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an exception to the general rule, as reasonable and just by the neutral merchants.?
under the law
when not pro
When a lawful belligerent had become possessed, by lawful means, of the property of the enemy,
it was an ancient custom, of almost every nation, to redeem it from his possession by the payment of a
hibited by ransom. The contract of ransom has fallen greatly statute in into disuse; and by statutes in Great Britain, raisoms are expressly prohibited under severe penal. ties. They are spoken of by Lord Stowell, in the case of the ships taken at Genoa, as subject to great abuse, being, in the common acceptation, contracts entered into at sea by individual captors, and liable to be abused, to the great inconvenience of neutral Valid contract trade. But ransoms, under circumstances of ex- of nations treme necessity, are yet allowed; and a ransom hibited by bill, when not prohibited by express statute, is a war contract, protected by good faith and the law of nations. Although the contract of ransom is considered in England as tending to relax the energies of war, and to deprive cruisers of the opportunities of recapture, yet “it is, in many views,” says Chancellor Kent,“ highly reasonable and humane. Other maritime nations regard ransom as binding, and to be classed among the few commercia belli."8
Ransom has not been prohibited by any law of Not prohibited
· The Eleanor Catherina, 4 Rob., 156 ; The Waronskan, 2 Rob., 299; The Carlotta, 5 Rob., 54; The Huntress, 6 Rob., 104; The Samson, 6 Rob., 410; The Barbara, 3 Rob., 171 ; Abbot on Shipping, Part III., c. xi., § 13. : 43 Geo. III., C. C. ; 45 Geo. III., c. lxxii. ; 22 Geo. III. c. xxv.
Kent's Com., 114; vide also Azuni's Maritime Law, c. iv., art. 6; Emerigon, I., c. xii., 8 21; Valin XI., art. 66 ; Le Guidon, c. vi., art. 2; Grotius, Lib. III., c. xix.
in the United the United States, and has been recognized as a
valid contract by the courts of that country, as well as of France and Holland. The effect of the ransom is equivalent to that of a safe conduct granted by the authority of the state of the captor; and it is binding upon the commanders of other cruisers of the belligerent nation, as well as upon those of an allied nation, by the implied obligation of the treaty of alliance. The protection of the ransomed vessel is, however, limited to the time, as well as to the course or localities prescribed by the contract, unless, by stress of weather or unavoidable necessity, the time has been exceeded, or the course de parted from
The captor who releases his capture on ransom, does not become the insurer of the property, except against recapture by cruisers of his own nation or allies. Therefore, if the ransomed vessel be wrecked before she arrives in port, the ransom bill is never theless due.
If the captor, having the ransom bill on board his vessel, should himself be captured by the enemy, the ransom becomes part of the lawful conquest of the enemy, and is discharged.
These principles are laid down by the elementary writers, and have been frequently recognized and applied by the courts of the United States.'
Pothier, Traite du droit de proprieté, Nos. 134, 135, 138, 139; Valin, Ord. des Prises, art. 19.
Goodrich vs. Gordon, 15 Johns. R., 6; Miller vs. The Resolution, 2 Dallas, 15; The Lord Wellington, 2 Gallison, 104; Maissonnaire et als. vs. Keating, 2 Gall., 336; Gerard vs. Hare, Peters's C. C. R., 142; Moodie vs. Brig Harriet, Bees. R., 128.
RECAPTURE AND MILITARY SALVAGE.
[SEVERAL cases of recapture by public ships of the United States, of the merchant vessels of her citizens, which had been seized by rebel cruisers, have occurred during the existing war.
In every such case, the merchant owner, without objection, has paid the military salvage provided by statute, of one-eighth the value of the property recaptured, upon its restitution, and in like manner, as if the original capture had been lawful."
It is obvious, that had objection been made to the validity of such claim, it could not have been allowed in the courts of the United States, without involving a judicial concession of belligerent rights to the insurgents, of the same character, and to like extent, as that virtually accorded by the Executive department of the government, in the exchange of rebel captured privateers, as prisoners of war.
By the terms of the Act of Congress of 18002 the compensation awarded as salvage for the recapture from the enemy, of a public ship, or of a merchant vessel, whether of the country of the recaptors or a neutral, is allowed upon the express condition that the property recaptured, has not been condemned in the courts of the captors prior to the recapture; thus, in effect, resting the claim to compensation upon the lawfulness of the original capture, and its successful defeat by recapture, before the inchoate right to the captured property had become absolute by a decree. How far the courts of the United States would be justified in holding lawful the captures made by insurgent privateers,—by decreeing salvage upon the recapture, and restitution of the captured property, --by reason of the executive action of surrender as prisoners of war, under the law of nations, of captured privateers, who are declared to be pirates by the municipal law, may admit of serious doubt.
1 Vide The Mary Alice, The Henry C. Brooks, The Lizzie Weston. MS. Decisions U. S. Dist. Court, N. Y.
2 Vol. 2, Statutes at Large, p. 16.
The right vested in a sovereign nation, engaged in the duty of suppressing an irsurrection which has assumed the proportions of a civil war, of regarding and treating the insurgents, either as rebels or as belligerents, is a right to be exercised by the executive branch of the government, and, from its very nature, by the Executive alone.
It is a right, to be exercised precisely according to the dictates of a varying political policy. If, therefore, the Executive, at one time, sees fit to allow an exchange of captured rebel privateers, as prison. ers of war, it by no means follows that such executive action should be taken as a precedent for a subsequent judicial decree, because, at an after period in the progress of the war, the current of events may have produced an entire change of political policy.
Certain rebel privateersmen, assuming to act under commissions from Jefferson Davis, were captured while committing piratical raids upon the ocean, by a United States government cruiser, and carried into the port of Philadelphia. They were there tried in the Federal court, and convicted as pirates, under the municipal law. By Executive interposition, their status as convicted pirates, liable to be hanged, was changed to that of prisoners of war. This was in the summer of 1861. If, at any subsequent period, The Alabama, or any other rebel cruiser, should be captured, and brought into a port of the United States, would this former Executive action, make it any less the duty of the Federal courts, to proceed against her crew as pirates, under the municipal law, and to visit upon them its severest penalties, unless that branch of the government which controls its political policy, should again interpose ? Surely not.
When the executive department of the government recognizes the belligerent status of the people of a foreign nation, it is the duty of the courts to follow such recognition, in their judicial action, because it is the announcement of a permanent political policy, by that department whose province it is to determine such policy.
But the surrender of traitors or pirates, as prison. ers of war, in the progress of a civil conflict, cannot be regarded in any such light. It is an act which is the result of a temporary policy merely, a policy that may not, and should not, control, the duty of judicial tribunals
, to continue to regard the insurgents as traitors, punishable by the municipal law.
In the former edition of this work, it was stated that salvage was not awarded to a public ship, for the recapture from the enemy of another public ship or vessel, employed in the public service.
Such is the law of England. By the 2d section of the act of Congress last cited, salvage by the law of the United States, is granted upon the recapture of a public vessel, which “shall appear to have before belonged to the United States,” in like manner