Part 8 (1/2)

As it has been stated above, in cases of recapture, the material question is, whether there was such a capture made by the enemy, as to found a case of re-capture.

This is settled by the question whether the enemy have an effectual possession; by this is not meant the _complete_ and firm possession obtained by condemnation in a Court of Prize, but that effectual possession, that if not interrupted by recapture, would have enabled the captor to exercise rights of war over her. For this purpose it is not necessary that the possession should be _long_ maintained. The following are some examples of such effectual possession.

An English merchantman, separated from her convoy during a storm, was brought to by an enemy's lugger, which came up and told the master to stay by her till the storm was abated, when they would send a man on board; a British frigate coming up afterwards chased the lugger and took her, thus releasing the merchantman; the frigate was held ent.i.tled to salvage.[132]

But when a small English vessel, armed with two swivels, forced a privateer row-boat from Dunkirk to strike, but was not able to board her, because the English vessel has only three men, and no arms but the swivels,--the Frenchman being filled with a well armed crew; and subsequently, the row-boat was forced to put into the port of Ostend, then the port of an ally; this might not be a capture under the act, so much as it was under the general maritime law.

A vessel brought out of port, and which was in the power, though not in the actual occupation of the enemy, was thus rescued from considerable peril, was held to be recaptured.[133]

Similarly, with a vessel abandoned by the enemy, having possession of her, through the terror of an approaching force.[134]

There is no claim to Salvage where the property rescued was not in the possession of the enemy, or so nearly as to be certainly and inevitably under his grasp.

[Sidenote: Recapture of Property of Allies.]

England restores the Recaptured Property of her Allies, on the payment of salvage; but if instances can be given of British property retaken by them, and condemned as prize, the Court of Admiralty will determine their cases according to their own rule.[135]

[Sidenote: Recapture of Neutral Property.]

It is not the practice of modern nations to grant Salvage on the Recapture of Neutral Vessels; and upon this plain principle, that the liberation of a clear neutral from the hand of the enemy, is no essential service to him; for the enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port, to release him with costs and damages, for the injurious seizure and detention. This proceeds on the supposition, that those tribunals would duly respect the law of nations; a presumption which, in the wars of civilized states, each belligerent is bound to entertain in their respective dealings with neutrals. But in the wild hostilities declared and practised by France in the Revolutionary War, there was a constant struggle between the governing powers of France and the maritime courts, which should most outrage the rights of neutral property; the liberation of neutral property out of their hands then came to be deemed, not only by Lord Stowell, but by the neutrals themselves, a substantial benefit; and salvage for such service was not only awarded, but thankfully paid.[136]

[Sidenote: Jus Postliminii.]

The rule by which things taken by the enemy are restored to their former owner, upon coming again under the power of the nation to which they formerly belonged, is termed _jus postliminii_, or the right of postliminy. Real property, which is easily identified, is more completely within the right of postliminy than moveable property, which is more transitory in its nature, and less easily recognized.

During war, the right of postliminy can only be claimed in the tribunals of the belligerent powers, and not in the courts of neutrals; for by a general law of nations, neutrals have no right to enquire into any captures, except such as are an infringement of their own neutrality.[137]

[Sidenote: Costs and Damages to Owners for invalid Seizures.]

It often happens that captains of s.h.i.+ps of war and privateers make seizures of native or neutral vessels, under the impression that such vessels are occupied in illicit trade or other condemnatory acts. This may arise from error, and in such cases the vessel is restored to the owner by the prize court; but still there may be circ.u.mstances justifying the seizure, though not condemnation; and if condemnation is not granted, the owner sets up a claim for any damage that may have occurred to his vessel.

And the rule is, that where the capture is not justifiable, a captor is answerable for every damage.[138]

But if a seizure is justifiable, all that the law requires is that the captor shall be held responsible for _due diligence_; it is not enough that the captor should use as much caution as he would in his own affairs, the law requires that there should be no _deficiency of due diligence_.[139]

When property is confided by an owner to another person, the care that the owner would take of his own property may be a reasonable criterion of the care that he may expect his agent to take. But in the case of capture, there is no confidence reposed, nor any voluntary election of the person in whose care the property is left. It is a compulsory act of justifiable force, but still of such force as removes from the owner any responsibility for the imprudent conduct of the prize-master. Hence, where the prize-master refused to take a pilot, and the s.h.i.+p and cargo were lost, rest.i.tution in value was decreed.

CHAPTER III.

SECTION I.

_Neutrality_.

[Sidenote: Rights of Neutral Nations.]

It now only remains for me to place before the reader the Rights and Obligations of Neutral Nations, as they influence Commerce.