Sect. III. Of the the British Court of Admiralty decided, that a ship which had Detention, Sei been sold to a neutral, after an illegal condemnation by a prize zure, Capture, and Confiscation, tribunal, and which therefore, would not have been considered by Belligerents, as fairly transferred during war, was to be deemed, by the interof Property employed in vention of peace, a legitimate possession in the neutral's hands, Commerce. and cured of all defects in the title. For as the title of the enemy captor himself, would have been quieted by the intervention of peace, so it was thought to be but reasonable that the general amnesty should have the same effect upon property in the hands of those to whom that enemy might have assigned it. "Otherwise," observed Sir William Scott," it could not be said that the intervention of peace would have the effect of quieting the possession of the enemy; because, if the neutral possessor was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him; and as to a renewal of war, though that may change the relation of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before."

When the assignment has been made by the hostile captor regularly and bonâ fide, and the party to whom the captor has so made that assignment was, at the time of making it, a neutral, the title in the hands of such assignce will not be defeated by his subsequently becoming an enemy, as appears from the case of the Purissima Conception (1). But though, in such instances, the rights of rescue and recapture are gone, so that the original owner has irrecoverably lost his property, yet the party to whom it was transferred during neutrality having become hostile, his property is of course, in common with all other hostile possessions, liable to be seized as prize of war; the only difference being that, instead of passing as a recapture and reverting to the original owner, it is considered as a new booty, and belongs either to those who make the seizure or to the state, according to the circumstances of the case.

The rules which have been stated, are those which govern the right of postliminium by the general law of nations, and to which therefore England is obliged in common justice to conform, where the interests of neutrals are concerned. But in cases arising among her own subjects with one another, and in cases arising between her own subjects and those of her allies, peculiar

(1) 6 Rob. Rep. 45.

employed in

Commerce.

modifications of the principle have been introduced or acknow- Sect. III. Of the ledged by her. Thus it has been established by several acts of Detention, Seizure, Capture, parliament (1), that, among English subjects, the maritime right and Confiscation, of postliminium subsists even to the end of the war; and there- by Belligerents, of Property fore the ships or goods of the subjects of this country, taken at sea by an enemy, and afterwards retaken, at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors. The statute of the 43 Geo. 3. c. 160. s. 39. makes an exception as to ships which have been set forth by the enemy as vessels of war, enacting that these shall not be restored to the original owners, but belong wholly to the recaptors. But if the property recaptured were captured at first in an illegal trade, then the original right is divested, and the previous owner will not, be admitted to restitution from the recaptors, as was determined in the case of the Walsingham Packet (2). The rule which this country adopts in giving effect to the right of postliminium between her own subjects and those of her allies, may be gathered from the judgment pronounced by Sir W. Scott in the case of the Santa Cruz (3). It was the case of a Portuguese vessel taken by the French; and after remaining a month in the enemy's possession, retaken by the cruizers of this country, which was in alliance with Portugal. "The actual rule of the English maritime law," said Sir W. Scott, "I understand to be clearly this, that the maritime law of England, having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice." It appears from the case of the San Francisco (4) that, by a treaty between this country and Spain, the vessels of the respective countries, which have been recaptured, are to be restored on payment of salvage.

to Recaptor.

But though it has been the rule of this country, as among of Salvage or her own subjects, to restore recaptured property to the original Remuneration owner, yet it has not been her rule to make the recaptors afford this restitution altogether gratuitously. By the acts of the

17

ton v. Mendes.

(1) 13 Geo. 2. ch. 4. Geo. 2. ch. 34. 19 Geo. 2. ch. 34. 43 Geo. 3. ch. 160. Vide 2 Burr. 1198. and 1 Bl. Rep. 27. Hamil

(2) 2 Rob. Rep. 77.
(3) 1 Rob. Rep. 49.
(4) 1 Edwards, 279.

Sect. III. Of the
Detention, Sei-

zure, Capture,

and Confiscation, by Belligerents,

of Property employed in Commerce.

