"To constitute that authority, or, to call it forth, in (c every war, a Commission under the Great Seal issues "from 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 hereby authorised and required, to proceed upon all " and all manner of captures, seizures, prizes, and reprisals, "of all ships and goods, that are, or shall be, taken; and "to hear and determine, according to the Courts of the "Admiralty and the Law of Nations. A warrant issues "to the judge accordingly, the monition and other pro"ceedings are in his name, with all his titles, rank, and degree; adding emphatically, as the authority under "which he acts, the following words;—' And also to hear "and determine all and all manner of causes and com"plaints, as to ships and goods seized and taken as "prize specially constituted and appointed.' 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: it is "no more like the Court of Admiralty than it is to any "Court in Westminster Hall."

Later

These are the terms of the Commission. on, in explaining exactly the true functions of the Court of Prize, Lord Mansfield says:

"The end of a Prize Court is, to suspend the property "till condemnation. To punish every sort of misbehaviour "in the captives; to restore instantly velis levatis (as the "books express it and as I have often heard Dr. Paul

quote,) if, upon the most summary examination, there "don't appear sufficient ground; to condemn finally, if "the goods really are prize, against everybody, giving everybody a fair opportunity of being heard. A captor may and must force every person interested to defend, " and every person interested may force him to proceed "to condemn without delay."

You will see later on that the summary examination here alluded to is very important, because the presumption is in favour of the captors. The passage from the judgment here cited shows first of all that the object of the court is to ascertain that the ship has been properly taken, and secondly that the Prize Court is a branch of the ordinary Court of Admiralty and owes its existence to the principal commission issued at the beginning of the war.

Having said so much about the constitution of

in Prize

a prize tribunal, I pass on to the proceedings under it. First we will inquire how the case Proceedings arises for the interference of the court at all. Court. A capture has been made: it may be that a belligerent vessel has been captured, as every belligerent is liable to be captured, either by the navy of the other belligerent or by privateers properly commissioned. Such a ship has been captured; or, it may be, a neutral ship has been captured in error. The only good ground on which a neutral ship can be captured is that it is either carrying belligerent goods, such as it has no right to carry, or else that it is apparently or presumptively committing a breach of neutrality, as for instance in sailing or attempting to sail into a blockaded port. The question that comes before the court in the latter case is whether the vessel captured was really a neutral, and, if so, whether it was or was not committing a breach of neutrality. In the case of goods, the question is whether they are or are not covered by the flag of the ship in which they are found.

Preliminary proceedings.

Duties of
Captor.

The course of the proceedings is this :—the captor, upon searching the ship, has his suspicion aroused, whether by the papers or other appearances, that the ship is either a belligerent or a neutral ship committing some breach of neutrality. The captor in this case has only two alternatives. He must release the ship altogether, or take it into the nearest prize court of his own country. He must not simply take the things out and then let the ship go. He must not attempt to confiscate things found in the ship, or to punish those on the ship in any way. He must either release the ship, or send it to a prize court; and until the ship is properly condemned as a prize,-until his act as captor is completed and confirmed by the judgment of the court, -it is no capture at all, and he is not owner of the prize. Every prize is held to be taken by the State, and not by the individual captor. The prize may be subsequently given to the individual captor by the decree of the prize court, and in fact it generally is so, I may say it is universally so. In the event of the prize being proved legally valid, it Prize vests in is adjudged by the Court in the name of the Captor only on Adjudica- State to the captor. In fact, the original act of seizure requires the stamp of the State to give it validity. The State, through the order of the court, assumes the responsibility, and assigns the prize as a reward to the captor.

tion.

You will remember in the "Trent" case, which happened some years ago, that the offence of the captain of that ship was that he took certain persons out of that ship on the ground of their being

contraband of war, or on the ground of their not being entitled to be carried in a neutral ship. He took them out of that ship instead of sending the ship into a prize court. His excuse was that it would have inconvenienced the whole passengers and delayed the ship if he had done otherwise. But restitution was demanded, and the rule of law finally laid down was that in all cases there is no alternative left to the captor: he must either absolutely release the ship, or send it to a prize tribunal for adjudication.

Judge.

Now suppose he sends the ship in for adjudication; what is the first step that is to be taken ? First of all the object is to ascertain to whom the ship belongs and what were the circumstances of the capture. You will find in the text books that, on bringing in a prize, a captor's first step is to give notice to the proper Notice to judge, or a commissioner appointed by him, in order to have the crew examined, and all the documents taken care of and investigated. Upon that notice being given, the commissioner summons the captor and the crew, and examines them upon all papers and documents found on board and delivered up; and an affidavit is made by the captor that he has not kept any back and that there is an entire absence of fraud. The depositions Depositions of all these witnesses are read over to them and signed, and they are sealed up, and then, with all the ship's papers, are taken to the Court of Prize. All these taken together form the evidence in the first instance, as it is called. Strictly speaking

of Crew.

Evidence Preparatory.

Ordinary

Civil Courts have no jurisdiction.

there need, in the generality of cases, be no other evidence at all in the first instance beyond this which is termed the evidence preparatory; not because there must be necessarily any other evidence-for, in an ordinary suit, the witnesses and all the ship's papers are conclusive enough to entitle a captor to his prize,-but that before a judgment is given, other persons, called claimants, may dispute the validity of the capture.

The initial proceeding takes the form of what is called a "Libel." This Libel is a petition to the court to hold its inquest for the purpose of recognising the vessel as a true prize; or, in other words, of authenticating the seizure. The Libel does not attempt to justify the seizure; it only alleges that such vessel has been taken as a prize, and that the vessel was of such or such a kind.

I may notice here a point that has been very much disputed. The municipal or ordinary civil courts have no jurisdiction whatever over a captured vessel when it is taken as prize; but if it is not taken as prize the civil courts, or, it may be, even the criminal courts, will have their ordinary jurisdiction. The first step then after the evidence has been taken, or while it is being taken, is publicly to notify that the libel has been filed in the court. The course is to issue Publication of a monition, citing all persons interested to appear on a given day and show cause why the ship should not be given up to the captor. This notice is to be given with all possible publicity. In England the monition is served by posting a

Monition.