by article 877, he must send in as witnesses, the master, one or more of the other officers, the supercargo, purser or agent of the captured ship, and any person found on board whom he may suppose to be interested in the captured ship, or to have knowledge respecting its title, national character, or destination;

3. He must send, in charge of the captured ship, if it be sent in, a competent prize master and crew2 to navigate the ship;"

4. He must give a receipt for such of the papers of the ship as he retains, which receipt must be annexed to a copy of the papers; and when persons or things are taken out of the ship as contraband, he must give a receipt therefor, signed by him, with the addition of his rank :"

5. He must allow the master and a sufficient number of the officers and crew of the captured ship to remain on board, to secure the ship and its contents from unlawful interference, until they are delivered into the custody of a prize court;

6. He must allow all other persons on board, not impressed with the military character of the enemy, nor duly charged with offenses against the captor's na tion, under the provisions of this Book, to remain on board until they reach port,' if they choose, unless the safe navigation of the ship require their removal.

1 The custody of the papers of captured vessels belongs exclusively to the prize court. It is the duty of the captors, immediately upon arrival in port, to deliver, upon oath, all the papers of the captured vessel into the registry of the prize court. The Diana, 2 Gallison's U. S. Circ. Ct. Rep., 93.

2 Thus far suggested by Act of Congress of the United States, June 30, 1864, § 1, 13 U. S. Stat. at Large, 306.

The rule, that captors ought to allow some of the officers and crew of a captured vessel to remain on board of her, has no reference to the navigation of the ship. It is adopted with a view to prevent embezzlements and frauds, and to bring before the prize court persons who can speak to the national character and proprietary interest of the ship and cargo. The captors are not bound to allow the captured crew to navigate

the ship, nor are the latter bound to perform such duty. The captors are bound to put on board a sufficient crew to navigate the ship. The George, 1 Mason's U. S. Circ. Ct. Rep., 24.

Lushington, (Naval Prize Law, p. 15, § 79,) says, that the commander should invite, but cannot coerce, the master and crew to aid in navigating the prize into port.

4 Treaty between the United States and

6 It is provided in the treaty between the United States and

Dominican

Republic,

Feb. 8, 1867, Art. XXI., 15 U. S. Stat. at L. (Tr.,) 167.

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Venezuela, Aug. 27, 1860, XX., 12 Id., 1143,

that it shall not be lawful to remove the master, commander or supercargo of any captured ship from on board thereof, during the time the ship may be at sea after her capture, or pending the proceedings against her, or her cargo, or anything relating thereto.

And Lushington, (Naval Prize Law, p. 20, § 110,) says, that the prize master cannot subject the master and crew of the captured ship to any unnecessary restraint.

Persons found on board of a captured vessel do not pass with the vessel and cargo into judicial custody. They are subject to the control of the court for their examination; but when the business of the court does not require their detention as examinants, the discharge or detention of such persons rests with the officers of the naval service, according to its rules. The Salvor, (E. Dist. of Pa.,) 4 Philadelphia Rep., 409. The French courts hold that they are prisoners of war. Barboux Jurispr. du conseil des Prises, (Paris and London, 1872.)

rule.

This exception should of course be recognized in framing a positive

Detention in cases of suspicion.

879. A private ship may be detained by a belligerent on the following grounds of suspicion, if not explained to the satisfaction of the commander:"

1. Carrying no passport such as is required by article 278;*

2. Carrying any false or simulated passport or other papers affecting the character of the ship, contents or voyage, such as certificate of registry, sea letter, charterparty, logs, builder's contract, bill of sale, bills of lad

ing, invoices, manifest, clearance, muster roll, shipping articles, bill of health, &c. ;

3. Carrying papers which, in any respect material to the question of contraband, are inconsistent with each other, or with the declarations of the master to the visiting officer;"

4. Withholding from the visiting officer any papers material to the character of the ship, contents or voyage;

5. Spoliation of papers, of any kind, that were on board the ship; and,

6. Useing false colors or signals, to deceive the belligerent.'

1 The first five subdivisions are in substance drawn from Lushington's Naval Prize Law, p. 24, §§ 124-163, where a list of the usual ship's papers for each of the leading commercial nations is given.

2 Ships must be furnished with sea letters or passports, expressing the name, property and bulk of the ships, as also the name and place of habitation of the master and commander of said ship; and when laden, they shall also be provided with certificates containing the several particulars of the cargo, and the place whence the ship sailed, which shall be made out by the officers of the place whence the ship sailed; and when without these papers, ships may be detained, to be adjudged by the competent tribunal, and may be declared legal prize, unless the defect of papers shall prove to be owing to accident. Treaty between the United States and Bolivia, Art. XXII., May 13, 1858, 12 U. S. Stat. at L., 1003.

