set forth and armed as a vessel of war before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel previously belonged to the Government of the United States, and be unarmed, the salvage is one sixth, if recaptured by a private vessel, and one twelfth, if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a private vessel, and one fourth if recaptured by a public ship. In respect to public armed ships, the cargo pays the same rate of salvage as the vessel, by the express words of the act; but in respect to private vessels, the rate of salvage (probably by some unintentional omission in the act) is the same on the cargo, whether the vessel be armed or unarmed. (a)

It will be perceived, that there is a material difference between the American and British laws on this subject; the act of Parliament continuing the jus postliminii for ever, between the original owners and recaptors, even if there has been a previous sentence of condemnation, unless the vessel retaken appears to have been set forth by the enemy as a ship of war; whilst the act of Congress continues the jus, postliminii until the property is divested by a sentence of condemnation in a competent court, and no longer; which was also the maritime law of England, until the statute stepped in, and, as to British subjects, revived the jus postliminii of the original owner.177

French law.

§ 374. By the more recent French law on the subject of recaptures, if a French vessel be retaken from the enemy after being in his hands more than twenty-four hours, it is good prize to the recaptor; but if retaken before twenty-four hours have elapsed, it is restored to the owner, with the cargo, upon the payment of one third the value for salvage, in case of recapture by a privateer, and one thirtieth in case of recapture by a public ship. But in case of recapture by a public ship, after twenty-four hours' possession, the vessel and cargo are restored on a salvage of one tenth.

Although the letter of the ordinances, previous to the Revolution, condemned, as good prize, French 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 seems

(a) The Adeline. Cranch's Rep. ix. 244,

[177 The Prize Act of 30th June, 1864, ch. 174, § 29, repeals all prior provisions on this subject. See note 175, ante, on Recaptures.] — D.

to have been the constant practice in France to restore such property when recaptured by the king's ships. (a) The reservation contained in the ordinance of the 15th of June, 1779, by which property recaptured after twenty-four hours' possession by the enemy, was condemned to the crown, which reserved to itself the right of granting to the recaptors such reward as it thought fit, made the salvage discretionary in every case, it being regulated by the king in council according to circumstances. (b)

France applies her own rule to the recapture of the property of her allies. Thus, the Council of Prizes decided on the 9th February, 1801, as to two Spanish vessels recaptured by a French privateer after the twenty-four hours had elapsed, that they should be condemned as good prize to the recaptor. Had the recapture been made by a public ship, whether before or after twenty-four hours' possession by the enemy, the property would have been restored to the original owner, according to the usage with respect to French subjects, and on account of the intimate relation subsisting between the two powers. (c)

The French law also restores, on payment of salvage, even after twenty-four hours' possession by the enemy, in cases where the enemy leaves the prize a derelict, or where it reverts to the original proprietor in consequence of the perils of the seas, without a military recapture. Thus the Marine Ordinance of Louis XIV., of 1681, liv. iii. tit. 9, art. 9, provides that, "if the vessel, without being recaptured, is abandoned by the enemy, or if, in consequence of storms or other accident, it comes into the possession of our subjects, before it has been carried into an enemy's port, (avant qu'il ait été conduit dans aucun port ennemi); it shall be restored to the proprietor, who may claim the same within a year and a day, although it has been more than twenty-four hours in the possession of the enemy." Pothier is of opinion that the above words, avant qu'il ait été conduit dans aucun port ennemi, are to be understood, not as restricting the right of restitution to the particular case mentioned of a vessel abandoned by the enemy before being carried into port, which case is mentioned merely as an

(a) Valin, sur l'Ord. liv. iii. tit. 9, art. 3. Traité des Prises, ch. 6, § 1, No. 8, § 88. Pothier, Traité de Propriété, No. 97. Emerigon, des Assurances, tom. i. p. 497. (b) Emerigon, des Assurances, tom. i. p. 497.

(c) Pothier, de Propriété, No. 100. Emerigon, tom. i. p. 499. Azuni, Droit Maritime de l'Europe, Partie II. ch. 4, § 11.

example of what ordinarily happens, "parceque c'est le cas ordinaire auquel un vaisseau échappé à l'ennemi qui l'a pris, ne pouvant pas guères lui échapper lorsqu'il a été conduit dans ses ports." (d) But Valin holds, that the terms of the ordinance are to be literally construed, and that the right of the original proprietor is completely divested by the carrying into an enemy's port. He is also of opinion that this species of salvage is to be likened to the case of shipwreck, and that the recaptors are entitled to one third of the value of property saved. (e) Azuni contends that the rule of salvage in this case is not regulated by the ordinance, but is discretionary, to be proportioned to the nature and extent of the service performed, which can never be equal to the rescue of property from the hands of the enemy by military force, or to the recovery of goods lost by shipwreck. (f) Emerigon is also opposed to Valin on this question. (g)178

law.

Spanish § 375. Spain formerly adopted the law of France as to recaptures, having borrowed its prize code from that country ever since the accession of the house of Bourbon to the Spanish throne. In the case of The San Jago (mentioned in that of The Santa Cruz, before cited,) the Spanish law was applied, upon the principle of reciprocity, as the rule of British recapture of Spanish property. But by the subsequent Spanish prize ordinance of the 20th of June, 1801, art. 38, it was modified as to the property of friendly nations; it being provided that when the recaptured ship is not laden for enemy's account, it shall be restored, if recaptured by public vessels, for one eighth, if by privateers for

(d) Pothier, de Propriété, No. 99.

