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demned and distributed. By the ports of the enemy, the states. general understood those of the captors, for they say “ of the aforesaid enemy,” thereby implying that it was not sufficient that the ships had been carried into another port, either of a friend or of an ally in the war. It appears to me that the Zealanders had the law, and the states-general had power on their side.*
Ships therefore become the property of the enemy, which have been taken by them, and carried into their ports. But what if they have not been yet carried thither, and should have remained some time in the port of a friend or ally, or navigated in company with the capturing ship? Certainly, if we consider the laws of our country, and the authority of publicists, it can hardly be said, that the length of time that ships have been captured, or the place into which they have been carried, though ever so safe, can transfer the property, unless they have been carried into port. Hence jurists simply say; that every thing which is retaken before it is carried into the enemy's ports, is entitled to postliminy, although it may have been taken for several months, and although it may have remained in the ports of a common friend, and that it does not vest in the enemy, unless he has carried it into his
* From this, and what our author says afterwards, page 41, it seems that he was of opinion that a belligerent might lawfully condemn enemy's pro. perty, while lying under capture in a neutral port. Such appears also to have been the opinion of that able civilian sir William Scott, (while advocategeneral) and of the whole court of king's bench in England, in 1789. (Smart v. Wolff, 3 Term Rep. 329.) But political considerations have since induced. that learned judge to maintain the opposite doctrine, contrary to the ancient, . nay, inveterate practice of his own country, which probably, however, continues the same, the superior court not having appeared disposed to controvert the established principle and to adopt the new rule which was pointed out to them. (The-Herstelder, 1 Robinson's Reports, 100.; the Hendrick and Maria, 5 Rob. 35. 6 Rob. 138. Amer. edit.) The supreme court of the United States have sanctioned what appears to be the opinion of our author on this point, by their decisions in the cases of Rose v. Himely and Hudson v. Guestier, 4 Granch’s Reports, 241. 293. These decisions are conformable to the universal practice of Europe for more than one hundred years, which is, indeed, sufficiently justifiable, on principles of convenience to neutrals as well as to belligerents. See Lampredi, del commercio de' popoli neutrali in tempo di guerra, part 1. § 14.
own ports. The word postliminy is very improperly used here, because those who know what postliminy is, know also, that it does not take place except in regard to those things which had before become the property of the enemy. They should have said, that before prizes were carried into port, they did not become the property of the enemy, but remained the property of the former owner, and that therefore when recaptured they returned to him, and did not go to the recaptor.
It will not be unprofitable to consider what laws have been made on this subject in this country, taking them in their chronological order. There are some who think from the edict of the states of Holland, of the 4th of March 1600, that there existed a right in favour of former owners to claim their captured property, wherever they might find it, even though it had been carried into the enemy's ports. This is correct as far as the edict goes, but it speaks only of those vessels, which the states of Holland considered as having been condemned in violation of the laws of war, as I have said before; (c. 2.) therefore the edict does not apply to the present question. If the ships have been lawfully taken, carried into port and condemned, every claim must cease; and if they sail afterwards, there remains nothing but a right to recapture, and whoever retakes them will be their full and complete owner. But it is important to know, before the carrying of the ship into port and her subsequent condemnation, what right belongs to the former owner, and what to the recaptor? If we know what belongs to the one, we know at the same time that the remainder belongs to the other.
The oldest law that I know of on this subject, is the edict of the states-general of the 4th of July 1625, by which it is enacted, that if a vessel be retaken within twenty-four hours, one eighth goes to the private recaptors; if within forty-eight hours, one fifth; if afterwards, one third. This law the same states-general on the 22d of July 1625, applied to ships of war, recapturing private vessels. There followed afterwards another law also enacted by the states-general, of the 11th of March 1632,, by which, without any distinction of time, private recaptors were entitled to two
thirds of their recapture. But afterwards, on the 1st of September 1643, the states-general altered this disposition, for by the fifty-eighth section of their edict of that date, if a ship be recovered within twenty-four hours, the recaptor is to have one eighth; if within forty.eight hours, one fifth, and if afterwards, one third, as in former edicts, which, I think, were made on the 4th and 22d of July 1625. Afterwards they returned to two thirds, without any distinction of time with regard to privateers, agreeably to the edict of the year 1632. The 16th section of the edict of the states-general of the 8th of February 1645, gave two thirds to the recaptors, and added that the value of the vessel and cargo should be amicably estimated between the owner and the recaptor, otherwise that the admiralty should decree on the amount of salvage. They again changed their minds on the 19th of April 1659, for by a decree of that date, they gave to the recaptors, whether of public or private ships, but one ninth part of the vessel and cargo retaken, thus again abolishing every distinction of time. This decree, however, was never published, but I have found it among the acts of the states-general, and it is mentioned somewhere else. At last, the states-general, saving, as they say, the ancient laws as to ships of war (what ancient laws they meant I cannot say, as they have so varied) did on the 13th of April 1677, decree as to private recaptors as fol. lows, to wit: that they should have by way of salvage, one fifth of the ship and goods retaken, if the same had not yet been forty-eight hours in the possession of the enemy; if fortyeight hours and less than ninety-six hours, then one third; if more than vinety-six hours, one half.
