The Newfoundland, a British steamship, was seized off the coast of Cuba on 19th July, 1898, by the United States ship of war Mayflower, on the ground that she was trying to violate the blockade of Havana. She was sent to Charleston, South Carolina, and there libeled with her cargo as prize of war. Testimony was taken in preparatorio, and the court determined it to be insufficient for condemnation, and on motion of the attorney for the United States ordered further proof.
Upon that proof a decree was entered condemning and forfeiting the ship and cargo, and they were ordered to be sold. From the decree this appeal is prosecuted. The assignments of error may be reduced to two contentions:
1. That the court erred in making an order for further proof because the testimony taken in preparatiorio afforded no legal foundation for doubt, or proof of any overt act to justify the condemnation of the ship.
2. That the additional testimony taken still left the evidence insufficient for condemnation.
(1) Of the testimony taken in preparatorio the court said:
'Taking the testimony which alone is now before the court, there is nothing in it which shows or tends to show that the Newfoundland, at the time of capture or at any other time, was heading for the port of Havana or any other port.'
'So far as its examination has extended, no case has been found where a sentence of condemnation was passed upon such a state of facts as is presented in this record. How far short the cases cited fall in showing cause for condemnation, the circumstances hereinabove recited demonstrate. These circumstances do no more than create a suspicion that there was an intention to enter a Cuban port in violation of the blockade; but suspicion, however well founded, is not proof, and cannot be accepted in any court in place of evidence.
'There must be some overt act denoting an attempt to do the thing forbidden, some fact in addition to the proved intention to commit the infraction, which shows that the unlawful intent is persisted in and is being carried into execution.
'As this court has in a recent case had occasion to remark, the testimony in preparatorio rarely affords opportunity for such proof. From the master's testimony it appears that Commander Mackenzie informed him that he had information, through a letter from the American consul at Halifax, that the Newfoundland sailed with intention to run the blockade. The court can form no opinion as to the probable weight of such testimony. It also appears that Commander Mackenzie thought the movements and conduct of the Newfoundland on the night of the capture suspicious. The court has personal acquaintance with Commander Mackenzie, and knows that in character, intelligence, and attainments he is the peer of any officer of the navy; but, highly as it values his opinion, it cannot accept it in lieu of proof; it furnishes ground for ordering further evidence.'
It is urged by counsel for appellants that the court, therefore, based its order for further
In Illinois C. R. Co. v. Rucker, 14 Ill. 353, opinion, which, even if otherwise competent, was not in evidence. We, however, do not so interpret the remarks of the court. It is explicitly stated that the circumstances created a suspicion of an intention on the part of the ship to enter a Cuban port, but that the suspicion was insufficient for condemnation, without some proof in addition showing an overt act, which, as testimony in preparatorio rarely afforded, further proof was ordered.
This was not an abuse of discretion, and is clearly within the ruling of The Sir William Peel, 5 Wall. 534, sub nom. United States v. The Sir William Peel, 18 L. ed. 699. In that case the court said the preparatory proof, which consisted of the depositions of the master of the ship, the mate, and one seaman, 'clearly required restitution' of the ship, and, declaring the rule, said, through Chief Justice Chase, that 'regularly in cases of prize no evidence is admissible on the first hearing, except that which comes from the ship, either in the papers or the testimony of persons found on board.
'If upon this evidence the case is not sufficiently clear to warrant condemnation or restitution, opportunity is given by the court, either of its own accord or upon motion and proper grounds shown, to introduce additional evidence under an order for further proof.'