(e) Valin, sur l'Ord. in loco.

(f) Azuni, Droit Maritime, Partie II. ch. 4, §§ 8, 9. (9) Emerigon, des Assurances, tom. i. pp. 504, 505. He cites, in support of his opinion, the Consolato del Mare, cap. 287, and Targa, cap. 46, No. 10.

[178 The present position of the French law, as derived from the ordinance of 1681, and that of 15th June, 1779, and the arrêté du 2 Prairial, an 11, is this: If the recapture be made by a public ship, the property is restored, whether recaptured before or after the lapse of twenty-four hours; if by a private ship, only in case of recapture before the lapse of that time. The salvage in case of a public ship is onetenth of the value of the prize, if recaptured after twenty-four hours, and one-thirtieth if before that time. In case of recapture by a private ship, the salvage is one-third. As has been seen, the privateer does not make restitution after twenty-four hours. The expenses of the recaptors are borne by the recaptured property. The recaptured vessels of an ally stand on the same ground with those of French subjects. Hautefeuille, des Nat. Neutr. tit. 13, ch. 3, tom. iii. p. 380. Pistoye et Duverdy, des Prises, tit. 7, tom. ii. pp. 104, 109. Halleck, Intern. Law, 881. Phillimore, Intern. Law, iii. §§ 413, 418.]—D.

one sixth salvage: provided that the nation to which such property belongs has adopted, or agrees to adopt, a similar conduct towards Spain. The ancient rule is preserved as to recaptures of Spanish property; it being restored without salvage, if recaptured by a king's ship before or after twenty-four hours' possession; and if recaptured by a privateer within that time, upon payment of one third for salvage; if recaptured after that time, it is condemned to the recaptors. The Spanish law has the same provisions with the French in cases of captured property becoming derelict, or reverting to the possession of the former owners by civil salvage.179

§ 376. Portugal adopted the French and Spanish law Portuguese of recaptures, in her ordinances of 1704 and 1796. But law. in May, 1797, after The Santa Cruz was taken, and before the judgment of the English High Court of Admiralty was pronounced in that case, Portugal 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 the capture was by a public ship, and one fifth if by a privateer. In The Santa Cruz and its fellow cases, Sir W. Scott distinguished between recaptures made before and since the ordinance of May, 1797; condemning the former where the property had been twenty-four hours in the enemy's possession, and restoring the latter upon payment of the salvage established by the Portuguese ordinance.

§ 377. The ancient law of Holland regulated restitu- Dutch law. tion on the payment of salvage at different rates, accord

ing to the length of time the property had been in the enemy's possession. (a) 180

§ 378. The ancient law of Denmark condemned after Danish twenty-four hours' possession by the enemy, and restored law. if the property had been a less time in the enemy's possession,

[179 Phillimore (iii. § 412) gives in detail the Spanish ordinances, presenting some features not noticed in the text. He considers the Spanish law to place recaptures from pirates substantially on the same ground with recaptures from enemies. The treaty between England and Spain of 3d February, 1814, provides for a salvage of one-eighth to a public ship, and one-sixth to a privateer, and seems to require restoration in all cases, without reference to lapse of time, but not of vessels which the enemy has set forth as vessels of war.] - D.

(a) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

[180 For the history and particulars of the rules of the States General on this subject, see Phillimore, iii. § 413. Recueil van Zeezaken, D. 3, p. 348. De Martens, Essai, p. 204, § 68; p. 117, § 66.] — D.

upon payment of a moiety of the value of salvage. But the ordinance of the 28th March, 1810, restored Danish or allied property without regard to the length of time it might have been in the enemy's possession, upon payment of one third the value.181 Swedish § 379. By the Swedish ordinance of 1788, it is provided, that the rates of salvage on Swedish property shall be one half the value, without regard to the length of time it may have been in the enemy's possession.182

law.

constitutes

forth as a vessel of

act.

What § 380. What constitutes a setting forth as a vessel of a "setting war, has been determined by the British Courts of Prize, in cases arising under the clause in the act of Parliawar," under ment, which may serve for the interpretation of our own the prize law, as the provisions are the same in both. Thus it has been settled, that where a ship was originally armed for the slavetrade, and after capture an additional number of men were put on board, but there was no commission of war, and no additional arming, it was not a setting forth as a vessel of war under the act. (a) But a commission of war is decisive if there be guns on board. (b) And where the vessel, after the capture, has been fitted out as a privateer, it is conclusive against her, although when recaptured, she is navigating as a mere merchant ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the legislature meant to look no further, but considered the title of the former owner for ever extinguished. (e) Where it appeared that the vessel had been engaged in the military service of the enemy, under the direction of his minister of the marine, it was held as a sufficient proof of a setting forth as a vessel of war. (d) So where the vessel is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ it, although it be not regularly commissioned. (e) But the mere employment in the enemy's military service is not sufficient; but if there be a fair semblance of authority in the person directing

[181 But see Phillimore, iii. § 414. De Martens, Essai, pp. 200, 204, § 68. Hübner, de la Saisie, p. 11, App.] —D.

[182 Phillimore, iii. § 416. De Martens, Essai, 207, § 70; and p. 49, note g.]-D. (a) The Horatio, Robinson's Adm. Rep. vi. 320.

(b) The Ceylon, Dodson's Adm. Rep. i. 105.

(c) The Actif, Edwards's Adm. Rep. 185.

(d) Robinson's Adm. Rep. iii. 65.

(e) The Ceylon, Dodson's Adm. Rep. i. 105.