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The British ship Albion, by signal, was detached from the squadron and ordered to give chase. She did so, and completed that duty; and afterward, seeing another vessel of the enemy, she made a second chase, and captured the ship; it was held that the ships of the squadron were entitled to share as joint-captors in the second prize.
There was, at one time, much discussion in the admiralty courts, both of England and France, whether, in a case where a ship of the enemy is taken, and subsequently lost to an enemy's cruiser, and afterward retaken by a ship other than the first captor, the first captor had an interest in the prize, subject to the salvage claim of the recaptors, or whether the recapture was not in such case to be regarded as an original capture, vesting the interest in the second captors. And this last has become the established doctrine.
It was so decided in the French court of prize, by a decree made in 1748, and by the Lords of the Admiralty in England, in two cases involving the question ; although, in a previous case in 1778, it had been decided by the court of admiralty, that the first taker was to be considered the actual captor, and the subsequent taker the recaptor, entitled to a high salvage.
A captor may be deprived of the benefit of his capture either by rescue or by a recapture. They
· Le Bon Aventure, 1 Acton, 211.
3 The Polly (Lords, Nov. 21, 1780); The Marguerite, (Lords, April 3, 1781).
+ The Lucretia, 1778.
are thus distinguished : a rescue is where the cap. Recapture and tured party rise and succeed in effecting a recovery and distin
guished. of the property captured; a recapture is where a prize, having been taken by an enemy, is recovered from his possession by the arrival of a friendly force.
There is a kind of rescue which partakes of the character of the recapture; and this occurs where the weaker party, before he is overpowered, obtains relief from the arrival of friendly succor, and is thus preserved from the possession of the enemy. A recapture, in all cases where it can be effected, To recapture a
duty. is a duty incumbent upon friends or allies.
A rescue is matter of merit rather than of duty. To rescue a Lord Stowell says: “Seamen are not bound by act. their general duty as mariners to attempt a rescue; nor would they have been guilty of a desertion of duty in that capacity, had they declined it. It is a meritorious act to join in such attempts; and if there are persons who entertain any doubt whether it ought to be so regarded, I desire not to be considered of that number. As to the situation and character of persons engaged in such attempts, it is certainly to be regarded an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship, or in discharge of any official duty, either ordinary or extraordinary."
The distinction between the obligation, to the performance of the rescue, which partakes of the nature of a recapture, and of the rescue proper, is
· The Two Friends, 1 Rob., 271; The Helen, 3 Rob., 224.
The Two Friends, 1 Rob., 271.
obvious; for in the one case the capture is still im perfect, and in the other it is complete. The law of nations does not require that a vessel should be commissioned in any manner, in order to entitle her, and, indeed, to impose upon her the obligation, to effect a recapture, if they are possessed of such superiority as to render it just that they should hazard a contest.1
Out of the questions of rescue and recapture, arise the important considerations of postliminium
and salvage. The right of Postliminium is thus defined by Vattel: “The nostliminium considered. right of postliminium is that, in virtue of which,
persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged. When persons or things, captured by the enemy, are retaken by our allies or auxiliaries, or in any other manner fall into their hands, this, so far as relates to the effect of the right, is precisely the same thing as if they were come again into our power, since, in the cause in which we are jointly embarked, our power and that of the allies is but one and the same." So that, when possessions, taken by the enemy, are recaptured or rescued from him by the fellow-subjects or allies of the original owner, they do not become the property of the recaptor or rescuer, as if they had been a new prize, but are restored to the possession of the original owners, by what is called the right of postliminium or jus postliminii, upon certain condition presently
1 The Helen, 3 Rob., 224.
• Vattel, Lib. III., c. xiv., $ 204,
to be considered.' But the right of postliminium does not take effect in neutral countries, for when a nation chooses to remain neutral in war, she is bound to consider it as equally just on both sides, as far as relates to its effects, and consequently to look upon every capture made by either party as a lawful acquisition. To allow one of the parties, in prejudice to the other, to enjoy in her dominions the right of claiming things taken by the latter, or the right of postliminium, would be declaring in favor of the former, and departing from the line of neutrality.
The full benefit of postliminium is not attached to movable property, as are lands, houses, and other fixed possessions. The reason of this is simply the impracticability of perfect identification as a general thing, and the consequent presumption of abandonment of the owner.
But if the recapture of movables follow hard upon the capture, the right of postliminium is
per. fect. This is the general law of nations with regard to the right of postliminium upon movables. But, “prisoners of war, who have given their parole, territories and towns which have submitted to the enemy, and have sworn or promised allegiance to him, cannot of themselves return to their former position, by the right of postliminium, for faith is to be kept, even with enemies. But if the sovereign retake those towns, countries or prisoners, who had surrendered to the enemy, he recovers all his former rights over them, and is bound to reestablish them in their pristine condition."
"Vattel, Lib.III., c. xiv., 8208. Vattel, Lib. III., c. xiv.,88 210, 211.
The rights of postliminium upon property which has been alienated by the enemy is a subject of much importance. The distinction here exists between movable and immovable property. “Let it be remembered,” says Vattel, “as to immovables, that the acquisition of a town taken in war, is not fully consummated till confirmed by a treaty of peace or by the entire submission or destruction of the state to which it belonged. Till then, the sovereign of that town has hopes of retaking it, or of recovering it by a peace. And from the moment it returns to his power, he restores it to all its rights, and consequently it recovers all its possessions, as far as in their nature they are recoverable. It therefore resumes its immovable possessions from the hands of those persons who have been so prematurely forward as to purchase them. In buying them of one who had not an absolute right to dispose of them, the purchasers made a hazardous bargain, and if they prove losers by the transaction, it is a consequence to which they deliberately exposed themselves. But if that town had been ceded to the enemy by the treaty of peace, or was completely fallen into his power by the submission of the whole state, she has no longer any claim to the right of postliminium, and the alienation of any of her possessions by the conqueror is valid and irreversible, nor can she lay claim to them, if in the sequel some fortunate revolution should liberate her from the yoke of the conqueror."
As to movables, we find the law to be otherwise, as Vattel states in the same section: