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 dif ferent 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.

Recap

tures 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. 3, 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.

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.