Exception § 366. To this general rule, however, an important to this rule. exception has been made, founded on the principle above quoted from the Code des Prises, in the case where the vessel or cargo recaptured was practically liable to be confiscated by the enemy. In that case, it is immaterial whether the property be justly liable to be thus confiscated according to the law of nations; since that can make no difference in the meritorious nature of the service rendered to the original owner by the recaptor. For the ground upon which salvage is refused by the general rule, is, that the prize courts of the captor's country will duly respect the obligations of that law; a presumption which, in the wars of civilized. States, as they are usually carried on, each belligerent nation is bound to entertain in its dealings with neutrals. But if, in point of fact, those obligations are not duly observed by those tribunals, and, in consequence, neutral property is unjustly subjected to confiscation in them, a substantial benefit is conferred upon the original owner in rescuing his property from this peril, which ought to be remunerated by the payment of salvage. It was upon this principle that the Courts of Admiralty, both of Great Britain and the United States, during the maritime war which was terminated by the Peace of Amiens, pronounced salvage to be due upon neutral property retaken from French cruisers. During the revolution in France, great irregularity and confusion had arisen in the prize code formerly adopted, and had crept into the tribunals of that country, by which neutral property was liable to condemnation upon grounds both unjust and unknown to the law of nations. The recapture of neutral property, which might have been exposed to confiscation by means of this irregularity and confusion, was, therefore, considered by the American and British courts of prize, as a meritorious service, and was accordingly remunerated by the payment of salvage. (a) These abuses were corrected under the consular government, and so long as the decisions of the Council of Prizes were conducted by that learned and virtuous magistrate, M. Portalis, there was no particular ground of complaint on the part of neutral nations as to the practical administration of the prize code until the promulgation of the Berlin decree in 1806. This measure occasioned the exception to the rule as to (a) The War Onskan, Robinson's Adm. Rep. ii. 299; The Eleonora Catharina, Ib. iv. 156; The Carlotta, Ib. v. 54; The Huntress, Ib. vi. 104. Talbot v. Seeman, Cranch's Rep. i. 1. S. C. Dallas's Rep. iv. 34. salvage to be revived in the practice of the British Courts of Admiralty, who again adjudged salvage to be paid for the recapture of neutral property which was liable to condemnation under that decree. (b) It is true that the decree had remained practically inoperative upon American property, until the condemnation of the cargo of The Horizon by the Council of Prizes, in October, 1807; and therefore it may perhaps be thought, in strictness, that the English Court of Admiralty ought not to have decreed salvage in the case of The Sansom, more especially as the convention of 1800, between the United States and France, was still in force, the terms of which were entirely inconsistent with the provisions of the Berlin decree. But as the cargo of The Horizon was condemned in obedience to the imperial rescript of the 18th September, 1807, having been taken before the capture of The Sansom, whether that rescript be considered as an interpretation of a doubtful point in the original decree, or as a declaration of an anterior and positive provision, there can be no doubt The Sansom would have been condemned under it; consequently a substantial benefit was rendered to the neutral owner by the recapture, and salvage was due on the principle of the exception to the general rule. And the same principle might justly be successively applied to the prize proceedings of all the belligerent powers during the last European war, which was characterized by the most flagrant violations of the ancient law of nations, which, in many cases, rendered the rescue of neutral property from the grasp of their cruisers and prize courts, a valuable service entitling the recaptor to a remuneration in the shape of salvage. § 367. 3. Lastly, the recapture may be made from an Recapture enemy. from an The jus postliminii was a fiction of the Roman law, by which persons or things taken by the enemy were held to be restored to their former state, when coming again under the power of the nation to which they formerly belonged. It was applied to free persons or slaves returning postliminii; and to real property and certain movables, such as ships of war and private vessels, except fishing and pleasure boats. These things, therefore, when retaken, were restored to the original proprietor, as if they had never been (b) The Sansom, Robinson's Adm. Rep. vi. 410. The Acteon, Edwards's Adm. Rep. i. 254. out of his control and possession. (a) Grotius attests, and his authority is supported by that of the Consolato del Mare, that by the ancient maritime law of Europe, if the thing captured were