Great Britain, is also one third the value of the captured pro perty. With respect to restitution and salvage in case of the recapture from pirates of the property of alien friends, th rule of reciprocity is usually followed. Hautefeuille object to the allowance of salvage in such cases, or at least to s large a salvage as one third of the value, and refers with approbation to the treaty of 1783, between the United State and Sweden, by which it was agreed that property retake from pirates, by a ship of war or privateer, should be restore entire to the true proprietor.1

27. The rules of joint capture, given in a preceding chapter, are equally applicable to joint recapture. It is held in England, that although the Prize Act only mentions recaptures by ships and boats, it does not intend to exclude those made by the assistance of land forces. Where an island was taken by a joint naval and military force, the ships recaptured were held liable to be adjudged under this Act, and to be condemned to the captors, or to be restored on payment of salvage, as the case might be. Moreover, a land force may be entitled to sustain a claim of salvage for recapture of vessels in a maritime port, without the co-operation of a naval force, where the recapture is a necessary and immediate result of a military operation directed to the capture of the place within whose port the property is lying. Thus, where the delivery of captured English vessels resulted from the reoccupation of Oporto by the allied army under the Duke of Wellington, which was effected by military operations and a battle fought in the neighbourhood for that object, the army was held to be entitled to salvage. It was also held that this claim of salvage would attach upon property landed and warehoused by the enemy, where it remained to be reclaimed by the owners on the recapture of the place, and was resumed and returned on board as parts of the cargoes of the vessels so recaptured.2

§ 28. But a distinction is made where vessels of the same

1 Brown, Civil and Admiralty Law, vol. ii. ch. iii. p. 461; the 'Calypso,' 2 Hagg. R., 213; Pothier, Traité de Propriété, No. 101; Hautefeuille, Des Nations Neutres, tit. xiii. ch. 3; Dalloz, Répertoire, verb. 'Prises Maritimes,' § 3; De Cussy, Droit Maritime, lib. i. tit. iii. § 30.

The Ceylon,' 1 Dod. R., 116; the 'Progress,' Edw. R., 210; the 'Wanstead,' Edw. R., 268; the 'Spankler,' 1 Dod, R., 360; the 'Dorothy Foster,' 6 Roh., 88.

country are recaptured in native ports by a native army alone, or with the co-operation of allied forces. Thus, in the case of Oporto, it was held that although salvage was due for the recapture of English vessels in that port, none could be allowed for the Portuguese vessels recaptured at the same time. By the reoccupation of the port by the forces of the State, the rights of the former sovereign were restored, and his subjects were entitled to receive their property back as it stood before the irruption of the enemy. The whole would revert instantly to the former owners, on the well-established principle of postliminy. The history of the world has produced no instance in which a claim of salvage for the rescue of a capital city, by the native army, has been made and allowed, and, therefore, on principle and practice, the claim is not sustainable. That is the state of the transaction in its simplest form. But, suppose allies to be co-operating with the native army in the recapture, in that case the army coming as allies, and associated with the native army, compose part of the same body; they are pursuing the same objects, and stand in every respect on the same footing; they would have the same rights and no more, and the proportion of force can make no difference. The whole together must be considered as one army in every respect, where native property is concerned; and if the native army would not be entitled to salvage, the armies of the allies can claim none."1

1

Heffter, Droit International, § 187 et seq.; Wildman, Int. Law, vol. ii. p. 288; the Progress,' Edw. R. 219.

541

APPENDIX.

No. I.

FOREIGN ENLISTMENT.

33 and 34 Vict. c. 90. An Act to regulate the conduct of Her Majesty's subjects during the existence of hostilities between foreign States with which Her Majesty is at peace. [9th August, 1870]

Whereas it is expedient to make provisions for the regulation of the conduct of Her Majesty's subjects during the existence of hostilities between foreign States with which Her Majesty is at peace; Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords, spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows ::

PRELIMINARY.

1. This Act may be cited for all purposes as 'The Foreign Enlistment Act, 1870.'

2. This Act shall extend to all the dominions of Her Majesty including the adjacent territorial waters.

3. This Act shall come into operation in the United Kingdom immediately on the passing thereof, and shall be proclaimed in every British possession by the Governor thereof as soon as may be after he receives notice of this Act, and shall come into operation in that British possession on the day of such proclamation, and the time at which this Act comes into operation in any place is, as respects such place, in this Act referred to as the commencement of this Act.

ILLEGAL ENLISTMENT.

4. If any person, without the licence of Her Majesty, being a British subject, within or without Her Majesty's dominions, accepts or agrees to accept any commission or engagement in the military or naval service of any foreign State at war with any foreign State at peace with Her Majesty, and in this Act referred to as a friendly State, or whether a British subject or not within Her Majesty's dominions induces any other person to accept or agree to accept any commission or engagement in the military or naval service of any

such foreign State as aforesaid,-He shall be guilty of an offence against this Act and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour.

5. If any person, without the licence of Her Majesty, being a British subject, quits or goes on board any ship with a view of quitting Her Majesty's dominions, with intent to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State, or, whether a British subject or not, within Her Majesty's dominions, induces any other person to quit or go on board any ship with a view of quitting Her Majesty's dominions with the like intent, He shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour.

6. If any person induces any other person to quit Her Majesty's dominions or to embark on any ship within Her Majesty's dominions under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State,-He shall be guilty of an offence against this Act, and shall be punishable by fine and imprisonment, or either of such punishments, at the discretion of the court before which the offender is convicted; and imprisonment, if awarded, may be either with or without hard labour.

7. If the master or owner of any ship, without the licence of Her Majesty, knowingly either takes on board, or engages to take on board, or has on board such ship within Her Majesty's dominions, any of the following persons, in this Act referred to as illegally enlisted persons, that is to say,—

(1) Any person who, being a British subject within or without the dominions of Her Majesty, has, without the license of Her Majesty, accepted or agreed to accept any commission or engagement in the military or naval service of any foreign State at war with any friendly State;

(2) Any person, being a British subject, who, without the license of Her Majesty, is about to quit Her Majesty's dominions with intent to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State;

(3) Any person who has been induced to embark under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign State at war with a friendly State ; Such master or owner shall be guilty of an offence against this Act, and the following consequences shall ensue; that is to say,

(1) The offender shall be punishable by fine and imprison