captures

As to ships and goods captured at sea, and after- $ 12. Rewards recaptured, rules are adopted somewhat different and salvage. from those which are applicable to other personal property. These rules depend upon the nature of the different classes of cases to which they are to be applied. Thus the recapture may be made either from a pirate; (a) from a captor, clothed

much desired by nations having naval establishments, large in proportion to their foreign commerce. If it were adopted as an international rule, the commerce of a nation, having comparatively a small naval force, would be very much at the mercy of its enemy, in case of war with a power of decided naval superiority. The bare statement of the condition in which the United States would be placed, after having surrendered the right to resort to privateers, in the event of war with a belligerent of naval supremacy, will show that this government could never listen to such a proposition. The navy of the first maritime power in Europe is at least ten times as large as that of the United States. The foreign commerce of the nations is nearly equal, and about equally exposed to hostile depredations. In war between that power and the United States, without resort, on our part, to our mercantile marine, the means of our enemy to inflict injury upon our commerce, would be tenfold greater than ours to retaliate. We could not extricate our country from this unequal condition, with such an enemy, unless we at once departed from our present peaceful policy, and became a great naval power. Nor would this country be better situated, in war with one of the secondary naval powers. Though the naval disparity would be less, the greater extent and more exposed condition of our wide-spread commerce would give any of them a like advantage over us.

"The proposition to enter into engagements to forego resort to privateers, in case this country should be forced into war with a great naval power, is not entitled to more favorable consideration than would be a proposition to agree not to accept the services of volunteers for operations on land. When the honor or the rights of our country require it to assume a hostile attitude, it confidently relies upon the patriotism of its citizens, not ordinarily devoted to the military profession, to augment the army and navy, so as to make them fully adequate to the emergency which calls them into action. The proposal to surrender the right to employ privateers is professedly founded upon the principle, that private property of unoffending non-combatants, though enemies, should be exempt from the ravages of war; but the proposed surrender goes but little way in carrying out that principle, which equally requires that such private property should not be seized or molested by national ships of war. Should the leading powers of Europe concur in proposing, as a rule of international law, to exempt private property, upon the ocean, from seizure by public armed cruisers, as well as by privateers, the United States will readily meet them upon that broad ground." Cong. Doc. President's Message, 1854.]

(a) [The crown is, generally speaking, entitled to all bona piratorum; but if any person can establish a title to the goods, the title of the crown ceases. Hagg. Adm. Rep. vol. i. p. 144. The Hebe.]

with a lawful commission, but not an enemy; or, lastly, from an

enemy. Recap

1. In the first case, there can be no doubt the property tures from pirates. ought to be restored to the original owner; for as pirates have no lawful right to make captures, the property has not been divested. The owner has merely been deprived of his possession,* to which he is restored by the recapture. For the service thus rendered to him, the recaptor is entitled to a remuneration in the nature of salvage.1

Thus, by the Marine ordinance of Louis XIV., of 1681, liv. iii. tit. 9, des Prises, art 10, it is provided, that the ships and effects of the subjects or allies of France, retaken from pirates, and claimed within a year and a day after being reported at the Admiralty, shall be restored to the owner, upon payment of one third of the value of the vessel and goods, as salvage. And the same is the law of Great Britain, but there is no doubt that the municipal law of any particular State may ordain a different rule as to its own subjects. Thus the former usage of Holland and Venice gave the whole property to the retakers, on the principle of public utility; as does that of Spain, if the property has been in the possession of the pirates twenty-four hours.2

Valin, in his commentary upon the above article of the French Ordinance, is of opinion that if the recapture be made by a foreigner, who is the subject of a State, the law of which gives to the recaptors the whole of the property, it could not be restored to the former owner: and he cites, in support of this opinion, a decree of the Parliament of Bordeaux, in favor of a Dutch subject, who had retaken a French vessel from pirates. To this interpretation Pothier objects that the laws of Holland having no power over Frenchmen and their property within the territory of France, the French subject could not thereby be deprived of the property in his vessel, which was not divested by the piratical capture according to the law of nations, and that it ought con

1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9, § 17. Loccenius, de Jur. Marit. lib. ii. c. 2, No. 4. Brown's Civ. and Adm. Law, vol. ii. c. 3, p. 461. “Ea quæ piratæ nobis eripuerunt, non opus habent postliminio; quia jus gentium illis non concedit, ut jus dominii mutari possint." Dig. de Capt. et Postl. revers.

2 Grotius par Barbeyrac, liv. 3, ch. 9, § xvi. No. 1, and note.

3 Valin, Comm. sur l'Ord. liv. 3, tit. 9, art. 10.

sequently to be restored to him upon payment of the salvage prescribed by the ordinance.1

Under the term allies in this article are included neutrals; and Valin holds that the property of the subjects of friendly powers, retaken from pirates by French captors, ought not to be restored to them upon the payment of salvage, if the law of their own country gives it wholly to the retakers; otherwise there would be a defect of reciprocity, which would offend against that impartial justice due from one State to another.2 (a)

property.

2. If the property be retaken from a captor clothed Recapture with a lawful commission, but not an enemy, there of neutral would still be as little doubt that it must be restored to the original owner. For the act of taking being in itself a wrongful act, could not change the property, which must still remain in him.

