ment of the law of England on this subject: It was clearly so recognized in the case of The San Jago; a case which was not, as it has been insinuated, decided on special circumstances, nor on novel principles, but on principles of established use and authority in the jurisprudence of this country. In the discussion of that case, much attention was paid to an opinion found among the manuscript collections of a very distinguished practitioner in this profession, (Sir E. Simpson,) which records the practice and the rule as it was understood to prevail in his time. The rule is that England restores, on salvage, to its allies; but if instances can be given of British property retaken by them and condemned as prize, the Court of Admiralty will determine their cases according to their own rule." 1

the rule of

as to restitu

property of

friendly na

tions, recap

an enemy.

The law of our own country proceeds on the same American principle of reciprocity, as to the restitution of vessels law adopts or goods belonging to friendly foreign nations, and re- reciprocity captured from the enemy by our ships of war. By the tion of the act of Congress of the 3d March, 1800, ch. xiv. § 3, it is provided that the vessels or goods of persons perma- tured from nently resident within the territory, and under the protec tion of any foreign government in amity with the United States, and retaken by their vessels, shall be restored to the owner, he paying, for salvage, such portion of the value thereof, as by the law and usuge of such foreign governments shall be required of any vessel or goods of the United States under like circumstances of recapture; and where no such law or usage shall be known, the same salvage shall be allowed as is provided in the case of the recapture of the property of persons resident within, or under the protection of the United States. Provided that no such vessel or goods shall be restored to such former owner, in any case where the same shall have been condemned as prize by competent authority, before the recapture; nor in any case, where by the law and usage of such foreign government, the vessels or goods of citizens of the United States would not be restored in like circumstances.

It becomes then material to ascertain what is the law of different maritime nations on the subject of recaptures; and this must be sought for either in the prize

1 Sir W. Scott, Robinson's Adm. Rep. vol. i. pp. 58-63.

Laws of different

countries as tures.

to recap

code and judicial decisions of each country, or in the treaties by which they are bound to each other.

The present British law of military salvage was British law. established by the statutes of the 43d Geo. III. ch. 160, and the 45th Geo. III. ch. 72, which provide that any vessel, or goods therein, belonging to British subjects, and taken by the enemy as prize, which shall be retaken, shall be restored to the former owners, upon payment for salvage of one-eighth part of the value thereof, if retaken by his Majesty's ships; and if retaken by any privateer, or other ship or vessel under his Majesty's protection, of one sixth part of such value. And if the same shall have been retaken by the joint operation of his Majesty's ships and privateers, then the proper court shall order such salvage to be paid as shall be deemed fit and reasonable. But if the vessel so retaken shall appear to have been set forth by the enemy as a ship of war, then the same shall not be restored to the former owners, but shall be adjudged lawful prize for the benefit of the captors.

American The act of Congress of the 3d March, 1800, ch. xiv. law. §§ 1, 2, provides that, in case of recaptures of vessels or goods belonging to persons resident within, or under the protection of the United States, the same not having been condemned as prize by competent authority, before the recapture, shall be restored on payment of salvage of one eighth of the value if recaptured by a public ship; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel previously belonged to the Government of the United States, and be unarmed, the salvage is one sixth, if recaptured by a private vessel, and one twelfth, if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a private vessel, and one fourth if recaptured by a public ship. In respect to public armed ships, the cargo pays the same rate of salvage as the vessel, by the express words of the act; but in respect to private vessels, the rate of salvage (probably by some unintentional omission in the act) is the same on the cargo, whether the vessel be armed or unarmed.1

1 Cranch's Rep. vol. ix. p. 244. The Adeline.

It will be perceived, that there is a material difference between the American and British laws on this subject; the act of Parliament continuing the jus postliminii forever, between the original owners and recaptors, even if there has been a previous sentence of condemnation, unless the vessel retaken appears to have been set -forth by the enemy as a ship of war; whilst the act of Congress continues the jus postliminii until the property is divested by a sentence of condemnation in a competent court, and no longer; which was also the maritime law of England, until the statute stepped in, and, as to British subjects, revived the jus postliminii of the original owner.

French law.

By the more recent French law on the subject of recaptures, if a French vessel be retaken from the enemy after being in his hands more than twenty-four hours, it is good prize to the recaptor; but if retaken before twenty-four hours have elapsed, it is restored to the owner, with the cargo, upon the payment of one third the value for salvage, in case of recapture by a privateer, and one thirtieth in case of recapture by a public ship. But in case of recapture by a public ship, after twenty-four hours possession, the vessel and cargo are restored on a salvage of one tenth.

Although the letter of the ordinances, previous to the revolution, condemned, as good prize, French property recaptured after being twenty-four hours in possession of the enemy, whether the same be retaken by public or private armed vessels; yet it it seems to have been the constant practice in France to restore such property when recaptured by the king's ships.1 The reservation contained in the ordinance of the 15th of June, 1779, by which property recaptured after twenty-four hours possession by the enemy, was condemned to the crown, which reserved to itself the right of granting to the recaptors such reward as it thought fit, made the salvage discretionary in every case, it being regulated by the king in council according to circumstances.2 (a)

1 Valin, sur l'Ord. liv. iii. tit. 9, art. 3. Traité des Prises, ch. 6, § 1, No. 8, § 88. Pothier, Traité de Propriété, No. 97. Emerigon, des Assurances, tom. i. p. 497. 2 Emerigon, des Assurances, tom. i. p. 497.

