We have the Honor of transmitting, agreeably to your Excellencys Request a Statement of the general Principles of Proceeding in Prize Causes in British Courts of Admiralty and of the Measures proper to be taken when a Ship and Cargo are brought in as Prize within their Jurisdictions.

The general Principles of Proceeding cannot, in our Judgment, be stated more correctly or succinctly than we find them laid down in the following Extract from a Report made to His late Majesty in the year 1753 by Sir George Lee then Judge of the Prerogative Court, Dr. Paul His Majestys Advocate General, Sir Dudley Rider His Majestys Attorney General and Mr. Murray (afterwards Lord Mansfield) His Majestys Solicitor General.1

“When two Powers are at War, they have a Right to make Prizes of the Ships, Goods, and Effects, of each other, upon the High Seas: Whatever is the Property of the Enemy, may be acquired by Capture at Sea; but the Property of a Friend, cannot be taken, provided he observes his Neutrality.

Hence, the Law of Nations has established;

That the Goods of an Enemy, on Board the Ship of a Friend, may be taken.

That the lawful Goods of a Friend, on Board the Ship of an Enemy, ought to be restored.

That Contraband Goods, going to the Enemy, tho’ the Property of a Friend, may be taken as Prize; because supplying the Enemy, with what enables him better to carry on the War, is a Departure from Neutrality.

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 thereupon as Prize, in a Court of Admiralty, judging by the Law of Nations and Treaties.

The proper and regular Court, for these Condemnations, is the Court of that State to whom the Captor belongs.

The Evidence to acquit or condemn, with, or without, Costs and Damages, must, in the first Instance, come merely from the Ship taken, vizt. the Papers on Board, and the Examination on Oath of the Master and other Principal Officers; for which Purpose, there are Officers of Admiralty in all the considerable Sea Ports of every Maritime Power at War, to examine the Captains, and other Principal Officers of every Ship, brought in as a Prize, upon General and Impartial Interrogatories: If there do not appear from thence Ground to condemn, as Enemys Property, or Contraband Goods going to the Enemy, there must be an Acquittal, unless from the aforesaid Evidence, the Property shall appear so doubtful, that it is reasonable to go into further Proof thereof.

A Claim of Ship, or Goods, must be supported by the Oath of some body, at least as to Belief.

The Law of Nations requires good Faith: Therefore every Ship must be provided with complete and genuine Papers; and the Master at least should be privy to the Truth of the Transaction.

To enforce these Rules, if there be false or colourable Papers; if any Papers be thrown over-board; if the Master and Officers examined in Preparatorio grossly prevaricate; if proper Ship’s Papers are not on Board; or if the Master and Crew can’t say, whether the Ship or Cargo be the Property of a Friend or Enemy, the Law of Nations allows, according to the different Degrees of Misbehavior, or Suspicion, arising from the Fault of the Ship taken, and other Circumstances of the Case, Costs to be paid, or not to be received, by the Claimants, in Case of Acquittal and Restitution. On the other Hand, if a Seizure is made without probable Cause the Captor is adjudged to pay Costs and Damages: For which Purpose all Privateers are obliged to give Security for their good Behaviour; and this is referred to; and expressly stipulated, by many Treaties.

Tho’ from the Ships Papers, and the preparatory Examinations, the Property does not sufficiently appear to be Neutral, the Claimant is often indulged with Time to send over Affidavits to supply that Defect: If he will not shew the Property, by sufficient Affidavits, to be Neutral it is presumed to belong to the Enemy. Where the Property appears from Evidence not on board the Ship, the Captor is justified in bringing her in, and excused paying Costs, because he is not in Fault; or, according to the Circumstances of the Case, may be justly intitled to receive his Costs.

If the Sentence of the Court of Admiralty is thought to be erroneous, there is, in every Maritime Country a superior Court of Review, consisting of the most considerable Persons, to which the Parties who think themselves aggrieved, may Appeal; and this superior Court judges by the same Rule which governs the Court of Admiralty, vizt. The Law of Nations, and the Treaties subsisting with that neutral Power, whose Subject is a Party before them.

If no Appeal is offered, it is an Acknowledgment of the Justice of the Sentence by the Parties themselves, and conclusive.

