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 Act was drawn with the intention of expressing the sense and meaning of international law, with respect to what constitutes a vessel of war.1

§ 17. Although the letter of the French 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 was the constant practice to restore such property when recaptured by the king's ships. By the ordinance of June 15th, 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 shall 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 have elapsed, she is 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 is equally applicable to the recapture of the vessel of an ally. The laws of Spain with respect to recaptures, have generally agreed almost entirely with those of France. In 1801, she made a rule with respect to the property of friendly nations, that where the recaptured

1 The 'Horatio,' 6 Rob., 320; the Ceylon,' 1 Dod. R., 165; the 'Actif,' Edw. R., 185; the 'Santa Brigada,' 3 Rob., 56; the Georgiana,' 1 Dod. R., 397 ; the 'Nostra Señora de Rosario,' 3 Rob., 10; the 'Progress,' 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 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.

ship is not laden for the enemy's account, it is 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 belongs has adopted, or agrees 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 the 5th of February, 1814, Spain concluded a treaty with Great Britain with respect to recaptures, by which restoration is to be made on the payment of the specified salvage, without reference to the time the ship has remained. in the captor's hands, or whether it has 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 Denmark condemned after twenty-four hours' possession by the enemy, and restored if the property had been a less time in the enemy's possession, upon the payment of a salvage of one half the value of the property recaptured. But the ordinance of 1810 restored Danish, or allied property, without regard to the time it had been in the enemy's possession, on the payment of salvage of one third the value. With respect to Sweden, the ordinance of Charles XI. enacted, 'that in case a ship belonged to Swedish subjects, after having been taken by the enemy, should be retaken, the recaptor shall have two thirds of its value, and a third shall be restored to the proprietor, without respect to the time during which it may have been in the enemy's hands.' The ordinance of 1788, made the same provisions, only changing the rate of salvage to one half of the value of the property recaptured. There were many and great variations in the laws promulgated, at different times, by the States-General of the United Provinces. The ordinance of 1659, without making any distinction between the times of recapture and the quality of the recaptors, allows a salvage of only one-ninth of the vessel and cargo. But the ordinance of 1677 directs, with respect to privateers, that a salvage of one fifth shall be allowed in case

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of recapture before the property had been forty-eight hours in the enemy's possession, of one third if more than fortyeight and less than ninety-six hours, and one half if beyond that time. It was understood that the ordinance of 1659 was continued in force with respect to recaptures made by ships of war. It is thus seen, that the States-General allowed restoration in all cases, the rates of salvage being different according to character of the recaptor and the length of time the captured property had remained in the possession of the enemy. It is thus shown that the municipal laws of different nations, with respect to the application of the right of postliminy to maritime recaptures, are very different; some still adhering in part to the rigorous rule of the ancients that twenty-four hours' possession by the enemy completes the capture, and that a recapture after that length of time is a good prize of war; while others have relaxed the rule with respect to recaptures by public vessels, but enforce it as to those made by privateers; while others, again, enforce it with respect to the property of their own citizens, but relax it with respect to foreign nations, on the ground of reciprocity.'

§ 18. It appears from the foregoing synopsis of the laws of recapture, that there is no uniform or fixed rule as to the quantum of salvage allowed in cases of recapture of a foreign vessel or foreign goods, the rates being different in different countries, and, even in the same country, in different cases. In the United States, by the Act of March 3rd, 1800, the amount of salvage is regulated by the law and usage which the government to which the person claiming the vessel or goods belongs, applies, under like circumstances, to the vessels and goods of the United States; and where no such law or

1 Phillimore, On Int. Law, vol. iii. §§ 413, 418; Wheaton, Elem. Int. Law, pt. iv. ch. ii § 12; the Santa Cruz,' I Rob., 58; Hautefeuille, Des Nations Neutres, tit. xiii. ch. iii.; Emerigon, Traité des Assurances, ch. xii. § 23; Azuni, Droit de la Mer, pt. ii. ch. iv. § 11; Pistoye et Duverdy, Des Prises, tit. vii.; Abreu y Bertodano, Colleccion, etc., pt. ii. p. 371; Martens, Essai sur Armateurs, pp. 49, 200; Bynkershoek, Quæst. Jur. Pub., lib i. cap 5.

