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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.
In the case of The Louisa Agnes, the learned District Court
, judge of the Federal Court, in New York, commented at 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 belialf.
“It made allegations of misconduct committed The case of by the capturing vessel upon the ship’s company Agnes. U. S. of the prize vessel, after her seizure; that the mas- New York. 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 en. deavor to uphold and enforce with strict justice, the legal rights and responsibilities of all parties implicated in prize proceedings brought before the court.
It is to be presumed that the officers and crews of the navy are disposed to conduct themselves in obedience to their instructions and to the rules of maritime law, in executing their war powers in making prizes ; and the rules and practice of prize-courts fix their responsibilities, and the manner those are to be enforced, in case injuries are sustained from misconduct on their part, whether the capture is sanctioned and carried into effect by the court, or is declared nugatory and unjustifiable.
“The pleadings in a prize action involve directly no further question than that of prize. (The Adelaide, 9 Cranch, 284; The Fortuna, 1 Dods., 82, 83.) The parties on the trial of that issue are not legally required, if they may be permitted, to litigate any other point than that and the probable sequents to it. In a qualified sense, the consideration whether the unlawful acts of private captors after the seizure of property as prize, do not render the arrest of it void, may be regarded as characterizing vitally the capture, and thus become intrinsically admissible evidence in defence, against the conviction and forfeiture of the property ; but yet that ground of defence need not be directly connected with the capture itself, or its liability to capture as prize, but may, and most probably will, spring out of facts wholly disconnected with either of those particulars.
“The general rule in respect to captures by public ships is, that the actual wrong.doer alone is responsible for any wrong done, or illegally committed on the prize, excepting acts done by members of the seizing vessel in obedience to the orders of their superiors. (The Mentor, 1 Rob., 151; The Diligentia, 1 Dods., 404; 2 Wheat., 13.) The liability of the officer is not constructive, and affixed to him solely on account of his superiority of command, but arises from his immediate command or authority in the transaction. (The Eleanor, 2 Wheat., 345.) Embezzlements of the cargo seized, or acts personally violent, or injuries perpetrated upon the captured crew, or improperly separating them from the prize-vessel, or not producing them for examination before the prize-court, or other torts injurious to the rights or health of the prisoners, may render the arrest of a vessel or cargo, as prize, defeasible, and also subject the tort feasors to damages therefor; but the law does not constitute those acts or omissions legal bars to the suit; and it is plain that the course of investigation into those matters, would not naturally be anticipated from the shape of a prize suit, nor could they be inquired into with that fulness befitting the gravity of the imputations, or their importance to the public service, or the rights of individuals, so well and satisfactorily, in summary and incidental proceedings, as in actions founded directly upon the injuries complained of.
“The practice of prize-courts supplies a course of procedure under claims for redress in cases of that description, which seems more proper to be pursued against public ships, when the consequences may also lead to other results than an award of pecuniary compensation to parties complaining of wrongs done them. A monition may be directed to those using the authority of the government, in seizing property at sea, compelling them to respond before the court, to parties aggrieved by their acts, for every wrongful use of the authority confided to them; and that by pleas and allegations, the special grievances will be specifically charged and contested before the court, and the evidence pertinent to the contestation can thus be collated and laid before the court on both sides (The Eleanor, 2 Wheat., 345; The Magnus, 1 Rob., 27); merely interposing a statement of grievances by way of schedule attached to the claim of ownership and test oath, which enables a party to contest a libel of information in a prize suit, is not placing the controversy before the court in that authoritative shape, that parties are at once compellable to treat the allegations and suggestions as in litigation thereupon. It may well afford foundation for either party to appeal to the discretion of the court, to proceed and render justice in the matter summarily, in exercise of that pervading jurisdiction which envelopes prize proceedings; but when there is reasonble cause to look for a more thorough representation of the occurrences referred to, than will commonly be obtained from ex parte statements, given under impressions likely to be colored by the excitement of sudden capture, and the risks and inconveniences following it, I consider it the more reliable course of practice, to require the evidence to be furnished under pleas and allegations, when it is offered in bar of the rightfulness of a capture as prize, or as foundation for an award of compensation in damages, because of irregularities or culpabilities of captors who are in the public service, in making the seizure, or dealing with the prize property while in their possession.