property, before it has been ascertained to have been lawfully acquired jure belli. It was a provision of the Consolato del Mare 20, that if a ship and cargo which had been captured by the enemy, should have been recaptured by a friendly ship, the recaptor ought to restore the ship and cargo to those who were on board of her, if there should be any persons found on board still alive; but in such a case the recaptor ought to receive a sufficient recompense for his trouble, and for any damage which he might have incurred. But this applies only to those cases in which the recaptor has retaken his prize within the jurisdiction and in the waters of the country, to which the ship belongs, or else in a roadstead where the captors have not yet moored their prize, that is, have not placed her in safety; otherwise if the prize had been already carried into a place of safety by the captors, it is not a case for receiving a recompense; but on the contrary it is consistent with justice that the vessel and her cargo ought to belong to the recaptors. Such is the language of the Consolato del Mare on the subject of the recapture of vessels and their cargoes; and such seems to have been the ancient law of Maritime Capture amongst the Nations of Europe, in accordance with the principle of the Roman law, as applicable to persons captured by the enemy, antequam in præsidia perducatur hostium, manet civis 21. By the consent of Nations," says Grotius," things are said to be taken in war, when they are so detained, that the first owner has lost all probable hope of recovering them, and cannot pursue them, as Pomponius determines a like question. This takes place when they are brought within the boun 20 Chapitre 295 (290) Du navire pris et repris. (Pardessus, Lois Maritimes, Tom. II. p. 339. 21 Digest. L. XLIX. Tit. XV. c. 5. § 1. Twenty daries, that is, within the stronghold (præsidia) of the enemy 22" Rule of § 173. "Under the Law of Nations," says says Grotius, Four hours" which is applicable to such matters, the case is the possession. same with regard to goods as to persons, whereby we may easily perceive how, when things are said to belong immediately to the captors, it is to be understood, with a certain reservation, that they continue in their possession until they are brought infra præsidia: whence it seems to follow, that at sea ships and other things are then only said to be captured when they are brought into the enemy's docks or ports, or into that place where his whole fleet is riding, for thereupon their recovery may be despaired of. But we find that under a more recent Law of Nations it has become the rule amongst European Nations to account such things to be captured, when they have been in possession of the enemy during twenty-four hours 23." To the same purpose Lord Stowell has observed, "It cannot be forgotten that by the ancient Law of Europe, the perductio infra præsidia, infra locum tutum, was a sufficient conversion of the property; that by a later law a possession of twenty-four hours was sufficient to devest the former owner 24" The rule that the continuous possession of a ship and cargo on the part of the enemy for twentyfour hours should debar the original owner of the jus 22 Ceterum in hac belli quæstione placuit gentibus, ut cepisse rem is intelligatur, qui ita detinet, ut recuperandi spem probabilem alter amiserit, aut ut res persecutionem effugerit, ut loquitur in simili quæstione Pomponius. Hoc autem in rebus mobilibus ita procedit, ut capta dicantur ubi intra fines, id est, præsidia hostium per ducta fuerint. (De Jur. B. et P. L. III. cap. 6. § III. I. 23 Recentiore Jure Gentium inter Europæos populos introductum videmus, ut talia capta censeantur, ubi per horas viginti quatuor in potestate hostium fuerint. Ibid. § 111. 2. 24 The Ceylon, 1 Dodson, p. 116. postliminii, in other words, should deprive him of all right to reclaim possession of his former ship and cargo, on payment of military salvage to the recaptor, or as Bynkershoek terms it salvo servaticio, seems to have been borrowed from the Laws of the Lombards, and was established after the analogy of the four and twenty hours, which, not without reason, was the limit of time, within which a hunter who had wounded a beast might recover possession of it, if it had been taken by another25. This rule may be said to have been generally recognised amongst European Nations until the middle of the seventeenth century. Albericus Gentilis speaks of it as the Law of Castile in his day, and it is the Law of the kingdom of Spain in the present day. Lord Stair in his decisions says it is the rule of Law in Scotland. Valin states that a similar practice prevailed