sions of their Municipal Law in the case of property recaptured at sea, although the tendency of all modern legislation is in favour of a milder practice, than that which had been generally received before the commencement of the seventeenth century, after the analogy which the Law of the Lombards supplied. The French Arrête of 2 Prairial, an. XI. provided, that if the recapture should have been made by a public ship of war, it should be restored to the original owner on the payment of one thirtieth of its value by way of salvage, if it had been recaptured within twenty-four hours; or of one tenth of its value, if twenty-four had elapsed, the original owners being liable to defray the expenses attending the recapture. If, on the other hand, the recapture had been made by a private ship of war before the lapse of twenty-four hours, the recaptors would be entitled to a salvage of one third; if after the vessel had been twenty-four hours in possession of the enemy, the recaptors would be entitled to the whole as prize. The rule of the French Courts is the same, whether the property recaptured belongs to neutrals, or to French subjects. In Spain the Ordinance of 1801 makes a distinction between the property of Spanish subjects and the property of the subjects of friendly Nations. The rule in regard to the former is, that if the property is recaptured within twenty-four hours, a salvage of one third shall be paid to the recaptors; but if after that time, the recaptors shall take the property as prize. But in regard to the latter, the recaptured ship, unless it be laden with enemy's property, is to be restored on payment of one eighth of its value, as salvage, if recaptured by a public ship; and of one sixth of its value, if recaptured by a privateer; subject however to the condition, that the Courts of the State, under whose flag the vessel sails, should observe the same rule in regard to Spanish property. Portugal, by an Ordinance of 1797, decreed that restitution should be made of property recaptured after twenty-four hours on salvage of one eighth to a public ship, and of one fifth to a privateer. Denmark, by an Ordinance of 1810, decreed the property of Danish subjects and of allies to be restored without any regard to the length of time which might have elapsed since its capture, on payment of one third of its value, as salvage, to the recaptors. In Sweden the Ordinance of 1788 enacted that if a Swedish vessel should be recaptured from the enemy, the recaptor should have half her value without respect to the time during which she had been in the possession of the enemy. In Holland the law has undergone great modifications, but at present restitution to the original owners is to be made in all cases, subject to different rates of salvage. Thus the Ordinance of 1659 decreed the restitution of the recaptured property to the original owners in every case, on payment to the recaptors of one ninth of the value, and such continues to be the rule of the Courts in the case of recaptures by public vessels; but in regard to privateers, a later Ordinance of 1677 has decreed to them a salvage of one fifth, if the property should have been recaptured within forty-eight hours; of one third, if it should be recaptured after forty-eight and within ninety-six hours; and of one half, if recaptured after ninety-six hours. interest of § 176. All captures jure belli are consummated Insurable under the Natural Law of Nations by surrender British (deditio), in the sense in which a capture enures captors. to the benefit of the Sovereign Power which has authorised the capture; but in the sense in which 34 In conformity with the solam occupationem dominium rules of the Roman Law, per prædæ hostibus acquiri," which 66 a capture enures to the benefit of the actual captor under the Municipal Law of a civilised State, the title of the captor is not complete until it has been submitted to and sanctioned by a Court of Prize. "In later times," says Lord Stowell, an additional formality has been required, that of a sentence of condemnation in a competent Court, decreeing the capture to have been rightly made jure belli: it not being thought fit in civilised society that property of this sort should be converted without the sentence of a competent Court, pronouncing it to have been seized as the property of an enemy, and to be now become jure belli the property of the captor. The purposes of justice require that such exercises of war shall be placed under public inspection, and therefore the mere deductio infra præsidia has not been deemed sufficient." In accordance with his principle, the actual captors under the British Prize Acts have no formal interest in their captures until after final adjudication of them, as Prize, by the sentence of a competent Court, although they have been held to have an insurable interest in them immediately after capture. If the actual captor might be regarded as a trustee for the Crown to bring his captures as soon as possible into port, in order that a competent Prize Court might adjudicate upon them, the captor would have an insurable interest in his character of trustee; for such was the purport of the judgment of the House of Lords 35, in the case of the Commissioners appointed under 35 Geo. III. c. 80, for the purpose of taking care of and disposing of Dutch ships and effects Lord Mansfield has discussed in Goss v. Withers, 2 Burrows, p. 683. 35 Crawford v. Lucena, 3 B. and P. in the Exchequer Chamber, and 2 N. R. 269 in the House of Lords. Park on Insurance, II. p. 571. 36 captured at sea by his Majesty's ships of war and brought into the ports of Great Britain. The Lords decided on that occasion that the Commissioners might insure in their own name in the right of trustees for the Crown. But with regard to actual captors, they have been adjudged to have an insurable interest on other and different grounds. In one case Lord Mansfield held that the captor had under the Prize Act and Proclamation such certain expectation of profit upon the safe arrival of his prize in port, that it gave him an insurable interest in its arrival; whilst in another case Lord Kenyon, Mr. Justice Grose, and Mr. Justice Lawrence, were of opinion that as the captor has the risk of being condemned in costs and damages, if the capture is pronounced to have been unjustifiable, he has a right to insure against that risk 37. practice as ers of war. § 177. It was formerly the practice of belligerent Ancient States to leave to every prisoner of war the care to prisonof redeeming himself from captivity, and the captor in each case had a lawful right to demand a ransom for his prisoner. The practice of ransom was in fact a mitigation of the earlier practice under which a prisoner of war became the slave of the captor, and which practice Grotius recognises as conformable to the Law of Nations. But Grotius has at the same time pointed out, that this Law of Nations had 39 36 Le Cras v. Hughes, East, 22 G. III. 37 Boehm v. Bell, 8 T. R. 154. The Nemesis, Edwards, p. 50. 38 At eo, de quo nunc agimus, gentium jure aliquanto latius patet servitus, tum quoad personas, tum quoad effectus. Nam personas si spectamus, non soli qui se dedunt aut servitutem promittunt, pro servis habentur, sed omnes omnino bello solemni 66 neither been received at all times, nor amongst all Nations, although the language of the Roman jurists on the subject is general, and that an advance has been made in the practice of mankind in the treatment of captives from reverence for the law of Christ. But even Christian Nations have maintained the practice of detaining prisoners of war in captivity, until a price is paid for them, of which the captor is accustomed to form an estimate at his pleasure, unless there has been some Convention entered into on the subject 39." Notwithstanding the mitigating influences which the profession of the same Religion by both the belligerent parties, and more especially the profession of the Christian Religion, has been found in practice to exercise over the conduct of hostilities, it has been found necessary, within so recent a period as the commencement of the seventeenth century, to stipulate by treaties that prisoners of war should not be detained as galley-slaves after the war has terminated. Thus it was stipulated in the treaty of 160410 between England and Spain, that prisoners of war on either side should be released, although they had been condemned to the galleys. An article in similar terms was introduced into the treaty of 1630 between England and Spain". It would appear from the 101st article of the Treaty of the Pyrenees, concluded in 1659, between France and Spain, that at that time the practice of condemning prisoners of war to the galleys was not altogether abandoned. This practice however was evidently becoming obsolete before the conclusion 39 Manet etiam inter Christianos mos captos custodiendi donec persolutum sit pretium, cujus æstimatio in arbitrio est victoris, nisi certi aliquid convenerit. De Jure Belli et Pacis, L. III. c. 7. § 9. 2. 40 Dumont, Corps Diplomatique, Tom. V. Part II. p. 38. 41 Ibid, p. 623. 42 Dumont, Tom. VI. Part II. p. 278. |