(a) [L'ordonnance du 15 Juin, 1779, porte: En ce qui concerne les reprises faites par les vaisseaux, frégates, et autres bâtimens de sa majesté, le tiers sera adjugé à son profit, pour droit de recousse, si elle a été, faite dans les vingt quatre

France applies her own rule to the recapture of the property of her allies. Thus, the Council of Prizes decided on the 9th February, 1801, as to two Spanish vessels recaptured by a French privateer after the twenty-four hours had elapsed, that they should be condemned as good prize to the recaptor. Had the recapture been made by a public ship, whether before or after twenty-four hours possession by the enemy, the property would have been restored to the original owner, according to the usage with respect to French subjects, and on account of the intimate relation subsisting between the two powers.'

The French law also restores, on payment of salvage, even after twenty-four hours possession by the enemy, in cases where the enemy leaves the prize a derelict, or where it reverts to the original proprietor in consequence of the perils of the seas, without a military recapture. Thus the Marine Ordinance of Louis XIV., of 1681, liv. iii. tit. 9, art. 9, provides that, "if the vessel, without being recaptured, is abandoned by the enemy, or if in consequence of storms or other accident, it comes into the possession of our subjects, before it has been carried into an enemy's port, (avant qu'il ait été conduit dans aucun port ennemi) ; it shall be restored to the proprietor, who may claim the same within a year and a day, although it has been more than twentyfour hours in the possession of the enemy." Pothier is of opinion that the above words avant qu'il ait été conduit dans aucun port ennemi, are to be understood, not as restricting the right of restitution to the particular case mentioned of a vessel abandoned by the enemy before being carried into port, which case is mentioned

heures, et après le dit délai, la reprise sera adjugée en entier à sa Majesté, comme par le passé. L'arrêté du 2 prairial an 2, qui règle aujourd'hui la matière adoucit un peu la rigueur de ces règlemens, en ce qui concerne les reprises faites par les vaisseaux de guerre, mais il faut remarquer qu'aujourd'hui nulle autorité n'a plus le droit de faire remise de la partie confisquée. Le navire recous doit être restitué au propriétaire avec sa cargaison, à la charge par lui de payer à l'équipage repreneur un trentième de la valeur, si la recousse a eu lieu avant l'expiration du délai de vingt quatre heures, et le dixième si elle a été faite après ce délai. Le droit de recousse pour les armateurs reste fixé au tiers dans la première hypothèse; dans la seconde, le bâtiment et la cargaison leur appartiennent en entier." Hautefeuille, Droit des gens neutres, t. iv. p. 391.]

1 Pothier, de Propriété, No. 100. Emerigon, tom. i. p. 499. Azuni, Droit Maritime de l'Europe, Partie ii. ch. 4, § 11.

merely as an example of what ordinarily happens, "parceque c'est le cas ordinaire auquel un vaisseau échappé à l'ennemi qui l'a pris, ne pouvant pas guères lui échapper lorsqu'il a été conduit dans ses ports." But Valin holds, that the terms of the ordinance are to be literally construed, and that the right of the original proprietor is completely divested by the carrying into an enemy's port. He is also of opinion that this species of salvage is to be likened to the case of shipwreck, and that the recaptors are entitled to one third of the value of property saved.2 Azuni contends that the rule of salvage in this case is not regulated by the ordinance, but is discretionary, to be proportioned to the nature and extent of the service performed, which can never be equal to the rescue of property from the hands of the enemy by military force, or to the recovery of goods lost by shipwreck.3 Emerigon is also opposed to Valin on this question.1

Spain formerly adopted the law of France as to Spanish recaptures, having borrowed its prize code from that law. country ever since the accession of the house of Bourbon to the Spanish throne. In the case of The San Jago (mentioned in that of The Santa Cruz, before cited,) the Spanish law was applied, upon the principle of reciprocity, as the rule of British recapture of Spanish property. But by the subsequent Spanish prize ordinance of the 20th of June, 1801, art. 38, it was modified as to the property of friendly nations; it being provided that when the recaptured ship is not laden for enemy's account, it shall be restored, if recaptured by public vessels, for one eighth, if by privateers for one sixth salvage: provided that the nation to which such property belongs has adopted, or agrees to adopt, a similar conduct towards Spain. The ancient rule is preserved as to recaptures of Spanish property; it being restored without salvage, if recaptured by a king's ship before or after twenty-four hours possession; and if recaptured by a privateer within that time, upon payment of one half for salvage; if recaptured after that time, it is condemned to the recaptors. The Spanish law

1 Pothier, de Propriété, No. 99.

2 Valin, sur l'Ord. in loco.

3 Azuni, Droit Maritime, Partie ii. ch. 4, §§ 8, 9.

4 Emerigon, des Assurances, tom. i. pp. 504-505. He cites in support of his opinion the Consolato del Mare, cap. 287, and Targa, cap. 46, No. 10.