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under his general command, but at a great distance from him.
u This is the first time that an attempt has been made in a prize cause, to pass over the person from whom the alleged injury has been received, and to fix it on another person, on the ground of a remote and consequential responsibility. The actual wrong-doer is the man to answer in judgment. To him responsibility is attached in this court. He . may have other persons responsible over to him, and that responsibility may be enforced. As, for instance, if a captain made a wrong seizure, under the express orders of the admiral, that admiral may be made responsible in the damages occasioned to the captain by that improper act; but it is the constant practice of this court to have the actual wrong-doer the party before the court; and every man must see the propriety of that practice, because, if the court was once to open the door to complaints founded on a remote and consequential responsibility, where is it to stop? If a monition is to go against the admiral for not issuing his revocatory orders, a monition might, in like manner, go against the lords of the admiralty for a similar neglect, or against the secretary for not issuing a similar direction to the lords of the admiralty; and these persons might be made parties in a prize cause, and called upon to proceed to adjudication.
"If the legal responsibility is to be shifted from the actual captor, to whom is the claimant to look? Where is he to find the responsibility in the chain of persons who may be, somehow or other, involved in the different stages of the transaction \ Where is he to find the wrong-doer, if you once take oft"
that character from the person who immediately commits the injury? Where is he to resort, if you take from him that easy and direct resort, wit1: which, in the present understanding of the law, he is provided? I am most clearly, on this ground, of opinion, that Admiral Digby alone cannot be compelled to proceed to adjudication under this monition. The loss which the claimant has sustained is extremely to be lamented; but I cannot give relief on mere grounds of humanity.
"Humanity is only the second virtue of courts Justice is unquestionably the first; and justice would be grossly violated by providing relief for one innocent man at the expense of another, who is not legally subject thereto."1
vindictive Vindictive damages are never given in cases of en only in ex- illegal capture, unless the misconduct has been cMesL*7 gross, and wholly without excuse or palliation.
Much indulgence is extended to errors, and even to improprieties of captors, where no malignity or cruelty is justly chargeable.2
If a captor destroy a ship which is protected by the license of his government, he or his government is responsible for the loss occasioned by such destruction.8
But a captor is protected by the court, who acts in good faith in pursuance of his rights, in an ignorance, honest and invincible on his part, of a for
1 The Mentor, 1 Rob., 180; vide also The Fader land t, 5 Rob., 123.
8 The Lively and cargo, 1 Gall., 29; The Anne, 3 Wheat., 435; The George, 1 Mason, 24. 3 The Felicity, 2 Dod., 381; The Actceon, ib., 52.
eign fact, not governed by his own domestic law, with which he is unavoidably unacquainted till it is actually communicated to him.1
It is a general rule that the captor takes his ^'^iS^and prize cum onere, but the onus must be one which is j!mTM^d^ain" immediately and visibly incumbent. only.
Thus, if a captor take the cargo of an enemy on board the ship of a friend, he takes it subject to the liability for freight due to the owner of the ship, because by the general law of merchants, the cargo in the possession of the owner is subject to that liability, independent of contract. But to claims which rest in action merely, such as bottomry bonds, liens by contract, etc., the rule has no application—for these are claims which no admiralty court can examine with effect. The captor has no access to the original private understandings of the parties by whom such contracts are made, and it is therefore held that he should not be affected by them. Several cases have been decided, involving this principle, relating to freight, liens, etc., both in England and the United States.2
The captor must send his prize to some conveni- Prize must be ent port for adjudication. Although some latitude venient port" is necessarily allowed in the selection of the port, the captor cannot exercise an arbitrary discretion; it must be a convenient port, and it is the duty of Rule as to this.
1 The John, 2 Dodson, 339.
'The Tobar/o, 5 Rob., 218; The Diana, ib., 67; The TwUhiey ffif/ct, 5 Rob., 82; The Marianna, 6 Rob., 24; The Combmcia Harla&ten, 1 Edw., 2.02; The Ann Green, 1 Gall., 293; The Frtincis, 8 Cranchi 418.
the captor to regard the convenience of the claim ant in proceeding to adjudication.1
Where it is not possible to bring the enemy's property into port, and it is beyond all doubt the property of the enemy, the captor's duty is to destroy it; where a reasonable doubt exists as to the character of the property, the more safe and proper course is to dismiss it.2
Until an adjudication, captors have no right to convert the property, nor even to break bulk. In cases, however; of an overruling necessity, as in the case of a capture of perishing property in a distant part of the world, the rule is necessarily relaxed, and the property may be sold.3 Duty on am- Qq arriva] at the port, it is the duty of the cap tors forthwith to deliver, upon oath, into the registry of the court, all papers found on board the captured ship.4
It is also their duty to bring on the prize crew, or at least the master and principal officers, with the prize, for adjudication.5 forth^rto With all practicable celerity, the captors are adjudication, bound to proceed to adjudication. Demurrage, damage and compensation have been frequently awarded on the ground of unreasonable delays in the proceedings of the captors.6
'The Wdhelmsburg, 5 Rob., 143; The Washington, 6 Rob., 275; The Lively, 1 Gall., 318. 'The Felicity, ubi supra.
* VEvle, 6 Rob., 220.
4 The Diana, 2 Gall., 95.
5 The Bothnea and the Janstoff, 2 Gall., 88.
• The Madonna del Burso, 4 Rob., 169; The San Juan Buttista and The Putissima Conception, 5 Rob., 38; The Corier Marttima, 1 Rob., 287; The Su*anna, 0 Rob,, 51.
"Unless the captor," says Lord S to well, in the first case here cited, "can exculpate himself with respect to the delay in this matter, he is guilty of no inconsiderable breach of duty. It would be highly injurious to the commerce of other countries, and disgraceful to the jurisprudence of our own, if any persons, commissioned or non-commissioned, could lay their hands on valuable foreign ships and cargoes, without bringing such act to judicial notice with promptitude."
It is the duty of the captor immediately to com- Pike-master
•> * J . and crew.
mit the prize to the care of a competent prize-master and crew, not for the reason that the prize or original crew, when left on board in the case of a seizure of a citizen or neutral, are released from their dutv without the assent'of the master, but because the captured crew are not subject to the authority of the captor's officer.1
The right to capture enemy's property on board a neutral ship, and neutral property on board an enemy's ship, has been the subject of discussion by the elementary writers, and has frequently been passed upon by the courts both of the United States and Great Britain.
Although a subject connected with that of capture, it may be more properly reviewed when we come to consider the effect of war upon the commerce of neutrals.
Besides the capture de facto, which we have been considering, there is another capture, by construction, or jointrcapture. Joint-captors are those who,
1 The Eleanor, 2 Wheat, 345.