Salvage on a second recapture,

or a rescue

tion.

§ 383. As to recaptors, although their right to salvage is extinguished by a subsequent hostile recapture and or restitu- 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 a judicial acquittal, or a release by the sovereign power, the recaptors are redintegrated in their right of salvage. (a) 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, upon the ground of superior authority, to dispossess them without cause. (b)184

ister to the Admiralty Courts of the United States, giving no opinion on the question beyond declining executive intervention.

The papers on the interesting question of the brig Experience were searched for and exchanged between the two governments by both Earl Russell and Mr. Adams; and Earl Russell stated that there was no evidence in the Foreign Office that the opinion of the law-officer of the crown had been taken in that case, or that any further proceedings were had after the reply of Mr. Pickering. Mr. Adams, on his part, did not press further the case of The Emily St. Pierre, nor attempt proceedings in the Admiralty Courts of Great Britain.

It may therefore be considered as settled by these two cases, that a neutral government is not required, by executive action, to restore a private vessel of one of its citizens which has been rescued by her crew from her captors before condemnation, on demand of the government of the captors. The possessory, belligerent right of the captors is not to be enforced by neutral powers by any positive action in the way of penalty or seizure for restitution. Whether the right can be vindicated by a possessory suit by the captors in the Admiralty Courts of the neutral, has not been judicially determined; but the course of the political departments of both governments, and the reasoning on which they proceeded, seem to settle the judicial as well as the political question.

(Correspondence of Earl Russell and Mr. Adams, from April 24, 1862, to July 21, 1862. U. S. Dip. Corr. 1862, pp. 75-148, at intervals.) See note 175, suprà, on Recaptures; and note 184, infrà, on Salvage for Rescue or Recapture.] — D.

(a) The Charlotte Caroline, Dodson's Adm. Rep. i. 192.

(b) The Blendenhale, Dodson's Adm. Rep. i. 414.

[184 Salvage for Rescue or Recapture. — Where the original crew of a vessel, being in the custody of captors, rise upon them and regain possession, it is called a rescue. But, if the vessel is recovered from the possession of the captors by a force from without, before condemnation, it is a simple recapture. In either case, the retaking being for the benefit of the owners, or held to be so in contemplation of law, if they reclaim their property, a case of salvage is presented. In a case of rescue of a vessel of commerce, the salvage is civil, and the cause does not go into a prize court. Recapture from an enemy is cognizable by a prize court as a belligerent act, and presents a case of military salvage. If, in addition to the belligerent recapture, there has been a voluntary act of saving from a distinct marine peril, beyond the obliga tions of the parties, civil salvage may be combined with the military, and incidentally

Rate of

§ 384. In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the salvage. court, as well upon recaptures as in other cases. (a) And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, 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 seas. (b)

time cap

determined

§ 385. The validity of maritime captures must be de- Validity termined in a court of the captor's government, sitting of marieither in his own country or in that of its ally. This tures, rule of jurisdiction applies, whether the captured prop in the erty be carried into a port of the captor's' country, into captor's that of an ally, or into a neutral port.

courts of the

country.

adjudicated by the prize court having cognizance of the recapture. It is the duty of persons in the naval service, in time of war, to recapture as much as to capture; but it is a duty they owe to their government; and the policy and practice has always been, if the owner claims his vessel, to require him to pay salvage to the recaptors, which is in lieu of the prize-money they would receive in case the recaptured vessel had been condemned as prize. The mariner's contract with the owners, in a vessel of commerce, does not oblige him to attempt a rescue, after capture by a belligerent enemy, in such a sense that his refusal or failure to attempt it, in a proper case, would be a breach of his contract. It is, therefore, always a case for salvage. (Two Friends, Rob. i. 271. The Lilla, Sprague's Decisions, ii.; and Law Reporter, xxv. 92. Helen, Rob. iii. 224.)

