general character of the modifications of postliminy which have been made, or attempted, by municipal laws and regulations.

Britain

§ 15. The established doctrine of English prize law is, Laws of that so long as the captured property continues in the hands Great of the enemy the original rights of the British owner are kept alive, and rendered capable of resumption on payment of salvage when the event of recapture takes place. If at the time when a prize ship is retaken it is clearly in the possession of a citizen of the enemy's country, the owner has a right to receive his property again, on payment of salvage, and this whether there has been a sentence of condemnation in the enemy's court or not. But if a sale to a neutral has taken place, that sale, joined to the sentence of the enemy's court, will bar all claim of the original British owner against the neutral for restitution on salvage. Restitution upon salvage of British property retaken from the enemy appears to have been the constant practice in the Admiralty of England; 2 but in order to secure this benefit it was formerly necessary that the property should be recaptured within twenty-four hours, or within certain limitations. But during the English Commonwealth, when commerce began to expand, this rule was receded from; and in 1649 restitution upon salvage without regard to time was enacted by an Ordinance of the Long Parliament in favour of British subjects. The ancient practice, however, continued, and still prevails in those cases where the enemy has fitted out the prize as a ship of war. By the Naval Prize Act, 1864 (27 and 28 Vict., cap. 25), it is enacted (s. 40) that 'where any ship or goods belonging to any of her Majesty's subjects, after being taken as prize by the enemy, is or are retaken from the enemy by any of her Majesty's ships of war, the same shall be restored by decree of a prize court to the owner, on his paying as prize salvage one-eighth part of the value of the prize, to be decreed and ascertained by the court, or such sum not exceeding one-eighth part of the estimated value of the prize as may be agreed on between the owner and the recaptors, and approved by order of the court; provided, that where the recapture is made under circumstances of special difficulty or danger, the prize court may, if it thinks fit, award to the recaptors as prize salvage a larger part than

1 The Cornelia,' Edw. R., 244.

* Life of Sir L. Jenkins, vol. ii. p. 770; the 'Ceylon,' 1 Dods. R., 109.

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one-eighth part, but not exceeding in any case one-fourth part of the value of the prize; provided also, that where a ship being so taken is set forth, or used by any of her Majesty's enemies as a ship of war, this provision for restitution shall not apply, and the ship shall be adjudicated on as in other cases of prize.' And (by s. 41) 'where a ship belonging to any of her Majesty's subjects, after being taken as prize by the enemy, is retaken from the enemy by any of her Majesty's ships of war, she may, with the consent of the recaptors, prosecute her voyage, and it shall not be necessary for the recaptors to proceed to adjudication till her return to a port of the United Kingdom. The master or owner, or his agent, may, with the consent of the recaptors, unload and dispose of the goods on board the ship before adjudication. In case the ship does not, within six months, return to a port of the United Kingdom, the recaptors may nevertheless institute proceedings against the ship or goods in the High Court of Admiralty, and the court may thereupon award prize salvage as aforesaid to the recaptors, and may enforce payment thereof, either by warrant of arrest against the ship or goods, or by monition and attachment against the owner.'

It should be observed that a sentence of condemnation of a prize court is a sufficient title to a vendee who is not a British subject, and entitles a recaptor to condemnation of the property so far as the above statute does not step in and, as to British subjects, revive the jus postliminii of the original owner, on payment of salvage. This principle would extend to allies and neutrals the benefit of postliminy until after condemnation, if the courts had not engrafted on it the rule of reciprocity alluded to by Sir William Scott.1

1 The 'Santa Cruz,' 1 Rob., 63. Recaptures are emphatically cases of prize; for the definition of prize goods is, that they are goods taken on the high seas, jure belli, out of the hands of the enemy. When so taken, the captors have an undoubted right to proceed against them as belligerent property, in a court of prize; for in no other way, and in no other court, can the question presented on a capture jure belli be properly or effectually examined. The very circumstance that it is found in the possession of the enemy, affords primâ facie evidence that it is his property. The question cannot be decided, unless the customary proceedings of prize are instituted, and enforced. The court, then, has a legitimate jurisdiction over the property of prize; and, having it, well exert its authority over all the incidents. It will decree a restoration of the whole, or of a part; it will decree it absolutely, or burthened with salvage, as the circumstances of the case may require; and whether the salvage be held a portion of the thing itself, or a mere lien upon it, or a condition

the United

§ 16. The United States, by the Act of June 30, 1864 Laws of (ch. 174, s. 29), have enacted 'that when any vessel or States other property shall have been captured by any force hostile to the United States, and shall be recaptured, and it shall appear to the court that the same had not been condemned as prize before its recapture, by any competent authority, the court shall award a meet and competent sum as salvage, according to the circumstances of each case; and if the captured property belonged to the United States, it shall be restored to the United States, and there shall be paid from the Treasury of the United States the salvage, costs, and expenses ordered by the court; and if the recaptured property belonged to persons residing within or under the protection of the United States, the court shall adjudge the property to be restored to its owners upon their claim, on the payment of such sum as the court may award as salvage, costs, and expenses; and if the recaptured property belonged to any person permanently resident within the territory, and under the protection of any foreign prince, government, or State in amity with the United States, and by the law or usage of such prince, government, or State the property of a citizen of the United States would be restored under like circumstances of recapture, it shall be adjudged to be restored to such owner upon his claim, upon such terms as by the law or usage of such prince, government, or State would be required of a citizen of the United States under like circumstances of recapture; and when no such law or usage shall be known, it shall be adjudged to be restored upon the payment of such salvage, costs, and expenses as the court shall order: provided, that nothing in this Act shall be construed to contravene any treaty of the United States. And the whole amount awarded as salvage shall be decreed to the captors, and no part to the United States, and shall be distributed as in the case of proceeds of property condemned as prize.''

