, that great irregularities had attended the cause in the court below. Neither were the ship's papers produced by the captors, nor the captured crew examined upon the standing interrogatories. Witnesses were produced by the libellants and the claimant indiscriminately at the trial, and their testimony was taken in open court, upon any and all points to which the parties chose to interrogate them. And upon this testimony and the documentary proofs offered by the witnesses, the cause was heard and finally adjudged. In fact, there was nothing to distinguish the cause from an ordinary proceeding in a mere revenue cause in rem.

"This court cannot but watch with considerable solicitude, irregularities which so materially impair the simplicity of prize proceeding, and the rights and duties

PRACTICE REFORMED.

455

of the parties. Some apology for them may be found in the fact, that from our having been long at peace, no opportunity was afforded to learn the correct practice in prize causes.

"But that apology no longer exists, and if such irregularities should hereafter occur, it may be proper to adopt a more rigorous course, and to withhold condemnation in the clearest cases, unless such irregularities are avoided or explained."

Again, in the Pizarro (2 Wheat. 240), the court say: "The proceedings in the District Court were certainly very irregular, and this court cannot 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 vivá voce in open court.

"Nor should the captured crew have been permitted to be reëxamined in court.

"Public policy and justice equally point out the necessity of an inflexible adherence to this rule.”

These opinions were prepared in 1817, and about the same time learned notes upon doctrines and cases regulating prize proceedings were prepared and published in the appendix to 1 and 2 Wheaton's Reports; the authorship of which notes has been attributed to the late Mr. Justice Story, and not, probably, without cause.

From these sources are to be derived the law of prize, and the practice under it as recognized by prize courts. By referring to these, also to the letter addressed to John Jay, and to the adjudged cases to be found in

456

PRIZE REPORT ·

NEUTRAL PROPERTY

Marriott, Hay, and the regular series of Admiralty Reports in England since 1798, as well as the Reports of Dallas, Cranch, Gallison, and others in this country, the diligent student may easily collect all the principles and rules to be resorted to, for condemning as prize, or to be relied upon for acquittal as prize.

A not uncommon defense in prize cases is, that the goods captured are the property of a neutral. If a neutral claimant intervene, he should do so in Admiralty at the time of the hearing and adjudication upon the preparatory evidence. His defense, if well founded, may then avail him.

In 2 Wheat. 89 (supra), the court say: "It is certainly the duty of neutrals to put on board of their ships sufficient papers to show the real character of the property; and, if their conduct be fair and honest, there can rarely occur an occasion to use disguise or false documents.

"At all events, when false or colorable documents are used, the necessity or reasonableness of the excuse ought to be very clear and unequivocal, to induce a court of prize to rest satisfied with it."

Ibid. p. 97. "It is an established rule of this court, that if a party will attempt to impose upon the court by knowingly or fraudulently claiming as his own, property belonging in part to others, he shall not be entitled to a restitution of that portion which he may ultimately establish as his own..

"This rule is founded in the purest principles of morality and justice."

In the Pizarro (2 Wheat. 241), the court say: "Concealment or even spoliation of papers is not of itself a sufficient ground for condemnation in a prize court.