7. SENDING IN OF PRIZE.

§ 1212.

It is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the district court, Duty to Send in. and to have the examinations of the principal officers and seamen of the captured ship taken upon the standing interrogatories.

The Dos Hermanos, 2 Wheat. 76; The Pizarro, 2 Wheat. 227.

"20. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting.

"21. The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure; and to this end her papers should be sealed at the time of seizure, and kept in the custody of the prize master. Attention is called to articles Nos. 16 and 17 for the Government of the U. S. Navy. (Exhibit A.) "22. All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and if circumstances permit it is preferable that the officer making the search should act as prize master.

"23. As to the delivery of the prize to the judicial authority, consult sections 4615, 4616, and 4617, Revised Statutes of 1878. (Exhibit B.) The papers, including the log book of the prize, are delivered to the prize commissioners; the witnesses, to the custody of the United States marshal; and the prize itself remains in the custody of the prize master until the court issues process directing one of its own officers to take charge."

United States Instructions to Blockading Vessels and Cruisers, General
Orders, No. 492, June 20, 1898, For. Rel. 1898, 780, 782.

EXHIBIT A.

"ART. 16. No person in the Navy shall take out of a prize, or vessel seized as a prize, any money, plate, goods, or any part of her equipment, unless it be for the better preservation thereof, or unless such articles are absolutely needed for the use of any of the vessels or armed forces of the United States, before the same are adjudged lawful prize by a competent court; but the whole, without fraud, concealment, or embezzlement, shall be brought in, in order that judgment may be passed thereon; and every person who offends against this article shall be punished as a court-martial may direct.

"ART. 17. If any person in the Navy strips off the clothes of, or pillages, or in any manner maltreats, any person taken on board a prize, he shall suffer such punishment as a court-martial may adjudge.

66 EXHIBIT B.

"SEC. 4615. The commanding officer of any vessel making a capture shall secure the documents of the ship and cargo, including the log book, with all other documents, letters, and other papers found on board, and make an inventory of the same, and seal them up, and send them, with the inventory, to the court in which proceedings are to be had, with a written statement that they are all the papers found, and are in the condition in which they were found; or explaining the absence of any documents or papers, or any change in their condition. He shall also send to such court, as witnesses, the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and any person found on board whom he may suppose to be interested in, or to have knowledge respecting, the title, national character, or destination of the prize. He shall send the prize, with the documents, papers, and witnesses, under charge of a competent prize master and prize crew, into port for adjudication, explaining the absence of any usual witnesses; and in the absence of instructions from superior authority as to the port to which it shall be sent, he shall select such port as he shall deem most convenient, in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which proceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treasurer of the United States most accessible to such court, and subject to its order in the cause. (See Sec. 1624, Art. 15.)

"SEC. 4616. If any vessel of the United States shall claim to share in a prize, either as having made the capture, or as having been within signal distance of the vessel or vessels making the capture, the commanding officer of such vessel shall make out a written statement of his claim, with the grounds on which it is founded, the principal facts tending to show what vessels made the capture, and what vessels were within signal distance of those making the capture, with reasonable particularity as to times, distances, localities, and signals made, seen, or answered; and such statement of claim shall be signed by him and sent to the court in which proceedings shall be had, and shall be filed in the cause.

"SEC. 4617. The prize master shall make his way diligently to the selected port, and there immediately deliver to a prize commissioner the documents and papers, and the inventory thereof, and make affidavit that they are the same, and are in the same condition as delivered to him, or explaining any absence or change of condition therein, and that the prize property is in the same condition as delivered to him, or explaining any loss or damage thereto; and he shall further report to the district attorney and give to him all the information in his possession respecting the prize and her capture; and he shall deliver over the persons sent as witnesses to the custody of the marshal, and shall retain the prize in his custody until it shall be taken therefrom by process from the prize court. (See Sec. 5441.)"

struction.

In an article by Mr. John A. Bolles, in 1872, under the title "Why Semmes of the Alabama was not tried," extracts are Question of de- given from instructions of the Secretary of the Navy to various commanders, during the war of 1812, enjoining the destruction of enemy ships taken as prize. Mr. Bolles' article was quoted by Sir Alexander Cockburn, in his dissenting opinion at Geneva, and has since been cited by Hall and other writer.. The instructions in question were published with a petition presented to Congress in behalf of various naval officers for an allowance in lieu of prize money, in the cases of the vessels which they had destroyed. Claims were made on account of 74 such captures, 6 of which were made by the Esser; 5 by the Constitution; 8 by the President; 8 by the corvette Adams; 1 each by the Chesapeake, the Hornet, and the Rattlesnake and Enterprise combined; 2 each by the Siren, the Frolic, and the Rattlesnake; 11 by the Wasp; 13 by the Argus, and 14 by the Peacock. The instructions do not appear to have been general, but to have been given from time to time, as occasion arose. Thus, Lieutenant Allen, of the Argus, was, on June 5, 1813, directed to" proceed upon a cruise against the commerce and light cruisers of the enemy," which he was to " capture and destroy in all cases," unless the "value and qualities "should" render it morally certain that they may reach a safe and not distant port. Indeed, in the present state of the enemy's force, there are," continued the paper, "very few cases that would justify the manning of a prize, because the chances of reaching a safe port are infinitely against the attempt, and the weakening the crew of the Argus might expose you to an unequal contest with the enemy. It is exceedingly desirable that the enemy should be made to feel the effects of our hostility and of his barbarous system of warfare; and in no way can we so effectually accomplish this object as by annoying and destroying his commerce, fisheries, and coasting trade. The latter is of the utmost importance, and is much more exposed to the attack of such a vessel as the Argus than is generally understood. This would carry the war home directly to their feelings and interests and produce an astonishing sensation."

