DELIVERY TO CLAIMANTS ON BAIL. THE delivery of captured property to claimants on bail, before a hearing, is so utterly subversive of the policy of the law of maritime capture, that the designation of the practice by Mr. Justice Story as a "gross irregularity," is one of mild reproof. The naval power of the nation is employed in the capture of the property of its enemy, or that which is being used in aid of its enemy, upon the high seas. The purpose of such capture is the sole basis of the belligerent right, namely, to compel the enemy to peaceful submission by destroying his means of aggression or resistance. Oftentimes at great hazard, always at no inconsiderable expense, the captured property is sent into a port of the captor's country for adjudication. That it should be then, by judicial fiat, forthwith surrendered to the claimant on credit, is a defeat of the manifest design of the law, so entirely obvious, that it seems hardly credible that such a practice should prevail, or be adopted by any court, which does not at the same time ignore the existence of the belligerent right. But that a court of appellate jurisdiction in prize, should entertain a motion for the delivery of captured property to a claimant, after a decree of condemnation of the property, on the first hearing, would seem still more extraordinary. Delivery of captured property to claim ants, on bail, ing, subver before a hear sive of the policy and purpose of maritime cap rec ture. the rule of One reason among many, given by the courts for Reasons for the inflexible rule of the non-delivery of captured non-delivery property to claimants on bail, before a hearing, is, still more cothat it cannot then be judicially known that the hearing and claimants are not enemies or acting for enemies. It would, indeed, be strange if the rule should be gent after condemnation. permitted to bend, when it has become known, by the violent presumption resulting from a solemn decree, after a hearing, that the property is either that of an enemy or of one acting for an enemy. The inveterate practice of fifty years of peace in the Courts of Admiralty of the United States, of the delivery to claimants, on bail, of property seized for the violation of a municipal regulation, may ac count for the difficulty, both on the part of courts and practitioners, to realize at once the necessity of a total departure from this practice. Indeed, it appeared to be regarded so pertinacious ly as a matter of course, that claimants of property captured as prize, were as much entitled to have it delivered to them on bail, after appraisement, as claimants of property seized for the violation of a revenue law, or the laws for the suppression of the slave trade, that the Congress of the United States, in "an act for the better administration of the law of prize," passed on the 25th of March, 1862, provided for the sale of captured property, and the deposit of the proceeds in the registry of the prizecourt, when it was perishable or in a perishing condition, in terms adapted to preclude any other dispo sition of such property before a final condemnation. To secure this beyond a doubt, and to place the policy of maritime capture beyond the possibility of defeat, in this respect, by judicial construction, it would be wise in future legislation, to provide in express terms, that the disposition of perishing cap tured property, by sale, was designed to interfere with and to exclude its delivery on bail, and and other mode of disposition of the subject-matter of litigation pending the suit. of non-deliv In the former edition of this work the established The doctrine rule of non-delivery of captured property to claim-ery fully susants, on bail, was briefly stated, and the authorities cision of the cited by which the rule was established. tained by de United States setts. the sale stated Warwick. In the case of The Amy Warwick, on the claim of Massachuof Phipps, after the court had allowed the claimants to introduce further proof of property, a motion was made for the delivery to them of the property which they claimed, on appraisement and bail. The motion was opposed by the captors, who, on their part, moved for a sale of the property. In denying the motion for the delivery of the property on bail, and ordering instead, its sale, the learned judge thus aggregates the objections to the former practice, which he said had "always weighed with prize-courts:" "Before the hearing in preparatorio, it cannot well be Reasons for judicially known that the claimants are not enemies, in the case of or acting for enemies; or that if not so, that they The Amy have such absolute title in the property as to be the persons to whom it should be restored, in case it should be decided to be no prize, and the captured property may itself be evidence. If, on the hearing, their claim remain in doubt on any of these points, why should they take the property rather than the captors? The court must be careful to deliver the property to none but actual owners, and persons who would not pass it to an enemy for whom they might act. There are other difficulties attending this course in the general. It throws on the captors the risk of the sufficiency of the bondsmen at the time, and their continued solvency until a final decision in the appellate court. It gives the claimants the choice of abiding or not abiding by the appraisement. If it is low, they will adopt it, and give bonds, and so make a profit at the expense of the captors. If the appraisement is to the full value, they may decline to give the bonds. And there is always danger of under valuation, not only by fraud, and by the pressure of interests in the trade, but from erroneous principles of estimation. A public sale is the best and fairest proof of value, and the funds in the registry, to be delivered to the parties finally decided to be entitled to it, is the most satisfactory course, where there are no special circum stances." It will be seen that all of these objections to the delivery of captured property to claimants, on bail, with the single exception of that which refers to the sufficiency and continued solvency of the stipulators, are alike applicable to the delivery of such property to claimants, upon payment into court of its appraised value-a practice no less calculated to defeat the great end of maritime capture. New rules of distribution THE CAPTORS ENTITLED AS DISTRIBU- By the third section of the Act of Congress of July 17th, 1862, material alterations are effected in of Congress. the mode of distribution of the moiety of the proceeds of maritime captures, accruing to naval captors. By the provisions of this section, after deducting one-twentieth part of the prize money awarded to the capturing vessel, for the commander of the fleet or squadron, to which she is attached, if thus attached, and two-twentieths for the commander of the capturing vessel, if attached to a squadron, and three-twentieths if the ship was acting independently of any superior officer, the residue of the prize money awarded to the capturing vessel is to be "distributed and apportioned among all others doing duty on board, and borne upon the books, according to their respective rates of pay in the service." 66 entitled to By the fourth subdivision of the same section, Vessels within vessels of the navy within signal distance of signal distance another making a prize," are entitled to share in share. the prize; and it would seem, by the provisions of this subdivision, that in the event of two or more vessels in the navy being entitled, as joint-captors, after deducting the flag-officer's one-twentieth, the entire residue of the captors' moiety is to be dis tributed among all the officers and men of the ships entitled, including the commanders, according to the rates of pay of all on board, who are borne upon the books. Forfeiture of share of prize By the fifth section of this act, forfeiture of the share of prize money to which a commander might commander's be entitled as the result of a capture, is declared to money, for cerbe the consequence of a neglect to perform the duties therein prescribed, as follows: "That the commanding officer of every vessel, or the senior officer of all vessels of the navy, which shall capture or seize upon any vessel or vessels, as prize, shall carefully preserve all papers and writings found on board, and transmit the whole of the originals, unmutilated, to the judge of the district to which such prize is ordered to proceed, with the necessary witnesses, and a report of the circumstances attending the capture, stating the ⚫ names of vessels claiming a share thereof; and the tain neglect. |