#### THE GROTIUS, Sheafe, master.

1816, March 10th.

*Msént.,.JYaim, J.*

ih order to capture,’"rome act Rouid be done indicative to seize Sid to retain as prize; it is sufficient if such intention is fairly to be therconduct°S' the captor,

THIS case was continued from last term, for further’ Prooí> *(&ee ante> 8> P°*456) and was now submitted, upon the further proof produced, without argument.

Washington, *J.*

delivered the opinion of the Court as follows :

This case comes before the Court upon an order for ^P^her proof, ma’de at the last session in relation to the validity of the alledged capture of this vessel. The master, the mate and two of the seamen of the Grotius, in answer to somé of the standing interrogatories, swore, that they did not consider the ship to have been seized as prize,;,and that the young man who was put on board by Odiorne, the captain of the privateer, was received and considered as a passenger during the residue of the voyage. The deposition of *Very,*the alleged prize-master, ivas taken and read in the Court below, ih which he swore that he was present at the *capture;*that Sheafed the master of the Grotius, was' órdered to go on board the privateer with his papers, and that he, Very, was directed by captain Odiorne, in the presence of Sheafe, to go with the prize, as prize-master, and to permit the captain,of the Grotius to keep possession of the ship’s papers and to navigate her into port. That he accordingly went on board as prize-master taking with him á copy of the privateers commission and also written instructions from captain Odiorne for his own conduct

The deposition of Very, though irregularly taken ih that stage of the cause, was nevertheless calculated to Weaken the preparatory evidence in relation to thiscon¿. tested,fact, and to point out the propriety of a further investigation. The evidence of this witness lost much of its weight fróm the circumstance that his letter of instructions was riot annexed to his deposition, or made an exhibit in the cause. It was proper that this omission should be supplied by the captors, if it could be done, and that they should have an opportunity to fortify the; *369evidence of Very, if in their power to do so. For these reasons the order for further proof, was extended as well to the gaptors as to the Claimants; Under this order the captors have exhibited an attested copy of the wrijtten instructions to Very, bearing (bite, the 29th of July, 1813. They inform him that he is put on board the Grotius and direct him to proceed in the ship, and, on his arrival, to report himself to the agent of the privateer, who .would take such measures as he might deem necessarythat he is not to take charge of the vessel, but is to allow the captain to take her iuto any port in the United States ho might see fit. The authenticity of this paper is ascertained by the affidavit of the prize agent of the privateer, in which ho swears that the original was delivered to him bv Very, on his arrival, as containing his orders, and that it has remained ever since in his possession. The deposition of Very has not been takln under the order for further proof, but the omission is accounted for by the prize agent, who, in his affidavit.; swears that Very was captured on a subsequent voyage, and had not since returned to the United States. Under these circumstances the Court feels no difficulty in receiving his deposition originally taken in the Court below. In addition to the letter of instructions to Very, the collector of the port of Portsmouth has furnished an extract from the journal of the privateer, kept on that cruize, which states *“*that on the 30th « of July, 1813, the Grotius Was boarded, and after an *“*examination of her papers, a prize-master was. put ori *“*board of her, and she was ordered to the first port in «the United- States.”

This documentary evidence is further supported by the deposition of Mr; Wardwell, the surgeon of the privateer, who swears that captain Otliorne informed the master oí the Grotius, after he had come on board, that he should make out a copy of his commission and should put a prize-master onboard, to whom he should gbo orders to suffer captain Sheafe to conduct his ship into any -port of the United States he should think *fit;*that he would be further instructed to report to the custom house on his arrival, and to inform the agent of the privateer of his arrival. That a prize-master, named Very, was accordingly placed on board, with instructions and a copy of the commission. This witness being ex-*370fimined as touching his interest in this cause, swears that he has none, having for a valuable consideration assigned all iiis interest in the prize to the owners of the privateer. .The only evidence given by the Claimants under the order for further proof is the deposition of .lohn de Forest and the affidavit of captain Sheafe, which corresponds with his answers to the standing interrogatories ; and in addition thereto he contradicts the material parts of Wardwell’s testimony. De Forrest Was a passenger on board of the Grotius, and he swears that Very exercised no authority whatsoever on board that ship, but was considered and treated' as a passenger.

