the subject matter, but also with respect to the authority from which it has emanated; and if the jurisdiction be unauthorised from either cause, it is a decisive objection to the sentence.'

2

19. We have already pointed out the distinction between prize-courts and municipal tribunals, with respect to their constitution and character. The same distinction exists with respect to the laws which they administer. Prize-courts are in no way bound to regard local ordinances and municipal regulations, unless they are sanctioned by the law of nations.. Indeed, if such ordinances and regulations are in contravention of the established rules of international jurisprudence, prize-courts must either violate their duty, or entirely disregard them. They are not binding on the prize-courts, even of the country by which they are issued. The stipulations of treaties, however, are obligatory upon the nations which have. entered into them, and prize-courts must observe them in adjudicating between subjects or citizens of the contracting parties. The language of Sir William Scott, in delivering the judgment of the court in the case of The Maria,' is peculiarly just and appropriate. In forming my judgment, I trust it has not escaped my anxious recollection for one moment, what it is that the duty of my station calls from me; namely, to consider myself as stationed here, not to deliver occasional and shifting opinions, to serve present purposes of particular national interest, but to administer, with indifference, that justice which the law of nations holds out, without distinction, to independent States, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here, to determine this question exactly as he would determine the same question, if sitting at Stockholm; to assert no pretensions on the part of Great Britain, which he would not allow to Sweden in the same circumstances; and to impose no

1 Phillips, On Insurance, vol. ii. pp. 680, et seq.; Armroyd v. Williams, 2 Wash. R., 608; Cherrot v. Foussat, 3 Binn. R., 220; Snell v. Foussat, 1 Wash. R., 271; Bradstreet v. Nep. Ins. Co., 3 Sumn. R., 600; Francis v. Ocean Ins. Co., 6 Cowen R., 404; Cuculler v. Lou. Ins. Co., 5 Mart. N. S., 464; Ocean Ins. Co. v. Francis, 2 Wend. R., 65.

2 1 Rob., 340.

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duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain, in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as universal law upon the question.' In speaking of the right of a prize-court to adjudicate upon maritime captures, Rutherforth remarks: The right which it exercises, is not civil jurisdiction; and the civil law, which is peculiar to its own territory, is not the law by which it ought to proceed. Neither the place where the controversy arose, nor the parties who are concerned in it, are subject to this law. The only law by which this controversy can be determined, is the law of nature, applied to the collective bodies of civil societies, that is, the law of nations; unless, indeed, there have been any particular treaties made between the two States, to which the captors and the other claimants belong, mutually binding them to depart from such rights as the law of nations would otherwise have supported. Where such treaties have been made, they are a law to the two States, as far as they extend, and to all the members of them in their intercourse with one another. The State, therefore, to which the captors belong, in determining what might or what might not be lawfully taken, is to judge by these particular treaties, and by the law of nations taken together.'

§ 20. 'No proceedings,' says Mr. Justice Story, 'can be more unlike than those in the courts of common law and in Admiralty. In prize-courts, in an especial manner, the allegations, the proofs, and the proceedings, are, in general, modelled upon the civil law, with such additions and alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose.' The parties in a prize case are, therefore, not limited in their recovery, secundum allegata et probata, as in the case of a declaration at common law; but the court having jurisdiction over the property, exerts its authority over all the incidents, and will shape its decree as the circumstances of the case may require. After the first hearing of the cause, orders are made for further proof, not only in the court below, but also in the appellate court. Not only the proceedings, but also the rules of evidence, are, in many respects, different from those of courts of common law; and prize-courts not only decide upon the

claims of the captors, but also upon their conduct in making the capture, and subsequently, and not unfrequently, declare a foreiture of their rights, with vindictive damages. We subjoin a digest of some of the decisions of the Supreme Court of the United States on proceedings in prize cases, and the duties and liabilities of captors. In prize causes, the evidence to acquit or condemn, must come, in the first instance, from the papers and crew of the captured ship. It is the duty of the captors to bring the ships' papers into the registry of the district court, verify them on oath, and to have the examinations of the principal officers and seamen of the captured ship taken on the standing interrogatories, and not viva voce.1 It is exclusively upon these papers and examinations that the cause is to be heard in the first instance. If, from this evidence, the property clearly appears to be hostile or neutral, condemnation or restitution immediately, follows. If the property appears to be doubtful, or the case suspicious, further proof may be granted according to the rules which govern the legal discretion of the court, if the claimant has not forfeited his right to it by a breach of good faith. The Supreme Court hears the cause, in the first instance, upon the evidence transmitted from the Circuit court, and decides upon that, whether it is proper to allow further proof. If the court below has denied an order for further proof, when it ought to have been granted, or has allowed it, when it ought to have been denied, and the objection was made by the party, and appears on the record, the appellate court can administer the proper relief. Where the national character does not distinctly appear, or where the question of proprietary interest is left in doubt, further proof is usually ordered. If the parties have had the benefit of plenary proof in the court below, an order for further proof is not allowed by the ap

1

Judge Story observes, that 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 war of 1812, by the District judges in the United States, with few additions and scarcely any variations.-Wh. Ad. R., app., note ii. p. 494.

