Elements of International Law

one sixth salvage: provided that the nation to which such property belongs has adopted, or agrees to adopt, a similar conduct towards Spain. The ancient rule is preserved as to recaptures of Spanish property; it being restored without salvage, if recaptured by a king's ship before or after twenty-four hours' possession; and if recaptured by a privateer within that time, upon payment of one third for salvage; if recaptured after that time, it is condemned to the recaptors. The Spanish law has the same provisions with the French in cases of captured property becoming derelict, or reverting to the possession of the former owners by civil salvage.179 § 376. Portugal adopted the French and Spanish law Portuguese of recaptures, in her ordinances of 1704 and 1796. But law. in May, 1797, after The Santa Cruz was taken, and before the judgment of the English High Court of Admiralty was pronounced in that case, Portugal revoked her former rule by which twenty-four hours' possession by the enemy divested the property of the former owner, and allowed restitution after that time, on salvage of one eighth, if the capture was by a public ship, and one fifth if by a privateer. In The Santa Cruz and its fellow cases, Sir W. Scott distinguished between recaptures made before and since the ordinance of May, 1797; condemning the former where the property had been twenty-four hours in the enemy's possession, and restoring the latter upon payment of the salvage established by the Portuguese ordinance.

§ 377. The ancient law of Holland regulated restitu- Dutch law. tion on the payment of salvage at different rates, accord

ing to the length of time the property had been in the enemy's possession. (a) 180

§ 378. The ancient law of Denmark condemned after Danish twenty-four hours' possession by the enemy, and restored law. if the property had been a less time in the enemy's possession,

[179 Phillimore (iii. § 412) gives in detail the Spanish ordinances, presenting some features not noticed in the text. He considers the Spanish law to place recaptures from pirates substantially on the same ground with recaptures from enemies. The treaty between England and Spain of 3d February, 1814, provides for a salvage of one-eighth to a public ship, and one-sixth to a privateer, and seems to require restoration in all cases, without reference to lapse of time, but not of vessels which the enemy has set forth as vessels of war.] - D.

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

[18) For the history and particulars of the rules of the States General on this subject, see Phillimore, iii. § 413. Recueil van Zeezaken, D. 3, p. 348. De Martens, Essai, p. 204, § 68; p. 117, § 66.]—D.

upon payment of a moiety of the value of salvage. But the ordinance of the 28th March, 1810, restored Danish or allied property without regard to the length of time it might have been in the enemy's possession, upon payment of one third the value.181 Swedish § 379. By the Swedish ordinance of 1788, it is provided, that the rates of salvage on Swedish property shall be one half the value, without regard to the length of time it may have been in the enemy's possession.182

law.

constitutes

forth as a

vessel of

act.

What § 380. What constitutes a setting forth as a vessel of a "setting war, has been determined by the British Courts of Prize, in cases arising under the clause in the act of Parliawar," under ment, which may serve for the interpretation of our own the prize law, as the provisions are the same in both. Thus it has been settled, that where a ship was originally armed for the slavetrade, and after capture an additional number of men were put on board, but there was no commission of war, and no additional arming, it was not a setting forth as a vessel of war under the act. (a) But a commission of war is decisive if there be guns on board. (b) And where the vessel, after the capture, has been fitted out as a privateer, it is conclusive against her, although when recaptured, she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no further, but considered the title of the former owner for ever extinguished. (c) Where it appeared that the vessel had been engaged in the military service of the enemy, under the direction of his minister of the marine, it was held as a sufficient proof of a setting forth as a vessel of war. (d) So where the vessel is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ it, although it be not regularly commissioned. (e) But the mere employment in the enemy's military service is not sufficient; but if there be a fair semblance of authority in the person directing

[181 But see Phillimore, iii. § 414. De Martens, Essai, pp. 200, 204, § 68. Hübner, de la Saisie, p. 11, App.]—D.

[182 Phillimore, iii. § 416. De Martens, Essai, 207, § 70; and p. 49, note g.]—D. (a) The Horatio, Robinson's Adm. Rep. vi. 320.

(b) The Ceylon, Dodson's Adm. Rep. i. 105.

(d) Robinson's Adm. Rep. iii. 65.

(e) The Ceylon, Dodson's Adm. Rep. i. 105.

the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as commander of a squadron. (ƒ)

commis

vessel.

§ 381. It is no objection to an allowance of salvage, Recapture or a recapture, that it was made by a non-commissioned by a nonvessel; it is the duty of every citizen to assist his fellow sioned citizens in war, and to retake their property out of the enemy's possession; and no commission is necessary to give a person so employed a title to the reward which the law allots to that meritorious act of duty. (a) And if a convoying ship recaptures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage. (b) But a mere rescue of a ship engaged in the same common enterprise gives no right to salvage. (c)

Military

§ 382. To entitle a party to salvage, as upon a recap- salvage for ture, there must have been an actual or constructive cap- recapture. ture; for military salvage will not be allowed in any case where the property has not been actually rescued from the enemy. (a) But it is not necessary that the enemy should have actual possession; it is sufficient if the property is completely under the dominion of the enemy. (b) If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil and not of military salvage. (c) But to constitute a recapture, it is not necessary that the recaptors should have a bodily and actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. (d) Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are not entitled to restitution on paying salvage, but the last captors are entitled to the whole rights of prize; for, by the first recapture,

(f) The Georgiana, Dodson's Adm. Rep. i. 397. (a) The Helen, Robinson's Adm. Rep. iii. 224. (b) The Wight, Robinson's Adm. Rep. vi. 315.