In a letter of September 19, 1813, Captain Charles Stewart, of the Constitution, was instructed:

"The commerce of the enemy is the most vulnerable point we can attack, and its destruction the main object; and to this end all your efforts should be directed. Therefore, unless your prizes shall be very valuable and near a friendly port, it will be imprudent and worse than useless to attempt to send them in. The chances of recapture are excessively great, the crew and the safety of the ship under your command would be diminished and endangered, as well as your own fame and the national honor by hazarding a battle after the reduction.

of your officers and crew by manning prizes. In every point of view, then, it will be proper to destroy what you capture, except valuable and compact articles that may be transshipped.

"This system gives to one ship the force of many, and by granting to prisoners a cartel, as sufficient numbers accumulate, our account on that head will be increased to our credit, and not only facilitate the exchange, but insure better treatment to our unfortunate countrymen who are, or may be, captured by the enemy."

In a subsequent instruction to Captain Stewart, November 29, 1814, the Secretary of the Navy said that, as he had on former occasions "urged the superior advantage of destroying" captures, unless in the vicinity of a friendly port and only in the case of very valuable and fleet-sailing prizes, he need not dwell on that subject, and added: "Daily experience and the grievous complaints of the merchants of Great Britain sufficiently attest the efficacy of the system."

In a letter of December 8, 1813, Master Commandant George Parker, of the Siren, was admonished that as the most effectual way of harassing and distressing the enemy was the destruction of his trade and commerce, it "ought to be the ruling principle of action with every commander. A single cruiser, if ever so successful, can," declared the Secretary of the Navy, "man but a few prizes, and every prize is a serious diminution of her force; but a single cruiser, destroying every captured vessel, has the capacity of continuing in full vigor her destructive power so long as her provisions and stores can be replenished, either from friendly ports or from vessels captured. Thus has a single cruiser, upon the destructive plan, the power, perhaps, of twenty, acting upon pecuniary views alone; and thus must the employment of our small forces in some degree compensate for the great inequality compared with that of the enemy."

Similar instructions were given to other commanders on December 22, 1813, January 6, 1814, February 26, 1814, March 3, 1814, and November 30, 1814.

American State Papers, Naval Affairs, I. 373–376.

Mr. Bolles's article, in which the foregoing instructions are cited, may be
found in the Atlantic Monthly (1872), XXX. 88, 95–97.

"Perhaps the only occasions on which enemy's vessels have been sys-
tematically destroyed, apart from any serious difficulty in otherwise
disposing of them, were during the American Revolutionary war and
that between Great Britain and the United States in 1812.
The destruction of prizes by the ships commissioned by the Confed-
erate Sates of America was not parallel because there were no ports
into which they could take them with reasonable safety; and the
practice of the English and French navies has always been to bring
in captured vessels in the absence of strong reasons to the contrary.
It is at the same time impossible to ignore the force of the considera-
tion suggested by the Government of the United States in the latter

of the foregoing extracts. It would be unwise to assume that a prae-
tice will be invariably maintained which has been dictated by motives
not necessarily of a permanent character. Self-interest has hitherto
generally combined with tenderness towards neutrals to make bel-
ligerents unwilling to destroy valuable property; but the growing
indisposition of neutrals to admit prizes within the shelter of their
waters, together with the wide range of modern commerce, may alter
the balance of self-interest and may induce belligerents to exercise
their rights to the full." (Hall, Int. Law, 5th ed., 457-459.)
Hall quotes Bluntschli, § 672, as declaring that the destruction of a cap-
tured ship is justifiable only in case of absolute necessity, and
Woolsey, § 148, as pronouncing "the practice a barbarous one, which
ought to disappear from the history of nations." Hall observes upon
this that it is somewhat difficult to see in what the harshness consists
of destroying property which would not return to the original owner,
but adds that destruction of neutral vessels or of neutral property
on an enemy's vessel "would be a wholly different matter." What
assurance, however, can there be without the intervention of prize
courts that questions of ownership and of culpability will be ade-
quately investigated, and that neutral trade will not be exposed to
destructive depredations?

For the citation of Mr. Bolles's article by Sir Alexander Cockburn, see
Parliamentary Papers, North America, No. 2 (1873), 92.

"28. If there are controlling reasons why vessels may not be sent in for adjudication, as unseaworthiness, the existence of infectious disease, or the lack of a prize crew, they may be appraised and sold; and if this can not be done they may be destroyed. The imminent danger of recapture would justify destruction, if there was no doubt that the vessel was good prize. But in all such cases all the papers and other testimony should be sent to the prize court in order that a decree may be duly entered."

Instructions to United States Blockading Vessels and Cruisers, General
Orders, No. 492, June 20, 1898.

"Necessity will excuse the captor from the duty of sending in his prize."
(Dana's Wheaton, § 388, note 186, p. 485.)

Order 492, while it authorizes four modes of dealing with a captured vessel, including destruction in certain contingencies, does not purport to authorize its destruction as a means of converting it to public use; and, where a vessel is destroyed to prevent recapture, the captors are entitled to bounty under sec. 4635, Revised Statutes, and not to prize money.

The Santo Domingo (1903), 119 Fed. Rep. 386.

"In extraordinary cases, when the preservation of a detained vessel proves impossible in consequence of its bad condition or extremely small value (sic), the danger of its recapture by the enemy, or the considerable distance or blockade of the ports, as well as of danger