CHAPTER V. OF FARTHER PROOF.1 § 462. THE cause having been heard, upon the ship's papers and the preparatory examinations, if upon such hearing it still appears doubtful, it is in the discretion of the Court to allow or require farther proof, either from the claimants alone, or equally from them and the captors.2 In some cases it is required by the Court, for its own relief from doubt; in others, it is allowed to the party, to relieve his case from suspicion; and it may be restricted to specific objects of inquiry. It may be ordered upon affidavits and other papers, introduced without any formal allegations, which is the more modern and usual mode, introduced for the sake of convenience; or it may be ordered upon plea and proof, according to the more ancient course; in which case the cause is opened to both parties, de novo, upon new and distinct allegations.3 Plea and proof has been termed "an awakening thing;" admonishing the parties of the difficulties of their situation, and calling for all the proof which their case can supply. When farther proof is allowed to the claimants, in the ordinary 1 See, on this subject, 1 Wheat. App. Note I; 2 Wheat. App. Note II. 2 Farther proof is not peculiar to prize causes. The Court will order it on the Instance side, in a revenue cause, where the evidence is so contradictory or ambiguous as to render a decision difficult. The Samuel, 1 Wheat. 9. 3 The Minerva, 1 W. Rob. 169. 4 The Magnus, 1 C. Rob. 33. And see 2 Browne, Civ. and Adm. L. p. 453; The Ariadne, 1 C. Rob. 313; The Sally, 1 Gall. 403. mode, the captors are not permitted to contradict, by affidavits, the testimony brought in; counter-proof on the part of the captors being admissible only under the special direction of the Court.1 § 463. Farther proof may be ordered by the Court itself, upon any doubt, arising from any quarter; whether the doubt arises solely from the evidence already in the cause, or is raised by circumstances extrinsic to that evidence. But this is rarely done upon the latter ground, unless there is also something in the original evidence which suggests farther inquiry. Thus, where a vessel was stopped and searched by a ship of war, and a letter disclosing the hostile character of the vessel was found on board and was transmitted by the searching officer, officially, to the king's proctor, after which the vessel, being permitted to proceed, was captured and sent in by another cruiser; this letter, under the circumstances, was allowed to be introduced on farther proof. Where the case is perfectly clear, and not liable to any just suspicion, upon the original evidence, the Court is not disposed to favor the introduction of extraneous matter, or to permit the captors to enter upon farther inquiries.3 And where farther proof is ordered by the Court expressly with respect to the property and destination of the ship on the return voyage, and it is accordingly furnished by the claimants, the captors will not be permitted to argue for a condemnation on a new ground disclosed by the farther proof, but the Court will confine all objections to the points already designated for farther investigation.1 § 464. In cases of reasonable doubt, the Court will admit 1 The Ariadne, 1 C. Rob. 313. 2 The Romeo, 6 C. Rob. 351. But in a prior case, an application nearly similar was refused. The Sarah, 3 C. Rob. 330. Supra, § 448. And see The Liverpool Packet, 1 Gall. 525; The Bothnea & Janstoff, 2 Gall. 78, 82. 3 Ibid. The Alexander, 1 Gall. 532. 4 The Lydiahead, 2 Acton, 133. the claimant to farther proof, where his conduct appears fair, and is not tainted with illegality. It is the privilege of honest ignorance, or honest negligence, to neutrals who have not violated the law of neutrality; as, for example, for the absence of a bill of sale of a ship purchased in the enemy's country. So, where the bill of lading is unaccompanied by any invoice or letter of advice, the neutral claimant may be admitted to farther proof, even though the ship and the residue of the cargo were belligerent, and the master had thrown papers overboard.3 Farther proof will also be allowed to the claimant, where the captors have been guilty of irregularity, in not bringing in the papers, or the master of the captured ship. But where farther proof is allowed to the claimant, proof by his own affidavit is indispensably necessary, as to his proprietary interest, and to explain the circumstances of the transaction; and the absence of such proof and explanation always leads to considerable doubt. If, upon an order for farther proof, the party disobeys or neglects to comply with its injunctions, such disobedience or neglect will generally be fatal to his claim. § 465. In allowing farther proof to captors, the Court is more reluctant, and sparing in its indulgence; rarely allowing it when the transaction appears unsuspicious upon the preparatory testimony; and never, unless strong circumstances or obvious equity require it. And in such cases it is admissible only under the special direction of the Court; which can never be obtained where the captors have been guilty of gross misconduct, gross ill faith, or gross negligence, the attendant of fraud; or where the case does not admit of a fair explanation on their side; for the Court will not trust with an 1 The Bothnea & Janstoff, 2 Gall. 82. 3 The Friendschaft, 3 Wheat. 14, 48. 4 The London Packet, 1 Mason, 14. 5 The Venus, 5 Wheat. 127; La Nereyda, 8 Wheat. 108, 171. order for farther proof, those who have thus shown that they mean to abuse it.1 § 466. An order for farther proof will also be refused to the claimant, where he has been guilty of culpable neglect, or of bad faith, or other misconduct, justly forfeiting his title to this indulgence from the Court. Thus, it has been refused to the shippers in a hostile ship, who had neglected to put on board any documentary evidence of the neutral character of the shipment. So, where a neutral had fraudulently attempted to cover and claim as his own, an enemy's interest in the captured property, and afterwards applied for the admission of farther proof as to his own interest in the same property. So, where there has been a concealment of material papers; or, a fraudulent spoliation or suppression of papers; or, where the ship, purchased of the enemy, has been left in the management of the former owner, in the enemy's trade; or, was captured on a return voyage, with the proceeds of her outward cargo of contraband goods, carried under false papers for another destination; or, where the goods were actually shipped for neutral merchants, between enemy's ports, but with a colorable destination to a neutral port; or, where any other gross misconduct is proved against the claimants, or the case appears incapable of fair explanation, or the farther proof is inconsistent with that already in 8 4 1 The Bothnea & Janstoff, 2 Gall. 78, 82; The George, Id. 249, 252. 2 The Flying Fish, 2 Gall. 374. 3 The Betsey, 2 Gall. 377. And see The Merrimack, 8 Cranch. 317; The Graaf Bernstoff, 3 C. Rob. 109; The Eenrom, 2 C. Rob. 15; The Rosalie & Betty, Id. 343, 359. 4 The Fortuna, 3 Wheat. 392. 5 The St. Lawrence, 8 Cranch, 434. But if the master should suppress papers relating solely to his own interest, this will not affect the claim of the owners. The Rising Sun, 2 C. Rob. 108. 6 The Jenny, 4 C. Rob. 31. 7 The Nancy, 3 C. Rob. 122. 8 The Carolina, 3 C. Rob. 75. 9 The Vrow Hermina, 1 C. Rob. 163, 165; The Hazard, 9 Cranch, 205; The Pizarro, 2 Wheat. 227. the case;1 or the case discloses mala fides on the part of the claimant.2 § 467. As to the mode of taking testimony in cases of farther proof, it is to be observed, that mere oral testimony is never admitted; but the evidence must be in documents and depositions, taken in the manner already mentioned. In the Supreme Court of the United States it is taken upon commissions alone.3 The Euphrates, 8 Cranch, 385; The Orion, 1 Acton, 205. But that this rule is not inflexible, see La Flora, 6 C. Rob. 1. 2 The Juffrouw Anna, 1 C. Rob. 126. 3 The George, 2 Gall. 249, 252; Rules of the Supreme Court, Reg. 25, 27; Supra, § 457. |