be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service, and if any claim has been given, the cause is then ready for hearing, upon the evidence arising out of the ship's papers, and preparatory examinations.

'The measures taken, on the part of the neutral master or proprietor of the cargo, are as follows: Upon being brought into port, the master usually makes a protest, which he forwards to London, as instructions (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship and such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself, as soon as he has undergone his examination, goes to London to take the necessary steps.

'The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong, and that no enemy has any right or interest in them. Security must be given to the amount of sixty pounds to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the meantime to take the usual steps (but which seldom happens, as he is strictly enjoined both by his instructions, and by the Prize Act, to proceed immediately to adjudication), a process issues against him on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual way.

'As soon as the claim is given, copies of the ship's papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It, however, seldom happens (owing to the great pressure of business, especially at the commencement of a war) that causes can possibly be prepared for hearing immediately upon the expiration of the time for the return of the monition; in that case, each cause must necessarily take its regular turn. Correspondent measures must be taken by the neutral master, if carried within the jurisdiction of a Vice-Admiralty court, by giving a claim supported by his affidavit, and offering security for costs, if the claim should be pronounced grossly fraudulent.

"If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the court where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence), and he afterwards applies at the registry of the Lords of Appeal in prize causes, which is held at the same place as the registry of the High Court of Admiralty, for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the High Court of Admiralty, and within nine months if in a Vice-Admiralty court; but may be taken out at later periods, if a reasonable cause can be assigned for the delay that has intervened. This instrument directs the judge whose sentence is appealed from, to proceed no further in the cause; directs the registrar to transmit a copy of all the proceedings of the inferior court; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for this inhibition, security is given on the part of the appellant to the amount of two hundred pounds to answer costs, in case it should appear to the Court of Appeal that the appeal is merely vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party and his proctor, by showing the instrument under seal, and delivering a note or copy of the contents. If the party cannot be found, and the proctor will not accept the service, the instrument is to be served viis et modis—that is, by affixing it to the door of the last place of residence, or by hanging it up on the pillars of the Royal Exchange.

That part of the process above described, which is to be executed

abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed upon the back of the instrument, sworn before a surrogate of the superior court, or before a notary public, if the service is abroad.

"If the cause be adjudged in a Vice-Admiralty court, it is usual, upon entering an appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in England, who carries it to a proctor; and the same steps are taken to procure and serve the inhibition as where the cause has been adjudged in the High Court of Admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition may be obtained by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.

Upon an appeal, fresh evidence may be introduced, if upon hearing the cause the Lords of Appeal shall be of opinion that the case is of such doubt as that further proof ought to have been ordered by the court below. Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined by their clerks and others acquainted with the transaction, and with the real property of the goods claimed. In corroboration of these, affidavits may be annexed, original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by the affidavits of persons who can speak to their authenticity; and if copies or extracts, they should be collated and certified by public notaries. The affidavits are sworn before the magistrates, or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British Consul.

'The degree of proof to be required depends upon the degree of suspicion and doubt that belongs to the case. In cases of heavy suspicion and great importance, the court may order what is called "plea and proof”— that is, instead of admitting affidavits and documents, introduced by the claimant only, each party is at liberty to allege in regular pleadings such circumstances as may tend to acquit or to condemn the capture, and to examine witnesses in support of the allegations to whom the adverse party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are not often resorted to.

Standing commissions may be sent to America, for the general purpose of receiving examinations of witnesses in all cases where the court may find it necessary, for the purposes of justice, to decree an enquiry to be conducted in that manner.

'With respect to captures and condemnations at Martinico, which are the subjects of another enquiry contained in your note, we can only answer in general, that we are not informed of the particulars of such captures and condemnations; but as we know of no legal court of Admiralty established at Martinico, we are clearly of opinion that the legality of any prizes taken there must be tried in the High Court of Admiralty of England upon claims given in the manner above described, by such persons as may think themselves aggrieved by the said captures.'

PRACTICE IN PRIZE COURTS.

[This was written in 1816, and is extracted from Wheaton's 'Reports,' vol. i. note ii. p. 494. It was, in fact, written by Judge Story, as appears from the 'Life of Judge Story,' by his son (London, Chapman, 1851).]

