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The effect of violation of
and resistance to search.
affecting the important question to be determined at the hearing of proprietary interest.
Allied to the subject of illegal trade, prize courts blockade; or are often required, at the hearing, to determine trade ; trade upon the evidence, whether there has been a violacoa sen on esith tion or an attempted violation of a lawful blockher colonies; ade, an illegal traffic in contraband of war, a resist
ance to the right of search, an engagement in the coasting or 'colonial trade of the enemy, or unneutral conduct of any character. These several subjects have been fully reviewed. Some further authorities are here referred to, as well as others relating to the principles adopted by prize courts as to the important question, of the binding character of the acts of the master of the vessel, under various circumstances upon the owner of the vessel or
• The Vigilantia, 1 Rob., 1, 14; The Hoop, 1 Rob., 196; Potts vs. Bell, 8 T. R., 548; The Rapid, 8 Cranch, 155; S. C., 1 Gall., 295; The Alexander, 8 Cranch, 169; S. C., 1 Gallis, 532; The Joseph, 8 Cranch, 451; S.C., 1 Gallis, 545; The Naiade, 4 Rob.. 251; The Neptunus, 6 Rob., 403 ; The Danous, 4 Rob., 255; The Ann, 1 Dod., 221; The Abby, 5 Rob., 251; The Mary, 1 Gallis., 620; S. C., 9 Cranch, 120; The Lord Wellington, 2 Gallis., 103; The Julia, 1 Gallis., 594 ; S. C., 8 Cranch, 181; The Aurora, 8 Cranch, 203; The Hiram, 8 Cranch, 444; S. C., 1 Wheat., 440; The Ariadne, 2 Wheat., 143; The Atlas, 3 Rob., 299; The Sally, 3 Rob., 300, and note a.
· The Boedes Lust, 5 Rob., 233, 1 Wheat., 389, note, 1 Wheatı, 507; app. note 3; The Vrow Judith, 1 Rob., 150; The Adonis, 5 Rob., 256; The Imina, 3 Rob., 167; The Mars, 6 Rob., 79; The Rosalie and Betty, 2 Rob., 343; The Alexander, 4 Rob., 93; The Elsebe, 5 Rob., 173; The Shepherdess, 5 Rob., 262; The Hiram, 1 Wheat., 440; The Dispatch, 3 Rob., 279; The Nereide, 9 Cranch, 388; The Fanny, 1 Dod., 443; The Vrow Judith, 1 Rob., 150 ; The St. Nicholas, 1 Wheat., 417; The Phænir Ins. Co. vs. Pratt, 2 Binney, 308; Oswell vs. Vigne, 15 East,
tors and joint
tled to share in distribution.
When a sentence is pronounced in a prize court, The decree of upon a hearing in the first instance, whether it be and proceedof condemnation, or acquittal and restitution, it is, ings thereon. in all cases, an interlocutory decree, where any thing further remains to be done by the court, after deciding that the property is to be condemned or restored. And first, we will briefly review the subsequent proceedings upon an interlocutory decree of condemnation.
Condemnation being decreed, the next question Who are capfor the prize court to determine is, who are the captors enticaptors entitled to distribution.
We have already passed in review the settled principles upon which this question is to be decided by the court; in connection with captures made by commissioned or non-commissioned vessels—public, private or armed vessels—and as to joint-capture, and the principles upon which it is to be determined what is a joint-capture, and who are entitled to share in the distribution as joint-captors.
It is not usual to file a claim of joint-capture be. When a claim fore the interlocutory decree of condemnation; but to be filed, and if it be delayed until after a decree of distribution, established. it is too late-unless it should happen that an appeal has been taken from the decree, when, as matter of favor, it seems that a claim of joint-capture may be admitted.
It is a settled rule of prize courts, that a claim of joint-capture must be made in the ordinary way, by a regular allegation of the facts and circum
of joint capture
how made and
70; The Neptunus, 1 Rob., 170; The Hoop, 1 Rob., 196; The Daankbaarheit, 1 Dod., 183.
