It is a general rule in prize causes that the adjudication
should be prompt and should be made, unless some good reason exist
for departing from it, on the papers and testimony afforded by the
captured vessel or on evidence invoked from other vessels in the
possession of the court.
But in cases of joint or 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 than that
arising from the captured vessel or invoked from other prize causes
maybe resorted to.
These were British vessels captured and brought in by the
private armed vessels the
Fly and the
Washington,
and libeled as prize of war. In each of them, the United States
interposed a claim charging that the capture was collusive and that
the whole property ought on that account to be forfeited to the
United States. In each case the captors applied for permission to
make further proof. In that of the
George, it was allowed
in the district court and partially received, but the application
to make still further proof and to introduce into the record
testimony already taken was rejected in the circuit court and was
again offered in this Court. In the two last cases, further proof
was refused both in the district and circuit courts. In all the
cases, the vessels and cargoes were condemned to the United States,
and from each of these sentences of condemnation the captors
appealed to this Court.
Page 14 U. S. 409
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The first question to be discussed is the propriety of allowing
further proof. It is certainly a general rule in prize causes that
the decision should be prompt and should be made, unless some good
reason for departing from it exist, on the papers and testimony
afforded by the captured vessel or which can be invoked from the
papers of other vessels in possession of the court. This rule ought
to be held sacred in that whole description of causes to which the
reasons on which it is founded are applicable. The usual
controversy in prize causes is between the captors and captured. If
the captured vessel be plainly an enemy, immediate condemnation is
certain and proper. But the vessel and cargo may be neutral, and
may be captured on suspicion. This is a grievous vexation to the
neutral, which ought not to be increased by prolonging his
detention, in the hope that something may be discovered from some
other source, which may justify condemnation. If his papers are all
clear, and if the examinations
in preparatorio all show
his neutrality, he is and ought to be immediately discharged. In a
fair transaction this will often be the case. If anything
suspicious appears in the papers which involves the neutrality of
the claimant
Page 14 U. S. 410
in doubt, he must blame himself for the circumstance, and cannot
complain of the delay which is necessary for the removal of those
doubts. The whole proceedings are calculated for the trial of the
question of prize or no prize, and the standing interrogatories on
which the preparatory examinations are taken are framed for the
purpose of eliciting the truth on that question. They are intended
for the controversy between the captors and the captured; intended
to draw forth everything within the knowledge of the crew of the
prize, but cannot be intended to procure testimony respecting facts
not within their knowledge. When the question of prize or no prize
is decided in the affirmative, the strong motives for an immediate
sentence lose somewhat of their force, and the point to which the
testimony
in preparatorio is taken is no longer the
question in controversy. If another question arises -- for
instance, as to the proportions in which the owners and crew of the
capturing vessel are entitled -- the testimony which will decide
this question must be searched for not among the papers of the
prize vessel or the depositions of her crew, but elsewhere, and
liberty must therefore be given to adduce this testimony. The case
of a joint capture has been mentioned, and we think correctly, as
an analogous case. Where several cruisers claim a share of the
prize, extrinsic testimony is admitted to establish their rights.
They are not and ought not to be confined to the testimony which
may be extracted from the crew. And yet the standing
interrogatories are in some degree adapted to this case. Each
individual of the crew is always asked
Page 14 U. S. 411
whether, at the time of capture, any other vessel was in sight.
Notwithstanding this, the claimants to a joint interest in the
prize, are always permitted to adduce testimony drawn from other
sources to establish their claim.
The case before the Court is one of much greater strength. The
captors are charged with direct and positive fraud, which is to
strip them of rights claimed under their commissions. Even if
exculpatory testimony could be expected from the prize crew, the
interrogatories are not calculated to draw it from them. Of course
it will rarely happen that testimony taken for the sole purpose of
deciding the question whether the captured vessel ought to be
condemned or restored should furnish sufficient lights for
determining whether the capture has been
bona fide or
collusive. If circumstances of doubtful appearance occur, justice
requires that an opportunity to explain those circumstances should
be given and that fraud should never be fixed on an individual
until he has been allowed to clear himself from the imputation if
in his power.
