cumstances sufficient to warrant suspicion, though not sufficient to warrant condemnation.

The Thompson, 3 Wall., 155.

Causes of prize are usually heard, in the first instance, upon the papers found on board the vessel, and the examination taken in preparatorio; and it is in the discretion of the court to order further proof. The prima facie effect of a bill of lading being to vest the ownership of the goods in the consignee named in it, where the consignee so named is an enemy the goods are prima facie liable to condemnation. Capture at sea of enemy's property clothes the captors with all the rights of the owner at the commencement of the voyage; and no lien created after the capture, or after the commencement of the voyage, can deprive the captors of their rights.

The Sally Magee, ibid., 451.

Frankness and truth are especially required of the officers of captured vessels when examined in preparation for the first hearing in prize.

The Springbok, 5 Wall., 1. See infra, § 362.

When a vessel is liable to condemnation, the first presumption is that the cargo is in the same situation.

The Sally Magee, 3 Wall., 451.

Regularly, in cases of prize, no evidence is admissible on the first hearing, except that which comes from the ship's papers or the testimony of persons found on board. If, upon this evidence, the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or on motion and proper grounds shown, to introduce additional evidence under an order for further proof. If, preparatory to the first hearing, testimony was taken of persons not in any way connected with the ship, such evidence is properly excluded, and the hearing takes place on the proper proofs. The Sir William Peel, 5 Wall., 517.

A ship or cargo is not exempt from condemnation in a prize court, because it was captured in neutral waters. Such a capture might constitute a ground of claim by the neutral power, whose territory had suffered violation, for apology or indemnity. But neither an enemy, nor a neutral acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters.

Ibid. See infra, § 398.

Where several witnesses stated facts tending to prove that a vessel was in the employment of an enemy Government, and that part, at least, of her return cargo was enemy property; but the statement of others made it probable that the vessel was what she professed to be, a merchant steamer, belonging to neutrals; that her outward cargo was

consigned in good faith by neutral owners for lawful sale; that the return cargo was purchased by neutrals, and on neutral account-the court directed restitution, without costs or expenses to either party as against the other.

Ibid. The Sir William Peel, ut sup.

In a case of joint capture by the Army and Navy, it was held that the capture inured exclusively to the benefit of the United States, there being no statutory provision in such a case as to prize-money.

The Siren, 13 Wall., 389.

The right of vessels of the Navy of the United States to prize-money exists only by virtue of statute.

Ibid.

"The question (in cases of condemnation of a vessel for breach of neutrality) is as to the innocency or guilt of the vessel, as if the transaction in which she was implicated was one of personal volition on her part." "The most distinguished and unblemished reputation on the part of a ship-owner will not protect his vessel from confiscation when it is engaged, through untrustworthy agents, and without his knowledge and against his prohibition, in illicit employments, in infraction of revenue and fiscal laws, and pre-eminently in violating the laws of war."

Judge Betts, in the case of the Napoleon, Olcutt, 208.

The legality of captures is to be decided upon competent evidence, and no rules are more proper for determining the competency of evidence than those which prevail in courts of admiralty.

1 Op., 40, Bradford, 1794.

The master of a captured vessel, by the usage of admiralty, is a competent witness.

Ibid.

It is reasonable, as applicable to all nations, to permit a portion of a prize cargo to be sold under the superintendence of our public officers, for the necessary reparation of the prize ship. As to France, it is within the 19th article of the treaty of 1778.

The prize ship should be permitted to sail whenever the captors wish, and a deception practiced on the revenue officers, as to the goods, affords no ground for detaining it.

1 Op., 67, Lee, 1796.

The profits of a capture made by individuals acting without a commission, inure to the Government, but it has not been the practice to exact them. On the contrary, it has been the practice to recompense gratuitous enterprise, courage, and patriotism, by assigning the captors a part, and sometimes the whole prize.

1 Op., 463, Wirt, 1821.

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In the case of the proceeds of the prize the Dos Hermanos, the Attorney-General gave an opinion, based on the facts of the case as reported in 2 Wheaton, 77, that, in strict law, the whole of the proceeds belonged to the United States, if they thought proper to assert their claim.

Ibid.

