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court, from the date of the appropriation of the property.
The rules and practice, as above recited, are laid down in numerous cases of recent adjudication, in the United States District Court for the District of New York.1
The general rule in relation to the duty of cap-Duty ofcaP
tors as to th©
tors toward the persons captured on board the persona taken vessels taken, is to send them in with the prize, as ^^^ropr witnesses in the proceedings in adjudication. ertr
Except where they are very numerous, it is the safer rule to send all the captured persons into the port of adjudication; but in no case should the captors fail to send in the master and principal General rule officers of the captured vessel. A failure to do this, in with the can only be excused in a case of physical impossi- Wlt" bility, not occasioned by any agency of the captors, and on the part of a private armed vessel would involve a forfeiture of the rights of prize.
In the case of The Julia, in the United States overpowering District Court for Massachusetts, the learned judge on^ewuse8 took occasion to comment upon a failure, without j^pi^S,*0 adequate excuse, to comply with this established ^rulerule of prize-courts, as follows:
"The prize law requires the captors to send in the master of the prize, as a witness. The failure to do this, unless for some overpowering necessity, is, in the case of neutral vessels, a serious fault. In the present case, the testimony of the master would be
1 The Memphis, The Stephen Hart, The Elizabeth, The Patrus, The Jos. H. Toon, The Ezilda, The J. W. Wilder, The Ellis and Armament, and nine other vessels. The Henry Lewis, The Anna, The Nostra Signora de Rcnla, The Magnolia, The Circassian, The Nassau, The Ella Warley. MS. Decis. U. S. Dist. Ct., N. Y. most material, yet he was not sent in. To account for this, I allowed the United States Attorney to take 'further proof,' and the deposition of the commander of the Cambridge, who made the capture, has been taken. From this deposition, it appears that it was as easy to send in the master as the seamen, yet the master was sent ashore at Fortress Monroe, and nothing has been heard of him since, while the men sent in as witnesses, knew little or nothing, and could not be expected to know much, about the actual ownership, papers, instructions and objects of the vessel and voyage.
"The commander justified his failure in this respect, by the language of the circular instructions sent to him, which are to send in 'two of the captured crew.' He certainly has not transgressed the letter of his instructions; but the instructions should have been more explicit. They should have required the sending in of the master in all cases, if possible. But whether the fault rests with the captor, the flag officer of the squadron, or the department, the rights of neutrals are the same.
"I do not feel authorized to condemn a vessel and cargo, sailing under British flag and documents, of British build, and on her papers, owned by British subjects, on such suspicions as appear in this case, where the captors have failed, without any excuse, to send in the master as a witness.
Captured per- The captured persons sent in as witnesses, should separated not be separated from the captured property, unMnT'ir^ttibel0S8 tms *s deemed necessary for its safe transmistho prize. sion to the port of adjudication.
The violation of this rule, without apparent necessity, has occasioned much embaiTassment, inconvenience and delay in the recent adjudications, and the courts have animadverted upon such misfeasance of naval officers, with much severity.1
In numerous cases of capture, adjudicated in the Where United States Court in New York, it was made to ap- vesse^escape, pear that the persons belonging to the captured ves- p'roof'aisel, without exception, had escaped from her, prior to lowed, the capture, and could not afterward be procured.
In all such cases, the otherwise inflexible rule, which requires the testimony for condemnation to proceed, in the first instance, from the persons taken on board the prize, has been relaxed, and the captors have been permitted to supply inculpatory proofs from other sources.2
In some instances, naval captors during the existing war in the United States, have subjected persons captured on board vessels seized for a violation of the blockade, to such treatment as would be only justifiable toward prisoners of war. This Personal treatmust have have arisen from a singular misapprehen-TM^ pfe^g sion. The penalty, and the sole penalty, for this violation of the belligerent right, is the forfeiture of the property employed in it. The persons engaged in Detained as it cannot be lawfully treated as prisoners, nor can ^ pr^oner?0* they be detained as prisoners, but only as witnesses.of w*r
Until they have given their testimony, they may
1 Vide The Shark, The Cheshire, Louisa Agnes. MS. decis. U. S. Dist. Court, New York. The Julia. MS. decis. U. 8. Dist. Court, Mass.
'Vide The Actor, The Ellis, and nine other vessels. The A. J. Vieu, The Delight, The Express, The Osceola, Tfo Olive, The Capt. Sped don. MS. decis. U. S. Dist. Court, New York.
and should be detained, and-detained in such manner as to exclude the possibility of their being tampered with by interested parties. After they have testified, they should be forthwith discharged from custody.
A practice has prevailed in some, if not all the courts of the United States, of allowing and paying the persons sent in as witnesses, a compensation for their detention.
It is believed that no precedent can be found for this practice.
The Louisa In the case of The Louisa Agnes, the learned District Courti judge of the Federal Court, in New York, cornNew York, mented a^ some length upon the duty of captors toward the persons captured, generally, as well as in the several particulars, which have been stated, and also took occasion to lay down the proper course to be pursued in all cases where redress is claimed by reason of alleged misfeasance, or malfeasance of naval officers.
The language of the learned judge upon this important subject, is so instructive in its lessons, and valuable in suggestion, that it would not be proper to omit it in this connection; but it is well to state, and justice toward the naval captors requires the statement, that the elaborate averments of ill treatment in this, as well as in numerous other cases, were wholly unsustained by any proof whatever, and seem to have been interposed more for the purpose of creating an unfounded prejudice, than in any expectation of supporting them by evidence.
"The affidavit of the master of the vessel, attached to the several claims in this case," says the learned judge, "was insisted upon by each claimant as legal proof in his behalf.
"It made allegations of misconduct committed The cased by the capturing vessel upon the ship's company Agnes, u. s. of the prize vessel, after her seizure; that the mas-NewTorit"1*" ter and two of his crew were separated from the prize, and sent without her, to their serious inconvenience and wrong, to Baltimore, and thence by rail to New York, and that the writing-desk of the master was improperly opened on board the United States ship-of-war, while he was there detained, and that papers were abstracted from it by the captors, and that two of the seamen on the prize were placed in irons, and sent with her so ironed to New York by the captors. These allegations are not admitted by the libellants, or otherwise established by direct proof on the part of the claimants.
"This alleged misconduct has been urged as a conclusive defence to this suit, with the allegation that several causes, in addition to the present one, are still waiting the consideration of the court, in which that cause of defence is more flagrant, and strenuous appeals are addressed to the court to redress the wrongs and losses inflicted upon neutrals, by the course of conduct pursued during the present war by national vessels, in the assumed enforcement of the law of blockade. The court will indulge in no general denunciation or stigma of the supposed malfeasances of public vessels in the performance of their duties in relation to prizes, but will carefully examine the facts brought to its attention, and endeavor to uphold and enforce with strict justice, the legal rights and responsibilities of all parties implicated in prize proceedings brought before the court.