The same provisions are made in the British and American statutes, with respect to the setting forth as a vessel of war,

annexed to its restitution, it is an incident to the principal question of prize, and within the scope of the regular prize allegation. (The 'Adelina,' 9 Cranch., 244, 286; compare the Dove,' 1 Gall., 585.)

U.S. Stat. at Large, 314. This Act repeals the Act of March 3, 1800. The rule of section 1 of that statute, which provided for the restoration to the former owners, upon the payment of certain salvage, of vessels re

Laws of

States

prior to the capture. We know of no American decision as to what constitutes such setting forth, but the meaning of the term has been fully settled by adjudications in the British prize courts. It has been decided that a commission of war is sufficient, if there be guns on board; that where the vessel has been fitted out as a privateer, after capture, although when recaptured she was navigating as a merchant vessel, it is conclusive against her, and the title of the former owner is considered as for ever extinguished. So where she has been employed in the military service of the enemy, by authority of the government, although she be not regularly commissioned, and the order of the commander of a single ship will be presumed to have been given by competent authority. But the mere fact of employment in the military service of the enemy is not a sufficient setting forth as a vessel of war. Where a ship was originally armed for the slave trade, and, after capture, an additional number of men were put on board, but where there was no commission of war and no additional arming, it was held not to be a setting forth as a vessel of war, under the Act. Lord Stowell observed, that the Prize Act was drawn with the intention of expressing the sense and meaning of international law, with respect to what constitutes a vessel of war.'

§ 17. Although the letter of the French ordinances, predifferent vious to the Revolution, condemned, as good prize, French European property recaptured after being twenty-four hours in possession of the enemy, whether the same be retaken by public or private armed vessels, yet it was the constant practice to restore captured, before condemnation, by public armed ships of the United States, was held to apply to a vessel recaptured after a capture by a Confederate privateer, and a condemnation and sale by a Confederate prize court. (The Lilla,' 2 Sprague, 177; 15 Law Rep., N.S., 81.) An American vessel was captured by the enemy, and, after condemnation and sale to a subject of the enemy, was recaptured by an American privateer. Held, that the original owner was not entitled to restitution on payment of salvage, under that statute, nor under the Prize Act of June 26, 1812. (The 'Star,' 3 Wheat., 78.)

The 'Actif, Edw. R., 185; the Santa Brigada,' 3 Rob., 56; the 'Georgiana,' I Dod. R., 397; the 'Nostra Señora de Rosario,' 3 Rob., 10; theProgress,' Edw. R., 210, 222. The fact of the enemy having placed an additional number of men on board a prize, previously armed as a slave ship, without her being commissioned by them as a ship of war, or further armed, was held, not to amount to a setting forth of the prize, as a ship of war by the enemy, within the meaning of the then existing Prize Act, so as to defeat the title of the former owner. Restitution to him, on salvage, decreed accordingly. (The 'Horatio,' 6 Rob., 320.)

such property when recaptured by the king's ships. By the ordinance of June 15, 1779, all French property recaptured after twenty-four hours' possession by the enemy was condemned to the crown, the king in council regulating the amount of salvage to be allowed to the recaptors according to circumstances. The Arrêté du 2 Prairial, an XI, which was, in part, a reproduction of the ordinances of 1681, provided that if the recapture be made by a public ship of war (bâtiment de l'Etat), it should be restored to the original proprietors, on payment, to the recapturing crew, of the thirtieth part of the value if the twenty-four hours have not elapsed, and of the tenth part if they have elapsed; all the expenses incident to the recapture to be borne by the recaptured vessel. If the recapture be made by a privateer before the twenty-four hours had elapsed, she was entitled to one-third of the value of the recaptured ship and cargo; and if after the twenty-four hours' possession, to the whole. The law applicable to the recapture of a French vessel equally applied to the recapture of the vessel of an ally. The laws of Spain with respect to recaptures generally agree with those of France. In 1801 she made a rule with respect to the property of friendly nations, that where the recaptured ship was not laden for the enemy's account, it was to be restored upon the payment of a salvage of one-eighth if recaptured by public ships, and one-sixth if by privateers; provided, that the nation to which such property belonged had adopted, or agreed to adopt, a similar conduct towards Spain. The rule with respect to recaptures of Spanish property was the same as the French rule with respect to recaptures of French privateers. On February 5, 1814, Spain concluded a treaty with Great Britain with respect to recaptures, by which restoration was to be made on the payment of the specified salvage, without reference to the time the ship had remained in the captor's hands, or whether it had been brought into the port of the captor or been condemned. Portugal, in her ordinances of 1704 and 1796, adopted the French and Spanish law of recaptures; but in May 1797 she 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 recaptured by a public ship, and one-fifth if by a privateer. The ancient law of