The king of England and the states-general were pleased to establish between them the same distinction and division of time, and the same rates of salvage, by the treaty above mentioned of the 22d of October 1689, in case a privateer of one nation should retake the ships or goods of a subject of the other party, but if the recapture should be made by a ship of war, the recaptor was to have only one eighth, without any distinction of time.
Now, why so much variety? why these distinctions of time and those greater and lesser shares in proportion thereof? Whence . again, if the distinction of time must be had, so much diversity in the proportion of the salvage? Why also, rejecting all distinction of time, is now so large a proportion as two thirds and now so small a one as one ninth allowed to the recaptor? Certainly it is difficult to give a reason for things that have been established without any reason, and here, if any where, it will be proper to refer to the law non omnium*--the reader knows the rest. The public tranquillity of nations however, and the repose of our own subjects, require that something certain should be established upon rational principles. The whole depends upon this question: when do we consider that captured • ships and goods vest absolutely in the enemy? The law indeed has decided that they so vest by a true and complete occupation. But the variety of cases and circumstances does not al. ways permit us to know, whether there is actually a firm pos. session, that is to say, such a one as the captor may retain and defend. What the enemy has taken on the high seas, at a great distance from his territory, he may lose, and often loses by recapture. If he carries what he has taken into his own ports and territory, no one can doubt that it has then become his absolute property. I would say the same if he had carried it into the port of a neutral or of an ally, but if this, as I said above, cannot be admitted, t I must grant, that whatever is taken at sea, is to be carried into the captor's own port or fleet, and that it cannot be until then considered as fully his.
What then, if it be recaptured before that time? Then the former owner will have a right to claim his property, as the property has neither vested in the captor nor in the recaptor; I say the former owner, because there has been an intermediate possession of some kind. But shall the owner claim his property from the recaptor, without paying him any salvage or reward for the recapture? without any remuneration for his
* Non omnium, quæ à majoribus constituta sunt, ratio reddi potest. A reason cannot be given for every law which our ancestors have established. Dig. 1. 1. tit. 3. 1. 20.
T. I See note, p. 38.
labour and expense in and about the said recapture? this, equity, the supreme law of nations, will not permit. It requires that a salvage, premium, reward, something, in short, by whatsoever name it may be called, should be given. The recaptor has saved the ship and goods, which otherwise would have been lost to the owner, and why should he have exposed himself to danger without any hope of reward? why should he have fought for the property of another as if it were his own? why should he have employed his arms and his men to no purpose whatever? He has beneficially managed the business of the owner, and he is entitled for his labour and expenses to the action negotiorum gestorum.* I do not know of any other action in the Roman law proper for the recaptor; if the thing is to be decided by the rules of the Roman jurisprudence, for this action is the only proper one when a reward is sued for, either for work and labour done or for money laid out. But upon what law or principle it has been thought proper to give to the recaptor a part of the thing retaken, I do not myself understand; much less do I understand how that proportion can be greater or less according to the quantity of time that the thing taken has been in the hands of the enemy. What have 24, 48 or 96 hours to do here? The greater or lesser duration of the enemy's possession, when the thing taken has not been carried into a place of safety, cannot, in my opinion, give a greater or a less right.t
Wherefore, if the subject is to be considered according to the rules of reason, every distinction of time is to be abolished, and in lieu thereof is to be the proportioned value of the recaptor's labour and expenses, taking into consideration the danger that he has been exposed to, and the value of the things saved. From all these considerations taken together, impartial men are to settle and determine what reward he is entitled to. Nor should the allowance be dealt with a sparing, but
* This action in the civil law is analogous to our general assumpsit founded on an inplied contract, for work and labour done and money laid out and expended.
T. See the case of the Santa Cruz, 1 Rob. 44. Philad. edit. in note. T.