This Manner of Tryal and Adjudication is supported, alluded to, and inforced, by many Treaties.

In this Method, all Captures at Sea were try’d, during the last War, by Great Britain, France and Spain, and submitted to by the neutral Powers.

—In this method, by Courts of Admiralty acting according to the Law of Nations, and particular Treaties, all Captures at Sea have immemorially been judged of, in every Country of Europe. Any other method of Tryal would be manifestly unjust, absurd, and impracticable”.

Such are the Principles which govern the Proceedings of the Prize Courts

The following are the Measures which ought to be taken by the Captor and by the neutral Claimant, upon a Ship and Cargo being brought in as Prize

The Captor immediately upon bringing his Prize into Port sends up or delivers upon Oath to the Registry of the Court of Admiralty all Papers found on board the captured Ship.— In the course of a few days the Examinations in Preparatory of the Captain and some of the Crew of the captured Ship are taken upon a set of standing Interrogatories, before the Commissioners of the Port to which the Prize is brought and which are also forwarded to the Registry of the Admiralty as soon as taken. A monition2 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 shew cause, why the Ship 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 the evidence arising out of the Ships Papers and preparatory Examinations.

The Measures taken on the part of the neutral Master or Proprietor of the Cargo are 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 Ship and such parts of the Cargo as belong to his Owners or with which he was particularly entrusted. Or the Master himself as soon as he has undergone his examination goes to London to take the necessary Steps.

The Master, Correspondent, or Consul applies to a Proctor who prepares a Claim supported by an Affidavit of the Claimant stating briefly to whom, as he believes, the Ship and Goods claimed belong, and that no Enemy has any Right or Interest in them. 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 Instruction and by the Prize Act to proceed immediately to Adjudication) a Process issues against him on the application of the Claimants Proctor to bring in the Ships Papers and preparatory Examinations, and to proceed in the usual way.

As soon as the Claim is given, Copies of the Ships 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 a War) that Causes can possibly be prepared for hearing immediately upon 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 Security for Costs if the Claim should be pronounced 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 enter’d 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 assigned for the delay that 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 the Proceedings of the inferior Court, and it directs the Party who has obtained the Sentence to appear before the superior Tribunal to answer to the Appeal. On applying for this 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 Appeals that the Appeal is merely 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 or Copy of the Contents. If the Party cannot be found and the 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 upon 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 upon the back of the Instrument, sworn before a Surrogate of the superior Court, or before a Notary Public if the service is abroad.

If the Cause be adjudged in a Vice Admiralty court, it is usual upon entering an 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 serve the Inhibition as where 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 may 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 Cause the Lords of Appeal shall be of Opinion, that the case is of such doubt as that further Proof ought to have been ordered by the Court below.

Further Proof usually consists of Affidavits made by the asserted Proprietors of the Goods in which they are sometimes joined by their Clerks and others acquainted with the transaction and with the real property of the Goods claimed. In corroboration of these Affidavits may be annexed original Correspondence, Duplicates of Bills of Lading, Invoices, Extracts from books &.c. These Papers must be proved by the Affidavits of Persons who can speak to their authenticity.— And if Copies or Extracts, they should be collated and certified by public Notaries. The Affidavits are sworn before the 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 to be required depends upon the degree of suspicion and doubt that belongs to the Case. In Cases of heavy suspicion and great importance the Court may order, what is called “Plea and proof” that is, instead of admitting Affidavits and Documents introduced by the Claimants only, each Party is at liberty to alledge in regular pleadings such circumstances as may tend to acquit or condemn the Capture and to examine Witnesses in support of the Allegations, to whom the adverse 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 not often resorted to.

Standing Commissions may be sent to America 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 Inquiry to be conducted in that Manner

With respect to Captures and Condemnations at Martinico which are the Subjects of another Inquiry contained in your Note, we can only answer in general, that we are not informed of the Particulars of such Captures and Condemnations, but as we know of no legal Court of Admiralty established at Martinico, we are clearly of Opinion that the legality of any Prizes taken there must be tryed in the High Court of Admiralty of England upon Claims given, in the Manner above described, by such Persons as may think themselves aggrieved by the said Captures.

We have the Honor to be, Sir Your Excellency’s most obedient & very humble Servants