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§ 142.

cap

Ransom of tured vessels.

It may, for various reasons, be inconvenient to send a prize into a port, and a captor so situated will be apt, if permitted, to let the prize go free again for less than its worth. For these reasons, and in accordance with the practice of ransom formerly so common on the land, it began to be, about the end of the seventeenth century, the custom to allow captors to liberate a captured vessel on an engagement to pay a certain ransom. The receipt for the ransom is of the nature of a passport or safe-conduct, and contains a permission good against all cruisers of the belligerent or his ally, to pursue a certain voyage. Only in cases of necessity can the route and time laid down be departed from without violating the contract. tract insures against molestation from other cruisers, but not against other kinds of hazard, and the ransom would still be binding, if nothing were said to the contrary, in case the vessel perished by the perils of the seas.

The con

As it is difficult to enforce the payment of ransom during Hostages to secure War, the custom has prevailed, more or less, to the ransom. deliver over to the captor hostages, who might be detained until the liquidation of the contract, and whose expenses were provided for in the ransom-bill. The hostage being only collateral security, his death or flight cannot release from the contract. If the master or owners refuse to fulfil their stipulation, the hostage's remedy lies in an appeal to the courts of the captor's or owner's country.

If a ransomed vessel is captured out of its course and condemned, the ransom is deducted from the proceeds of the vessel, and only the remainder goes to the second captor. If the captor's vessel is recaptured, with the ransom contract, or with the hostages, or with both on board, there is held to be a complete end to all claim for payment. If, on the other hand, the captor's vessel is taken after putting the ransom-bill and hostage in a place of safety, the contract continues unimpaired : nay, it is held so to continue, if the captor's vessel is taken, and the securities for the payment of ransom are concealed so as not to come into the actual possession of the second captor. And, again, when a captor's vessel was captured with the hostage and ransom-bill on board, in which there was an agreememt that payment should be binding notwithstanding such second capture, the English courts decided that the first captor, being an alien, could not by their laws bring a suit for the recovery of

1 So Wildman, ii. 273, after Valin. But why, if the first captor had transmitted the bill, retaining the hostage, who is only a collateral security, should not his claim be still good?

But in this case the hostage

a right acquired in actual war. might sue, or in case of his death, the captor after the end of the war.1

The master of a vessel being an agent for the owners, they are bound by his act, when not fraudulent nor contrary to usage. But if the ransom should exceed the value of ship and cargo, it is held that the owners by surrendering these may be free from obligation.

A ransom contract is valid under the law of nations, although made in war, since it contemplates a state of war which it seeks to mitigate. Nevertheless no nation is bound to allow its citizens to give or receive ransom-bills. By a French ordinance of 1756, privateers were forbidden to ransom a vessel until they had sent three prizes into port. The power of granting ransom has been taken away by acts of parliament from English cruisers, except in extreme cases to be allowed by the courts of admiralty. The reason alleged for this legislation is that captors might abuse their power of ransoming vessels and injure neutral trade. (Note 14.)

§ 143.

Recapture.

Rights of the

original owner.

If according to the received right of war a thing taken from the enemy becomes the property of the captor, it ought when retaken to become the property of the second captor. But since the captor's right comes to him from the state, the state may decide how far he shall be rewarded, if at all, for his risks and labour in retaking what had belonged to a fellow-subject. It seemed inequitable that the original owner should wholly lose his right to what had been recently his own, while the recaptor, an inhabitant of the same or of a friendly country, at the end of two acts of violence, came into possession of the same property. And yet policy as well as justice should hold out a prospect of reward for a recapture which the cruiser would otherwise be apt to shrink from, and which brought with it its hazards. We are led then to the questions when and how far the rights of the original owner revert to him, and to the right of salvage or the premium granted for recapture. And as the return of property to its first owner appears in the shape of the Roman doctrine of postliminy, it is necessary to explain briefly what the Roman postliminy was, and how it differs from that which is known to modern international law.

By ancient jus gentium all things seized by the enemy became his property, and thus free persons became Jus postliminii. slaves. The Romans regarded such a person, if

a captive from among themselves, as suffering capitis deminutio,

1 Wildman, ii. 275.

N

or losing his status of freedom, precisely as a foreigner would lose his, if taken by Romans. Suppose now such a person to be recaptured, or ransomed, or to have escaped, it would be hard to say what was his status on his return to Rome. To remove all difficulty the jus postliminii1 was devised, as a legal fiction, according to which he was treated as not having been away, or at least as having only been absent from his threshold, and all his lost rights or rights in abeyance were restored to him. The same jus was extended so as to cover certain kinds of things captured by the enemy, namely, slaves, ships of war and transport, mules, horses, and land, which thus returned on recapture to their original owner. Postliminy had no application to civil war, where the factions were not enemies in a political sense, nor to war with pirates, because they were robbers, incapable of rights; but only to legitimate war between two states. Nor could its advantages be open to a deserter or other betrayer of his post, or to one whom the state itself had given up to the enemy. If a free person, taken in war, was ransomed by another, whose tie of relationship to the captive did not oblige him so to act, his rights seem not immediately to have reverted to him by jus postliminii on his return to Roman soil, but he continued in the relation to the ransomer not strictly of a slave, but of one whose body could be held until the ransom was paid. By a law of the later Roman empire, five years' service was equivalent to this ransom. If a slave taken by the enemy was thus ransomed, he remained under the ransomer's control until his ransom was paid by his former master. The ransomer within a certain time could not refuse to restore the slave on the offer of the ransom money, and then the jus postliminii began.2

It must be regarded as a striking illustration of the sway of Roman law over the European mind that the lawyers have taken this road to help the first owner to his property after recapture. For the application of the modern postliminy is quite different from that of the Roman. (1.) As to persons, freemen, to whose status it applied by Roman law more than to anything else, do not lose their status in modern times by captivity in war. They are absent, like travellers or merchants, and their rights and obligations go on, as far as personal presence is not necessary for their exercise. It is true, indeed, that a prisoner of war escaping from a vessel in a neutral port, is protected against re

1 Probably from post in the sense behind, and limen the threshold. Compare postscenium, postsignani. As postscenium denotes the space behind the scene, so might postliminium, originally, the space behind the threshold, thence the fact of return behind the threshold or into the house.