If a cruiser takes a prize and loses it, whether by rescue, recapture, or otherwise, and she is again captured by a second cruiser of the same nation, it is not a recapture for the benefit of the first captor, subject to salvage, but an original capture. For these and like cases of mixed recapture, see Valin, Traité des Prises, ch. vi. § 1. The Polly, Nov. 21, 1780, Rob. iv. 217, note. The Marguerite, April 3, 1781. Astrea, Wheat. i. 125. Lord Nelson, Edw. 79. Diligentia, Dods. i. 404. John and Jane, Rob. iv. 216. Gage, Rob. vi. 273. Ordonnance de 1681, Des Prises, art. 9, "De Propriété," No. 99. Azuni, Partie II. ch. 4, §§ 8, 9. Emerigon, des Assurances, tit. i. p. 504-5. Phillimore's Intern. Law, iii. § 424. Chitty's Law of Nations, 91. The Short Staple, Cranch, ix. 55. Bello, Princ. de Der. Nat. 193. Henry, Edw. 66.

Salvage is not due to a public ship for extricating another public ship from danger of capture, in a common enterprise. The Belle, Edw. 66. Sir W. Scott said it would be converting every engagement into a struggle for salvage.

As to rights of revenue cutters and privateers in recaptures, see The Wanstead, Edw. i. 369. The Providence, Ib. 270. The Dorothy Foster, Rob. vi. 88. The Bellona, Edw. 63. The Sedulous, Dods. i. 253. U. S. Prize Act 1864, ch. 174, §§ 10, 32, 33. (U. S. Laws, xiii. 306.)]— D.

(a) Talbot v. Seaman, Cranch's Rep. i. 1. Robinson's Adm. Rep. iii. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

(b) The Louisa, Dodson's Adm. Rep. i. 317.

Condemnation of prop

in the ports

§ 386. Respecting the first case, there can be no doubt. erty lying In the second case, where the property is carried into the of an ally. port of an ally, there is nothing to prevent the government of the country, although it cannot itself condemn, from permitting the exercise of that final act of hostility, the condemnation of the property of one belligerent to the other; there is a common interest between the two governments, and both may be presumed to authorize any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. Such an adjudication is therefore sufficient, in regard to property taken in the course of the operations of a common war. 185

Property carried into a neutral port.

§ 387. But where the property is carried into a neutral port, it may appear, on principle, more doubtful whether the validity of a capture can be determined even by a court of prize established in the captor's country; and the reasoning of Sir W. Scott, in the case of The Henrick and Maria, is certainly very cogent, as tending to show the irregularity of the practice; but he considered that the English Court of Admiralty had gone too far in its own practice of condemning captured vessels lying in neutral ports, to recall it to the proper purity of the original principle. In delivering the judgment of the Court of Appeals in the same case, Sir William Grant also held that Great Britain was concluded, by her own inveterate practice, and that neutral merchants were sufficiently warranted in purchasing under such a sentence of condemnation, by the constant adjudications of the British tribunals. The same rule has been adopted by the Supreme Court of the United States, as being justifiable on principles of convenience to belligerents as well as neutrals; and though the prize was in fact within a neutral jurisdiction, it was still to be considered as under the control of the captor, whose possession is considered as that of his sovereign. (a)

[185 In the Crimean war, 1854, by a convention between the allies, the adjudication, in case of joint capture, lay with the country of the superior officer; but this was only as between the allies. Neutrals could not object to a condemnation made otherwise, if sanctioned by the law of nations; nor, on the other hand, would a neutral be bound by it, if it were not so sanctioned.] — D.

(a) Henrick and Maria, Robinson's Adm. Rep. iv. 43; vi. 138, note a. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. Duponceau's Transl., note, p. 38. Kent's Commentaries, i. 103. Wheaton's Hist. Law of Nations, 321.

Jurisdiccourts of

tion of the

the captor, how far ex

§ 388. This jurisdiction of the national courts of the captor, to determine the validity of captures made in war under the authority of his government, is exclusive of the judicial authority of every other country, with two clusive. exceptions only:-1. Where the capture is made within the territorial limits of a neutral State. 2. Where it is made by armed vessels fitted out within the neutral territory. (a)

