The Jungfre Maria. 1 H. & M. rests of the honest neutral carriers, and to guard them against prevarications of friends and foes, as much as possible, it is most advisable and equitable, when neutral ships are restored, to charge the freight and expenses of the master upon the cargo, by which is meant an average charge; so that, let the last event of the cause be what it may, he is certain of a solid fund. If the whole or part of [285] the cargo shall be condemned, the captor will pay his share of the freight and expenses due to the master. If the whole or part shall be restored, the claimant will then pay his share; and if any burden is flung anywhere, in case the whole should be restored, the captor will still pay his own expenses. This is an unusual lenity to claimants; for in former wars, whenever there was just cause of seizure, the captors' expenses were all to be paid by the prover. As it is now settled, it is hoped, beyond the possibility of the meaning of the court being mistaken, but by those who choose to misunderstand it, the neutral gets immediately his ship discharged; he goes away in good humor, and we stand a chance of seeing him here again. The Dutch East Frieslanders, the Swedes, Danes, and Hanse Townsmen, are the great carriers of Europe. The former have furnished us with the greatest part of our transports to America. The carrier masters are most of them good, plain, honest men. When the scale hangs equal in judgment between them and an Englishman, it is the duty and it is the disposition of this court to turn [286] it in favor of the neutrals, so long as they do not prevari cate or conceal. Let the French courts proceed as they may; we may appeal to the Reglemens published by the French government in the two last wars, and in the present hostilities, announced arbitrarily to all Europe, for the difference of treatment. We will take care of the honest neutral, who shall never suffer while this court can help him. HEARD thirty-four causes of naval store ships, chiefly Dutch. The neutral store ships were all restored with freight, and all reasonable expenses of the claimant and captor, and the stores were decreed to be sold upon a fair valuation, by merchants to be named on each side, for the use of his Majesty's navy, to be paid to the neutral claimants. The Concordia Affinitatis. 1 H. & M. The question upon the property was reserved for. farther consideration, in two or three cases, in which British subjects were the laders, or the King of France the declared owner; or where the ship-timber was fabricated into knees, bowsprits, &c., and in those cases the ships were released in like manner, all freight and expenses to be charged to the buyers, and the money to be brought into court for the benefit of all parties who should be proved to have right. The judge spoke with much severity on the part taken by British merchants in aiding the enemies of their country; that no naturalization in a foreign state can * absolve them of their [* 288] allegiance, whenever their persons or their properties shall come within the vortex or reach of the power of British laws. That the Dutch have no privilege to carry the property of Englishmen to the enemies of England. The proctors for some of the neutrals entered protests against the decree of sale; but the judge observed, that no persons could be at the bottom of these protests except real French owners, or rather the French government; for neither insurers, masters nor owners, could be sufferers, nor indeed ordinary Frenchmen, He added, that there was a peculiar absurdity in neutrals appealing to his Majesty in council against a decree of sale exactly squaring with his Majesty's own declaration, formed and settled in council and notified to the Dutch states, and all the rest of the neutral maritime powers. He warned them, as a friend to honest neutrals, not to incur a fruitless expense, to beware of factious and rash advice, and to take the opinions of their own advocates in every step. * CONCORDIA AFFINITATIS. February 8, 1779. [ * 289 ] THIS was a Swedish ship, bound from Hamburg to Rochelle. Upon the 27th of November last, the ship was restored, with freight and the master's expenses charged upon the cargo. The hemp and copper sheets were ordered to be sold to the commissioners of his Majesty's navy, the money to be brought into the registry, for the use of those who shall be entitled thereto; and the claimants of the cargo in general (the property not being verified by the master, or 1 [Hay & M. 169.] The Concordia Affinitatis. 1 H. & M. fully set forth in the bills of lading) were ordered to prove their property. The captors consented to accept of affidavits as proof, without going into pleadings. A great number of affidavits were accordingly brought in. Out of fourteen there were but three numbers which were unequivocal and direct. The court restored the contents of these three bills of lading, and ordered that the claimants should give fuller proof of the property of all the rest. [* 290 ] * The objections taken by the counsel for the captors were, that many of the affidavits were only in the present tense, viz., that the goods claimed are solely and wholly the property of claimants, and that no other person hath any share or interest therein: whereas it ought to have been sworn, not only that the goods were their entire and sole property at the time of the lading, at the time of their being taken as prize, and are so at the present time, but also will remain so in case the ship shall arrive at the place of her original destination. One of the claimants swore, that the hemp does go over the sea for his account and risk. Another swore that the goods are insured at Hamburgh and Amsterdam, and thus (drawing an inference) subjects of neutral states actually run the risk thereof. The case of The Charles Havernersworth, in 1748, was quoted. That was a Swedish ship, which had taken in goods upon general freight at Hamburg for Alicant, Cadiz, and Marseilles, by the bills of lading, to be delivered to the persons to whom the goods were con signed. There were attestations on board the ship con[* 291 ] cerning the property, and to them exceptions * were taken as in the present, that they related to the property at the