714 



PRIZK. 



principle. When the rule of the ally is ascertained, 

 Great Britain then adopts the rule of the ally. 

 America has adopted an equally liberal course. 

 In all cases of recaptures from the enemy of pro- 

 perty belonging 1 to nations or their subjects in 

 amity with the United States, where there has been 

 no sentence of condemnation, restitution is decreed, 

 or not, according to the rule which is adopted by 

 such nation in like circumstances towards the 

 I'nited States. Hut no restitution is decreed after 

 the property has been condemned by the sentence 

 of a competent tribunal. In respect to recaptures 

 of neutral property, the general rule is to restore 

 the property without the demand of any salvage, 

 if the taking by the enemy was without any reason- 

 able cause, and was merely wrongful. But, if the 

 capture wns rightful, and the neutral property was 

 liable to condemnation, or, from the known course 

 of practice of the enemy, was in danger thereof, 

 then, as a beneficial service is rendered to the neu- 

 tral, salvage is demandable. The ground of this 

 distinction is obvious. If the original capture be 

 wrongful, the neutral is entitled to a decree of 

 restitution, with damages and costs at the hands of 

 the captors ; and it is no benefit to him to make a 

 recapture. But if the conduct, of the neutral vessel, 

 or the nature of the cargo, would subject, or might 

 probably subject, them to condemnation, then the 

 recapture is a benefit to the neutral, and entitles 

 the recaptors to the remuneration. So, if the enemy 

 is in the habit of disregarding the law of nations, 

 and violating all the just rights of neutrals, and 

 refusing them suitable redress, or harassing them 

 with unjust litigation, as, in such cases, there is 

 danger of loss to the neutral, a like remuneration 

 should be paid to the recaptors. Principles of a 

 similar nature are applicable to a rescue of a prize 

 by the original crew, or others in aid of them, or 

 by mere strangers. The rescue may be by citizens 

 or subjects of the belligerents, of property belong- 

 ing to fellow -subjects or fellow-citizens, or by 

 foreigners, of property belonging to foreigners, or 

 by citizens or subjects, of property belonging to 

 foreigners, or by foreigners, of property belonging 

 to citizens or subjects of the belligerents. In all 

 these cases, salvage is due where it would be due 

 in cases of recapture. In cases of derelict by the 

 enemy after capture, the salvors are also entitled to 

 salvage upon restitution; and in like manner upon 

 donations made by the enemy before condemnation, 

 where the donees have brought the property into 

 port, and it is restored (as it ought to be) to the 

 original owner. Where a hostile ship is captured, 

 and is afterwards recaptured by the enemy, and 

 then is recaptured again from the enemy, the origi- 

 nal captors are not entitled to restitution upon pay- 

 ment of salvage ; for all their rights were devested 

 by the first recapture. The same rule applies where 

 the original captorshave voluntarily abandoned their 

 prize, but not where the abandonment has been 

 involuntary, and occasioned by the terror of a supe- 

 rior force of the enemy. In all cases where the 

 amount of salvage is not expressly provided for by 

 law in cases of recapture, the power of courts of 

 prize to award it is discretionary. 



XII. Connected with the subject of recapture, 

 that of ransom may properly find a place. It kas 

 been already stated that, during war, all intercourse, 

 and right of making contracts, are suspended be- 

 tween belligerents, as interdicted by the law of 

 nations. But an exception has been uniformly 

 recognised in the practice of nations as to contracts 

 of ransom. This contract arises when the enemy, 

 having made capture of a prize, consents to re- 

 store it, upon receiving a suitable compensation ; 



ami tlie contract so entered into between the parties 

 is. upon principles of public faith and policy, he;d 

 valid. It is usual, in such cases, to retain the. mas- 

 ter, or some of the officers of the prize, as hostages 

 for the strict fulfilment of the contract. The death 

 or escape of the hostages, they being merely secu- 

 rity, does not discharge the contract. And although, 

 upon strict principles of law, it has been thought, 

 by the British courts, that actions upon ransom bills 

 cannot be brought against the owners (who, as well 

 as the hostages and master, are bound by the con- 

 tract) during the war, yet it seems difficult upon 

 principle to perceive why a court of prize might not 

 properly enforce it as a contract of prize excepted 

 from the general rule of hostilities. The effect of 

 a ransom is, that it amounts to a virtual safe-con- 

 duct to the vessel and cargo during the remainder 

 of the voyage, so as to prevent the property from a. 

 second capture by another belligerent cruiser of the 

 same nation. If it were otherwise, the ransom con- 

 tract would scarcely be entered into; and, since the 

 validity of the contract is conceded, there is an 

 implied consent on the part of the sovereign of the 

 captors, that it shall be a protection from subse- 

 quent capture during the voyage. If the prize, 

 however, deviates from the voyage, she forfeits this 

 protection, and will be liable again to capture. 

 And if she is lost during the voyage, the ransom 

 contract is still obligatory upon the parties ; for it 

 is not on the part of the captors a contract for the 

 risk, unless they expressly so engage, but a simple 

 surrender of their own rights acquired by capture. 

 If the prize be a neutral, still, if the capture is not 

 utterly wrongful, but founded upon justifiable cause 

 of capture, such as breach of blockade, carrying 

 contraband, or other violation of neutral duties, or 

 even if it is upon probable cause of capture, and 

 sending in for adjudication, a ransom bill given by 

 the neutral for a release is good, and will be en- 

 forced in the tribunals of the neutral country. But 

 suppose, after the ransom bill is taken, the captur- 

 ing ship, together with the bill, is captured, what 

 becomes of the ransom bill, and to whom does it 

 belong? The answer is, that the ransom bill is a 

 part of the capture, and the debtors upon it are 

 thus discharged from all claims by the enemy upon 

 it. But it does not necessarily follow, that the 

 recaptors, succeeding to the rights of the ransom 

 holders, might not be entitled to salvage for the 

 benefit rendered to the debtors upon the ransom 

 bill. Pothier says (De Propriete, \\. 139, n. 140) 

 that, in cases of deviation after the ransom, if a 

 second capture takes place, the ransom holders are 

 entitled to the amount out of the proceeds of the 

 prize, and the second captors can only take the 

 residue. And, under such circumstances, he 

 deems the debtors on the ransom bill discharged 

 from their obligation. His reasoning does not seem 

 very satisfactory. In England, ransom bills are pro- 

 hibited, and declared by statute to be void, unless 

 in cases of extreme necessity, to be allowed by the 

 court of admiralty. In America, no statute regu- 

 lations exist; and, therefore, the doctrine stands on 

 the general law of nations. 



XIII. Joint captures. Captures may be made 

 by a single vessel, or by an associated force acting 

 together by preconcert, or accidentally co-operat- 

 ing, or by a detached ship belonging to a squadron, 

 by privateers, or by public ships of war, by naval 

 forces alone, or by the conjoint operation of land 

 and naval forces. 1. In relation to public ships, 

 the general rule is, that all public ships in sight at 

 the time of the capture are deemed to be assisting, 

 and are, therefore, entitled to share in the capture. 

 It is otherwise in relation to privateers, for their be- 