48 Geo. 3. c. 160. s. 39. the legislature has secured to the re-
captors, according to the circumstances of the recapture, certain
rates of salvage: which salvage is, as the term indeed implies, a
reward given for saving the property, or (which is nearly the same
thing) recovering it. The salvage allotted to British recaptors,
is at the rate of one-eighth of the beneficial interest in the whole
recaptured property, where the recapture is effected by ships
belonging to the royal navy; and one-sixth, where it is effected
by private ships; the judge of the court being at liberty, in cases
of recapture by the joint efforts of king's ships and private ves-
sels, to order such salvage as he shall deem reasonable. In our
old books, the word salvage is used in another sense, being made
to denote the goods saved or recovered; but at present it almost
universally bears this sense, namely, the reward to which the
deliverer of such goods becomes entitled for the service he has
performed. The reward of salvage is not confined to recapture
alone, it is given also in cases of rescue. But here it is neces-
sary to advert again to that distinction which was before pointed
out, between the two kinds of rescue. When the rescue is
effected by the arrival of a fresh succour, which relieves the
weaker party before he falls into the power of the adversary, no
salvage is given to the rescuers. Thus it was said by Sir Wil-
liam Scott, in the case of the Franklin (1), " No case has been
cited, and I know of none, in which military salvage has been
given, where the property rescued was not in the possession of
the enemy, or so nearly as to be certainly and inevitably under
his grasp.
There has been no case of salvage where the posses-
sion, if not absolute, was not almost indefeasible, as where the
ship had struck, and was so near as to be virtually in the hands
and gripe of the enemy." When the rescue is of the other
description, that is to say, when it is effected by the rising of the
captured crew against the captors, a salvage is given; as is
manifest from very many cases in the Admiralty Reports, and
most particularly from that of the Two Friends (2). The allot-
ment of salvage, on recapture and rescue, is not a matter of
British regulation alone; for salvage, as the court remarked in
the case last quoted, is a question of the law of nations. The
particular rates indeed which our acts of parliament assign, are
binding only in cases between British subjects (3); but in cases
where restitution has been made to the subjects of other states,

(1) 4 Rob. Rep. 147. 1 Edw. Rep. 68.

(2) 1 Rob. Rep. 271.

(3) Two Friends, 1 Rob. Rep. 271.

Sect. III. Of the

Detention, Seizure, Capture,

it has been usual, with our courts, to assess such a salvage as the nature of the service performed might reasonably appear to deserve (1); and that assessment is usually though not necessarily and Confiscation, made according to the British rates. This was stated by Sir by Belligerents, of Property William Scott, in the case of the Two Friends. Nor is there employed in Commerce. any thing unjust in this requisition of salvage from neutrals upon restitution; the restitution of moveables being, as we have seen, a matter of favour and relaxation, not enjoined in any way by the strict law of nations, we of course have a right to annex a condition to our liberality. And after all, as Lord Mansfield observed in the case of Cornu against Blackburn (2), there is no exaction in the case; for no man can be compelled to pay salvage, unless he chooses to have the property back.

If the property of a nation, not engaged in hostility with the enemies of this country, happen to be taken as prize by them, and retaken out of their hands by his majesty's subjects, the probability of its condemnation in the courts of the country of the captors is to be considered; and unless there appear to be ground on which it may be supposed that it would have been condemned in those courts, it is to be restored without the payment of any salvage. In the late war, the conduct of the cruizers and prize courts of France, having given reason to apprehend that neutral property, arrested by the former on the high seas, would, in almost all cases, be condemned by the latter, salvage was usually allowed to the recaptors of neutral property out of the hands of the French by our Court of Admiralty, and such allowance was not thought unreasonable by the neutral merchants. But this was treated as an exception to the general rule, founded on particular circumstances (3).

(1) Marshall, 474.

(2) Dougl. 648.

(3) Eleonora Catherina, 4 Rob. Rep. 156. War-Oushen, 2 Rob.

Rep. 299. Carlotta, 5 Rob. Rep.
54. Huntress, 6 Rob. Rep. 104.
Abbot's Law of Shipping, part 3.

c. 11. s. 13.

Right of Neutrals to carry on their

accustomed

Commerce. (2)

CHAP. IX.

How Neutrals Commerce and Contracts may be legally affected by War.

HAVING thus endeavoured to consider the effect of war on the commerce of Belligerents, we will now proceed to examine the second division of the subject, relating to the legal effect of war upon the commerce of Neutrals. (1) This will lead us to consider-The right of neutrals to carry on their accustomed commerce-The protection afforded to commerce by a neutral port or country-What commerce of neutrals, during war, is illegal or contraband-The consequences of violation of blockade, or of affording illegal assistance to the enemy by conveying dispatches, carrying troops, or trading contrary to treaty; and also the consequences of undue submission by a neutral to the outrages of one of the belligerents; and of carrying on commerce usually interdicted in time of peace, as the coasting and colonial trade- What interest of the enemy in property, upon which a neutral has a claim, renders it liable to confiscation—And lastly, of the suspension of the rights of neutrals, the right forcibly to employ their ships, and of visitation and search, and consequences of resistance.

To mitigate, as much as possible, the calamities and sufferings of warfare, and to confine them to the belligerent powers, nations have found it convenient mutually to adopt certain principles, which, like the common law of our own country, have become fixed and settled by usage, confirmed by precedents, and illustrated by the writings of learned men. These principles have also been adverted to and ratified by treaties between civilized nations in all ages; and this public law establishes, that countries not engaged in war, nor interposing in it, shall not be affected. by the differences of contending nations; but, to use the very words of the eminent judge who now presides with so much learning in the Court of Admiralty, "upon the breaking out of

(1) See division of the subject

ante.

(2) See Horne on Captures, 215 to 233.