carried infra præsidia of the enemy, the jus postliminii was considered as forfeited, and the former owner was not entitled to restitution. Grotius also states, that by the more recent law established among the European nations, a possession of twentyfour hours was deemed sufficient to divest the property of the original proprietor, even if the captured thing had not been carried infra præsidia. (b) And Loccenius considers the rule of twentyfour hours' possession as the general law of Christendom at the time when he wrote. (c) So, also, Bynkershoek states the general maritime law to be, that if a ship or goods be carried infra præsidia of the enemy, or of his ally, or of a neutral, the title of the original proprietor is completely divested. (d) Rule of amicable retaliation, ty, applied to recaptures of the property of § 368. Sir W. Scott, in delivering the judgment of the English Court of Admiralty, in the case of The Santa or reciproci- Cruz and other Portuguese vessels recaptured, in 1796 and 1797, from the common enemy by a British cruiser, stated that it was certainly a question of much curiosallies. ity to inquire what was the true rule on this subject. "When I say the true rule, I mean only the rule to which civilized nations, attending to just principles, ought to adhere; for the moment you admit, as admitted it must be, that the practice of nations is various, you admit that there is no rule operating with the proper force and authority of a general law. It may be fit there should be some rule, and it might be either the rule of immediate possession, or the rule of pernoctation and twentyfour hours' possession; or it might be the rule of bringing infra præsidia; or it might be a rule requiring an actual sentence or condemnation: either of these rules might be sufficient for general (a) Inst. lib. i. tit. 12, Dig. 1. 49, tit. 15. "Navis longis atque onerariis, postliminium est, non piscatûs aut voluptatis causâ." Dig. 49. (b) "Cui consequens esse videtur, ut in mari naves, et res aliæ captæ censeantur tum demum, cùm in navalia aut portus, aut ad eum locum ubi tota classis se tenet, perducta sunt: nam tunc desperari incipit recuperatio, sed recentiori jure gentium inter Europæos populos introductum, videmus, ut talia capta censeantur ubi per horas viginti quatuor in potestate hostium fuerint." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 3. Consolato del Mare, cap. 287, § 1. Wheaton's Rep. v.; Appendix, 56. Ayala, de Jur. Bel. ac Pac. cap. 5. Wheaton's Hist. Law of Nations, 45. (c) Loccenius, de Jure Marit. lib. ii. cap. 4, § 4. (d) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. practical convenience, although in theory perhaps one might appear more just than another; but the fact is that there is no such rule of practice. Nations concur in principles, indeed, so far as to require firm and secure possession; but these rules of evidence respecting that possession are so discordant, and lead to such opposite conclusions, that the mere unity of principle forms no uniform rule to regulate the general practice. But were the public opinion of European States more distinctly agreed on any principle, as fit to form the rule of the law of nations on this subject, it by no means follows that any one nation would lie under an obligation to observe it. That obligation could only arise from a reciprocity of practice in other nations; for, from the very circumstance of the prevalence of a different rule among other nations, it would become not only lawful, but necessary to that one nation to pursue a different conduct: for instance, were there a rule prevailing among other nations, that the immediate possession, and the very act of capture should divest the property from the first owner, it would be absurd in Great Britain to act towards them on a more extended principle, and to lay it down as a general rule, that a bringing infra præsidia, though probably the true rule, should in all cases of recapture be deemed necessary to divest the original proprietor of his right. The effect of adhering to such a rule would be gross injustice to British subjects; and a rule, from which gross injustice. must ensue in practice, can never be the true rule of law between independent nations; for it cannot be supposed to be the duty of any country to make itself a martyr to speculative propriety, were that established on clearer demonstration than such questions will generally admit. Where mere abstract propriety, therefore, is on one side, and real practical justice on the other, the rule of substantial justice must be held to be the true rule of the law of nations between independent States. of Sir W. The Santa § 369. "If I am asked, under the known diversity of Opinion practice on this subject, what is the proper rule for a Scott on State to apply to the recaptured property of its allies? Cruz. I should answer, that the liberal and rational proceeding would be to apply in the first instance the rule of that country to which the recaptured property belongs. I admit the practice of nations is not so; but I think such a rule would be both liberal and just. To the recaptured, it presents his own consent, bound |