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for the decrees of tlie latter are always sent to th( Circuit Court for execution, and therefore the property always remains in the latter court, notwithstanding the appeal.
FURTHER CONSIDERATION OF THE PRACTICE AND PROCEEDINGS OF PRIZECOURTS, SUGGESTED BY THE ADJUDICATIONS UPON CAPTURES MADE DURING THE EXISTING WAR IN THE UNITED STATES.
[the belligerent right of the United States to interdict all commerce with the insurgents, by a blockade of the ports in their occupation, has been maintained by its naval forces, in superaddition to its other duties, with a noiseless bxit incessant and efficient activity, and the large number of naval captures that have been made, of property employed in the violation, or attempted violation of this belligerent right, have called into active exercise, for the past eighteen months, the prize jurisdiction of the federal courts of the country.
• In the adjudications upon these captures, apart from the great questions of high political import which were considered and determined, many important subjects, connected with the practice and proceedings, in the administration of the law of maritime capture, have been authoritatively adjudged. A brief review of these discussions mil make a proper and desirable supplement to the foregoing chapter.
THE DUTY OF CAPTORS.
The duty of captors.
As to the property captured.
Exceptions to the rule requiring it to be sent in for adjudication.
Exception arising from moral restraint.
The rule which declares it to be the duty of captors, as soon as possible after the completion of the capture, to send the captured property into some convenient port, for adjudication, like all general rules, admits of exceptions, in extreme cases, either of physical necessity, or of overruling moral influences.
The exception arising out of physical necessity, is illustrated by the cases where the property captured is a long distance from any port of the captor's country, is in a perishing condition, and either the captors liave no means of sending it in, or if they have, it is obvious that it would be of no value on its arrival. In such case, it may undoubtedly be sold, and the proceeds of the sale representing the property, will become thereafter the res on which the prize-court acts, in its adjudication.
So too, an overruling moral restraint, may present a sufficient ground of relaxation of the rule which requires adjudication upon the property itself
This occurred in the case of The British Empire, captured on the coast of Florida, near St. Augustine, which was in possession of the naval forces of the Government of the United States.
The cargo of the vessel consisted mainly of articles of household consumption, and the public authorities of the town, presented a petition to the com mander of the capturing vessel, representing in strong terms the famishing condition of the inhabitants of the town, for the want of many of the articles contained in the cargo, that they possessed the means of paying for the same, and beseeching the commander, as an act of humanity, that he would order such portion of the cargo to be sold at auction, in the public mart of the place. This petition was complied with by the commander, the remainder of the cargo was sent to the port of New York for adjudication, and the proceedings in the court of that district were against the cargo sent in, and the proceeds of the cargo sold.
The learned judge, in his decree, while sustaining the action of the captors, under the peculiar circumstances of this case, nevertheless declares the necessity of a strict adherence to the rule, as founded in a positive neutral right, and therefore of a most careful scrutiny into such cases as are claimed to present justifiable cause for its infraction.
The necessity of the captors for the use of the Excuse arising captured property, in whole or in part, constitutes ^sslty of "the another exception to the rule, which requires the caPwr3property itself to be sent in for adjudication.
.This necessity may be either that of the individual captors themselves, as where the captured property consists of provisions or supplies, actually required for the immediate use of the capturing vessel, or others with her in the service, or it may be more directly the necessity of the captors' government, as where the captured "property consists of arms, ammunition, or of vessels, of the character required, for the use of the government, in the prosecution of the war.
In all such cases, the commander of the capturing captured vessel, or the Admiral of the fleet, must, of course, fXSrf be the judge of the existence of the necessity; and, the capturing
"° * 'vessel or the
government, must be appraised before appropriation.
The amount of appraisal deemed to be in the treasury.
No rule requiring its payment by the government, before final decree.
in every such case, it is the imperative duty of the captors, prior to such appropriation, to cause the property which is to be taken, to be appraised by a competent naval board of survey and appraisement, appointed for that purpose.
.This rule of appraisement not only rests upon the right of neutral claimants, but without such appraisement the individual captors themselves lose all benefit resulting from the capture by judicial decree.
An appraisement of captured property, appropriated to the use of the government, in the prosecution of the war, whether before or after it has been sent in for adjudication, is considered by the courts as standing in the place of the property or its proceeds; and the amount of such appraisement is deemed to be in the treasury of the government, subject to a final decree of distribution or restitution, in like manner as if the property had been sold on interlocutory order, and the proceeds deposited in the treasury. Without such appraisement, the court is in possession of nothing upon which to base its proceedings for adjudication.
In some instances of the appropriation of captured property, consisting of arms, ammunition, <fec. and of steamers suitable to be converted into vessels of war, the government of the United States has paid the amount of the appraisal to the order of the court, before adjudication, and upon the deli very of the property to the proper officer of the government. There is no reason for such a practice, nor is there any rule requiring it. The amount fixed by the appraisal, is deemed to be in the treasury, subject to the orders and decrees of the