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WITH THE APPELLATE COURT.

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ing cases of appeal, are to administer, and not to make laws; they should be restricted to declaring what is, and not devising what ought to be, the practice of the courts under its supervision. The error of attempting to prescribe a new rule of practice in prize proceedings is not only unprecedented, but may be futile and nugatory, as it might be in derogation of the laws of nations. If the new rule be not generally acquiesced in, or is not in accordance with the known usages and customs of nations, or has not been a subject of treaty stipulation, no one can be assured that it will ultimately be adopted and incorporated as part of the international law of the commercial world.

Whether the case of the Ostsee presents an instance of judicial conduct and course so questionable, may only be seen by looking at all the authorities. Not only was probable cause a question for the court, formerly, on condemnation as prize, but also, on restitution of captured property; and in either or both cases, the court had discretionary power.

But the fair result of the decision of the Judicial Committee in the Ostsee is to establish an imperative, rigorous, rule of practice, whereby costs and damages are made to follow, of course, any decree of restitution merely on claimant's evidence, that is, the proofs derived from the depositions, log, and ship's papers. And from that decision, however critically it may be analyzed, no other rule can justly be evolved. Its novelty in the courts can only be equalled by its harshness upon the captors. Formerly, captors had some legal standing in a prize court; they could be heard and might have a chance to justify or excuse a seizure. But this judgment of the superior court has practically wrested from them

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THE ADMIRALTY DECISION UPHELD

every legal weapon of defense; they are inhibited from proffering further proof, and not permitted to exonerate themselves by proving or alleging justification or excuse. This is the obvious effect of this decision, else it is meaningless. A rule so unrelenting leaves to the

court no discretion.

The earlier American authorities do not warrant such practice; and at least one of the later cases is in conflict with it. Special reference will be made to two decisions of Judge Peters; one a case of illegal sale, in 1793 (1 Pet. Ad. 330), Hollingsworth et al. v. The Betsey; the other a case of illegal condemnation, in 1804, Jolly et al. v. The Neptune, 2 Pet. Ad. 345.

The Betsey was a brigantine, bound from St. Bartholomew's to Amsterdam, owned in the United States, with a neutral cargo on board. She was captured by a French privateer, sent into Philadelphia for adjudication, and, upon claimant's proofs, ordered to be restored. The owners of cargo were neutral Swedish subjects and claimed damage. The captors (by Duponceau) craved hearing on the damage, which was allowed.

The first order was an interlocutory decree, restoring ship and cargo, upon the ground that the seizure was not a capture by one enemy from another. And in reference to this, Judge Peters said: "I do not hereby preclude further investigation and inquiry into any matter or thing herein taken, quoad hoc, for granted; but the whole subject as to fact, law, and jurisdiction, is open for discussion and for the final sentence and decree of the court."

Prima facie, the vessel was American property, the cargo Swedish property.

There was an answer to the claim for damages, a

BY AMERICAN PRACTICE AND PRECEDENTS.

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replication, and decree awarding claimant's costs and damages; but referring it to the clerk and merchants to assess the amounts. These assessors reported as damages for vessel, $4,277.49, and for cargo, $2,485.29. This report was ratified and made absolute in the final decree of the court, unless cause were shown in four days.

The other case of the Neptune was a case of illegal condemnation, perpetrated by a pretended court, held by a French general (M. de Noailles), on the quarterdeck of another vessel. And Judge Peters said: "I have no hesitation in declaring that, in my opinion, that pretended court was unlawful. It was not warranted by the usage and laws of nations." Rejecting, therefore, all proofs or legal effects, claimed under its allegations or decrees, the court ordered restitution with costs and damages.

In both these American cases, there were claims made, replications filed, and restitution decreed. But in both, the captors were heard, and the court exercised a judicial discretion; though ultimately awarding costs and damages to the claimants. Judge Peters was no ordinary judge of Admiralty or Prize law and practice. In a biographical notice, he is thus spoken of: "As a judge, he possessed powers of a high order, and his decisions on Admiralty law form the groundwork of this branch. of jurisprudence. Their principles were not only sanctioned by our own courts, but were simultaneously adopted by Lord Stowell, the distinguished maritime judge of Great Britain."

And in a note to Jennings v. Carson's Exrs. (1 Pet. Ad. 5), Judge Peters says of himself, "Having been Register of the colonial Court of Admiralty before our Revolu

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DISSENT OF AMERICAN COURTS.

tion, the knowledge of the English arrangement of the court must have been once familiar to me."

The later American case referred to is that of the La Manche (supra), in which Judge Sprague said: “It has been held that if the case be one for further proof, there is probable cause. But the converse of this is not true, if restitution be ordered without further proof (that is upon the claimant's proofs) it does not follow that the sending in was improper." Although the rule for damages, as prescribed in the Ostsee by the Privy Council, was pressed upon the attention of Judge Sprague, it is plain that he did not practically regard the case as conclusive authority; but deliberately followed the practice and law of prize as officially prepared in 1753, by the principal law officers of the crown at that period; and which was subsequently adopted in 1794, by Sir William Scott and Sir John Nicholl in their letter to John Jay, and has since been judicially recognized and conformed to in prize proceedings by Scott and Lushington. On the part of the Judicial Committee, it was a bold attempt at innovation in 1855, to alter or deviate from the former practice. If their decision be rightly stated by Dr. Lushington, or be rightly understood by other jurists, then indeed it must be an equivocal if not unsound exposition. Subsequent cases tend to show that the rule of damages as there stated requires explanation or qualification, and so the decision cannot be sound; or, if not clearly stated, then it is equivocal, and cannot be safely followed.

The Leucade was the first subsequent case in which the decision of the superior court was reviewed, and the language of the Judicial Committee criticised by Dr. Lushington. The Fortuna and Aline and Fanny followed

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after and conformed, with apparent reluctance, to the new rule as interpreted; but on appeal of this last case, it was voluntarily so explained and qualified by the Judicial Committee as to make it conform to the former practice. The dates and extracts from these several decisions which are subjoined, seem fully to justify the preceding comment.

The Judicial Committee, having referred to the Maria Schroeder, 3 Ch. Rob. 152; the Charming Betsey, 2 Cr. 123; the Triton, 4 Ch. Rob. 79; the William, 6 ibid. 316; the Elizabeth, 1 Acton, 13; the Acteon, 2 Dods. 51; and to Story on Prize Practice (Pratt's ed.); thence deduce this conclusion: "The result of these authorities is, that in order to exempt a captor from costs and damages in case of restitution, there must have been some circumstances connected with the ship or cargo, affording reasonable ground for belief that one or both, or some part of the cargo, might prove, upon further inquiry, to be lawful prize." Spinks' Prize Cases, 179.

In the Leucade (ibid. 230), Dr. Lushington said: "This rule I apprehend to be that, in the case of all ships and cargoes brought in for adjudication, if it should appear from the depositions and ship's papers that the seizure was made without probable cause, a condemnation in costs and damages will follow; or in other words, such decree shall be passed, when the depositions and ship's papers do not show probable cause." And then, p. 233, adds, "It appears to me, that to subject the captors to costs and damages, without giving them the opportunity of explanation, would, at least, savor of injustice." And subsequently (ibid.) asks: "If, upon claimant's evidence alone, a cruiser would be condemned

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