'Duckworth vs. Tucker, 2 Taunt., 7; The Stella del Norte, 5 Rob., 349; Home vs. Camden, 2 H. Bl., 533.
stances relied upon to entitle the claimants to share, to which allegations the captors are permitted to file counter-allegations, and the issue thus made, is to be sustained by proofs (the onus being upon the claimants to the rights of joint-captors) taken be fore the commissioners—being documentary, and the testimony of competent witnesses. No oral evidence is admitted, nor are ex parte affidavits al. lowed. If, upon the allegations set forth in the claim filed, the court should be clearly satisfied that, as matter of law, the claim cannot be sustained, it will be rejected in limine, without in. quiry into the facts. To sustain a claim of jointcapture, proof of the admission of the fact of jointcapture by the capturing ship at the time of capture, is considered conclusive, unless invalidated; and a renunciation of the claim at the time by the asserted joint-captors, is alike conclusive. The evi. dence of witnesses on board the ship setting up the claim of joint-capture, unless corroborated by evi
dence aliunde, is never sufficient to sustain the Distributive claim. In the case of joint-capture by public
ships, the distributive portions are regulated generally by statute provisions.
In the United States, this is done by the act of April 22d, 1800, ch. xxxiii., providing that the capturing ships shall share “according to the number of men and guns on board each ship in sight.”
1 The Urania, 5 Rob., 148; La Virginie, 5 Rob., 124; The Union, 1 Dod., 346; The John, 1 Dod., 363. · The Waaksamheid, 3 Rob., 1.
The Fadrelandet, 5 Rob., 120; La Flore, 5 Rob., 268; The John, 1 Dod., 363; The San Jose, 6 Rob., 244; The William and Mary, 4 Rob., 381.
No statute provisions for distribution exist in the case of joint-capture by privateers. By the general rule of the prize law, distribution in such case is to be in proportion to the relative strength, ascertained by the number of men on board each ship assisting in the capture. Upon a decree of condemnation, if no claim of Sale and final
distribution, joint-capture be interposed, and there be no appeal, when there is the right rests in the captors; and in England, if joint-captuo the capture be by a private armed vessel, the captors and no appeal. . are put in possession and permitted to make sale, and return an account into court. But in the United States, all sales of prize property, whether before or after decree, are made by the marshal, under the provisions of the act of Congress, of January 27th, 1813, chap. clv.
To enable the court to render a final decree of Decree of disdistribution after the sale, it is requisite that the testimony should be taken by the commissioners, bearing upon the questions of superiority or inferiority of force, and of the officers and men entitled to share in their several grades, as shown by the muster-rolls, etc., and report the same to the court.
In the case of capture by public armed ships, the condemnation is always to the government, but the proceeds are distributed pursuant to statute provisions; and this provision, in the United States, is made by the act of April 23d, 1800, chap. xxxiii., and the prize act of June 26, 1812, chap. cvii., makes provision for the distribution of the proceeds where
Roberts vs. Hartley, Doug., 311; The Dispatch, 2 Gall., 1; Duckworth vs. Tucker, 2 Taunt., 7; The Twee Gesuster, 2 Rob., 281; Le Franc, 2 Rob., 285.
the capture is made by duly commissioned privateers. In the appendix will be found the general provisions as to distribution. Non-commissioned persons are not, as a general rule, entitled to the benefit of prize; but exceptions have been made in favor of cases where great personal gallantry has been exhibited, and prize courts have, in some instances, awarded to such persons the entire proceeds.1
Decreo necessary to distri. bution.
Distribution cannot be made without a decree, and such decree is upon the application of the parties or the mere motion of the court itself; but no one can claim a share, whose claim has not been admitted and supported in the prize court. As to the circumstances under which a commander is or is not entitled to share, much discussion has been had; and all the authorities, both in England and the United States, upon this point, are collected in a decision of one of the United States courts, to which reference is made.
By statute, both in England and the United States (the latter by the act of April 23d, 1800, chap. xxxiii., $ 7), in addition to the prize proceeds, a bounty of twenty dollars for each person on board any ship of an enemy at the commencement of an action, which is sunk or destroyed by any ship of
· The Haase, 1 Rob., 286; The Amor Parentum, 1 Rob., 303; The Joseph, 1 Gall., 545.
* Kean vs. Brig Gloucester, 2 Dall., 36; Penhallow vs. Doane, 3 Dall., 54; The Herkimer, Stewart, 128; Bingham vs. Cabot, 3 Dall., 19.
8 Decatur vs. Chew, 1 Gall., 506; vide also The Diomede, i Acton, 69, 239.