them may be found in the fact, that from our having been long at peace, no opportunity was afforded to learn the correct practice in prize causes. But that apology no longer exists; and if such irregularities should hereafter occur it may be proper to adopt a more rigorous course, and to withhold condemnation in the clearest cases, unless such irregularities are avoided or explained. In the present case the first fault was that of the captors; and if the claimant had suffered any prejudice from it, this court would certainly restore to him every practicable benefit. But in fact no such prejudice has arisen. The claimant has had, in the court below, the indulgence and benefit of farther proof and of collateral aids to verify the truth of his claim; and he stands at least upon as favourable a ground to sustain it as if the cause had been conducted with the most scrupulous form."

The Dos Hermanos (1817), 2 Wheat. 76, 79, Mr. Justice Story, delivering the opinion of the court.

"It is a general rule of the prize law, not to admit claims which stand in entire opposition to the ship's papers, and to the preparatory examinations, where the voyages have originated after the war. The rule is founded upon this simple reason, that it would open a door to fraud in an incalculable extent, if persons were not required to describe their property with perfect fairness. The rule, however, is not inflexible; it yields to cases of necessity, or where, by the course of the trade, simulated papers become indispensable, as in a trade licensed by the state with the public enemy."

Mr. Justice Story, delivering opinion of the court, in The Dos Hermanos (1817), 2 Wheat. 76,90.

It is exclusively upon the proofs taken in preparatorio that the cause is to be heard before the district court. If, from the whole evidence, the property clearly appear to be hostile or neutral, condemnation or acquittal immediately follows. If the property appear doubtful, or the case be clouded with suspicions or inconsistencies, further proof may, in the discretion of the court, be taken. If the parties have been guilty of gross fraud or misconduct, or illegality, further proof is not allowed, and the parties are visited with all the fatal consequences of an original hostile character.

The Pizarro, 2 Wheat. 227.

Frankness and truth are especially required of the officers of captured vessels when examined in preparation for the first hearing in prize.

The Springbok, 5 Wall. 1.

3. ORDER FOR FURTHER PROOF.

§ 1234.

Further proof was refused where it contradicted, in a “suspicious manner, the original evidence, and the manner in which it was obtained or produced was "mysterious" and unexplained.

The Frances (1814), 8 Cranch, 335.

The original evidence having left the transaction in doubt, and an order for further proof having been made, the affidavits thereupon produced referred to certain letters which were not exhibited. On a promise by counsel for the claimant to produce the correspondence, and such other proof as would be entirely satisfactory to the court, the case was ordered to stand for further proof.

The Frances (1814) 8 Cranch, 348.

The question having arisen as to whether certain goods should be condemned in which funds had been invested for the alleged purpose of withdrawing them from Great Britain, the claimant was allowed to make further proof on certain points. No question was decided except that of making further proof.

The Mary (1814), 8 Cranch, 388.

The omission of papers, by inadvertence or mistake, does not preclude an order for further proof.

The St. Lawrence (1814), 8 Cranch, 434.

The intentional suppression of papers is a ground for refusing further proof.

The St. Lawrence (1814), 8 Cranch, 434.

The master of an American ship, which was alleged to have been captured by an American privateer, swore that he had never considered his ship as having been taken as prize, the facts being that he was overhauled by an armed schooner under English colors, whose commander represented her to be a British privateer and requested him to take a man on board and treat him as a gentleman until the ship arrived in the United States. To this he consented. The master's testimony was confirmed by the mate, who added, that the man who was put on board conducted himself not as a prize master, but simply as a passenger. A seaman testified that he never knew that the ship was seized as prize till after her arrival within the Boston light-house. Another seaman testified that the ship was met by an armed schooner under English colors, which obliged the mate to come on board, and then sent him back with a man who next day

declared himself to have been put on board as a prize master, saying that if the ship should fall in with a French vessel he should be obliged to show his commission. This seaman further testified, however, that he did not know that the vessel had been made a prize of till her arrival at Boston. The alleged prize master swore that he was present at the capture, and that the master of the ship was ordered aboard the schooner with his papers; and that he (the prize master) was then directed by his commander, in the presence of the master, to go on board of the ship, but that the master was to keep possession of the ship's papers and navigate her into port. He further testified that the suggestion that he should be represented to be a passenger proceeded from the master of the ship, with a view to a possible meeting with a British cruiser. Washington, J., delivering the opinion of the court, said that the facts necessary for deciding upon the validity of the capture were not sufficiently clear, and that it would be proper to order further proof, to be furnished by the captors and the claimants, with respect to all the circumstances of the capture.

The Grotius (1814), 8 Cranch, 456.

Where the court is satisfied from the evidence in the case that property ought to be restored, it will not require further proof of the claimant's right.

The Mary and Susan (1816), 1 Wheat. 5.

