conduct in certain proceedings which had appeared in evidence in the cause, and had been animadverted upon by the opposing counsel. The general nature of affidavits, their essential requisites, and their weight and effect, are regarded in all the Courts in a manner substantially the same; and these having been already fully explained, under the head of evidence in Chancery,2 no further consideration of the subject is here deemed necessary.

1 Wood v. Goodlake, 2 Curt. 97.

2 See supra, § 379-385.

CHAPTER III.

OF PLEADINGS AND PRACTICE IN PRIZE CAUSES.

§ 437. We have already seen that the District Courts of the United States, are clothed with all the powers of Prize Courts, as recognized in the Law of Nations. The mode in which these powers are exercised, so far as it is peculiar to prize causes, will now briefly be considered.

§ 438. Upon the capture of a vessel as prize of war, it is the duty of the captor carefully to preserve all the papers and writings found on board the prize, and to transmit the whole of the originals, unmutilated, to the Judge of the District to which the prize is ordered to proceed; without taking from the prize any of the money or other property found on board, unless for its better preservation, or unless it is absolutely necessary for the use of vessels of the United States.2 The delivery of the papers is accompanied by an affidavit that they are delivered up in the same condition in which they were taken, without fraud, addition, subduction, or embezzlement. And the master and one or more of the principal persons belonging to the captured vessel are also to be brought

1 Supra, § 387.

2 Stat. 1800, ch. 33, § 1; Articles for the government of the Navy, art. 7, 8; Wheat. on Captures, p. 280. The Practice in Prize Causes is ably though somewhat succinctly treated in the Appendix to 1 Wheaton's Reports, Note II, and 2 Wheaton's Reports, Note I, usually attributed to Mr. Justice Story.

in for examination. It is an ancient and fundamental rule of prize proceedings, that the master, at least, of the captured ship should be brought in, and examined upon the standing interrogatories, as well as that the ship's papers should accompany the property brought before the Court. The omission to do this must be accounted for in a very satisfactory manner, or the Court will withhold its sentence, even in very clear cases. The duty of an immediate delivery of the papers is equally stringent, and every deviation from it is watched with uncommon jealousy. They, cannot, in any case, be returned to the captors; but the custody of them belongs to the Court alone. Nor are the captors permitted to decide upon the materiality of the papers to be preserved and brought in; but it is their duty to produce all which are found; the determination of their value and relevancy is for the Court, at the hearing.1

§ 439. It is the practice of Courts of Admiralty and Prize, in time of war, to appoint Commissioners of Prize, to take the examinations, in preparatorio, of the master and persons on board the captured ship, and to perform such other duties respecting the captured property as may be specially assigned to them under the rules and orders of the Court. These officers are duly commissioned and sworn. They are ordinarily charged with the custody of the prize, in the first instance, and until further proceedings are had.5

§ 440. It is the duty of the captors forthwith to proceed to the adjudication of the property captured, by filing a libel and obtaining a monition to all persons claiming an interest

1 Wheat. on Captures, p. 280; 1 Wheat. 495, 496.

2 The Arabella, 2 Gall. 370; The Flying Fish, Id. 374; The Speculation, 2 C. Rob. 293; The Anna, 5 C. Rob. 373, [332], 385, [347], n.; The Dame Catharine, Hay & Mar. 244.

3 The Diana, 2 Gall. 93, 95.

4 The London Packet, 2 Gall. 20.

5 Wheat. on Captures, App. p. 312, 369.

in the property, to appear at a day assigned, and show cause why a decree of condemnation should not be passed. If they omit or unreasonably delay thus to proceed, any person, claiming an interest in the prize, may obtain a monition. against them, requiring them to proceed to adjudication; which if they fail to do, or fail to show sufficient cause for condemnation of the property, it will be restored to the claimants, on proof of their interest therein.1

§ 441. When the capture is made by a national ship, the libel is filed by the District Attorney, in behalf of the United States and of the officers and crew of the capturing ship. It briefly alleges, in distinct articles, first, the existence of the war; secondly, the name and rank of the commanding officer of the capturing ship, and of the ship then under his command; thirdly, the time and fact of the capture, as having been made on the high seas, with the name and general description of the vessel or property captured; fourthly, the national character of the prize, showing it to be enemies' property; fifthly, that the prize is brought into a certain port in the District and within the jurisdiction of the Court; sixthly, that by reason of the premises, the property has become forfeited to the United States and the captors, and ought to be condemned to their use; and lastly, praying process, and monition, and a decree of condemnation of the property, as lawful prize of war.2 When the capture is made by a privateer, or by private individuals, the captors employ their own proctor, and the libel is filed by the commander of the privateer, in behalf of himself and crew, or by one or more of the individual captors, in behalf of all.

§ 442. If a claim to the property is interposed, it should be made by the owner himself, if within the jurisdiction, and not by his agent; the captors being entitled, in that case, to

1 Wheat. on Captures, p. 280.

2 See the precedent in Wheat. on Captures, App. No. VII. The Fortuna, 1 Dods. 81.

the answer of each claimant, severally, upon his oath.1 It must be accompanied by a test affidavit, stating that the property, both at the time of its shipment and at the time of capture, did belong, and, if restored, will belong to the claimant; but an irregularity in this respect, in a case otherwise fair and free from suspicion, will not be deemed fatal.2 In general, the claimant must make his claim and affidavit, without being assisted by the papers in shaping them; and if they be found substantially to agree with the documents, he will afterwards be permitted to correct any formal errors from the documents themselves. But in special cases, where a proper ground is laid by affidavits, an order will be made for an examination of such papers as are necessary to the party to make a proper specification of his own claim, but not for a general examination of all the ship's papers. It is also a general rule, that no claim shall be admitted in opposition to the depositions and the ship's papers. But the rule is not inflexible; it admits of exceptions, standing upon very particular grounds, in cases occurring in times of peace or at the very commencement of war, and granted as a special indulgence. But in times of known war, the rule is never relaxed. Neither will a claim be admitted, where the transaction, on the part of the claimant, was in violation of the laws of his own country, or is forbidden by the law of nature.5

443. Where no claim is interposed, if the property appears to belong to enemies, it is immediately condemned. If its national character appears doubtful, or even neutral, the Court will not proceed to a final decree, but will postpone

1 The Lively, 1 Gall. 315, 337; The Sally, Id. 401; The Adeline, 9 Cranch, 286.

2 The Adeline, 9 Cranch, 244, 286.

3 The San Jose Indiano, 2 Gall. 269; The Port Mary, 3 C. Rob. 233.

4 The Diana, 2 Gall. 93, 96, 97; The Vrow Anna Catharina, 5 C. Rob. 15, 19, [20, 24,]; La Flora, 6 C. Rob. 1.

5 The Walsingham Packet, 2 W. Rob. 77, 83. And see 1 Wheat. App. Note II, p. 501, and cases there cited.