Crown never is, and perhaps constitutionally could not be, advised to do otherwise than adopt the recommendation of her Judicial Privy Councillors. The whole proceedings in the Court of Appeal, as in the High Court of Admiralty, are conducted in an open Court, accessible to everybody, of which the Reports are duly published to the world. CHAPTER III. THE PRINCIPLES AND PRACTICE OF THE PRIZE TRIBUNALS-GENERAL OUTLINE. CCCCXL. IN the year 1794 (a) Sir W. Scott and Sir J. Nicholl, the two civilians best acquainted with the jurisprudence and procedure of the Tribunal of Maritime International Law, wrote an answer to a letter of inquiry upon this subject from the American Ambassador, Mr. Jay, which answer contained an outline of the principles and practice of these Courts. Judge Story refers to it as in all respects satisfactory. The North American Prize Courts have seldom if ever departed from the rules contained in it. It is extremely valuable, both on account of the authority of the writers themselves and on account of their unreserved adoption in this letter of the celebrated Memorial of 1753, which has been often referred to in this work. This remarkable letter (b) is in the following terms :— "SIR "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 judg (a) Pratt's Story, p. 1. Wheaton on Captures, Appendix. 1 Wheaton's (Amer.) Reports, p. 494, Appendix, n. ii. (b) It was enclosed in a civil and formal note to Mr. Jay, the American Minister. 66 66 ment, 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 (after"wards Lord Mansfield), His Majesty's Solicitor-General (c). "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 ob"serves his neutrality. 66 6 66 6 66 6 "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. 66 6 "By the Maritime Law of Nations, universally and im"memorially received, there is an established method of "determination whether the capture be, or be not, lawful prize. 66 6 66 6 "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. 66 6 "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 (c) Cabinet Library of scarce and celebrated Tracts. Edinb. 1837. "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 "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 enemies' 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 farther proof thereof. "A claim of ship, or goods, must be supported by the "oath of somebody, at least as to belief. 66 6 "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. 66 6 "To enforce these rules, if there be false or colourable "papers; if any papers be thrown overboard; 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 cannot say whether the ship or cargo be the 66 6 property of a friend or enemy, the Law of Nations "allows, according to the different degrees of misbehaviour "or suspicion, arising from the fault of the ship taken, "and other circumstances of the case, costs to be paid, or "not be received by the claimant, 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. "Though from the ship's 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 show 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, 66 6 according to the circumstances of the case, may be justly "entitled 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 con"siderable persons, to which the parties who think them"selves aggrieved may appeal; and this superior Court 66 6 judges by the same rule which governs the Court of "Admiralty, viz., the Law of Nations, and the Treaties "subsisting with that neutral Power, whose subject is a "party before them. 66 6 "If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and "conclusive. "This manner of trial and adjudication is supported, "alluded to, and enforced, by many Treaties. "In this method, all captures at sea were tried, 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 in Europe. Any other method of trial would be manifestly unjust, “ ́ absurd, and impracticable.' 666 "Such are the principles which govern the proceedings " of the Prize Courts. 66 "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 |