As soon as a vessel or other thing captured as a prize arrives in our Practice ports, notice should be given thereof by the captors to the district judge, in prize or to the commissioners appointed by him, that the examinations of the courts captured crew, who are brought in, may be regularly taken in writing, upon oath, in answer to the standing interrogatories. These are usually prepared under the direction of the district judge, and should contain sifting enquiries upon all points which can affect the question of prize. The standing interrogatories used in the English High Courts of Admiralty (1 Rob., 381) have been drawn up with great care, precision, and accuracy, and are an excellent model for other courts. They were generally adopted during the late war by the district judges in the principal States, with a few additions and scarcely any variations. The examinations upon these interrogatories are rarely taken by the district judge in person; for, in almost all the principal ports within his district, he appoints standing commissioners for prize proceedings, upon whom this duty devolves. It is also the duty of the prize master to deliver up to the district judge or commissioner all the papers and documents found on board, and, at the same time, to make an affidavit that they are delivered up as taken, without fraud, addition, subduction, or embezzlement. In general, the master and principal officers and some of the crew of the captured vessel should be brought in for examination. This is a settled rule of the prize courts, and was, during the late war, enforced by the special instructions of the President. The examination must be confined to persons on board at the time of the capture, unless the special permission of the court is obtained for the examinations of others (6 Rob., 185, the Eliza and Katy;' 4 Rob., 43, 57, the 'Henrick and Maria'). In order to guard as much as possible against frauds and misstatements from after contrivances, the examination should take place as soon as possible after the arrival of the vessel, and the witnesses are not allowed to have communication with, or to be instructed by, counsel. The captors should also introduce all their witnesses in succession; for if the commissioners have taken the depositions of some of the crew, and transmitted them to the judge, they will not be at liberty, without a special order, to examine others who are afterwards brought by the captors before them (2 Rob., 243, the 'Speculation'). On the other hand, an equal strictness is held over the conduct of the claimants. If they keep back any one of the captured crew for two or three days after the vessel comes into port, and then offer him, together with papers in his possession, the commissioners will be justified in not examining him (1 Rob., 331; and see 4 Rob., 381, the 'William and Mary'). The ship's papers and other documents found on board, which are not delivered up to the district judge, or the commissioners, before, or at the time of, the examinations, will not be admitted as evidence (ibid.)

Although the examinations are to be on standing interrogatories, without the instruction of counsel, yet the witnesses are produced in the presence of the agents of the parties, before the commissioners, whose duty it is to superintend the regularity of the proceedings, and protect the witnesses from surprise or misrepresentation. Where the deposition is taken, each sheet is afterwards read over to the witness, and separately signed by him (5 Rob., 286, the 'Apollo'). And the commissioners should be careful that the various answers are taken fully and perfectly, so as to

meet the stress of every question, and should not suffer the witness to evade a sifting enquiry by vague and obscure statements. If the witness refuse to answer at all, or to answer fully, the commissioners are to certify the fact to the court; and, in addition to the other penal consequences to the owners of the ship and cargo from a suppression of evidence, he will be liable to close imprisonment for the contempt. The witnesses should be examined separately, and not in presence of each other, so as to prevent any fraudulent concert between them.

As soon as the examinations are completed they are to be sealed up and directed to the proper district court, together with all the ship's papers which have not been already lodged by the captors in the registry of the court.

It is upon the ship's papers and depositions thus taken and transmitted that the cause is, in the first instance, to be heard and tried (1 Rob., 1, the 'Vigilantia'). This is not a mere matter of practice or forın : it is of the very essence of the administration of prize law; and it is a great mistake to admit the common law notions, in respect to evidence, to prevail in proceedings which have no analogy to those at common law. In some few of the district courts it was not unusual, during the late war, to allow the witnesses to be examined, orally, at the bar of the court, long after their preparatory examinations had been taken, and full opportunities had been given to enable the parties to shape any new defence, or explain away any asserted facts. This was, unquestionably, a great irregularity, and, in many instances, must have been attended with great public mischiefs. By the law of prize the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured vessel. The captors are not, unless under peculiar_circumstances, entitled to adduce any intrinsic testimony. It is, therefore, of the last importance to preserve the most rigid exactness as to the admission of evidence; since temptations would otherwise be held out to the captured crew to defeat the just rights of the captors by subsequent contrivances, explanations, and frauds. There can be no honest reason why the whole truth should not be told by the captured persons, at the first examination; and if they then prevaricate, or suppress important facts, it must be from motives which would materially impair the credibility of their subsequent statements. Where the justice of the case requires the admission of new evidence, that may always be obtained, except where, by the rules of law, or the misconduct of the parties, the right to further proof has been forfeited. But whether such further proof be necessary or admissible can never be ascertained until the cause has been fully heard upon the facts, and the law arising out of the facts already in evidence. And, in the Supreme Court, during the whole of the late war, no further proof was ever admitted until the cause had been first heard upon the original evidence, although various applications were made to procure a relaxation of the rule. We shall have occasion hereafter to state some of the cases in which further proof is allowed or denied. If a person wishes to procure the restitution of any property captured as prize, it is necessary that he should, after the prize libel is filed, and at, or before, the return of the monition thereon, or time assigned for the trial, enter his claim for such property before the proper court. And if the captors omit, or unreasonably delay, to institute prize proceedings, any person claiming an interest in the captured property may obtain a monition against them, citing them to proceed to adjudication; which if they omit to do, or to show cause why the property should be condemned, it will be restored to the claimants proving an interest therein. And the same process is often resorted to where the property is lost or destroyed, through the fault or negligence of the captors, in order to obtain a compensation in damages for the unjust seizure and detention. (1 Rob.,

