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 lia

bility 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.

"In The Magnus, Sir Wm. Scott says: 'The proof required was of the most solemn nature, by

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 preparatorio, 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 wrongdoer. Besides, the act for the better government of the navy, subjects any person in the navy, for misconduct in relation to prize property, to forfeiture 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