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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 adjuđication, 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 neces
ecessity of the captors for the use of the Excuse arising captured property, in whole or in part, constitutes cessity of the another exception to the rule, which requires the captors. property 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, for the use of be the judge of the existence of the necessity; and, the capturing
government, in every such case, it is the imperative duty of the praised before captors, prior to such appropriation, to cause the appropriation.
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, approdeemed to be priated to the use of the government, in the prosein the treas- cution of the war, whether before or after it has been
sent in for adjudication, is considered by the courts No rule re- as standing in the place of the property or its proquiring its payment by ceeds; and the amount of such appraisement is the govern deemed to be in the treasury of the government, final decree. subject to a final decree of distribution or restitu
tion, 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, &c., 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 delivery 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 treas ury, subject to the orders and decrees of the
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.
The general rule in relation to the duty of cap-Duty of cap. tors toward the persons captured on board the persons taken vessels taken, is to send them in with the prize, as tured propwitnesses in the proceedings in adjudication.
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- prize as witbility, 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
necessity the District Court for Massachusetts, the learned judge only excuse took occasion to comment upon a failure, without comply with adequate excuse, to comply with this established this rule. rule 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
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 Regla, 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 sons not to be separated
not be separated from the captured property, unfrom, but to be less this is deemed necessary for its safe transmissent in with the prize. sion to the port of adjudication.
The violation of this rule, without apparent necessity, has occasioned much embarrassment, inconvenience and delay in the recent adjudications, and the courts have animadverted upon such misfeasance of naval officers, with much severity.
In numerous cases of capture, adjudicated in the Where crew United States Court in New York, it was made to ap- vessel escape, pear that the persons belonging to the captured ves other inculpa
tory proof alsel, 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.?
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- tured persons
. 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 as prisoners
witnesses, not they be detained as prisoners, but only as witnesses, of war.
Until they have given their testimony, they may
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 Osceolu, The Olive, The Capt. Speddon. MS. decis. U. S. Dist. Court, New York.