time of shipping only. The court ordered fuller proof; and the mode of making it to be settled and agreed by the advocates on all sides by reference; Dr. Paul, the King's Advocate, Sir George Lee, Sir Ed. Simpson, Dr. Pinfold, Sir George Hay, Dr. Jenner, and the rest of the bar of civilians. They upon reference reported, that affidavits should be made by the claimants that the goods were their sole and entire property at the time of their shipping, continued to be so at the time of the capture, and would continue so until the goods should be sold by their agents in France and Spain for their account. This form was exactly corresponding to the latter part of the 12th of the standing interrogatories. It was urged, that affidavits being now made and insufficient, the court should condemn. The judge observed, that the affidavits were all made, and bore date in Novem ber previous to his decree on the 27th; that although it was true that a line must be drawn in every cause after a certain period to exclude all further proof, otherwise causes would be im[* *292] mortal, yet he would allow farther time to the claimants to The Concordia Affinitatis. 1 H. & M. make affidavits in proper form; as they made these before they knew what forms were required of them; that it would be very dangerous to admit such general affidavits; and that it was a very suspicious circumstance, that the same notary who had drawn the affidavits for the goods in the bills of lading, C. G. N., which were sufficiently full, (and so it was clear, therefore, from them, that he knew the forms that were proper,) was the drawer of the eleven affidavits, one of which only spoke to the property of the goods while going over the sea, thereby raising an implication that they were the enemy's when they should arrive at land; or arguing, that by the insurers being neutrals they were therefore for neutral risk. This shows the propriety of the words account and risk, and the wisdom of the 12th interrogatory; for goods may, especially since policies of insurance have become general, be for one man's account that are not for his risk, or for a man's risk which are not for his account. The very idea of complete and perfect property is perpetuity; that what was mine yesterday is mine to-day, and * will be so [ *293 ] to-morrow, and every day until I assign it over, or make delivery of it for some due consideration to another person. The word proprius, in the classics, means perpetual; thus in Terence, "ut hæc mihi propria sit felicitas:" may this happiness continue mine; that is, long and lasting. It was not until the case of The Charles Havernersworth, that affidavits were ever admitted by the practice of the Admiralty Court, but as semiplena probatio only; and then they were admitted as sufficient by consent. The claimants used to go into farther pleadings and proofs, and the captors had liberty to plead in contradiction, and to have crossexaminations. The same distress and difficulty dwelt on the mind of the judge then as it does now. The going into pleadings and proofs is one of the most difficult points of adjudication in causes of prize. He felt the great inconvenience, expense, and delay of this proceeding; but it is easier often to see an evil in the practice of a court, than to find a remedy that has no objection, or may not lead to worse consequences. With respect to great names, *that have done honor to their profession, it must be ob- [ 294 ] served, that it would be dangerous to point out too exactly and invariably the forms of affidavits. Invariable forms are advantageous instruments for fraud to make use of. It will be sufficient to say, that wherever farther proof is indulged to claimants upon affidavits, those attestations must be without equivocality, and they must go to the property of goods at the periods when first laden, when taken, and when finally landed; and they ought to be negative as well as affirmative, that no enemies of the crown of Great Britain, La Prosperite. 1 H. & M. or its subjects trading with its enemies, had, have, or will have, at any of those times, any right, share, title, or interest therein, directly or indirectly, without fraud, collusion, equivocation, or mental reservation. The claimants on the whole are recommended to consider well what they can truly swear to, and advise with their advocates as to the forms of their affidavits and proofs. [* 295] LA PROSPERITE, or the WELfaren. February 19, 1779. LEVIEN Gotthard Matheisen, master. This ship was a ship upon freight, chartered by a French broker for the laders resident at Nantz, taken on her voyage from Nantz to Dunkirk by the private ship of war The Tyger, the 25th of August last. The ship was originally claimed by the master, the property of himself and other inhabitants. of the free imperial city of Lubeck, and the cargo in a general way on behalf of the several persons who may appear to be interested therein. The cargo consisted of brandy, linen, coffee, and cotton-wool, and ten bales of silk East India handkerchiefs. On the 30th of October a claim was given in for Martinus Tak, a Dutch subject, for ten bales of Chollet handkerchiefs; but the master declared, in his deposition, that he did not know the laders, owners, or consignees; that he should have landed the whole of his cargo at Dun kirk had he arrived there safe, which is all he knew of the pro[296] perty. All the bills of lading were defective in not expressing upon whose account and risk the several parts of the cargo were shipped; and several referred to acquittances under bond, of which the captain was therein declared to be the bearer. November 27, the court restored the ship as the property of Lubeckers, with freight and expenses of the master to be charged upon the cargo; and decreed farther proof of property to be made by all parties who might have interest. No other claims being given in, the cause came on to be heard upon farther proof of property, by affidavits, with con sent of parties. In regard to Martinus Tak, a certificate was offered, made by the magistrates of Middleburgh, of Zealand in Holland, dated December 17, 1778, setting forth that Tak, being of the Minonite persuasion of religion, (a sort of Quakers,) had solemnly affirmed before them, that |