PRIZE. 



713 



make suitable explanations, and to show the insuffi- 

 ciency of the reasons to send her in for adjudica- 

 tion. Some stratagems of war are permitted in 

 order to secure captures, (assailing and chasing un- 

 der false colours ) but the law of nations does not 

 permit firing or capturing under false colours. It 

 is the duty, also, of the captors, after capture, to 

 prevent all spoliation and damage by the prize crew, 

 and to abstain from breaking bulk, or removing any 

 of the property, unless in cases of necessity. If any 

 acts of this nature occur, the court of prize will re- 

 quire at their hands a full justification. Upon ar- 

 rival in the proper port, it is the duty of captors, 

 without delay, to cause proceedings to be instituted 

 in the proper prize court, so that the legality of the 

 capture may be immediately ascertained. In case 

 of any undue delay, they will be made liable for 

 demurrage, if restitution is decreed. And the 

 neutral may himself, by a proper application to the 

 prize court, compel the captors to proceed to ad- 

 judication, if they unreasonably delay. In cases of 

 illegal capture, the inquiry often arises, Who are 

 responsible for the damages and costs ? In respect 

 to public ships, the general rule is that the actual 

 wrongdoer, and he alone, is responsible. By the 

 actual wrongdoer is meant the commander who has 

 directed the capture ; for the subordinate officers 

 and crew, who have only acted in obedience to his 

 orders, are not responsible. However, when any 

 unauthorized act has been done by a prize master, 

 or by a part of his crew, such actual wrongdoers, 

 thus acting without authority, may, perhaps, be 

 made directly responsible. The rule in relation to 

 the actual wrongdoer is so inflexible that, if the 

 capture has been made by a captain under the in- 

 structions of the commodore or admiral command- 

 ing the squadron, or the station, who is not present 

 at the time of the capture, the sole remedy lies 

 against the actual captor alone, although he may 

 have his own remedy against his superior officer, 

 under whose instructions he has acted. In respect 

 to private armed vessels, a different rule prevails. 

 There the commander is not only responsible, but 

 the owners of the ship also, for all the illegal acts 

 of the commander and crew. And, for the purpose of 

 making this responsibility effectual, on the grant of 

 commissions to privateers, bonds are usually taken, 

 with sureties, as a guaranty against their misconduct. 

 XI. Recaptures. A recapture may be of the 

 property of a fellow-subject, or of an ally in the war, 

 or of a neutral. It may be from the hands of a 

 pirate or of an enemy. In respect to captures by 

 pirates, no property can be acquired by them, and 

 consequently the capture creates no change of 

 ownership. It is, therefore, to be restored to the 

 original owner, upon the payment of a suitable 

 compensation, commonly called salvage, to the re- 

 captors. But, in respect to captures by enemies, 

 the change of property is complete from the time 

 when the capture is deemed firm and secure, 

 whether this be as soon as the surrender (deditio) 

 and possession are perfected, or by pernoctation, as 

 holding the possession after capture for a night, or 

 by possession during any other stipulated period, 

 or by carrying the property within the ports and 

 territory (infra prtcsidia) of the capturing power, or 

 by a sentence of condemnation. Various doctrines 

 have at different times, prevailed among nations, 

 applicable to each of these predicaments of the 

 captured property, the general rule being admitted, 

 that the property is changed as soon as the capture 

 is firm and secure, and the question still remaining 

 open as to the time at which it is to be deemed firm 

 and secure. The right of postliminy ( jus postli- 

 minii) is deemed to attach to all property captured, 



of which there is not such a firm and secure posses- 

 sion. And, therefore, different nations will with- 

 hold, or will grant restitution of property captured, 

 according to the principles adopted in their own 

 codes of practice on this subject. The ordinances 

 of many nations have made special provisions on 

 the subject of recaptures. By the law of France 

 (ordinance of 1681), if a French vessel is recaptured 

 from the enemy after twenty-four hours' possession, 

 she is a good prize to the recaptors ; and if re- 

 captured before twenty-four hours' possession, 

 she is restored to the owner upon the payment of 

 one third of the value as salvage. But this rule is 

 construed to apply solely to recaptures by private 

 armed ships; for if made by public ships, restitution 

 is decreed without payment of any salvage, whether 

 the recapture be before or after the twenty-four 

 hours' possession. France applies a similar rule to 

 the recaptures of the vessels and property of her 

 allies from the enemy. The law of Spain, in regard 

 to recaptures from the enemy, is similar to that of 

 France. By the law of Denmark, in the code of 

 Christian V., if the recapture be before twenty-four 

 hours' possession, the property is equally divided 

 between the original owner and the recaptors ; if 

 afterwards, the recaptors take the whole. By the 

 law of Sweden of 1667, the recaptors are entitled 

 to a salvage of two-thirds of the value, and the re- 

 maining third is to be restored to the original owner, 

 whatever length of time the vessel may have been 

 in the hands of the enemy. Some alterations have 

 been admitted into the regulations of these nations, 

 in more modern times, either by positive ordinances, 

 or by the practice of their courts, indicating a consi- 

 derable fluctuation of opinion ; but it is not neces- 

 sary, and scarcely would be useful, to trace out 

 these alterations in detail. Great Britain and the 

 United States of America have adopted the rule, 

 that the property of the owner is not devested, 

 except by a sentence of condemnation. In respect 

 to recaptures from the enemy of ships belonging to 

 their own subjects or citizens, they are to be re- 

 stored, upon payment of salvage, if there has been 

 no such sentence. And, by recent statutes (43 

 Geo. 3, ch. 160, and 45 Geo. 3, ch. 72), British 

 vessels and goods are, upon recapture from the 

 enemy, restored, upon the payment of one-eighth of 

 the value, if recaptured by a public ship, and one- 

 sixth if recaptured by a privateer or other vessel, 

 without reference to the consideration, whether the 

 property has been condemned by a court of prize or 

 not. There is an exception of vessels which have 

 been set forth by the enemy as ships of war. So 

 that, in Great Britain, the right of postliminy con- 

 tinues forever, or, at least, until the return of peace. 

 In the United States of America, the act of congress 

 of 1800 has adopted a rule, similar to that of Great 

 Britain, in all cases where there has not been a 

 sentence of condemnation. With them, therefore, 

 the right of postliminy is extinguished by such a sen- 

 tence. The salvage is one-eighth to public ships, 

 and one-sixth to private ships, in cases of restitu- 

 tion. But, if the vessel has been set forth and armed 

 for war by the enemy before the recapture, then the 

 salvage is one moiety of the value. In respect to 

 the recapture of vessels, and other property belong- 

 ing to allies, the rule adopted by Great Britain is 

 the rule of reciprocity. If the ally would restore 

 British vessels and property in a like predicament, 

 then restitution is decreed : if the ally would not 

 restore, then the recaptors are entitled to the whole 

 property. And, in the absence of all evidence of 

 any rule adopted by an ally, the British rule is ap- 

 plied in favour of the ally, until it appears that such 

 ally acts towards British property on a less lilx;ral 