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A passport is issued in the name of a sovereign power or State; but a sea letter" or "certificate" is issued in the name of the civil authorities of the port from which the vessel is fitted out.

Twiss, in his Law of Nations, pt. II., p. 183, § 94, states the present rule to be, that where treaties exist in regard to the exhibition of a pass or sea letter, such ships only as are furnished with the specified pass or sea letter are entitled to the treaty privileges, whatever they may be. In other cases the pass is not in the present day an indispensable document, if there are other papers on board, which satisfactorily establish the character, property and destination of the ship and cargo. Amongst them the most important is the builder's contract, or the bill of sale, in case the ship has ever changed owners; and in addition the certificate of registry, if the municipal law of the port, from which the ship hails, required that she should be registered. If these two papers are on board and their bona fides is not impeached, the proof of the property as re.

gards the ship will be sufficiently complete, so far as documentary evidence is concerned. With regard to the cargo, if the ship is a general ship, her manifest and the bills of lading are the best evidence of both the ownership and the destination of the cargo. If, on the other hand, the vessel should be chartered, the charter-party should also be on board; but the absence of the charter-party will not justify the condemnation of the ship, any more than the absence of the invoice of the goods; but the non-production of any ship's paper, which is in strict law documentary evidence in regard either to the ship herself or to the cargo, will justify the sending the vessel into port for inquiry, in order that the master may account satisfactorily before a court of prize for the absence of the missing document.

A nation cannot be bound by the flags or papers used by a ship; but can go behind the ostensible neutral character indicated by these, and ascertain the actual character. The belligerent may hold the ship concluded by the fact of having used the flags and papers she has knowingly carried, if that result is favorable to the interests of the belligerent. Dana's Wheaton, Elem. of Intern. Law, § 340, note 163.

4 It is no excuse for spoliation to allege that the papers destroyed were private papers not affecting vessel or cargo. The Two Brothers, 1 Ch. Robinson's Rep., 132.

In the case of The Pizarro, 2 Wheaton's U. S. Supr. Ct. Rep., 227, it was held, that concealment or spoliation of papers is not of itself a sufficient ground for condemnation in a prize court. It is undoubtedly a circumstance calculated to excite suspicion. But it is open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party in the first instance fairly and frankly explain it to the satisfaction of the court, it deprives him of no right to which he was otherwise entitled.

5 See Articles 61, 764 and 766.

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Spoliation of papers" defined.

880. Spoliation of papers is the willful destruction or throwing overboard of any papers on board a ship, for the purpose of deceiving a belligerent.

Passive enemies or neutrals on board captured ship.

881. Passive enemies or neutrals on a captured ship, if they are not contraband of war, nor charged with an offense against the provisions of this Book, are entitled to immediate release, except that if required as witnesses they may be carried into the port of ad

judication and detained according to law, until their testimony can be secured, and no longer.

Instructions of United States Navy Department, of May 9, 1864, modified so as to include all passive enemies as well as neutrals.

It is provided by the treaty between the United States and

Dominican)
Republic,
Venezuela,

Art. XXI., Feb. 8, 1867, 15 U. S. Stat. at L., (Tr.,) 167.

that in all cases where a vessel of the members of either nation shall be captured or seized or held for adjudication, her officers, passengers and crew shall be treated hospitably, and shall not be imprisoned or deprived of any part of their wearing apparel, nor of the possession and use of their money, not exceeding for the captain, supercargo, mate and passengers, five hundred dollars each, and for the sailors one hundred dollars each.

Persons on board a captured armed public ship or ship without colors.

882. Persons captured in a public armed ship or in a ship without passport or colors, are prisoners of war, unless they are passengers only, having no interest in ship or cargo, and not charged with an offense against the provisions of this Book.

Instructions of United States Navy Department of May 9, 1864, ex

tended.

When ship and cargo must be released.

883. The ships visited, and articles not transshipped under article 877, though found proper to be detained, must be released by the commander of the visiting ship, in either of the following cases:

1. If the surveying officers report the ship to be not in a condition to be sent to a proper port;

2. If the commander is unable to spare a prize crew to navigate the ship; or,

3. If, after detention, further facts come to his knowledge, showing that the ship has been improperly detained.

Lushington's Naval Prize Law, p. 18. § 100, omitting the exception by which ships belonging to the enemy may be destroyed.

Duty of prize officer.

884. The prize officer of a captured ship must make