The Sun.
London, England, 1863-05-27 00:00:00

SPIRIT OF THE PUBLIC JOURNALS.


POST.—We don't intend to discuss any questions
of form or procedure which may be pending before
any of the American prize tribunals which are now
adjucating upon British ships. To understand,
however, even the nature of the proceedings, it is
necessary to bear in mind one clearly settled and
indisputable principle of international law, without
at tending to which it is impossible even to judge of
the meaning of the accounts which occasionally
reach us of incidental decisions in the progress of
the pending suits. The principle to which we refer
is this. When a vessel is seized on the ground of
her illegal destination, the case must in the first in-
stance be determined by an examination of the
ship's papers, and by the evidence of her master and
crew. If nothing can be found in these to create
suspicion, no further evidence can be received, and
the owners of the ships are entitled to an absolute
judgment in their favour, with damages for the
detention of the ship. This rule, we need scarcely
say, is one entirely peculiar to the maritime tribu-
nals. In all other courts of justice, when a question
arises as to any fact, either side are at liberty to
prove that fact by any legal evidence which they can
adduce. But, in the case of seizure, the maritime
courts have laid down a positive rule of law that no
evidence can be adduced to support the capture
unless there appears cause for it in the evidence
coming from the ship itself. It is of some import.
ante clearly to explain the mode of proceeding. The
Peterhoff has been seized on an allegation that her
real destination was one of the blockaded pries. On
this allegation she is carried into an American port,
and submitted to the adjudication of an American
prize tribunal. Her captors have a right to seize
the ship's papers. If it appear by these papers
that she is bound for a blockaded port, the evidence
against her is complete ; but if her papers are all
regular, showing that she had cleared for a neutral
port, there is still another mode of inquiry per-
mitted to her captors. In the American port to
which ehe is brought there are Admiralty agents
who have power to examine on oath her master
and her crew. Their depositions are taken down
in writing, and sent, with. the ship's papers,
to the admiralty court which is to decide on the va-
lidity of the capture. On these materials, and on
these materials alone, the cause must be heard. If
the papers be regular, and the answers of the master
and crew be clear and distinct, showing that she
was bound to a neutral port, the court has no power
to enter on any further inquiry. The captors might
have it in their power to produce a hundred wit-
nesses who would swear that captain and crew and
owners have all told them that she was really
bound to Charleston; they might be prepared to
show that passengers had been taken on board to be
conveyed there ; not one word of this evidence could
be received; the ship must be judged upon the ma-
terials before the court—that is, upon the papers
and the depositions—and unless something can be
found in them to impeach the bona fides of her pro-
ceedings, the ship must be instantly discharged.
If, indeed, there is on the papers and depositions
so much ambiguity as to leave the legality of the
voyage ill doubt, then the courts are in the habit of
permitting the owners to adduce extrinsic evidence
to clear this up. The captors have even in some
very rare and exceptional instances been allowed
to adduce evidence on their side. But the rule is
perfectly established that, if nothing appears on the
papers and depositions to justify the seizure, the
owners are entitled to a return of their vessel, and
no evidence can be hear& to condemn it. This
peculiarity of maritime procedure is of course per.
fectly familiar to all who are acquainted with mari-
time law. The rule was stated by Lord Stowell
with his usual clearness in the case of an American
ship, the Fortuna, tried before him in 1811. " The
captor," he said, " is not called on at the commence-
ment of the suit to state the particular grounds on
which he contends that the vessel is a lawful prize.
