to personal property, or movables, the title is, in general, considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession; which, as a general rule, is considered as taking place after the lapse of twenty-four hours, or after the

by the opposition of Great Britain. The next year (1857), President Buchanan directed a withdrawal of this offer of the United States. It is believed that the administration hesitated, even on the proposed terms, to abandon the right to use privateers.

As the parties to the Italian war of 1859 were all parties to the Declaration of Paris, privateers were not employed by them.

In the Mexican war, the United States issued no letters of marque. Mexico issued them; but they were not taken up by foreigners, on account of the repressive legislation and treaties of foreign powers. England, France, and other neutrals, especially prohibited their subjects from engaging in the war. By treaties between the United States and the powers of Spain, Prussia, Sweden, and the Netherlands, the subjects of either, found cruising as privateers against the other, when their respective countries were at peace, might be treated as pirates; and the United States had provided for the trial and punishment of subjects of powers making such treaties found so engaged. (U. S. Laws, ix. 175.)

When the civil war in the United States was imminent, and after the rebellion had organized a government, Earl Russell sought to obtain the accession of what appeared to be the coming sovereignty, to the Declaration of Paris; but the rebel government, by the proclamation of Jefferson Davis of April 17, 1861, offered letters of marque to subjects of all countries. Immediately upon the commencement of hostilities, and a few days after the proclamation by the President of the United States of a blockade of all the ports of the rebel coast, Mr. Seward sent an offer of the United States to the great powers to accede to the Declaration of Paris as it stood, without waiting for the previously proposed amendment to be adopted by all the powers. After a long correspondence between Mr. Seward, Mr. Adams, Lord Russell, Mr. Dayton, and M. Thouvenel, from which it appeared that France and Great Britain would act together, and which developed several technical difficulties, Lord Russell at last agreed to separate conventions of Great Britain and France with the United States, adopting the four points of the Declaration of Paris; adding, however, in his letter to Mr. Adams (of July 31, 1861), these words: “I need scarcely add, that, on the part of Great Britain, the engagement will be prospective, and will not invalidate any thing already done." The United States Government requesting an explanation of this sentence, Lord Russell transmitted the following form of declaration to be made by Great Britain on signing the convention: "In affixing his signature to the convention of this day between Her Majesty the Queen of Great Britain and Ireland, and the United States of America, the Earl Russell declares, by order of Her Majesty, that Her Majesty does not intend thereby to undertake any engagement which shall have any bearing, direct or indirect, on the internal differences now prevailing in the United States." The United States Government declined to make a convention with this ex parte declaration attached, and Great Britain declined to proceed without it: so the project of the accession of the United States to the declaration fell through. (Earl Russell to Mr. Adams, Aug. 19, 1861. Mr. Adams to Mr. Seward, Aug. 30, 1861. Mr. Adams to Earl Russell, Aug. 23, 1861. Mr. Seward to Mr. Adams, Sept. 7, 1861.)

Earl Russell, in a letter to Mr. Adams of Aug. 28, 1861, explains the purpose of Great Britain in making the special declaration. It was this: As Great Britain has

booty has been carried into a place of safety, infra præsidia of the captor. (a) Recaptures and

§ 360. As to ships and goods captured at sea, and salvage. afterwards recaptured, rules are adopted somewhat different from those which are applicable to other personal property. These rules depend upon the nature of the different classes of cases to which they are to be applied. Thus, the recapture may be made either from a pirate; from a captor, clothed with a lawful commission, but not an enemy; or, lastly, from an

enemy.

Recaptures from pirates.

§ 361. 1. In the first case, there can be no doubt the property ought to be restored to the original owner; for as pirates have no lawful right to make captures, the property has not been divested. The owner has merely been deprived of his possession, to which he is restored by the recapture. For the

acknowledged belligerent rights in the Confederacy, and the Confederacy was not a party to the Declaration of Paris, Great Britain must, in consistency, regard the Confederate privateers as lawful belligerents; while the United States, claiming sovereign jurisdiction over the Confederacy, and that all its inhabitants were subject to the laws and treaties of the United States, might argue that the parties to the declaration would be bound, after the accession of the United States, to treat the privateers of the so-called Confederate States as pirates.