in his time in France, and the Law of France in the present day accords with that practice. Crompton, in his treatise on the jurisdiction of Courts, says that it was the ancient Law of England, and that a possession of twenty-four hours on the part of the enemy was a sufficient conversion of property. It has been disputed whether the passage in Crompton applies to maritime capture, although Lord Stowell interprets it in that sense 26; but there is a specific assertion in Thurloe's State Papers" on the part of the Dutch Resident at the Court of St. James in 1656, that 25 Si cervus aut quælibet fera ab aliquo homine sagittata fuerit, tam diu illius esse intelligatur, qui eam sagittaverit aut vulneraverit, usque ad aliam talem horam diei aut noctis, quæ sunt horæ viginti quatuor, quando eam post posuerit, et se ab ea tornaverit; nam qui eam post transactas horas prædictas inve- 118. 27 Thurloe, Tom. IV. p. 589. Salvage on Recap tice of tain and of United America. after many suits, and afterwards appeals, had in the Council of the King anno 1632, it was understood that jure postliminii no ships ought to be restored, which had been twenty-four hours in the power of the latter. In Denmark the Maritime Code of Christian V (1670-1699) ordains that if an armed ship recaptures a Danish ship, which has been in the possession of the enemy for twenty-four hours, the recaptors shall have the exclusive benefit. § 174. It is within the province of the Legislature ture. Prac- of every country to regulate by its municipal law all Great Bri- questions of recapture, which may arise between its the unit of own citizens. We find accordingly that in England States of during the Commonwealth a departure was made from the general Law of Europe in favour of merchants by the Ordinance of 1649, which directed a restitution of all vessels by British recaptors to British subjects upon payment of salvage; and a like indulgence has been continued in successive Prize Acts down to the present day, the only exception being made in the case in which the enemy has fitted out his prize as a man-of-war28. It will be sufficient to bring a vessel within this exception, and to leave her subject to the operation of the general Law, if she should have been fitted out as a privateer by the enemy, although she may be navigating as a merchant vessel at the time of her recapture 29. But it will not be sufficient to deprive her of the protection of the Prize Act, that she should have an additional number of men put on board of her by the captor. A vessel originally armed as a slave ship was captured by a privateer, who put men on board of her; but Lord Stowell held, that as there was no Commisibid. p. 401. 28 Nostra Signora del Rosario, 3 Ch. Rob. p. 10. The Ceylon, 1 Dodson, p.105. The Georgiana, 29 L'Actif, Edwards, p. 186. sion of War, no arming of the vessel, the mere fact of putting an additional number of men on board did not have the effect of defeating the title of the original owner. The practice of Great Britain has been adopted, as the rule of their decisions, by the Courts of the United States of America. But the regulations of the Municipal Law of a State are not applied to cases of recapture, when the property of Neutrals is concerned. The rule of reciprocity was followed by Lord Stowell in the case of a Portuguese vessel31, and so in the United States, the Salvage Act of 1800 declared that upon the recapture of neutral property, the rule of reciprocity was to prevail. If the Courts of Neutral States would in the like case restore on salvage, then the American Courts were to restore on the same salvage; if otherwise, then they were to condemn to the recaptors 32. Thus in the case of an American vessel, which had been recaptured from the British by an American privateer, with a valuable cargo on board, the property of French subjects, the Supreme Court of the United States decreed the ship to be restored to the American owners, on payment of salvage to the recaptors, but condemned the cargo as good prize to the captors on the principle of reciprocity, inasmuch as French Courts award to recaptors the entire property, whether it belongs to French subjects, to allies, or to neutrals, in all cases of recapture, after the property has been twenty-four hours in the possession of the enemy 33 France, $175 There are notable differences to be observed Practice of in the manner in which the different States of Eu- Spain, rope administer the jus postliminii, under the provi- Sweden, 30 The Horatio, 6 Ch. Rob. p. 320. 31 The Santa Cruz, 1 Ch. Rob. P. 50. 32 The Star, 3 Wheaton, p. 92. 33 The Schooner Adeline and her Cargo, 9 Cranch, p. 244. Denmark, and Holland. |