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• captures made by public vessels, should be pursued by the parties averring the grievance and tort committed upon them, by plea and. proof, which admit of counter allegations, and full evidence under them. This will be the course of practice to be hereafter followed in like cases, unless specially ordered by the court."
By the 8th section of the act of Congress, of July 17, 1862, entitled "An act for the better government of the navy of the United States," the maltreatment by any person in the navy, of persons taken on board a prize, is made punishable by court-martial.
The inculpatory proofs in a case of maritime capture, must, as has been seen, proceed, in the first instance, from the testimony of the captured persons, and the papers of the vessel found on board. It is therefore the duty of the captors, in all cases, Duty of capto send in such papers and documents, books, sei's papers charts, &c, in their precise condition as at the timea° X» timeo? of capture, so that the prize-master, in delivering capture, them to the commissioners, may identify them as such, in his affidavit made to that end.
But there may be other papers on board the ves-A*t0 otherl
J tr r papers, not bc
sel which are not, in any sense, the papers of the ing the vesvessel, and which may contain important criminat-st s papers ing evidence.
Such papers may consist of letters, under private or official seal, inclosed in a mail bag, or parcels of like description.
In explanation of the duty of captors with regard to such papers, as well as their duty in the exercise of the right of visitation and search, the honorable Secretary of the Navy of the United States issued a circular of instructions to naval commanders, on the 18th day of August, 18G2. Its terms declare not only the special and particular, but the general duties of naval captors in these respects. It becomes, therefore, valuable for preservation and reference, in this connection.
Circular of in- "Navy Department, Aug. 18, 1862.
twesp^to "Sib: Some recent occurrences in the capture of naval com- vessels, and matters pertaining to the blockade,
mnnders, from . x iiii •
iko United render it necessary that there should be a recapitu^^oVl'hT lation of the instructions heretofore from time to Navy. time given, and also of the restrictions and precautions to be observed by our squadrons and cruisers. It is essential, in the remarkable contest now waging, that we should exercise great forbearance with great firmness, and manifest to the world that it is the intention'of our government, while asserting and maintaining our own rights, to respect and scrupulously regard the rights of others. It is in this view that the following instructions are explicitly given:
"First: That you will exercise constant vigilance to prevent supplies of arms, munitions and contraband of war from being conveyed to the insurgents; but that under no circumstance will you seize any vessel within the waters of a friendly nation.
"Second: That, while diligently exercising the right of visitation on all suspected vessels, you are in no case authorized to chase and fire at a foreign vessel without showing your colors, and giving her the customary preliminary notice of a desire to speak and visit her.
Third: That when that visit is made, the vessel is not then to be seized Avithout a search carefully made, so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents, and to their ports directly, or indirectly by transhipment, or otherwise violating the blockade; and that if, after visitation and search, it shall appear to your satisfaction that she is in good faith and without contraband, actually bound and passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents, then she cannot be lawfully seized.
Fourth: That to avoid difficulty and error in relation to papers which strictly belong to the captured vessel, and mails that are carried, or parcels under official seals, you will, in the words of the law, 'preserve all the 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.' But official seals, or locks, or fastenings of foreign authorities, are in no case, nor on any pretext, to be broken, or parcels covered by them read, by any naval authorities; but all bags or other things covering such parcels, and duly sealed or fastened by foreign authorities, will be, in the discretion of the United States officer to whom they may come, delivered to the consul, commanding naval officer, or legation of the foreign government, to be opened, upon the understanding that whatever is contraband, or important as evidence concerning the character of a captured vessel, Avill be remitted to the prize-court, or to the Secretary of State at Washington, or such sealed bags or parcels may be at.once forwarded to this department, to the end that the proper authorities of the foreign government may receive the same without delay.
"You are specially informed that the fact that a suspicious vessel has been indicated to you as cruising in any limit which has been prescribed by the department, does not in any way authorize you to depart from the practice of the rules of visitation, search, and capture, prescribed by the law- of nations. "Very respectfully,
"Gideon Welles, Secretary of the Navy?
OF THE DUTIES OF PRIZE COMMIS-
The antics of The duties of the prize commissioners with referprize commit ence to the captured property, and the proceedings to'rccent legis-m adjudication, have been held by the prize-courts latum. . both of Great Britain and of the United States, until the passage of an act of Congress, of March 25 th, 1862, "for the better administration of the law of prize," to be all comprised under the three following heads:
1st. Receiving the prize property from the captors, placing their seals thereon, and safely keeping the same until process is issued, under which their possession is superseded by that of the marshal.
2d. Receiving from the prize master the papers, documents, charts, and books of every description, found on board the prize; causing their identification by the prize master, in an affidavit to be made by him for that purpose marking each paper to secure the identification, and depositing the same with the prize master's affidavit of identity, enveloped, and sealed with their seals, in the registry of the court.
3d. Taking the testimony of each witness produced to them by the captors, for examination, separately, and apart from their counsel, and in answer to the standing interrogatories, in preparatorio, and after complying with the required formalities depositing the same enveloped, and sealed with their seals, in the registry of the court.
By the act of Congress referred to, a single further duty is devolved upon prize commissioners, in the following words:
"It shall be the further duty of said prize com- Additional du
, ,i , • n , i • \ . ties imposed
missioners, at the time oi taking such possession, by act of Conand from time to tune, pending the adjudication,gresato examine into the condition of said property, and report to the court if the same, or any part thereof, he perishing, or perishable, or deteriorating in value."
As the prize property was to be under the seal of the commissioners, pending the adjudication, and, of course, could not be examined without the removal of their seal, it was, no doubt, thought proper, by the framers of the law, that it should be occasionally examined by them, and its condition, if perishing, made known to the court.
But these words have been held to impose upon Construction the commissioners many onerous, and highly re- un^'statea sponsible duties.' fTC,f °ourl\
i ... . '"r t'le Second
These additional duties devolving upon the prize circuity commissioners, as held by the distinguished judge of the Circuit Court of the United States, for the second Judicial Circuit, in the case of The Iliawa