Mr. Seward and Mr. Adams replied, that the United States were not willing to agree to a special restriction, by one power, of a declaration of so general and lasting a character, and to which so many were parties, and as to which there was no mutuality proposed in case of civil dissensions in the dominions of the other powers. (U.S. Dip. Corr. 1861.)

In the civil war, Congress authorized the President to issue letters of marque; but he did not make use of the power. The rebel government offered its letters of marque; but, as nearly all the maritime powers had warned their subjects that if they served in privateers in the war, their governments would not interfere to protect them, and as the United States had threatened to treat such persons as pirates, and the naval power of the United States was formidable, no avowedly foreign private armed vessels took letters of marque; and the ostensibly Confederate vessels were commissioned as of its regular navy. Mr. Seward instructed Mr. Adams to say to Lord Russell, that, if the United States made use of privateers under the act, it would be only to suppress the piracy of European gunboats fitted out and sent from their ports, in disregard of their obligations to the United States, to prey upon American commerce. (Letter of July 12, 1862: U. S. Dip. Corr. 1862, p. 135.) The provisions in the treaties of 1794 with Great Britain, and of 1778 with France, that the subjects of either, serving as privateers against the other, when the respective nations were at peace, might be treated as pirates, have expired; and they have not been renewed in the later treaties.] — D.

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 3; cap. 9, § 14. Klüber, Droit des Gens Moderne de l'Europe, § 254. Vattel, Droit des Gens, liv. iii. ch. 13, § 196; ch. 14, § 209. Heffter, Europ. Völker. § 136.

service thus rendered to him, the recaptor is entitled to a remuneration in the nature of salvage. (a)

Thus, by the Marine ordinance of Louis XIV., of 1681, liv. iii. tit. 9, des Prises, art. 10, it is provided, that the ships and effects of the subjects or allies of France, retaken from pirates, and claimed within a year and a day after being reported at the Admiralty, shall be restored to the owner, upon payment of one third of the value of the vessel and goods, as salvage. And the same is the law of Great Britain, but there is no doubt that the municipal law of any particular State may ordain a different rule as to its own subjects. Thus the former usage of Holland and Venice gave the whole property to the retakers, on the principle of public utility; as does that of Spain, if the property has been in the possession of the pirates twenty-four hours. (b)

of Valin and

§ 362. Valin, in his commentary upon the above article Opinions of the French Ordinance, is of opinion that if the recap- Pothier. ture be made by a foreigner, who is the subject of a State, the law of which gives to the recaptors the whole of the property, it could not be restored to the former owner: and he cites, in support of this opinion, a decree of the Parliament of Bordeaux, in favor of a Dutch subject, who had retaken a French vessel from pirates. (a) To this interpretation Pothier objects that the laws of Holland having no power over Frenchmen and their property within the territory of France, the French subject could not thereby be deprived of the property in his vessel, which was not divested by the piratical capture according to the law of nations, and that it ought consequently to be restored to him upon payment of the salvage prescribed by the ordinance. (b)

Under the term allies in this article are included neutrals; and Valin holds that the property of the subjects of friendly powers, retaken from pirates by French captors, ought not to be restored to them upon the payment of salvage, if the law of their own country gives it wholly to the retakers; otherwise there would be a

(a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9, § 17. Loccenius, de Jur. Marit. lib. ii. ch. 2, No. 4. Brown's Civ. and Adm. Law, ii. ch. 8, 461. "Ea quæ piratæ nobis eripuerunt, non opus habent postliminio; quia jus gentium illis non concedit, ut jus dominii mutari possint." Dig. de Capt. et Postl. revers.

(b) Grotius par Barbeyrac, liv. iii. ch. 9, § 16, No. 1, and note.

(a) Valin, Comm. sur l'Ord. liv. iii. tit. 9, art. 10.

(b) Pothier, Traité de Propriété, No. 101.

defect of reciprocity, which would offend against that impartial justice due from one State to another. (e) 174

of neutral

property.