An American ship was taken by a privateer, A., who kept possession ten days, when the prize was retaken by an American cruiser, B., who kept possession thirteen days. It was then again recaptured by a British cruiser, C., at the time of whose recapture of her the prize-master and crew of A., the first captor, were on board the prize. Held that A. was to be considered as the actual captor, and C. as the recaptor. Sentence accordingly; salvage awarded to the recaptor equivalent to the share of a joint captor.-The 'Lucretia,' Hay & Marriott, 227.

usage shall be known, the same salvage is allowed as in case of recapture of the property of our own citizens. In England, it is left, in a great measure, to the courts to determine what is fit and reasonable. In France, and other States on the Continent, the rate of salvage varies with the length of time the property recaptured had been in the enemy's possession. A distinction is also made in the rate of salvage allowed to a privateer and to a government vessel, the allowance to the former being usually much larger than to the latter. It being the duty of every citizen to assist his fellow citizens in war, and to retake their property out of the enemy's possession, non-commissioned vessels are usually allowed the same amount of salvage on a recapture as commissioned vessels.'

19. Neutral property recaptured from the enemy, if not subject to condemnation by the rules of international law, is not subject to pay salvage to the recaptor. This rule is founded upon the supposition that justice would have been done if the vessel had been carried into the enemy's port, and that if injury had been sustained by the act of capture, it would have been redressed by the tribunal of the country to whose cognizance the case would have been regularly submitted. This is a presumption which is to be entertained in favour of every State which has not sullied its character by gross violations of the law of nations. Thus, a Spanish vessel, bound from Monte Video to London, was recaptured from a French privateer, after recapture from a British privateer. No edict was produced from the French code to show that the vessel would have been subject to condemnation in a prize-court of France, and salvage was pronounced not to be due. But if it be shown that the recaptured vessel of the neutral would, in all probability, have been condemned if she had been carried into the enemy's ports and subjected to the decisions of the enemy's tribunals, a real benefit has been conferred upon the neutral by the recapture, and a reasonable salvage will be allowed. Thus, where a neutral vessel, retaken from a French captor, was bound to a neutral port

1 The 'Helen,' 3 Rob., 224; Act of Congress, March 3, 1800, ch. xiv. $3; the Urania, 5 Rob., 148; the Progress,' Edw. R., 215; the 'Hope,' Hay & Marriott R., 216; the Two Friends,' I Rob., 271; the Mary,' 5 Rob., 200; Dunlop, Digest of Laws of U. S., pp. 271-273; Talbot v. Seaman, 1 Cranch. R., 1; the 'Adeline,' 9 Cranch. R., 244, 287.

without certificates of origin on board, salvage was allowed on the ground that she would have been condemned by a French prize court. So, where the recaptured vessel would have been liable to condemnation under the French decrees prohibiting neutral trade with Great Britain.'

§ 20. The allotment of salvage, where the recaptured property is claimed by subjects of the same State, is properly regulated by municipal law; but where it is claimed by subjects of allies or alien friends, the allotment of military salvage is properly a question of international law; so, also, of civil salvage, where the quantum meruit is the only rule for apportioning the remuneration. But, as already remarked, there being no well-established rule of international law universally acknowledged, with respect to the legal status of captured property, between the time of pernoctation, or twenty-four hours' possession, and the condemnation by a competent court of prize, restitution, in case of recapture between these periods, is not regarded as a matter of strict right, but, in a measure, one of favour and relaxation; and the belligerent recaptor certainly is justifiable in annexing conditions to his liberality. But where the restitution is regarded as a positive obligation

1 Kent, Com. on Am. Law, vol. i. p. 112; Phillimore, On Int. Law, vol. iii. § 422; Pistoye et Duverdy, Des Prises, tit. vii. ch. ii.

A vessel which has been used by the enemy, without the knowledge of her owners, and had been recaptured from the enemy, was restored by consent, with costs to the libellants, in the case of the Henry C. Brooks,' Blatchf. Pr. Cas., 99.

A neutral vessel recaptured from the enemy may, if necessary for the mutual safety and interest of herself and the recaptors, be equipped, armed, and employed at her own risk in protecting herself and the recaptors from the attack of the enemy's cruisers. The claim of the neutral owners for restitution in value, in consequence of their ship having become a wreck whilst, and in consequence of being so employed, was pronounced against, affirming the sentence of the Vice-Admiralty Court of Jamaica.—The 'Swift,' 1 Acton, 1.

Recaptors are under a responsibility to restore the property of allies and neutrals, and this responsibility will exonerate the original captors, unless it can be shown that the original captors so dealt with the property and accompanying documents, that it could not be ascertained to be neutral, on the just and uniform principles of the Law of Nations, when it came into the prize-court of the recaptors.-The Betsey,' 1 Reb., 96.

A sentence of condemnation by the enemy would not affect the rights of the British owner in the event of recapture, but a legal sale by them to a neutral under such a sentence would divest the British owners' claim. A British ship retaken under neutral colours and condemned as on an illegal voyage, was held, under the circumstances, to have been duly sold to the neutral by the enemy. The claim of the former British owner for restitution on salvage was pronounced against.-The Cornelia,' Edw., 244.