Upon this evidence and the answers to the standing interrogatories, the cause is now to be decided ; arid the only question is whether the grotius was in fact seized as prize of war. When the facts are ascertained there can be very little doubt what constitutes in law a valid seizure'ah prize. It is clear that; some act.should be done indicative, of an intention to seize and to retain as prize *;*and it is always sufficient if such intention is fairly to be inferred from the conduct of the captor. Now in this case, the evidence of Very and of Ward-well, proving that captain Sheafe was distinctly informed time his ship would be sent in as prize, is corroborated by the written instructions to the former, which he delivered, on bis arrival, to the prize agent, and by the journal of the privateer, both of which documents correspond with the evidence of those witnesses. The former of these documents, written at the time when Very was appointed the prize-master as he states, imports a clear declaration of the intention of captain Odiqrne, aud having been deposited, with the prize agent immediately on the arrival of the Grotius, it cannot be presumed to have been fabricated to serve the purpose for which it is now used.

Although the instructions do not call Very prize-master by name, yet they contain other equivalent expressions ; for if he was put on board merely as a passenger, what had he to do with reporting the vessel, on her arrival to the collector, and particularly to the prize agent?

*371' The evidence then on the part, of the captor would be quite sufficient to establish the fact of a valid capture if it stood uncontradicted. The only positive evidence against it, is the deposition of Sheafe, which is in direct opposition to that of Wardweli and Very. He swears that Odiorne represented himself in the first instance as the commander of a British privateer, "and as such threatened to put a prize-master on board and send him into Halifax. That he afterwards avowed his real character, after which he never spoke of putting a prize-master on board, but merely requested him to receive Very as a passenger. He says that the first conversation when Odiorne spoke of putting a prize-master on board took place in the cabbin when Wardweli was present; that the latter conversation was on deck when he was not present.

Wardweli is equally positive. He swears that after captain Odiorne- had disclosed his real character, he told Sheafe that he should put a prize-master on board, and send him into any port in the United States he might chuse, adding thát he might as , well be prize to the privateer as be seized by the government of the United States on his arrival; to which captain Sheafe assented. He further swears that captain Odiorne informed the captain of the Grotius, that he should direct the prize-master to report himself *to*the custom house, and to the prize-agent. In point of credit these witnesses' appear to be equal, neither of them having any personal interest in the dispute. But Wardweli is fully supported by Very and their united testimony .receives considerable aid from the instructions, and from the journal of the privateer. They are also'supported in some degree by the answer of Chambers, one of the crew of the Grotius, to one of the standing interrogatories, in which he states that Very, the day after his coming on board of that ship, declared that he was piit on board as prize-master.

The evidence of the mate, of de Forest, and of Prince, is entitled to very little weight, because the two former did not go on board of the privateer, and the latter, although he did accompany captain Sheafe to the privateer,, does not pretend that lie heard any conversation between him and captain Odiorne ; and being a common seamen it is unlikely that he should have been admitted into their company. The evidence of these persons as *372to the unassuming conduct of Very whilst on board the Grotius. from which they inferred that he was there merely as a passenger, is entirely. consistent with the arrangement proyed to hare been made on board of the privateer that he was not to interfere in the navigation of the vessel.

Upon the whole it is the opinion of a majority of the Court that the validity of the capture of the Grotius as prize of war vs sufficiently established by the evidence, and the captain having acquiesced in the subsequent arrangement as to the mode of sending in the vessel',.she ought to have been condemned to the use of the captors.

The decree of the Circuit Court condemning the ship Grotius, &r. to the United States is *reversed;*and the Court proceeding to give such decree as the said Circuit Court might have given, it is further decreed and ordered that the said ship be condemned as lawful prize tq the captors. ■