"I have not been unaware that in examining this question I have fallen into an argument for what seems to be the British side of it against my own country, but I am relieved from all embarrassment on that subject. I had hardly fallen into that line of argument when I discovered that I was really defending and maintaining, not an exclusively British interest, but an old, honored, and cherished American cause, not upon British authorities, but upon principles that constitute a large portion of the distinctive policy by which the United States have developed the resources of a continent, and thus becoming a considerable maritime power, have won the respect and confidence of many nations. These principles were laid down for us in 1804 by James Madison, when Secretary of State in the administration of Thomas Jefferson, in instructions given to James Monroe, our minister to England. Although the case before him concerned a description of persons different from those who are incidentally the subjects of the present discussion, the ground he assumed then was the same I now occupy, and the arguments by which he sustained himself upon it have been an inspiration to me in preparing this reply. "Whenever,' he says, 'property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted, and thus responsible in a case of mere property, of trivial amount, should be permitted without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiance, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest danger. Reason, justice, and humanity unite in protesting against so extravagant a proceeding.' 66 If I decide this case in favor of my own Government, I must disallow its most cherished principles, and reverse and forever abandon its essential policy. The country can not afford the sacrifice. If I maintain those principles, and adhere to that policy, I must surrender the case itself. It will be seen, therefore, that this Government could not deny the justice of the claim presented to us in this respect upon its merits. We are asked to do to the British nation just what we have always insisted all nations ought to do to us." Mr. Seward, Sec. of State, to Lord Lyons, Dec, 26, 1861, 55 Br. & For. State When a vessel is captured, the rule is to bring her into some convenient port of the government of the captor for adjudication. The mere fact of capture does not work a transfer of title, and until there is a sentence of condemnation or restitution, the captured vessel is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it. Demands against property captured as prize of war must be adjusted in a prize court. The property arrested as prize is not attachable at the suit of private parties; and if such parties have claims which in their opinion override the rights of the captors, they must present them to the prize court for settlement. The jurisdiction of a prize court over a captured vessel is determined by the capture and not by the filing of a libel. The Nassau, 4 Wall. 634. "The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum e. Mayberry, 2 Wheat. 1; The Apollon, 9 Wheat. 362; The Lively, 1 Gall. 314; The Corier Maritimo, 1 Rob. 287." The Nuestra Señora de Regla (1882), 108 U. S. 92, 103. A Chilean cruiser having seized on the high seas certain paper currency destined for the Peruvian Government, and the Chilean forces in Peru having afterwards, without judicial condemnation of the property, which was claimed to belong to citizens of the United States, put such currency into enforced circulation in Peru in payment for supplies taken by the Chilean army, the Government of the United States said: "The capture of the property having been made on the high seas and no prize court having inquired into the authority of the captor or the liability of the property under the public law to be seized, that act might in strictness be regarded as piratical in its character. By the maritime law of nations universally and immemorially received, there is an established method of determination, whether the capture be or be not lawful prize. Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation had thereon as prize in a court of admiralty, judging by the law of nations and treaties. Wildman's International Law, vol. 2, p. 352," Mr. Bayard, Sec. of State, to Mr. Godoy, Chilean min., April 11, 1885, "By the law of nations, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a judicial decree of condemnation is usually necessary to complete the title of the captors. 1 Kent. Com. 102, 110; Halleck's International Law, c. 19, § 7; c. 30, § 4; Kirk v. Lynd, 106 U. S. 315, 317." Oakes v. United States (1899), 174 U. S. 778, 786. The title of a vessel which was fitted out by the Confederate government as a gunboat, immediately on capture in inland waters by the Federal armies passes without the necessity of condemnation proceedings. Oakes v. United States, 30 Ct. Cl. 378. Act March 3, 1800 (2 Stat. 17, sec. 1), providing that when any vessel other than a vessel of war shall hereafter be captured by any vessel acting under authority of the Government of the United States, not having been condemned by competent authority before the recapture, shall be restored to the former owner, does not apply to a vessel which, when recaptured, was in process of reconstruction for a gunboat, the capture being on inland waters, by a force attached to the army, and acting under the orders of the military authorities. (Ibid.) Spanish vessels wrecked in battle by the naval vessels of the United States during the war with Spain, and afterwards lying along the coast of Cuba, were the property of the United States. 