CONTENTS.

1.-Letter from Sir William Scott and Sir John Nicholl to

Mr. Jay.

2 & 3.-NOTES on the Practice of Prize Courts.]

4.-APPENDIX, containing—

Public Documents.

Forms.

Proceedings.

Instructions, &c. for present war.

The references to the American reports of Binney, Cranch,
Dallas, &c., have been carefully retained, on account of the
valuable information with which the decisions of the learned
Judges of that country abound; but they are purposely printed
in Italics, that the reader may at once perceive how far the
statements in the text depend upon these authorities as distin-
guished from the decisions of our own Courts.

A note on the recent alterations in the law of evidence has
been accidentally omitted at p. 109.: the purport of it was to
remind the reader that the interest which a witness might
possess in the matter before the Court, was to be considered as
rather affecting his credibility than his competency, and that
the release which, under such circumstances, was formerly neces-
sary, is now no longer required. Vide 3 & 4 Vict. c. 66. § 10.

PRINCIPLES AND PRACTICE

OF

PRIZE COURTS.

THE following letter from Sir William Scott and Sir John Nicholl to Mr. Jay, is referred to by Judge Story in his first note as containing a very satisfactory and luminous view of the practice of Prize Courts, and may therefore form an appropriate introduction to his more detailed statement on that subject.*

Sir,

To his Excellency John Jay, Esq.

I have the honour of sending the paper drawn up by Dr. Nicholl and myself; it is longer and more particular than perhaps you meant; but it appeared to be an error on the better side, rather to be too minute, than to be too reserved in the information we had to give, and it will be in your Excellency's power power either to apply the whole or such parts as may appear more immediately pertinent to the objects of your inquiry.

* Vide Wheaton on Capt., App.

B

I take the liberty of adding, that I shall at all times think myself much honoured by any communication from you, either during your stay here, or after your return, on any subject in which you may suppose that my situation can give me the power of being at all useful to the joint interests of both countries. If they should ever turn upon points in which the duties of my official station appear to me to impose upon me an obligation of reserve, I shall have no hesitation in saying that I feel them to be such. On any other points on which you may wish to have an opinion of mine, you may depend upon receiving one, that is formed with as much care as I can use, and delivered with all possible frankness and sincerity.

I have the honour to be, with great respect, &c.
WILLIAM SCOTT.

Commons, Sept. 10th, 1794.

Sir,

(Paper inclosed in the foregoing letter.)

We have the honour of transmitting, agreeably to your Excellency's 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 Majesty's Advocate-General, Sir Dudley Rider, his Majesty's Attorney-General, and Mr. Murray (afterwards Lord Mansfield), his Majesty's Solicitor-General:

"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, though 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 captors, 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 or damages, must, in the first instance, come merely from the ship taken, viz., 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