Recapture § 363. 2. If the property be retaken from a captor clothed with a lawful commission, but not an enemy, there would still be as little doubt that it must be restored to the original owner. For the act of taking, being in itself a wrongful act, could not change the property, which must still remain in him.

If, however, the neutral vessel, thus recaptured, were laden with contraband goods destined to an enemy of the first captor, it may, perhaps, be doubted whether they should be restored, inasmuch as they were liable to be confiscated as prize of war to the first captor. Martens states the case of a Dutch ship, captured by the British, under the rule of the war of 1756, and recaptured by the French, which was adjudged to be restored by the Council of Prizes, upon the ground that the Dutch vessel could not have been justly condemned in the British prize courts. But if the case had been that of a trade, considered contraband by the law of nations. and treaties, the original owner would not have been entitled to restitution. (a)

No salvage for the

§ 364. In general, no salvage is due for the recapture recapture of of neutral vessels and goods, upon the principle that bona fide neutrals. the liberation of a bona fidei neutral from the hands of the enemy of the captor is no beneficial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitution of the property thus unjustly seized.

The case

of The Statira.

§ 365. It was upon this principle that the French Council of Prizes determined, in 1800, that the American ship Statira, captured by a British, and recaptured by a French

(c) Valin, Comm. sur l'Ord. liv. iii. tit. 9, art. 10.

[174 Hautefeuille, Droits des Nat. Neutr. tom. iv. p. 427. Acts 13 & 14 Victoria, ch. 26, 27; and 17 & 18 Victoria, ch. 19, 78; and 27 & 28 Victoria, § 40. In the United States, recaptures from pirates are restored to the owners, subject to salvage; but the amount of salvage in such cases is not regulated by a fixed rule, but left to the discretion of the court, upon the circumstances of each case, unless under treaty stipulations. (U. S. Laws, xii. 314.) As to recaptures in war, see note 175, infrà, on Recaptures.]—D. (a) Martens, Essai sur les Prises et les Reprises, § 52. "Sa majesté a jugé pendant la dernière guerre, que la reprise du navire neutre faite par un corsaire Français (lorsque le navire n'était pas chargé de merchandises prohibées, ni dans le cas d'être confisqué par l'ennemi) était nulle." Code des Prises, an 1784, tom. ii.

cruiser, should be restored to the original owner, although the cargo was condemned as contraband or enemy's property. The sentence of the court was founded upon the conclusions of M. Portalis, who stated that the recapture of foreign neutral vessels by French cruisers, whether public ships or privateers, gave no title to the retakers. The French prize code only applied to French vessels and goods recaptured from the enemy. According to the universal law of nations, a neutral vessel ought to be respected by all nations. If she is unjustly seized by the cruisers of any one belligerent nation, this is no reason why another should become an accomplice in this act of injustice, or should endeavor to profit by it. From this maxim it followed as a corollary that a foreign vessel, asserted to be neutral, and recaptured by a French cruiser from the enemy, ought to be restored on due proof of its neutrality. But, it might be asked, why treat a foreign vessel with more favor in this case than a French vessel? The reason was obvious. On the supposition on which the regulations relating to this matter were founded, the French ship fallen into the hands of the enemy would have been lost for ever, if it had not been retaken; consequently the recapture is a prize taken from the enemy. If the case, however, be that of a foreign vessel, asserted to be neutral, the seizure of this vessel by the enemy does not render it ipso facto the property of the enemy, since its confiscation has not yet been pronounced by the competent judge; until that judgment has been pronounced, the vessel thus navigating under the neutral flag loses neither its national character nor its rights. Although it has been seized as prize of war, it may ultimately be restored to the original owner. Under such circumstances, the recapture of this vessel cannot transfer the property to the recaptor. The question of neutrality remains entire, and must be determined, before such a transmutation of property can take place. Such was the language of all public jurists, and such was the general usage of all civilized nations. It followed that the vessel in question was not confiscable by the mere fact of its having been captured by the enemy. Before such a sentence could be pronounced, the French tribunal must do what the enemy's tribunal would have done; it must determine the question of neutrality; and that being determined in favor of the claimant, restitution would follow of course. (a)

(a) Décision relative à la prise du navire le Statira, 6 Thermidor, an 8, pp. 2–4.