on the part of the recaptor, and as a right which may be demanded by the owner of the recaptured property, it seems unreasonable and contrary to the principles of postliminy, that any heavy salvage should be allowed. Where, however, a positive benefit has been conferred, it is proper that the recaptor should be rewarded for his risk and trouble. Moreover, this remuneration should be sufficient to serve as an incentive to vessels of the belligerent to use their best endeavours to rescue from an enemy the property which he has captured from their own citizens and allies, as well as from alien friends. Such views seem to have influenced the drawing of the statutes of the United States, on the allotment and quantum of salvage in cases of recapture by American vessels.'

§ 21. There is an obvious distinction between military and civil salvage, the former being allowed for rescuing vessels or goods from an enemy, and the latter for assistance rendered to a vessel or its cargo derelict at sea. Thus, if 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. The same salvors, however, may, in some cases, be entitled to both these kinds of salvage; thus, where, upon a recapture, the parties have entitled themselves to a military salvage under the prize law, the court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary services in rescuing the vessel in distress from the perils of the sea.2

§ 22. The following special rules respecting military salvage, are collected by Mr. Wheaton, from the decisions of English and American courts of prize. If a convoying ship

1 Chitty, Law of Nations, pp. 105-107; the Two Friends,' 1 Rob. 271; the Johann,' 1 Rob. 38; U. S. Statutes at Large, vol. ii. p. 16; Brightly, Digest of Laws of U. S., p. 82; Dunlop, Digest of Laws of U. S., pp. 271-273.

There is no uniform rule among nations, as to the time when recaptured property vests in captors, to the exclusion of the owners. Nations concur in principle, indeed, so far as to require firm and secure possession, but the rules of evidence respecting the possession are not uniform. The law of England, on recapture of property of allies, is the law of reciprocity. It adopts the rule of the country to which the claimant belongs. In the event of that country having no rule thereon, the Court of Admiralty would apply to the case, the law of England on recapture, as between its own subjects.-The 'Santa Cruz,' 1 Rob., 60.

2 The Louisa,' 1 Dod. R., 317; the Franklin,' 4 Rob., 147; the Sir Francis,' 2 Hagg. R., 156; the 'Sir Peter,' 2 Dod. R., 73; the 'Beaver,' 3 Rob., 292.

recaptures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage; but a mere rescue of a ship engaged in the same common enterprise, gives no right to salvage. Military salvage will not be allowed in any case where the property has not been actually rescued from the enemy. It is not necessary that the enemy should have actual possession; it is sufficient if the property is completely under his dominion; nor is it necessary that the recaptors should have actual possession; it is sufficient if the prize be actually rescued from the grasp of the hostile captor. Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are entitled to restitution on paying salvage, but the last captors are entitled to the whole rights of prize, for by the first recapture, the right of the original captors is entirely divested. Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property. 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. Where the original captor abandons his prize, whether voluntarily or through terror, and it is then recaptured, it is restored on payment of salvage, for the original owner never had the animus delinquendi. As to recaptors, although their right of salvage is extinguished by a subsequent hostile recapture, and regular sentence of condemnation, divesting the original owners of their property, yet if the vessel be restored upon such recapture, and resume her voyage, either in consequence of judicial acquittal, or a release by the sovereign power, the recaptors are reintegrated in their right of salvage. And recaptors and salvors have a legal interest in the property, which cannot be divested by other subjects, without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, on the ground of superior authority, to dispossess them without cause. In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the court, as well upon recaptures as in other cases.1

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 12; the Wight,' 6 Rob., 315; the Belle,' 1 Edwards R., 66; the 'Franklin,' 4 Rob., 147; the

$ 23. If the original capture was unlawful, the recaptor, says Emerigon, acquires no property in the recapture. Thus, the French bark Victoire,' chased by an English privateer, took refuge under the castle of the island of Majorca, and was taken by the privateer while at anchor within pistol shot of the castle. Some days after, the bark was recaptured by another French vessel. The original capture was held to have been unlawful and void, for having been made in neutral territory, and consequently, in violation of the law of nations. The recaptor, however, received a large salvage for the recapture, probably as a fair compensation for his trouble, time, danger and expense in the rescue. This principle is applied to the recapture of neutral property, that is, of property neutral to both of the belligerents. If the original capture was a violation of the law of nations, the recaptors from the possession of the enemy acquire no right of property whatsoever. This is the universally received doctrine of the law of nations. 'A belligerent,' says Story, 'by recapturing neutral property, (neutral to all the belligerents) has done no meritorious service, and is not entitled even to any salvage. Nay, the recaptors may be held responsible in damages for the act, unless there was a real danger of condemnation to the neutral by the original captors, from their lawless disregard of the law of nations; and, if there was such danger, then the recaptors are entitled to salvage only.''

1

'Edward and Mary,' 3 Rob., 305; the 'Pensamento Felix,' I Edw. R., 116; the Astrea,' 1 Wheat. R., 125; the 'Lord Nelson,' 1 Edw. R., 79; the Diligentia,' 1 Dod. R., 404; the 'Mary,' 2 Wheat. R., 123; the 'John and Jane,' 4 Rob., 216; the Gage,' 6 Rob., 273; the 'Charlotte Caroline,' I Dod. R., 192; the 'Blendenhall,' 1 Dod. R., 414; the 'Apollo,' 3 Rob. R., 308; Talbot v. Seaman, 1 Cranch. R., 1; the 'Barbara,' 3 Rob., 171; the Helen,' 3 Rob., 224; the 'Polly,' 4 Rob., 227, note; the Mary Ford,' 3 Dallas R., 188; the Adventurer,' 8 Cranch. R., 327; 1 Wheat. R., 128, note; Hudson v. Guestier, 4 Cranch. R., 293; 6 Cranch. R., 281; the 'Louisa,' 1 Dod. R., 317; the 'Sedulous,' 1 Dod. R., 253.

