plea and proof.' (1 Rob., 28.) The proceedings by plea and allegations, admonish the parties of the difficulties of their situation, and call for all the proofs their case can supply. (Wheat. on Capt., 284.)

"It is to be remarked in this case that no evidence has been given on the examination in prepar atorio, or upon the papers of the vessel, showing any unlawful or irregular conduct of the captors in making the prize, or the subsequent treatment of her crew, or the property arrested. The affidavit of the master, referred to as a part of their claim by the claimants, is extra judicial, and not testimony in the cause; and if allowed by the court as notice to the libellants, of charges impeaching the legality of the capture, cannot avail as testimony in the suit on hearing. The like evidence was not permitted to have that effect in the case of the Jane Campbell. It was there only recognized as a basis for after summary proceedings, to establish the justness of the allegations under the implied reserve that it could not, per se, sustain a decree against the captors for torts.

"Two notes in the log-book, apparently entered by the prize-master after the arrest of the schooner, state that he placed the mate and steward in irons on taking command of the vessel, and in the afternoon took the irons off for the day, replacing them for the night, and next morning again removing them, alleging it to be discretionary with him to keep the men in irons day and night. No allusion to the occurrence is made by the men, on their examination; and in such posture of the transaction, the inference may be no stronger that the act was tortious and unjustifiable, and that it was an excusa

ble precaution against menaced or well-suspected refractoriness of the prisoners. It is manifest, also that separating the master and others of the crew, and not bringing them with the prize into port, and before the court, was not necessarily culpable of itself, and may have been justifiable from the condition of the vessel, or that of the crew.

"The government, on general principles, would not be debarred from vindicating their rights under the law of nations, against the criminal vessel and cargo, if it be proved that the captors, after making the prize, have, on their part, been also guilty of irregular and culpable conduct toward the prize property or crew.

"In that respect, the court will sedulously administer the same measure of relief to injured parties against captors acting in the public service, as are supplied by the law in relation to private cruisers. Yet there may be reasonably observed differences in the method of enforcing it, because, in the case of public vessels, the ship's company are subject to the direction and authority of officers outside of those commanding the particular vessel engaged in the capture, and may be entitled by law to exemptions from personal responsibility, which could not be set up by the voluntary wrong. doer. Besides, the act for the better government of the navy, subjects any person in the navy, for misconduct in relation to prize property, to forfeit ure of his share of the capture, and such further punishment as the prize-court shall impose. (2 Stats. at Large, 46, § 8.) In such cases, it seems to me there is a special fitness in requiring that the right of reclamation of damages from captors in

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 per sons, and the 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, sel's papers charts, &c., in their precise condition as at the time found on board 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.

tors as to ves

at the time of

papers, not be

But there may be other papers on board the ves. As to other sel which are not, in any sense, the papers of the ing the vesvessel, and which may contain important criminating 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 hon

29

sel's papers.

Circular of instructions in

this respect to naval com

manders, from the United

tary of the Navy.

orable Secretary of the Navy of the United States issued a circular of instructions to naval commanders, on the 18th day of August, 1862. 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.

"NAVY DEPARTMENT, Aug. 18, 1862. "SIR: Some recent occurrences in the capture of vessels, and matters pertaining to the blockade, render it necessary that there should be a recapitu States Secre- lation of the instructions heretofore from time to 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 explic itly given:

"First: That you will exercise constant vigi lance to prevent supplies of arms, munitions and contraband of war from being conveyed to the insur gents; 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 without 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, will be remitted to the prize-court, or to the Secretary of State at Washington, or such sealed