2 A vessel, under Greek colours, was captured in the offing of Odessa in 1855, by an English ship of war, while attempting to enter that port, then declared to be in a state of blockade. A claim for her restitution was founded on the necessity of her attempting that port, by reason of her leaky condition. It appeared that the claimant was not in reality her owner. Further proof was allowed by the English prize-court, both for the

pellate court, except under very special circumstances. If there is reason to believe that the applicant has suppressed important documentary evidence, or that the parties have been guilty of gross fraud, or misconduct, or illegality, further proof is not allowed. Further proof by the claimant, inconsistent with that already in the case, is refused. Where an order for further proof is made, and a party neglects to comply with it, courts of prize are in the habit of considering such negligence as fatal to his claim. The concealment or spoliation of papers by an enemy-master carrying a cargo chiefly hostile, does not thereby preclude a neutral claimant, to whom no fraud is imputable, from further proof. The circumstances of goods being found on board an enemy's ship, raises, in general, a legal presumption that they are enemy's property, and the onus probandi of a neutral interest rests on the claimant. Affidavits, to be used as a further poof, must be taken under a commission. Depositions taken on further proof, in one prize cause, cannot be invoked into another. Where the affidavits produced as further proof are positive, but their credibility impaired by the non-production of letters mentioned therein, a second order for further proof will be allowed in the appellate court.'

claimant and the captors-the one to prove, the other to disprove, that the intention to enter the blockaded port arose from 'imperious and overwhelming necessity.' The claim was also allowed to be amended, so as to show who was the real owner.-The 'Panagia Rhomba,' 3 Jur. N. S., 23.

Both parties were allowed to give further proof, as to the intention to violate blockade, in the case of the 'Jane Campbell,' Blatchf. Pr. Cas.,

ΙΟΙ.

A claimant forfeits the right to ask to take further proof, by any guilty concealments previously made in the case.-The 'Grey Jacket,' 5 Wall, 342.

It is the ordinary course of prize-courts, upon an order for further proof, especially where it becomes material to ascertain the circumstances of the capture, to allow the attestations of the captors as evidence; for in such cases, the fact lies as much within the knowledge of the captors as the cap tured, and the objection of interest generally applies as strongly to the one party as to the other.-The 'Anne,' 3 Wheat., 435.

It is enacted by 27 & 28 Vict. c. 25, s. 21, that where, on production of the preparatory examinations and ship papers, it appears to the court doubtful whether the captured ship is good prize or not, the court may direct further proof to be adduced, either by affidavit or by examination of witnesses, with or without pleadings, or by production of further documents, and on such further proof being adduced, the court shall with all convenient speed proceed to adjudication.

The 'Dos Hermanos,' 2 Wheat. R., 76; the 'Pizarro,' 2 Wheat. R., 227; the 'Amiable Isabella,' 6 Wheat. R., 1; the London Packet,' =

§ 21. A vessel libelled as prize, is in the custody of law and under the control of the court. The prize-court in which proceedings were instituted, has power to order a sale, even after an appeal; and although such sale, after an appeal, is irregular, this irregularity will not render the captors liable to pay the amount of the sales, which did not come into their hands, but were under the control of the court. A sale made before condemnation, by one acting under the possession of the captor, does not divest the prize-court of its jurisdiction, to decide the question of prize, and the subsequent condemnation relates back to the capture, affirms its legality, and establishes the title of the purchaser. In the United States a warrant immediately goes to the marshal to take possession Wheat. R., 371; schooner Adeline' and cargo, 9 Cranch. R., 244; the 'Venus,' 5 Wheat. R., 127; the 'Atalanta,' 5 Wheat. R., 433; the 'Fortuna,' 3 Wheat. R., 236; the 'Euphrates,' 8 Cranch. R., 385; the 'Experiment,' 4 Wheat. R., 84.

The common law doctrines, as to the competency of witnesses, are not applicable to prize proceedings. No person is incompetent in those courts, merely on the ground of interest. His testimony is admissible, subject to all exceptions as to its credibility.—The ‘Anne,' 3 Wheat., 435.

The rule that the testimony, for the condemnation of a prize, must be obtained, in the first instance, directly from documents or witnesses found on board the vessel at the time of her seizure, is always adhered to, unless satisfactory reasons are shown for departing from it in a particular instance. The 'Zavalla,' Blatchf. Pr. Cas., 173; the 'Jane Campbell,' Ibid., 101.

Where all the persons on board escaped before the capture of a vessel, and the capture was made while she was attempting to violate a blockade, it was held that, upon satisfactory proof that the vessel and cargo were enemy's property, a decree might be entered against them in the absence of an examination of the papers and crew. The 'Gipsy,' Blatchf. Pr. Cas., 126.

Á vessel, after her capture, was appropriated to the use of the United States, and was not sent into port. Her cargo was sent in by another vessel, and was arrested in the suit. None of her company were sent in as witnesses. A person present at the capture was, by order of the court, examined as a witness, and the cargo condemned; but the vessel was discharged for want of legal arrest and prosecution.-The 'Wave,' Blatchf. Pr. Cas., 329.

Where none of the officers or crew of the vessel were sent into port with her, or produced with her to be examined as witnesses, it was held, that the subsequent appearance and examination in preparatorio of_the master, cured the irregularity.-The 'Henry Middleton,' Blatchf. Pr. Cas.,

121.

A vessel and cargo were condemned as enemy's property, upon proof of the spoliation of papers at the moment of capture, and that a former enemy owner remained in possession as master of the vessel for a year, through two alleged sales to neutrals, the alleged neutral owners, who resided near the place where the vessel and cargo were libelled, leaving the whole defence to such former owner.-The Andromeda,' 2 Wall., 481.