A cargo, condemned as British property, was claimed to be Swedish and neutral, the appearance of British ownership being, as was alleged, simulated for the purpose of avoiding capture. The court, however, refused a motion for further proof to show that the property was really neutral, saying that the evidence, as it stood, was not susceptible of any satisfactory explanation, and that the captors had made out 66 a clear title" to the cargo.

Cargo of the ship Hazard v. Campbell (1815), 9 Cranch. 205.

Further proof will be allowed where the nationality and ownership of recaptured goods do not distinctly appear.

The Adeline (1815), 9 Cranch, 244.

The court will order further proof in a revenue or instance cause, where the evidence is so contradictory and ambiguous as to render a decision difficult.

The Samuel (1816), 1 Wheat. 9.

See, also, The Venus (1816), 1 Wheat. 112.

It is a general rule in prize causes that the decision should be prompt, and should be made, unless some good reason for departing from the rule exist, on the papers and testimony afforded by the cap

tured vessel, or which can be invoked from the papers of other vessels in possession of the court. But in cases of joint and collusive capture, the usual simplicity of the prize proceedings is necessarily departed from; and where, in these cases, there is the least doubt, other evidence may be resorted to.

The George, 1 Wheat. 408.

In a certain case in which the claimant had the benefit of further proof in the court below, and upon the evidence as it then stood there seemed to be "no fair and reasonable explanation" of the doubts cast upon his claim of an exclusive proprietary interest in the property, the Supreme Court declined to make an order for further proof, Mr. Justice Story, who delivered the opinion of the court, saying:

"We are not satisfied that it would be a safe or convenient rule, unless, under very special circumstances, to allow parties who have had the benefit of plenary proof in the court below, to have an order for farther proof in this court upon the same points. Much less should we incline to allow it in a case of pregnant suspicion, where the evidence must come from sources tainted with so many unwholesome personal interests, and so many infusions of doubtful credit."

The Dos Hermanos (1817), 2 Wheat. 76, 98.

"The proceedings in the district court were certainly very irregular; and this court can not but regret that so many deviations from the correct prize practice should have occurred at so late a period of the war. The ship's papers ought to have been brought into court, and verified, on oath, by the captors, and the examinations of the captured crew ought to have been taken upon the standing interrogatories, and not viva voce in open court. Nor should the captured crew have been permitted to be re-examined in court. They are bound to declare the whole truth upon their first examination; and if they then fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give colour to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule. "It is upon the ship's papers, and the examinations thus taken in preparatory, that the cause ought, in the first instance, to be heard in the district court; and upon such hearing it is to judge whether the cause be of such doubt as to require farther proof; and if so, whether the claimant has entitled himself to the benefit of introducing it. If the court should deny such order when it ought to be granted, or allow it when it ought to be denied, and the objection be taken by the party and appear upon the record, the appellate court can administer the proper relief. If, however, evidence in the nature of farther proof be introduced, and no formal order or objecH. Doc. 551-vol 7- 40

tion appear on the record, it must be presumed to have been done by consent of parties, and the irregularity is completely waived. In the present case, no exception was taken to the proceedings or evidence in the district court; and we should not, therefore, incline to reject the farther proof, even if we were of opinion that it ought not, in strictness, to have been admitted."

The Pizarro (1817), 2 Wheat. 227, 240.

Affidavits to be used as farther proof in causes of admiralty and maritime jurisdiction in this court must be taken by a commission. The London Packet (1817), 2 Wheat. 371.

A bill of lading, consigning the goods to a neutral, but unaccompanied by an invoice or letter of advice, is not sufficient evidence to entitle a claimant to restitution; but is sufficient to lay a foundation for the introduction of further proof. A bill of lading gives the person to whom it is addressed a right to receive the goods, and lays the foundation for further proof that the property is in him. To admit such proof, in the absence of an invoice or letter of advice, does not endanger the fair rights of the belligerent. These papers themselves are so easily prepared that no fraudulent case would be without them.

The Friendschaft (1818), 3 Wheat. 14, 48.

"The farther proof in the claims 108, 109, 141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices-all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission."

The Friendschaft (1818), 3 Wheat. 14, 49.

"The French prize practice not allowing farther proof, but acquitting or condemning upon the original evidence consisting of the papers found on board and the depositions of the captors and captured. The only exception to this rule is, where the papers have been spoliated by the captors, or lost by shipwreck, or other inevitable accidents. Valin, Traité des Prises, ch. 15, n. 7. But the Spanish law admits of farther proof in case of doubts arising upon the original evidence. De Habreu, part 2, ch. 15."

Note by Wheaton, The Friendschaft, 3 Wheat. 14, 50.

It is a relaxation of the rules of the prize court to allow time for further proof in a case where there has been a concealment of material papers.

The Fortuna (1818), 3 Wheat. 236.