In either of these cases, the judicial tribunals of the neutral State have jurisdiction to determine the validity of the captures thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other States in amity with it, to the original owners. These exceptions to the exclusive jurisdiction of the national courts of the captor, have been extended by the municipal regulations of some countries to the restitution of the property of their own subjects, in all cases where the same has been unlawfully captured, and afterwards brought into their ports; thus assuming to the neutral tribunal the jurisdiction of the question of prize or no prize, wherever the captured property is brought within the neutral territory. Such a regulation is contained in the Marine Ordinance of Louis XIV., of 1681, and its justice is vindicated by Valin, upon the ground that this is done by way of compensation for the privilege of asylum granted to the captor and his prizes in the neutral port. There can be no doubt that such a condition may be expressly annexed by the neutral State to the privilege of bringing belligerent prizes into its ports, which it may grant or refuse at its pleasure, provided it be done impartially to all the belligerent powers; but such a condition is not implied in a mere general permission to enter the neutral ports. The captor, who avails himself of such a permission, does not thereby lose the military possession of the captured property, which gives to the prize courts of his own country exclusive jurisdiction to determine the lawfulness of the capture. This jurisdiction may be exercised either whilst the captured property is lying in the neutral port, or the prize may be carried thence infra præsidia of the captor's country where the tribunal is sitting. In either case, the claim of any neutral proprietor, even a subject of the State into whose ports the captured vessel or goods may have been carried, must, in general, be asserted in the prize court of the belligerent coun

(a) The Estrella, Wheaton's Rep. iv. 298; The Santissima Trinidad, Ib. vii. 283.

try, which alone has jurisdiction of the question of prize or no prize. (b)186

(b) Valin, Comment. sur l'Ordon. de la Marine, liv. iii. tit. 9. Des Prises, art. 15, tom. ii. p. 274. Lampredi, Trattato del Commercio de' Popoli neutrali in Tempo di Guerra, p. 228.

[186 Prize Jurisdiction and Practice. - The author's object being to treat upon rights and obligations, rather than upon remedies, he has not extended his notice of prize procedures. A fuller consideration of them may be desirable.

I. PRIZE TRIBUNALS. A trial by a prize tribunal is not a right enemies can claim, nor a duty to them. They have no standing in court. If it be assumed that all captures are enemy's property, there need be no prize courts. But the fact that so large a proportion of them are of neutral property charged as involved in violation of rights of war, or of property whose nationality as neutral or hostile is doubtful, has led to the establishing of these tribunals. Their origin is in the responsibility of the belligerent government to neutral governments, for the acts of its cruisers. The true nature of a prize tribunal may be described by a phrase for which, indeed, I find no precedent, but which is, nevertheless, appropriate, — an inquest by the State. As the belligerent sovereign is responsible to neutral governments for aggressions on the persons or property of their subjects, he desires and is required to inform himself, by recognized modes, of the lawfulness of the capture. For this purpose, he commissions learned and impartial persons, by a temporary commission, or by permanent legislation, to hold an inquest on all captures.

II. SUMMARY HEARING AND DECISION.

Certain modes of conducting this inquest have been long in use, and are now recognized by nations as satisfactory. The inquest, in the beginning, is summary, and by no means in the nature of litigation inter partes. Neither is it ex parte. It is, in fact, an inquiry by the government, through its commission, into the facts, there being no parties litigant. The prize court examines the vessel and cargo, and all the papers found on board, and then examines for itself, by its own interrogatories, the persons found on board the prize, the captors taking no part, any more than the captured. This examination is conducted by the court or its officers, in the absence of all parties. The captors are not examined, nor any other witnesses, whatever may be their knowledge. The persons on board are examined privately, and without opportunity to confer with the parties interested in the prize, or with counsel; and, for that purpose, the law of nations allows the court to use the necessary restraint. The evidence so obtained, as well as the papers found on board, is sealed and kept secret until it is completed. It is then opened, and may then be inspected by parties interested, for the purpose of being heard by counsel before the court. With this official inquest upon the vessel, cargo, papers, and persons found on board, ends the regular and ordinary function of the court, so far as evidence is concerned. Arguments by counsel for parties interested are allowed. If this examination presents a clear case for condemnation, the court makes a decree accordingly. The evidence taken in this summary hearing is called the evidence in preparatory, which means, not preparatory to a fuller examination, but preparatory to the decision by the court. The decision of the court upon this evidence is to be considered as, in ordinary cases, all that can be expected of the court. It is its complete and regular function.

But, as it will sometimes happen that this evidence leaves the case in doubt, or suggests the existence of evidence aliunde, which may be necessary to justice, the court will, in its discretion, direct what is called "further proof;" but this is never done until the evidence in preparatory is completed and passed upon. In fact, the meaning