Under these impressions, the case must be a strong one indeed;
the collusiveness of the capture must be almost confessed before
the court could think a refusal to allow other proof than is
furnished by the captured vessel justifiable. In the cases before
the Court, there are certainly many circumstances of great
suspicion, but none which do not admit of explanation.
In the case of the
George, captured by the privateer
Fly, the circumstances relied on to prove the
collusiveness of the capture are
Page 14 U. S. 412
1st, the force of the
Fly; 2d, the shipping articles;
3d, the cargo of the
George; 4th, the number of her crew;
5th, the place and other circumstances of her capture; 6th, the
sending the mariners on shore instead of bringing them into the
United States.
First. The force of the
Fly may probably neither
require nor admit of explanation.
Second. The shipping article unquestionably furnish ground of
suspicion. But some light may be thrown on this point by testimony
showing whether it was or was not common for small cruisers in the
Bay of Fundy to give wages to the crew instead of prize money. It
may be of still more importance to determine whether each of the
crew, like Gilley, who was examined, was to receive twenty dollars
in addition to his wages, for each prize.
Third. Respecting the cargo, it is not probable that further
testimony can be adduced.
Fourth. Respecting the number of mariners on board the captured
vessel, the Court would require some further information. On the
one part, it is asserted that they are insufficient, and on the
other that they are sufficient for the alleged voyage. There is no
evidence which can incline the Court the one way or the other.
Fifth. On the place and other circumstances of capture, further
information may certainly be given. The
George appears to
have sailed from St. Johns, New Brunswick, for the Havana, on the
8th, and to have been captured in Long Island harbor at anchor on
13 January, 1814. The distance
Page 14 U. S. 413
between these places is said to be five hours' sail with a
favorable wind and tide. Where did she linger during this interval?
Was she in Etang Harbor during any part of the time? Why did she
leave that harbor? Did she expect a convoy? Did a convoy sail about
that time? Was it usual for vessels to wait for a convoy at the
Island of Grand Menan? Could a vessel be descried from the sea
lying at anchor in Long Island harbor? Satisfactory answers to
these questions might certainly throw some light on this part of
the case and better enable the Court to form an opinion on it.
Sixth. It may not perhaps be easy to account for not bringing in
the crew. Yet it would contribute in some degree to the elucidation
of the transaction if the practice in that part of the country
could be laid before the Court. It might also be of some importance
to know whether the sum of $100 dollars was usually paid by
government for every merchant seaman brought into the country,
whether he was a British subject or the subject of a neutral
power.
In the cases of the
Janstaff and the
Bothnea,
there are some points to be explained which are common to those
cases with the
George, and some which are peculiar to
themselves.
Of the latter class are the inquiries,
First. Whether it frequently happened that unarmed vessels,
without a convoy, sailed from that port, either for New London or
for any other port of the United States or for a foreign port?
Page 14 U. S. 414
Second. What is the character and what the occupation of the two
passengers who were found, one on board the
Bothnea and
the other on board the
Janstaff? Are they acquainted with
the coasts in or about Long Island sound? Are they capable of being
supercargoes? How came they at Halifax?
In both cases it will be desirable to know whether any previous
acquaintance existed between the captors and the owners of the
captured vessels and whether the captors had had any previous
communication with the places from which the captured vessels
sailed. In the cases of the
Janstaff and
Bothnea,
all the circumstances attending the capture will be important. If,
as is not expected, any further or better reason can be given for
putting the whole crew on shore, it may throw some light on the
cases. Each case depends in some degree on the points which have
been suggested. They are stated for the purpose of showing that
points on which the judgment of the Court may in some degree depend
are susceptible of explanation, and therefore ought to be explained
so far as it may be in the power of the parties to explain them. It
is not, however, intended to confine them to the particular points
which have been stated. Full liberty is given to both parties to
adduce further proof on every point in the case.
Further proof ordered.