The Isabella having been condemned by the Supreme Court of the United States as a British vessel falsely and fraudulently covered by Spanish documents, and consequently held to be good prize of war (6 Wheat., 1-100), and a claim having been made by Alonzo Benigno Munoz for reimbursement by Congress, and the Attorney-General having been requested by the Judiciary Committee to communicate information upon the subject, an answer was filed approving the reasons of the action of the executive and the judiciary.

1 Op., 536, Wirt, 1822.

The 4th section of the act of 3d March, 1800, adopts the rules which have been or might be provided by law for the distribution of prizemoney. These rules were taken from the 5th and 6th sections of the act of the 23d of April, 1800, by which the whole of the prize is given to the captors when the vessel captured is of equal or superior force to the vessel making the capture; and when of inferior force, the prize is directed to be divided equally between the United States and the captors.

1 Op., 594, Wirt, 1823.

The condemnation of a vessel and cargo in a prize court is not a eriminal sentence, and the President cannot remit the forfeiture and restore the property, or its proceeds, to the claimant.

10 Op., 452, Bates, 1863.

The President may lawfully direct the release of prize property in which the captors took no interest, it being in their possession and subject to their control.

11 Op., 484, Ashton, 1866.

A Mexican vessel captured as a blockade runner in May, 1846, and brought into New Orleans, as to which no prize proceedings had been instituted, was, with her cargo, to be "considered as Mexican property found in the port of New Orleans after the existence of war between the countries."

Mr. Buchanan, Sec. of State, to Mr. Wagner, June 12, 1846. MSS. Dom. Let. Articles on the law and practice of prize courts, by Prof. Bulmerincq, of Heidelberg, are in the Revue de droit int., vol. 10, pp. 185, 388, 595; vol. 11, pp. 152, 321, 561; vol. 14, pp. 114 ff.

The practice in prize courts is discussed by Mr. Dana in Dana's Wheaton, § 388, note.

"The Supreme Court of the United States has followed the English rule, and has held valid the condemnation, by a belligerent court, of prizes carried into a neutral port and remaining there, the practice be

ing justifiable on the ground of convenience to belligerents as well as neutrals; and though the prize was in fact within neutral territory, it was still to be deemed under the control or sub potestate of the captor, whose possession is considered as that of his sovereign. It may also be remarked that the rule thus established by the highest courts of England and the United States is sanctioned by the practice of France, Spain, and Holland, but several French publicists deny its legality.. For the same reason that a prize court of the captor may condemn captured property while in a neutral port, it may condemn such property situate in any foreign port which is in the military possession of the captor. As a general rule,' says Chief-Justice Taney, delivering the opinion of the Supreme Court, it is the duty of the captor to bring it within the jurisdiction of the prize court of the nation to which it belongs, and to institute proceedings to have it condemned. This is required by the act of Congress in cases of capture by ships-of-war of the United States; and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which, in all civilized countries, secures to the captured a trial in a court of competent jurisdiction before he can be finally deprived of his property. But there are cases where, from existing circumstances, the captor may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his Government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a court of the United States.' Wheat. Hist. Law of Nations, 321; Jecker et al. v. Montgomery, 13 How., 516; The Peacock, 4 Rob., 185; Hudson v. Guestier, 4 Cranch, 293; Williams et al. v. Armoyd, 7 Cranch, 523; The Arabella and Madeira, 2 Gallis, 368; The Henric and Maria, 6 Rob., 138, note; the Falcon, 6 Rob., 198; La Dame Cécile, 6 Rob., 257."

2 Halleck's Int. Law (Baker's ed.), 427. See as to sale of prizes, supra, §§ 329 ff; infra, 400.

The following opinion on the general principles of proceeding in prize courts was drawn up in the form of a letter to Mr. Jay, on the behalf and at the request of the Government of the United States, by Sir W. Scott and Sir J. Nicholl, in 1794, as follows:

"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 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 G. 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 (afterwards 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.

"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 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 a 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 whom the captor belongs.

"The evidence to acquit or condemn, with or without costs and damages, must in the first 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 of admiralty, in all the considerable sea-ports of every maritime power at war, to examine the captains and other principal officers of every ship brought in as a 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 further 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.

"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 affidavits 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 justly be 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.