1 Emerigon, Traité des Assurances, ch. xii. § 23; Story, Miscell. Writings, p. 580 et seq. ; Valin, Com. sur l' Ordonnance, art. viii. tit. ‘Des prises; Merlin, Répertoire, verb. ‘Prise Maritime,' § 3, art. iv.; Miller v. the 'Resolution,' 2 Dallas R., 1; Talbot v. Seaman, 1 Cranch. R., I; the War Ouskan,' 2 Rob., 299; Bello, Derecho Internacional, pt. ii. cap. v. $7.

If a ship be taken by letters of marque, and be not brought infra præsidia of that State by whose subjects it was taken, it is no lawful prize, and the property is not altered, and therefore a sale in such a case is void.-Anon. 6 Vin. Abr., 519.

§ 24. Emerigon discusses at considerable length the effect of a recapture of the ransom bill and hostage. Is the recaptor entitled to retain the hostage, and to demand the price of the ransom? A privateer out of Guernsey which had ransomed a French bark coming from Bayonne, was afterwards taken, with the hostage and ransom bill on board, by the French corvette 'Amaranthe.' The admiral declared the prize good, and decreed the ransom to the king, who, by his ordonnance, annulled the bill and discharged the owners of the bark from the payment of the ransom. Valin maintains that the ransom bill and hostage represent, each separately and in solido, the ransomed vessel; so that the recapture of the privateer with one or the other on board, suffices to deprive her of all claim and title under the ransom bil, and transfers her rights to a new owner. But, if the privateer has remitted the bill to her owner, and at the same time sent the hostage on shore, the owner will then be entitled to payment of the ransom money, although the privateer should be afterwards taken. Emerigon quotes Olea to prove, that the ransomed bill is neither the vessel ransomed nor the ransom itself-that, although proof of the obligation, it is not the obligation itself. With respect to the hostage, he cannot become a prisoner of war to his own countrymen. He, therefore, is of opinion that the ransom bill captured in this case is valueless, and that the hostage recovers his liberty. The rights of the enemies' privateer have vanished with his defeat; and the French privateer has no claim beyond the actual booty he has made. But if the ransom bill was accompanied by a bill of exchange drawn by the captain of the ransomed vessel, and this bill has been negotiated in good faith to the order of a third party for value received, it is to be paid by the owners of the ransomed vessel, notwithstanding the liberation of the hostage found on board of the captured privateer.1

$25. The same author discusses the question of recapture of a vessel by her own crew. He says that those who throw off the yoke of an enemy, simply re-enter into all their rights, and recover their first condition. That, it being the duty of the captain and crew of a captured vessel to retake her, when

1

Emerigon, Traité des Assurances, ch. xii. § 23; Valin, Traité des Prises, ch. xi. §§ 2, 3; Dalloz, Répertoire, verb. Prises Maritimes,' § 3; De Cussy, Droit Maritime, liv. iii. tit. iii. §§ 29, 30.

possible, they cannot claim her by the right of recovery when so retaken. By throwing off the yoke of the captor, they have merely rendered themselves master of their own vessel, and re-entered upon their former rights, but have acquired no new rights of property in the recovered vessel or cargo. But, in a case decided in the British Court of Admiralty, large salvage was decreed for such recapture. The circumstances, however, were somewhat peculiar, and perhaps formed an exception to the general rule. The vessel was American, a portion of the crew were British seamen, working their passage home. They assisted in recapturing the vessel from the enemy, and were allowed salvage on the property brought into a British port, it being held that, under the circumstances, it was no part of their duty as seamen to attempt the recapture, and that they would not have been guilty of desertion if they had declined it. The act of recapture was, therefore, on their part, a voluntary act.1

§ 26. Captures by pirates being unlawful, no title can properly rest either in the captors or their vendees, and, in case of recapture, the original owner is, on principle, entitled to complete restitution. But on account of the risk incurred and benefit conferred, courts have usually allowed a pretty large salvage to the recaptors, where not regulated by municipal law. Some States have left this matter of salvage for rescue from pirates discretionary with the courts, while others have regulated it by law or ordinance. The French law of 2 Prairial, an XI, allows to the recaptor à salvage of onethird the value of the ship and cargo. The Spanish ordinance put the possession by a pirate upon the same footing as by a privateer, the title to property being changed by twenty-four hours' possession, and, consequently if recaptured after that period, no restitution could be claimed, but if before, restitution on payment of a salvage of one third the value. Such was also the former usage of Holland and Venice, which was justified on the ground of public utility, as an inducement to attack pirates. The salvage for recapture from pirates in

1 Emerigon, Traité des Assurances, ch. xii. § 25; Sirey, Recueil, etc., an. xii. pt. ii. p. 5; the Two Friends,' 1 Rob., 271.

The Barbary States were formerly considered piratical, and the same rule applied to them; but they now form an established government.— See the Helena,' 4 Rob., 3.

6