Ile has a right to institute the inquiry, and to
take his chance of the benefit of any fact that may
be produced in the result of that inquiry. This is
a great advantage on the side of the captor, but
it is controlled by his liability to costs and damages
if the inquiry produces nothing, and it is fully
balanced by the advantage given to the claimant in
this species of proceeding that no evidence shall be
admitted against him but such as proceeds from
himself and from his own witnesses, the captor not
being permitted, except in cases marked by pecu
liar circumstances, to furnish any evidence what-
ever." The greatest of American jurists, Judge
Story, in his work upon prize courts, lays down the
same rule. "It is upon the ship's papers and de-
positions thus returned that the cause is in the first
instance to be heard and tried. This is not a mere
matter of form ; it is of the very essence of the ad-
ministration of prize law." To multiply authorities
is unnecessary, and would far exceed the tlimits of
an article. Those who wish to pursue the subject
for themselves will find it duly discussed in the
note of Judge Story, in his " Principles and Prac-
tice of Prize Courts." In the same volume will be
found a document of the very highest authority,
and written under circumstances which invest it
with a peculiar interest. In 1794 Mr. Jay, the
American Minister, applied to Lord Stowell, then
Sir W. Scott, and Dr. Nicholl, to supply him with
a statement as to the general principles regulating
the practice of the British prize courts. In reply
they were able to transmit to him a report made to
George 11. in 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 Solicitor-General. In this re-
port the rule is thus stated—" The evidence to
acquit or condemn, with or without costs or da-
mages, 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 at war, to examine
the captains and other principal officers of every
ship brought in as a prize, upon general and im-
partial interrogatories. If there do not appear
from thence ground to condemn an enemy's pro-
perty, or contraband goods going to the enemy,
there must be an acquittal, unless from the evidence
aforesaid, the property shall appear so doubtful
that it is reasonable to go into further proof thereof.
. . In this method," concludes the report, by
courts of admiralty acting according to the laws of
nations and particular treaties, all captures at sea
have been immemoriably judged in every country
in Europe. Any other mode of trial would be
manifestly unjust, absurd, and impracticable."
TIMES.—It has been raid, with too much truth,
that in this country the non-performance of public
duties is often more profitable than their perform.
ance. We compensate more handsomely than we
remunerate, and grant retiring pensions out of all
proportion to the salaries which we think adequate
for the highest services. It was airmen the other
day by one of our correspondents that a gentleman
who for many years filled an important office at the
Admiralty was a positive gainer by being invalided,
and enjoys, or will shortly enjoy, a much larger in-
come as a non-effective than he ever had while he
was in active employment. Much in the same way
it may be possible that a military officer retiring
from his regiment may leave his family in a much
better position than one who is killed in action.
The widow of the latter, it is true, is entitled to a
slender annuity for life, and his children receive
small sums annually till they come of age, but it is
seldom indeed that these allowances represent the
bare interest on the money actually sunk. The
hardship arising from such a case is peculiarly felt
where the rank or command held by the deceased
officer was conferred on him as the reward, and the
only substantial reward, for signal merits. In this
instance the gratitude of the country, being limited
to the lifetime of its object, may be entirely defeated
by his early death. Hereditary distinctions, such
as peerages and baronetcies, are not liable to be
thus extinguished if the first bearer leave any male
issue, but the nation is rarely backward to accom-
pany such honours with the means of keeping
them up. It is otherwise where the recognition of
brilliant achievements comes in the form of knight-
hood or promotion. The title, of course, does not
descend, and, unless the officer live long enough to
make provision for his family out of his increased
income, they take no permanent benefit by the ac-
cession of personal dignity. If he should die in the
following year, for instance, they will have reason
to regret that he had not sold out before the oppor-
tunity of rendering conspicuous service to his coun-
try ever arose. These reflections are forced upon us
with peculiar cogency by an individual instance of
just such a miscarriage. Short as memories are in this
generation, the defence of Lucknow is never men-
tioned or remembered without a thrill of national
pride. It was the greatest deed of a war which
was remarkable for great deeds of heroism, and it
was the cause of other great deeds the lustre of
which has somewhai obscured that of the defence
itself. Had Lucknow not held out as it did, there
would have been no occasion for Hevelock's victo-
ries, and the relief of it by Lord Clyde could never
have become a part of history. That it did so hold
out, and that constancy and discipline were main-
tained unbroken among its defenders, is admitted
on all hands to have been mainly due to Sir John
Inglis. Ample justice was done from the first by
the Governor-General and the Home Government,
no less than by the public, to his "enduring forti-
tude and persevering gallantry ;" but we believe
that the military profession alone can fully appre-
ciate the skill and resources manifested in those
three eventful months of the siege. For this splen-
did piece of service Colonel Inglis, as he then was,
was raised to the rank of Major-General, and made
a Knight Commander of the Bath. it is with no
wish to provoke invidious comparisons, but solely