If, however, the neutral vessel thus recaptured, were laden with contraband goods destined to an enemy of the first captor, it may, perhaps, be doubted whether they should be restored, inasmuch as they were liable to be confiscated as prize of war to the first captor. Martens states the case of a Dutch ship, captured by the British, under the rule of the war of 1756, and recaptured by the French, which was adjudged to be restored by the Council of Prizes, upon the ground that the Dutch vessel could not have been justly condemned in the British prize courts. But if the case had been that of a trade, considered contraband by the law of nations and treaties, the original owner would not have been entitled to restitution.3

In general, no salvage is due for the recapture of neutral vessels

1 Pothier, Traité de Propriété, No. 101.

2 Valin, Comm. sur l'Ord. liv. 3, tit. 9, art. 10.

(a) [Hautefeuille gives the same interpretation to the ordinance as Valin, and cites, also, for the rule of reciprocity, Massé. He however objects altogether to salvage, or at least to the allowance of so great an amount as one third, and with approbation refers to the treaty of 1783, art. 17, between Sweden and the United States, which provides for the restitution entire to the true proprietor of a vessel and merchandise belonging to the one party, retaken either from an enemy or from pirates, by a ship of war or privateer of the other. Droit des Gens Neutres, tom. 4, p. 427.]

3 Martens, Essai sur les Prises et les Reprises, § 52. "Sa majesté a jugé pendant la dernière guerre, que la reprise du navire neutre fait par un corsaire Fran

and goods, upon the principle that the liberation of a bona fidæi neutral from the hands of the enemy of the captor is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized.

It was upon this principle that the French council of prizes determined, in 1800, that the American ship Statira, captured by a British, and recaptured by a French cruiser, should be restored to the original owner, although the cargo was condemned as contraband or enemy's property. The sentence of the court was founded upon the conclusions of M. Portalis, who stated that the recapture of foreign neutral vessels by French cruisers, whether public ships or privateers, gave no title to the retakers. The French prize-code only applied to French vessels and goods recaptured from the enemy. According to the universal law of nations, a neutral vessel ought to be respected by all nations. If she is unjustly seized by the cruisers of any one belligerent nation, this is no reason why another should become an accomplice in this act of injustice, or should endeavor to profit by it. From this maxim it followed as a corollary that a foreign vessel, asserted to be neutral, and recaptured by a French cruiser from the enemy, ought to be restored on due proof of its neutrality. But, it might be asked, why treat a foreign vessel with more favor in this case than a French vessel? The reason was obvi ous. On the supposition on which the regulations relating to this matter were founded, the French ship fallen into the hands of the enemy would have been lost forever, if it had not been retaken; consequently the recapture is a prize taken from the enemy. If the case, however, be that of a foreign vessel, asserted to be neutral, the seizure of this vessel by the enemy does not render it ipso facto the property of the enemy, since its confiscation has not yet been pronounced by the competent judge; until that judgment has been pronounced, the vessel thus navigating under the neutral flag loses neither its national character nor its rights. Although it has been seized as prize of war, it may ultimately

çais (lorsque le navire n'était pas chargé de marchandises prohibées, ni dans le cas d'être confisqué par l'ennemi) était nulle." Code des Prises, an 1784, tom. ii.

Under such circumstances,

be restored to the original owner. the recapture of this vessel cannot transfer the property to the recaptor. The question of neutrality remains entire, and must be determined, before such a transmutation of property can take place. Such was the language of all public jurists, and such was the general usage of all civilized nations. It followed that the vessel in question was not confiscable by the mere fact of its having been captured by the enemy. Before such a sentence could be pronounced, the French tribunal must do what the enemy's tribunal would have done; it must determine the question of neutrality; and that being determined in favor of the claimant, restitution would follow of course.1

To this general rule, however, an important exception has been made, founded on the principle above quoted from the Code des Prises, in the case where the vessel or cargo recaptured was practically liable to be confiscated by the enemy. In that case, it is immaterial whether the property be justly liable to be thus confiscated according to the law of nations; since that can make no difference in the meritorious nature of the service rendered to the original owner by the recaptor. For the ground upon which salvage is refused by the general rule, is, that the prize courts of the captor's country will duly respect the obligations of that law; a presumption which, in the wars of civilized States, as they are usually carried on, each belligerent nation is bound to entertain in its dealings with neutrals. But if, in point of fact, those obligations are not duly observed by those tribunals, and, in consequence, neutral property is unjustly subjected to confiscation in them, a substantial benefit is conferred upon the original owner in rescuing his property from this peril, which ought to be remunerated by the payment of salvage. It was upon this principle that the Courts of Admiralty, both of Great Britain and the United States, during the maritime war which was terminated by the peace of Amiens, pronounced salvage to be due upon neutral property retaken from French cruisers. During the revolution in France, great irregularity and confusion had arisen in the prize code formerly adopted, and had crept into the tribunals of that country, by which neutral property was liable to con

1 Décision relative à la prise du navire le Statira, 6 Thermidor, an 8, pp. 2-4.