(a) The Franklin, Robinson's Adm. Rep. iv. 147.

(b) The Edward and Mary, Robinson's Adm. Rep. iii. 305. The Pensamento Felix, Edwards's Adm. Rep. i. 116.

(d) The Edward and Mary, Robinson's Adm. Rep. iii. 305.

the right of the original captors is entirely divested. (e) Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property. (f) But if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived. (g) And where the enemy has captured a ship, and afterwards deserted the captured vessel, and it is then recaptured, this is not to be considered as a case of derelict; for the original owner never had the animus delinquendi, and therefore it is to be restored on payment of salvage; but as it is not strictly a recapture within the Prize Act, the rate of salvage is discretionary. (h) But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the act. (i) Where the captors abandon their prize, and it is afterwards brought into port by neutral salvors, it has been held, that the neutral Court of Admiralty has jurisdiction to decree salvage, but cannot restore the property to the original belligerent owners; for by the capture, the captors acquired such a right of property as no neutral nation can justly impugn or destroy, and, consequently, the proceeds, (after deducting salvage,) belong to the original captors; and neutral nations ought not to inquire into the validity of a capture between belligerents. () But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled to a remuneration as salvors; but after deducting salvage, the remaining proceeds will be decreed to the original owner. (k) And it seems to be a general rule, liable to but few exceptions, that the rights of capture are completely divested by a hostile recapture, escape, or voluntary discharge of the captured vessel. (7) And the same principle seems applicable to a hostile rescue; but

(e) Robinson's Adm. Rep. iv. 217, note a. Wheaton's Rep. i. 125, The Astrea. Valin, sur l'Ord. tom. ii. pp. 257-259. Traité des Prises, ch. 6, § 1. Pothier, Traité de la Propriété, No. 99.

(ƒ) The Lord Nelson, Edwards's Adm. Rep. i. 79. The Diligentia, Dodson's Adm. Rep. i. 404.

(g) The Mary, Wheaton's Rep. ii. 123.

(h) The John and Jane, Robinson's Adm. Rep. iv. 216.

(i) The Gage, Robinson's Adm. Rep. vi. 273.

(j) The Mary Ford, Dallas's Rep. iii. 188.

(k) The Adventure, Cranch's Rep. viii. 227.

(1) Hudson v. Guestier, Cranch's Rep. iv. 293; Ib. vi. 281, S. C. The Diligentia, Dodson's Adm. Rep. i. 404.

if the rescue be made by the neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which involves the penalty of confiscation, would be held, in the prize courts of the captor's country, to divest his original right in case of a subsequent recapture.1

183

[183 Rescue by Neutrals. - The law respecting rescue by neutrals has received full consideration in the late case of the ship Emily St. Pierre. This was a British vessel, captured by the United States blockading squadron, in the act of breaking the blockade of Charleston, S.C., and ordered to Philadelphia for adjudication in charge of a prize crew. The original crew, by fraud and force, regained possession, and took the vessel to Liverpool and restored her to the possession of her owners. Mr. Adams applied to Earl Russell for a restoration of the vessel, on the ground that the rescue was a violation of the law of nations, which furnished sufficient cause for condemnation, and a breach of the duty of a neutral, who is bound to submit to the adjudication of the prize court of the captor. Earl Russell refused the demand on two grounds,- first, that, as the rescue was not a violation of any municipal law of England, and as the vessel was not in the custody of the British Government, that government had no legal right to take her from the hands of her owners, or to prosecute or proceed against the vessel or the owners for any violation of law; and second, that, in addition to the technical objection, the offence was solely one against the laws of war made for the benefit of captors, which the captors could assert and vindicate only in their own tribunals. Admitting that rescue was ground for condemnation, he contended that the decree could only be made by the belligerent prize court. No other court, either of the belligerent or of a neutral country, had jurisdiction to condemn or restore property taken in war. If the private neutral rescues his vessel by force, he takes all risks of the captor's rights of force recognized by nations, but nothing more. The courts and government of the neutral country cannot decide that the title to the vessel has passed to the captors before condemnation by the prize courts of the captor's country. All they can do is to restore to the captor the temporary possessory right, which he has between capture and condemnation. Such possessory right he held to be one of force, which the captor's government could guard and assert by condemnation or other penalty on the property, if in its possession, through its prize court; but, even by the courts of the captor, the neutral rescuer could not be personally punished, as for a crime. He contended that it was not incumbent on neutral governments to make laws to enforce such belligerent possessory rights against their own citizens, any more than it is in case of crimes committed by their own citizens abroad, whom they do not even deliver up to the offended government for trial, except by treaty stipulation; or in case of violations of the revenue or embargo laws of other countries, which they never even indirectly take active cognizance of; or in case of successful breach of blockade.

In the course of the correspondence, Mr. Adams cited a parallel case, in which the position of the two governments was reversed, as early as 1799, that of the brig Experience. She was an American vessel, captured (with two other vessels) by a British cruiser, rescued by her crew, and brought to Philadelphia. By direction of Lord Grenville, of Oct. 21, 1799, Mr. Liston demanded her restoration by the American Government, by letter of May 2, 1800. The Secretary of State, Mr. Pickering, by letter to Mr. Liston, of May 3, 1800, declined to interfere, and upon the ground that it was an inchoate and belligerent right of captors, which the neutral government cannot be expected to enforce against its own subjects; but referred the British Min

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