FOR CONDEMNATION AND DISTRIBUTION.

447

This delay to condemn goods as prize, as promptly as the condemnation of the vessel, may be in deference to the possible rights of neutral shippers in part; partly to international comity; and possibly to save captors from subjecting themselves to any possible liability to damage or costs from innocent, neutral, or not hostile owners of such goods; which might and does follow, where the court should decline to certify probable

cause.

The main purposes to be effected in prize proceedings are, legal condemnation of lawful prize, and just distribution of the proceeds.

If the condemnation be valid, that decision settles also several other questions often raised, such as the nationality of the prize; the domicile of the master, crew, and owners; the lawfulness of prize, and liability to sale by the marshal for the purpose of depositing the proceeds in court for distribution, or with the regis trar for future disposition by the court.

And these matters may be determined by the court, upon the evidence ex or in preparatorio, without resorting to further proof; ordinarily they are so determined upon the papers, proofs, and documents, returned by the commissioners, and answers to the interrogatories, where no claimant appears to contest or resist condemnation.

Afterward, if any claim of joint capture, actual or constructive, be interposed, it may become the duty of the court to permit, order, or resort to farther proof, with a view of settling the relative rights of conflicting claimants and determining the respective shares to which each vessel, upon the ground of joint capture, presence, or signal distance, is justly entitled; to the end

448

PREPARATORY EVIDENCE

FURTHER PROOF.

that a just distribution of prize money may be decreed among all persons who may have meritoriously partici

pated in the capture.

In recognized national warfare, captures are made of prizes while they are flying their own national flag; in which cases, the preparatory evidence is likely to afford sufficient ground for speedy adjudication, and as prompt condemnation. These cases, while they may illustrate the daily routine and practice in proceedings before prize courts, furnish but little of law or learning for the student, and nothing indeed of authority for settling prize causes, where there is controversy.

It is only to contested cases that we may look for a vigorous enunciation of the principles of prize law, and their just application to existing facts: accordingly, after a careful reading of the interrogatories to be propounded to the master of the vessel captured, or others sent in with the prize to be interrogated agreeably to the forms as framed in England (1 Ch. Rob. 381) and in the United States (2 Wheat. App. 81), the formal practice becomes secondary compared with the study and examination of the adjudged cases.

Indeed, unless there exists fraud, embezzlement, spoliation, prevarication, subterfuge, or some other just cause for suspicion, the answers to the standing interrogatories, if fairly made, ought generally to furnish ample material for the judge of a prize court to proceed to adjudication, without necessarily resorting to further proof, or causing procrastination.

And this is usually so, if there be no concealment, suppression, or destruction of documents and papers, or subterfuge, evasion, or unfairness in giving the answers; 1 Vide Appendix L.

STANDING INTERROGATORIES.

449

for the interrogatories are well calculated to elicit all the needful facts, and exhaust the inquiry. They are doubtless well considered and designed to cover every possible ground of escape, and long experience seems to have satisfied both courts and practitioners with their sufficiency.

Nevertheless, it has always seemed to the author, whenever he has read them, that those of the United States would be materially improved by an additional forty-seventh interrogatory, running thus:

"What, if you know, was the real national character of the captured vessel and cargo? Or, if you are without positive personal knowledge, what (according to your best knowledge and belief) was the understood national character of the vessel and cargo seized?"

With this suggestion diffidently made, the transition is easy and natural to the consideration of the general principles of international and municipal law, which underlie the proceedings and control the practice of prize courts, as they may be gathered from the various reported contested prize causes and their adjudication as found in the Admiralty Reports.

In all controversies about prize matters, the nationality of the vessel seized, the domicile of her owners, master, and crew, her ports of departure and destination, her situation and course at the time of capture, her cargo, its character, and possible use, whether contraband or otherwise, and her colors on board, necessarily become, from the examinations in preparatorio material and important, in determining the proprietary interest of a claimant against captor.

It is then indispensable that the court should be

450

ACTS OF CONGRESS IN 1862 AND 1864.

warranted in determining the nationality of the prize to be that of a belligerent.

The domicile of the owners and crew are only means to that end.

And so it may be said of all the facts designed to he drawn from the persons returned with the prize, for examination under the standing interrogatories.

By the act of Congress, ch. 50, March 25, 1862, it was enacted that prize commissioners should take the custody of captured property brought into their district;

And, if perishing, perishable, or deteriorating, then the court may order interlocutory sale of the property by the marshal; the disposition of the proceeds to await the result of an adjudication;

The commissioners were to receive from the prize master all papers and documents, and at once proceed to take testimony;

And the court shall then proceed promptly and without unnecessary delay, to a hearing and adjudication : And all reasonable and proper charges, with costs of counsel, were to be paid out of the proceeds of sale;

Or by the claimant, in whole or part, as the court may direct, when the property is restored and there is no sale.

But this act, and prior and subsequent acts, relating to proceedings in prize, and the original act of 1800, March 3, for salvage or recapture, which together constituted all the Congressional legislation relating to prize and its incidents, were expressly repealed; as will be seen by reference to § 35, U. S. Act of June 3, 1864, entitled "An Act to regulate prize proceedings and the distribution of prize money, and for other purposes," which may hereafter be referred to as the U. S. Prize

Act, and will be found printed at length in the Appendix.1

In all prize proceedings in the United States, the original process is by libel in the district courts; and there all the preliminary questions of domicil, further proof, proprietary interest, and national character are to be settled in the first instance; and, unless there settled, the case would be remanded by the Supreme Court to the District Court with directions to settle such questions.

In Miller v. The Resolution (2 Dall. 12), it was held that, on a libel for prize, the onus was on the captor; while by the rules of a prize court, the onus probandi of a neutral interest rested on the claimant. 6 Wheat. 1, The Amiable Isabella; 5 Curt. Con. 1, S. C.

In these cases, it was held generally, that on adjudication, the questions of acquittal or condemnation must be decided, in the first instance, upon the evidence derived from prize documents and the examination of persons captured.

In all questions of prize or no prize the Admiralty courts have original jurisdiction. 1 Bay, 470, Sarportes v. Jennings; ibid. 8, Jenkins v. Putnam; also exclusive jurisdiction, see 1 Yeates, 443, Ross v. Rittenhouse; 3 Binney, 220, Cheviot v. Fausset; 3 Dall. 19, Bingham v. Cabot; 1 Curt. Con. 13, S. C.

And, as a general rule, the exclusive cognizance of prize questions belongs to the capturing power. 1 Wheat. 238, L' Invincible; 2 Gall. 29, The Invincible.

And the United States district courts have jurisdiction of prize and all incidental questions, independently of the act of June 26, 1812, ch. 430. 3 Wheat. 546, The Amiable Nancy.

1 Appendix K.