assisted in recapturing the vessel from the enemy, salvage was decreed on the property brought into a British port. Every person assisting in a rescue has a lien on the thing saved. He has, as it has been argued, an action in personam also; but his first and his proper remedy is in rem; and his having the one is no argument against his title to the other. In this case it was held, that the British seamen returning to their own country without any engagement or intention to go back to America, and without having any domicile there, were not at all in the condition of American subjects, and could not have been so considered in this transaction, even if hired as mariners on board the American vessel; for it was no part of their duty as seamen to attempt a recapture, and they would not have been guilty of a desertion of their duty if they had declined it. It is an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship in discharge of any official duty, either ordinary or extraordinary. There is no rule prescribed in the English law applying to cases of foreign property rescued. In cases of rescue between English subjects, the Court usually adopts the proportion of recapture, but it is not bound to do so; and in respect to foreigners, there is no rule beyond that which subjects such matters to a sound discretion, distributing the reward according to the value of the services that have been performed (e). But salvage is not due to the crew for rescuing their ship from mutineers. This case is extremely different from that of rescue from an enemy, because there, the moment the capture is effected, the crew are discharged from their duty to their employers. The contract between the parties is at an end. The seamen no longer constitute the crew of the vessel, but become prisoners of war. Not so in the case of mutiny, for that does not discharge them from their duty to their owners, whose property they are bound, if possible, to recover; not that

(e) The Two Friends, 1 Rob. 271.

they are called upon to sacrifice their lives wantonly and to no purpose, but bound to use their best endeavours wherever there is a reasonable prospect of success. A service of this kind does not go beyond the limits of that duty, which they are bound to perform in virtue of the engagement which they have contracted with their owners, and does not found any claim to salvage (ƒ). Where a British ship was recaptured with a cargo, the property of an allied sovereign and his subjects, the property of the allied sovereign was restored without payment of salvage or expenses, and the property of his subjects on payment of expenses without salvage (g). Where a year and a day have elapsed since capture, and no claim has actually been advanced, the question of property is precluded against the former owner, who must be taken to have abandoned his property (h).

A claim of salvage, not within the operation of the Prize Act, may be forfeited by the misconduct of salvors (i). Persons dispossessing original salvors without reasonable cause, are wrong doers, and shall take no advantage of their own wrong. The exertions they may use in bringing in the ship and cargo, shall enure, not to their own profit, but to the profit of those who would otherwise have performed the service (k). Where a captured vessel is rescued by her crew, or recaptured by the enemy, the interest of the captor is divested; and if it be captured a second time, the second captor is entitled to the whole benefit of the prize (7).

(ƒ) The Governor Raffles, 2 Dod. 14.

(g) The Alexander, 2 Dod. 37.

(h) Per Cur. The Henric and Maria, 4 Rob. 44.

(i) The Barbara, 3 Rob. 171.

(k) The Blendenhall, 1 Dod. 418.

(1) The Polly and The Marguerite, 4 Rob. 217, (a); Val. Comm. iii. 9, vol. ii. p. 237.—Tr. vi. 1, § 14.

THE subject of prize may be considered in respect of the rights, first, of the Crown. Secondly, of the Lord High Admiral. Thirdly, of actual captors.

constructive captors.

And fourthly, of

All prize property,

First, of the rights of the Crown. which is not granted to the Lord High Admiral or to the captors, is vested in the Crown. Any mode of forcible detainer or occupancy prior to hostilities is sufficient to vest the rights of the Crown. Thus, where Dutch ships were seized in British ports in anticipation of war, and promises of restitution were held out on certain terms; on the declaration of hostilities that ensued, these seizures were enforced with a retrospective operation on all who had not complied with the terms, and the property so seized was finally condemned as prize to the Crown. So, where Dutch vessels were seized at the Cape of Good Hope under similar circumstances (a). So, where a prize is condemned in consequence of the inadmissibility of a British owner to claim property engaged in an illegal course of trade, condemnation passes to the Crown (b). So, where after a capitulation money was paid for the redemption of vessels not protected thereby, condemnation passed to the Crown. Capitulations are certainly of the nature of ransoms, but admitting of very favourable distinctions. Ransoms have (a) The Gertruyda, 2 Rob. 211.

(b) The Etrusco, Lords, 4 Rob. 262, (n).

been forbidden, except under circumstances of necessity, as subject to great abuse. Capitulations in their nature can scarcely become liable to the same objection, they being contracts between the commander and the conquered state; on the contrary, they have always been favourably supported, and it is of great importance to the general interests of the captured that they should be sustained (c). Where public property was seized on the land by a privateer, after the capitulation of an island to a king's ships upon articles, which provided that all public property should be at the disposal of the captors, it was condemned to the Crown conformably to the terms of the capitulation. The articles referred to the public character in which the captors professed to treat, and not to the assumption of any right to dispose of the public property on their own private account. It passed into the possession of the captors for the purpose of being brought to adjudication, subject to the legal considerations applying to such property under our own internal regulations. If the property was fraudulently withheld, it ought to have been taken possession of for the Crown of Great Britain, and the private captors ought not to have attempted to appropriate it to themselves by setting up a title of their own. The only proper course was to take possession as salvor for the Crown, and to notify the circumstance (d).

The interest in all prizes taken by custom-house or excise vessels commissioned with letters of marque, was reserved to the Crown by the ninth section of the Prize Act, 45 Geo. 3, c. 75. That section provides, "that nothing in this act

contained shall extend or be construed to extend to entitle any person or persons to any interest in such ships or vessels, goods or merchandizes, as may be captured by any private ships or vessels of war belonging to his Majesty's Commissioners of Customs or Excise; but that the same ships or

(c) Case of ships taken at Genoa, 4 Rob. 388.

(d) The Thorshaven, Edw. 102.

vessels, goods or merchandizes so captured shall belong to his Majesty, and be applied and disposed of in such manner as his Majesty under his sign manual shall order and direct, after legal adjudication thereof." The reason for the introduction of this clause was, that these vessels used occasionally, in former wars, to provide themselves with letters of marque at their own expense. This was found, in some degree, inconvenient to the proper service in which they were employed by government. Instead of looking after petty smugglers under their public commission, they were looking after rich vessels of the enemy under their letter of marque; which entitled them to the whole benefit of such prizes, though they had been fitted out, manned and armed, not at the expense of the owners but at the expense of the government, which was thus to a certain degree defrauded of their proper services. On the breaking out of war it was deemed advisable to annoy the enemy's commerce upon their own coasts, and to intercept the return of their vessels into their own ports; and it was thought that these vessels were eminently qualified for this service from their intimate acquaintance with the coasts of France, and their experience in that navigation. The government therefore directed them to be provided with letters of marque, for the purpose of enabling them to act hostilely in the service required; but at the same time to prevent their acting without control, and with injury to their other public duty, reserved the distribution of all prizes taken by these vessels to its own discretion. Besides these purposes of public policy, which this arrangement answered, it had the additional advantage of providing a sort of general fund, out of which government might reward, at its discretion, such of them as had cruised with merit, but without success (e). The 20th section of the same act provides, that in case any ship or vessel, or any goods or merchandize shall be taken or retaken, and restored by the commander or other person having the

(e) The Helen, 3 Rob. 224.