93, the 'Betsey;' 1 Rob., 181, the 'Mentor;' 3 Rob., 239, the 'Huldah ;' ibid. 129, the 'Der Mohr;' ibid. 212, the 'George;' 4 Rob., 215, the 'William ; 6 Rob., 48, the 'Susanna.') The claim should be made by the parties interested, if present, or, in their absence, by the master of the ship, or some agent of the owners. A mere stranger will not be permitted to interpose a claim merely to speculate on the chances of an acquittal. The claim must be accompanied with an affidavit stating briefly the facts respecting the claim and its verity. This affidavit should be sworn to by the parties themselves, if they are within jurisdiction; but if they are absent from the country, or at a very great distance from the place where the court is held, the affidavit may be sworn to by an agent. Before a claim is made, and affidavit put in (which should always be special if the case stands on peculiar grounds), it is not permitted to the parties to examine the ship's papers and the preparatory examinations in order to shape their claims; for this might lead to great abuses. But if it be necessary to ascertain the particulars of a claim, the court will, upon a special application, suffer so many of the papers to be examined as directly relate to such claim; but a sufficient reason is always expected to be shown on affidavit to sustain such an application. (3 Rob., 233, the 'Port Mary.) It is a general rule that no claim is to be admitted which stands in entire opposition to the ship's papers and to the preparatory examinations. (5 Rob., 15, 19, the 'Vrow Anna Catharina;' 6 Rob., 1, ‘La Flora.) But this only applies to cases arising during the war (5 Rob., 15, the 'Anna Catharina'); and it is not so inflexible as to exclude the interest of a citizen or subject, where there is an absolute necessity to simulate papers, as in the case of a trade with the enemy licensed by the State. (6 Rob., 1, 'La Flora.') It is also a general principle that no citizen or subject can be admitted to claim in a prize court, where the transaction in which he is engaged is in violation of the municipal laws of his own country. (2 Rob., 77, the 'Walsingham Packet ;' 4 Rob., 262, note, the 'Etrusco; 5 Rob., 23, the 'Cornelis and Maria;' ibid. 251, the Abby;' 6 Rob., 341, the 'Recovery.') Nor can a person be admitted to claim where the trade in which he is taken is forbidden by the law of nature, and by the municipal laws of his own country, and that where the court is sitting. ('Edinburgh Review,' vol. xvi. No. 21, p. 426, the 'Amédie.') Nor can an enemy interpose a claim, unless under the protection of a flag of truce, a cartel, license, pass, treaty, or some other act of the public authority suspending his hostile character. (1 Rob., 196, the 'Hoop.') And even in a case where the capture has been made in violation of the territorial jurisdiction of a neutral country, the claim for restitution must be made, not by the enemy proprietor, but the neutral government. (5 Rob., 15, the Vrow Anna Catharina ;' 3 Rob., 162, note.)

Where no claim is interposed, it is not now usual to condemn the goods for want of a claim, until a year and a day have elapsed from the time of the return of the monition, except in cases where there is a strong presumption, and reasonable proof that the property actually belongs to an enemy. (1 Rob., 26, 29, the "Staadt Embden.' And see 4 Rob., 43, the 'Henrick and Maria. Coll. Mar., 88, note.) But after a year and a day have elapsed condemnation goes of course, if there be no claim interposed. After a claim is once put in, it is not amendable of course; but if an amendment is wanted to correct the generality of the original claim it will not be allowed, unless a proper case is made out, and sufficient reasons given for the omission in the first instance. (3 Rob., 109, the 'Graaf Bernstorff.' And see 3 Rob., 179, the 'Sally.') It often happens that persons whose property has been captured apply to the court for a delivery upon bail, and under a mistaken notion that such a delivery after n appraisement was a matter of course, or was to be governed by the ime rules as are prescribed in the case of municipal forfeitures, under