2 I follow especially E. F. Hase, das jus postliminii und die fictio legis Corneliæ. Halle, 1851.

1

capture by this right, as he would be among the Romans. But two nations might, if they pleased, agree to give up such escaped captives; and the not doing so may be best explained on the ground that the laws of one country do not extend into the territory of another, and especially that the laws of a war in which I have no part ought not to affect my friend or subject within my borders the principle in short which makes express conventions of extradition necessary. And, again, Roman postliminy applied to slaves, but as slavery is not sanctioned by the modern law of nations (compare § 70), it can obtain no application in regard to them.

On

As for the private relations of returned captives, the Roman law held marriage to cease with captivity, which is abhorrent to Christian doctrine. Public personal relations by modern law continue after captivity, but the laws of each state determine how far their advantages, as salary during absence for example, can be claimed on return to one's own country. The Roman law refused to admit such claims.2 (2.) As to the limit of time within which the jus postliminii takes effect, we are not aware that Roman law contains any definition. Modern usage gives complete possession of booty to the enemy on land, after he has held it for twenty-four hours,3 so that the former owner cannot claim it again from the purchaser; the reason for which limit is the difficulty of identifying such articles after a lapse of time. the other hand, land is restored to its original owner, until peace or destruction of national existence has transferred sovereignty to a conqueror. (3.) By modern law captured ships with the goods on board, carried infra præsidia by the enemy and condemned, become absolutely his, so that, if they are afterwards recaptured or repurchased by a neutral, the former owner has nothing to do with them: their connection with him has wholly ceased. It is only in the interval between capture and complete possession that his right of postliminy continues. This was otherwise by Roman law; the right affected all those kinds of things which were under its operation at all, when they came into the power of the enemy, and the more, the more clearly they had passed into his dominium.4 (4.) As to limit of place, modern

1 Paulus, in 19, § 3, Dig. xlix. 15: 'Si in civitatem sociam amicamve, aut ad regem socium vel amicum venerit, statim postliminio redisse videtur; quia ibi primum nomine publico tutus esse incipit.' Here not simply a state or king allied in war, but any non-hostile, friendly, or, as we should say, neutral power is included. This is denied by Grotius, iii. 9, § 2, and Bynkersh. Quæst. J. P. i. 15, but such a sense given to amicus would restrict the postliminy to times of war, whereas Paulus is speaking generally of its existence in war or peace. Compare Hase, p. 58. 2 Heffter, § 190.

3 The Romans had a practice often mentioned by Livy (as v. 16), of bringing back the booty, allowing former owners to take their property back, and selling the rest. Two, three, or thirty days were allowed for this reclamation.

4 Bynkersh. Quæst. J. P. i. 5, denies that there is any postliminy when a vessel

postliminy takes effect only within the territory of the captor or his ally, with the single exception already mentioned of captives escaping ashore in a neutral port. But the Roman, it seems most probable, took effect within the borders of any friendly nation.

A nation may make what laws it pleases in regard to the recapture of the goods of one of its subjects by another, but is bound to follow the jus postliminii in cases affecting the property of neutrals.

§ 144.

The laws of some states hold out special rewards to encouRewards for cap- rage the capture of vessels, especially of commisture and for re- sioned vessels of their enemies. Such is the head

capture.

Salvage, money of five pounds due under a section of the British prize act, to all on board an armed vessel acting under public authority for every man on board of a similar captured vessel who was living at the beginning of the engagement. Such too, in a sense, are the advantages given to other vessels which have assisted the capturing one, or even started to render assistance.1 But the claim for compensation is far more reasonable when the crew of one vessel have saved another, and its goods from pirates, lawful enemies or perils of the seas. This is called salvage, and answers to the claim for the ransom of persons which the laws of various nations have allowed. The legislation of a particular state may withhold salvage from its citizens or subjects, but cannot deprive a neutral or an ally of the exercise of this right.

salvage.

In

The laws of different nations vary in the amount of reward Amount of which they assign to the rescuer of vessels. regard to the salvage to be paid to our recaptors or rescuers by the owners of foreign vessels and goods, the law of the United States adopts the principle of reciprocity, measuring the amount by that which is paid by the law of the state to which the vessel belongs. In regard to the amount to be paid by citizens or resident foreigners the law contains various provisions, of from one-half to one-twelfth of the value; more being granted for the salvage of an armed vessel recaptured, than of an unarmed, and more to a private vessel recapturing than to a public armed vessel. In no case is salvage allowed, if the recapture occurs after condemnation by a competent authority, since the property is regarded as having passed over from the original owner to the captor. The provisions of the law of the most

has not been brought into port. Qui sciunt quid postliminium sit, sciunt quoque non esse nisi ejus, quod in hostis dominium transierat. Dicendum erat [i.e. instead of calling it by this name,] ante deductionem in portum, res non esse factas hostium, sed remansisse prioris domini, recuperatas igitur ei cedere et non recuperatori,' 1 Wildman, ii. 321-326.

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