66 Griggs, At. Gen., March 29, 1900, 23 Op. 76. 2. EFFECT OF FRAUDULENT CONDUCT. § 1240. There is certainly nothing illegal in resorting to devices to elude hostile capture; and where it can be clearly shewn that property is really neutral or friendly, its being covered under hostile habiliments for the purpose of evasion, will not necessarily subject it to condemnation." But the evidence must not be equivocal. The Frances (1815), 9 Cranch. 183, 189. The owner of captured property should be careful to avoid the use of language calculated to mislead the court, and to extricate property to which the captors are entitled, even though he may think otherwise. He should never swear to inferences without stating the train of reasoning by which his mind has been conducted to them. Yet H. Doc. 551-vol 7—41 prize courts must distinguish between misrepresentations due to error of judgment, and corrected as soon as possible by the party who made them, and willful falsehoods detected by the testimony of others, or confessed by the party when detection becomes inevitable. In the first case there may be cause for a critical and perhaps suspicious examination of the claim and the testimony in support of it; but it would be harsh to condemn property clearly proved to be neutral for one false step, in some degree equivocal, which was soon corrected by the party making it. The Nereide (1815), 9 Cranch, 388, 417. The use by a belligerent of colorable papers for the purpose of making it appear that a cargo, actually belonging to himself, is the property of a neutral, in order that he may thereby be enabled to trade with the enemy, merely enhances his criminality. The Rugen (1816), 1 Wheat. 62. Where enemy's property is fraudulently blended in the same claim. with neutral property, the latter is liable to share the fate of the former, and must be condemned. The St. Nicholas, 1 Wheat. 417. A cargo, bound from Jamaica to New Orleans, was claimed by G., an alleged neutral, as his exclusive property. The adventure was conducted by M., of New Orleans, who, while admitting that he had expected to have an interest in the cargo, alleged that he was finally disappointed, and that the whole belonged to G. The whole cargo, with a small exception, was documented as the property of L., of Pensacola. G. alleged, however, that the documents were merely colorable, for the purpose of avoiding British capture. There was a total absence of documentary proof to establish the claim of G.; and it was not pretended that any genuine papers were put on board or were in existence. There was no testimony, except that of M., from the ship's crew that the property belonged to G., and the testimony of M., including the test affidavit, was seriously discredited. Under the circumstances the whole cargo was condemned, without regard to the partial interest which G. might have had, on the ground that, where a party fraudulently claims as his own property belonging to others, he is not entitled to restitution even of that which he may ultimately establish as his own. The Dos Hermanos (1817), 2 Wheat. 76. It is the duty of neutrals to put on board of their ships sufficient papers to show the real character of the property; and, if false or colorable documents are used, the necessity or reasonableness of the excuse ought to be very clear and unequivocal to induce a court of prize to rest satisfied with it. The Dos Hermanos, 2 Wheat. 76. A ship and cargo, libeled as prize of war, were claimed by Spanish merchants. It appeared that during the voyage a parcel of papers respecting the cargo was thrown overboard, by the advice of the master and supercargo, on the ground that the ship was at the time chased by a schooner supposed to be à Carthaginian privateer. In the ship's papers, however, which were retained, her Spanish character was distinctly asserted. Mr. Justice Story, delivering the opinion of the court, said that under these circumstances the excuse given for throwing the papers overboard was not easily credited. Nor was it easy to assign a motive for the act. If the ship was Spanish, it was, as to American cruisers, immaterial to whom the property belonged, unless it belonged to an American who had been trading with the enemy, since, by the treaty with Spain of 1795, article 15, free ships made free goods; and there was nothing in the evidence before the court to raise a presumption that any American interest was concerned in the shipment. The utmost, therefore, which the extraordinary conduct in question could justify on the part of the court was "to institute a more rigid scrutiny into the character of the ship itself." But "very different," said Mr. Justice Story, "would be the conclusion, if the case stood upon the ground of the law of nations, unaffected by the stipulations of a treaty." The Pizarro (1817), 2 Wheat. 227, 242. "Concealment, or even spoliation of papers, is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile, if the cause labour under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply." Mr. Justice Story, in The Pizarro (1817), 2 Wheat. 227, 241. See 1 Kent, Comm. 158, Holmes's note, citing the Ella Warley, Blatch. Pr. |