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friends, (for such things fall upon the heads of friends) replied by an edict in which they decreed "that all ships purchased by neutrals within the dominions of the king of France, although manned with a neutral crew, which sailing for the first time from the enemy's ports, and not yet having been in the neutral port to which they were bound, should fall into the hands of Dutch cruizers, should be lawful prize." One would think that this edict was founded on the law of retaliation; but retaliation is only to be exercised on him who has committed the injury, and not against a common friend. Therefore the edict of the states-general of the 29th of November 1666 cannot be defended on the ground that the English had before acted with a greater degree of injustice when their ambassador, on the 23d of December 1664, gave notice to the Hanse-Towns, who were in amity then both with England and the states-general, that all the ships which they should purchase in the territory of the United Provinces should, without distinction of voyage, be considered as enemies.* He who has done no injury ought not in justice to suffer.
Moreover, from those decrees of the states-general of 1630 and 1666, one might think that it appears that those things which our friends have purchased from our enemies cannot be taken from them, if they have once been carried into a neutral port, as they say that such things may be lawfully condemned, "before they have been into their own or some other neutral port:" but so much does not even sufficiently appear. The admiralty of Amsterdam had consulted the statesgeneral upon this subject, but nothing was decided upon it; for the states simply answered by their letter of the 26th of June 1630, "As to ships taken by the enemy from the inhabitants of this country, carried into Flanders and there condemned, which without being taken should be carried into England, France, or other neutral countries, and should be captured by our ships on their,way from thence on other free
* Aitz. b. 44.
voyages, we ought to have some short time to consider, whether or not they should be declared lawful prize, requesting that in the mean time you will communicate to us the sentences that have been given in similar cases, and the decisions that have taken place thereon in other countries." On this same question I find that the court of Holland was consulted in the following year, 1631; but I do not know what answer they gave. But although the Dutch lawyers, requested to give their opinions on the same point, on the 25th of January 1636, answered very properly and upon true legal principles, " that our ships, taken by the enemy and purchased by neutrals, became by the very act of capture the property of the enemy, and therefore lawfully belonged to those who purchased from him," there have nevertheless been since that time disputes upon that subject.* But that this doubt of the states-general in the year 1630 may not hereafter occasion any prejudice, when similar cases shall arise, I must repeat what I have said above, that they had a special case before them, that the question was concerning the blockaded Flemish ports, which not being attended to, has involved the point in obscurity; but that from thence it would not be proper to argue as to ports which were not blockaded, and to and from which a free ingress and egress was permitted. The decree of the 27th of November 1666 is sufficiently iniquitous, let us not therefore add to it another injustice, which was not in fact such, because founded on a special case.
But if the states-general had meant to say, that the property of a prize is not altered, unless it has been carried into the enemy's port, and has afterwards freely sailed from thence and arrived into the port of a friend, what ground or reason would there be for their edicts, by which, in case of recapture of our vessels taken by the enemy, they allow a part to the recaptor and a part to the original owner? If mere capture transfers the property, what right remains to the former owner? if not, what right has the
* Aitz. b. 21.; Id. b. 23.
recaptor to a certain part, when the former owner may reclaim his property? I should think for my own part with many others, that no right remains in him, and so is the usage among all nations. These are things that can neither be reconciled with the decree of the 27th of November 1666, nor with law, nor with common sense.
Of the Recapture of movable Property.
T yl 7H AT I have lightly touched upon at the end of the last V * chapter, I am now going to consider and discuss more at large. W.hereupon it is to be observed, that immovable property, when recaptured, returns to the former owners by postliminy, but that movables which we now treat of do not so return. It is thus laid down by Labeo, in 1. 28. de Capt. Postlim. Revers: Si quid bello caption est, in prceda est, non postliminio redit. "If any thing be taken in war, it is a prize, and does not return by postliminy." As to ships, however, although they are considered as movables, he distinguishes, /. 2. pr.ff. eod., that such ships as may be of use in war return by postliminy, but others not. But this and other distinctions of the Roman law between movable things have become obsolete by the gradual change of manners, as Grotius justly observes.* Hence now movable goods^ without any distinction, are prize, without any right of postliminy. As a consequence from this it has been inferred that goods taken by the enemy, and afterwards recaptured, vest in the recaptors; because, as capture, in time of war, transfers the property, so recapture must of course transfer it in like manner. But we do not recapture for ourselves, except those things which have pleno jure become enemy's property; for if they have not, the former owner may still vindicate his right. As to the time when movable goods are considered pleno jure as having become the enemy's property, it depends on the circumstances which I have treated of in the preceding chapter. < ',
Although the definition of this thing is very uncertain, so much, however, is most true, that movable goods carried intra prasidia] of the enemy, become clearly and fully his
* De Jure Belli ac Pac. 1. 3. c. 9. J 15 f Within the places of safety. T
property, and consequently, if retaken, vest entirely in the recaptors. The same is to be said of ships, carried into the enemy's ports, and afterwards recaptured, so that no property or right to them remains in the former owner, as I mentioned at the end of the preceding chapter. On these principles, the agreement which was made on the 22d of October 1689, between the king of England and the states-general, then allies in war, that each other's ships when recaptured should be restored to the former owner, on payment of a certain salvage, has been construed to apply only to cases where the ships had not been carried into the ports of the enemy, for otherwise they are to be entirely the property of the recaptors.
So far is sufficiently clear, but what is not equally so is what is to be understood by prxsidia, or ports? Is it the ports of those who have taken the ship, or of their allies? It may be said that it is enough if they are carried into the ports of the latter, provided they are their allies in the existing war, and equally with themselves the enemies of those whose vessels have been taken. Prizes are equally safe in the ports of such an ally, as in those of the captor himself, and there is no hope of retaking them, unless they should sail again out of that port. But when the French had taken two Hamburg ships, on the 28th of December 1675, in which were the goods of Amsterdam merchants, and had had them fourteen days in their possession, and afterwards carried them into the port of Hull in England,* I find that the states-general entertained a different opinion. The admiralty of Dunkirk, before the return of the French, had condemned the said ships and their cargoes, and the French had even sold a part of the goods at Hull; and as the ships, with the remainder of the goods, were on their way to Dunkirk, they were taken by the Zealanders, carried into Zealand, and there condemned. But the statesgeneral, being applied to by the Amsterdam merchants, did, on the 23d of October 1676, decree, that the recaptured ^odOs should be restored to their former owners, because they had not yet been carried into the ports of the enemy and there con
* England was :it that time in alliance with France against the United f/etherlandt 7'.