Part 6 (1/2)
The t.i.tle to Property taken in War may, upon general t.i.tle to principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property, the t.i.tle is considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours.[98]
s.h.i.+ps and goods captured _at sea_, are excepted from the operation of this rule. The right to all captures rests primarily in the Sovran, and no individual can have any interest in a prize, whether made by a crown or private armed vessel, but what he receives under the grant of the state.
When a prize is taken at sea, it must be brought with due care into some port, for adjudication by a competent court. The condemnation must be p.r.o.nounced by a prize court of the Government of the captor, sitting either in the country of the captor, or of his ally. The prize court of an ally cannot condemn.[99]
[Sidenote: Proceedings Preliminary to Condemnation.]
The Proceedings Preliminary to Condemnation may be roughly described as follows:--
The _captor_, immediately on bringing his prize into port, sends up and delivers upon oath to the registry of the Court of Admiralty, all papers found on board the prize. The preparatory examinations of the captain and some of the crew of the _captured s.h.i.+p_ are then taken, upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought. These also are forwarded to the registry of the Court of Admiralty. A written _notice_, called a _monition_, is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested, to appear and show cause why the s.h.i.+p and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service; and if any claim has been given, the cause is then ready for hearing, upon evidence arising out of the s.h.i.+p's papers and preparatory examinations.
The _neutral master or proprietor of the cargo_ takes measures as follows:--Upon being brought into port, the master usually makes a protest, which he forwards to London as instructions, (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the s.h.i.+p or such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself goes to London to take the necessary steps, as soon as he has undergone his examination.
The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by the affidavit of the claimant, stating briefly to whom, as he believes, the s.h.i.+p and goods claimed belong; and that no enemy has any right or interest therein; security must be given to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the mean time to take the usual steps, (but which seldom happens, as he is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication,) a process issues against him, on the application of the claimant's proctor, to bring in the s.h.i.+p's papers and preparatory examinations, and to proceed in the usual way.
As soon as the claim is given, copies of the s.h.i.+p's papers and examinations are procured from the registry, and upon the return of the monition the cause may be heard. It however seldom happens, owing to the great pressure of business, (especially at the commencement of war), that causes can possibly be prepared for hearing immediately on the expiration of the time for the return of the monition; in that case, each cause must necessarily take its regular turn. Correspondent measures must be taken, by the neutral master, if carried within the jurisdiction of a Vice-Admiralty Court, by giving a claim, supported by his affidavit, and offering a security for costs, if the claim should be p.r.o.nounced grossly fraudulent.
If the claimant be dissatisfied with the sentence, his proctor enters an appeal in the registry of the Court, where the sentence was given, or before a notary public (which regularly should be entered within fourteen days after the sentence); and he afterwards applies at the registry of the Lords of Appeal in prize causes, which is held at the same place as the registry of the High Court of Admiralty, for an instrument called an inhibition, and which should be taken out within three months, if the sentence be in the High Court of Admiralty; and within nine months, if in a Vice-Admiralty Court; but may be taken out at later periods if a reasonable cause can be alleged for the delay which has intervened. This instrument directs the judge, whose sentence is appealed from, to proceed no further in the cause; it directs the registrar to transmit a copy of all proceedings of the inferior courts; and it directs the party who has obtained the sentence to appear before the superior tribunal to answer to the appeal. On applying for the inhibition, security is given on the part of the appellant to the amount of two hundred pounds, to answer costs, in case it should appear to the Court of Appeal that the appeal is vexatious. The inhibition is to be served upon the judge, the registrar, and the adverse party, and his proctor, by shewing the instrument under seal, and delivering a note of its contents. If the party cannot be found, and his proctor will not accept the service, the instrument is to be served, _viis et modis_; that is, by affixing it to the door of the last place of residence, or by hanging it on the pillars of the Royal Exchange. That part of the process above described, which is to be executed abroad, may be performed by any person to whom it is committed, and the formal part at home is executed by the officer of the court. A certificate of the service is endorsed on the back of the instrument, sworn before the surrogate of the superior court, or before a notary public, if the service is abroad.
If the cause be adjudged in the Vice-Admiralty Court, it is usual, on entering the appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in, England, who carries it to a proctor, and the same steps are taken to procure and send the inhibition as when the cause has been adjudged in the High Court of Admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition can be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.
Upon an appeal, fresh evidence may be introduced, if, upon hearing, the Lords of Appeal should be of an opinion that the cause is of such doubt, or that further proof ought to have been ordered by the court below.
Further proof usually consists of affidavits made by the a.s.serted proprietors of the goods, in which they are sometimes joined with their clerks, and others acquainted with the real transactions, and with the real property of the goods claimed. In corroboration of these affidavits, may be annexed the original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by affidavits of persons who can speak of their authenticity; and if copies or extracts, they should be collected and certified by public notaries. The affidavits are sworn before magistrates, or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British Consul.
The degree of proof required depends upon the degree of suspicion or doubt that belongs to the case. In case of heavy suspicion and great importance, the court may order what is called ”plea and proof,” that is, instead of admitting affidavits and doc.u.ments introduced by the claimant only, each party is at liberty to allege, in regular pleadings, such circ.u.mstance as may tend to acquit or condemn the capture, and to examine witnesses in support of the allegation, to whom the opposite party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are seldom resorted to. Standing Commissions may be sent to any neutral country for the general purpose of receiving examinations of witnesses, in all cases where the court may find it necessary, for the purposes of justice, to decree an enquiry to be conducted in that manner.[100]
[Sidenote: Prize Jurisdiction.]
The Jurisdiction over Prizes is exercised by the Judge of the Admiralty, exclusively of every other judicature of the kind, except in cases of appeal.
This Jurisdiction in matter of Prize, (whether it is coeval with the Court of Admiralty, or, which is much more probable, of a later inst.i.tution, beyond the time of memory,) though exercised by the same person, is quite distinct in its nature.
The Judge of the Admiralty is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of his jurisdiction, but not a word of prize.
To const.i.tute that authority, in every war, a commission under the great seal issues to the Lord High Admiral to will and require the Court of Admiralty, and the Lieutenant and Judge of the said court, his surrogate or surrogates, and they are thereby authorised and required to proceed upon all and all manner of captures, seizures, prizes, and reprisals, of all s.h.i.+ps and goods that are or shall be taken, and to hear and determine according to the Courts of Admiralty and the Law of Nations.
A warrant issues to the judge accordingly.
The Court of Admiralty is called the Instance Court; the other the Prize Court. The manner of proceeding is totally different. The whole system of litigation and jurisprudence in the Prize Court is peculiar to itself.
[Sidenote: Common Law Courts not always excluded]
A thing being done on the high seas does not exclude the jurisdiction of the Courts of Common Law. For seizure, stopping, or taking a s.h.i.+p upon the high seas, but _not as prize_, an action will lie; but for taking as _prize_, no action will lie. The nature of the question, not the locality, excludes.
The end of a Prize Court is to suspend the property till condemnation, to punish every sort of misbehaviour in the captors; to restore instantly (full sail) if upon the most summary examination there does not appear a sufficient ground; to condemn finally, if the goods really are prize, against everybody; giving every body a fair opportunity of being heard. A captor may, and must force everybody interested to defend; and every person interested may force him to proceed to condemn without delay.[101]
[Sidenote: Prize Courts.]