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RECAPTURE AND MILITARY SALVAGE.
[several cases of recapture by public ships of the United States, of the merchant vessels of her citizens, which had been seized by rebel cruisers, have occurred during the existine; war.
In every such case, the merchant owner, without objection, has paid the military salvage provided by statute, of one-eighth the value of the property recaptured, upon its restitution, and hi like manner, as if the original capture had been lawful.1
It is obvious, that had objection been made to the validity of such claim, it could not have been allowed in the courts of the United States, without involving a judicial concession of belligerent rights to the insurgents, of the same character, anil to like extent, as that virtually accorded by the Executive department of the government, in the exchange of rebel captured privateers, as prisoners of war.
By the terms of the Act of Congress of 18002 the compensation awarded as salvage for the recapture from the enemy, of a public ship, or of a merchant vessel, whether of the country of the recaptors or a neutral, is allowed upon the express condition that the property recaptured, has not been condemned in the courts of the captors prior to the recapture; thus, in effect, resting the claim to compensation upon the lawfulness of the original capture, and its successful defeat by recapture, before the inchoate right to the captured property had become absolute by a decree.
1 Vide The Mary Alice, The Henry C. Brooks, The Lizzie Weston. MS. Decisions U. S. Dist. Court, N. Y. * Vol. 2, Statutes at Large, p. 16.
How far the courts of the United States would be justified in holding lawful the captures made by insurgent privateers,—by decreeing salvage upon the recapture, and restitution of the captured property, —by reason of the executive action of surrender as prisoners of war, under the law of nations, of cap tured privateers, who are declared to be pirates by the municipal law, may admit of serious doubt.
The right vested in a sovereign natron, engaged in the duty of suppressing an insurrection which has assumed the proportions of a civil war, of regarding and treating the insurgents, either as rebels or as belligerents, is a right to be exercised by the executive branch of the government, and, from its very nature, by the Executive alone.
It is a right, to be exercised precisely according to the dictates of a varying political policy. If, therefore, the Executive, at one time, sees fit to allow an exchange of captured rebel privateers, as prisoners of war, it by no means follows that such executive action should be taken as a precedent for a subsequent judicial decree, because, at an after period in the progress of the war, the current of event s may have produced an entire change of political policy.
Certain rebel privateersmen, assuming to act under commissions from Jefferson Davis, were captured, while committing piratical raids upon the ocean, by a United States government cruiser, and carried into the port of Philadelphia. They wen? there tried in the Federal court, and convicted as pirates, under the municipal law. By Executive interposition, their status as convicted pirates, liable to be hanged, was changed to that of prisoners of war. This was in the summer of 1861. If, at any subsequent period, The Alabama, or any other rebel cruiser, should be captured, and brought into a port of the United States, would this former Executive action, make it any less the duty of the Federal courts, to proceed against her crew as pirates, under the municipal law, and to visit upon them its severest penalties, unless that branch of the government which controls its political policy, should again interpose? Surely not.
"When the executive department of the government recognizes the belligerent status of the people of a foreign nation, it is the duty of the courts to follow such recognition, in their judicial action, because it is the announcement of a permanent political policy, by that department whose province it is to determine such policy.
But the surrender of traitors or pirates, as prisoners of war, in the progress of a civil conflict, cannot be regarded in any such light. It is an act which is the result of a temporary policy merely, a policy that may not, and should not, control, the duty of judicial tribunals, to continue to regard the insurgents as traitors, punishable by the municipal law.
In the former edition of this work, it was stated that salvage was not awarded to a public ship, for the recapture from the enemy of another public ship or vessel, employed in the public service.
Such is the law of England. By the 2d section of the act of Congress last cited, salvage by the law of the United States, is granted upon the recapture of a public vessel, which "shall appear to have before belonged to the United States," in like manner as the same is allowed upon the recapture of private property.
The reason for the distinction, as established by the authorities in the English law, is, that the recapture of a vessel employed in the service of the government, is an obligation of a vessel of war, lying in the direct path of the duty in which it is engaged—a duty of the same character, and equally imperative as that of rendering aid to a ship of war in battle.
The soundness of this reason for witholding compensation as salvage, for the recapture of a public vessel, is readily recognized; but as just ground for the distinction, between the recapture of public and private vessels, it is not so easily appreciated.
Can it be said to be any less the duty of the naval forces of the government to succor, and protect the ocean commerce of its citizens, than it is to protect public property upon the seas? Indeed, is not the duty, considered simply as an obligation, of precisely the same character, differing only in degree?
The capture of a merchant vessel by a belligerent cruiser, is a blow struck at the wealth and consequent means of resistance of the adversary. By the recapture, this blow is averted.
It is the paramount duty of a vessel of war to go to the aid of another, in battle with the enemy; and in doing so, to leave a captured merchant vessel in the possession of an enemy's cruiser. The importance of success in the naval conflict exceeds that of the recover)- of the merchant vessel. But, suppose the merchant vessel to be not only laden with a precious cargo, but to be freighted with millions of treasure, it is easy to perceive that the importance of her recapture might, for the moment, outweigh that of aid in the pending battle.
It is obvious, therefore, that the duty of recapture by a public vessel, is applicable no less to private than to public property, and the policy which withholds salvage compensation for the performance of this duty in the one case, is precisely the same as it is in the other.
An attempt was made at the last session of the Congress of the United States, to obtain a repeal of the act providing for the payment of salvage in cases of recapture, except upon the recapture of neutral property.
The wisdom and justice of such repeal would seem to be too apparent to justify opposition.
[since the publication of the former edition of this work, no other change has been effected in the laws of the United States, in relation to joint-capture, than by the statute provision, which substitutes the words " within signal distance" for the words "in sight," in the designation of the vessels entitled to share as joint-captors of a prize.
If it were the purpose of this change to render the designation more definite, it may be doubted if such purpose has been accomplished.
What is to be regarded as "signal distance," is a question for judicial determination; and it is apparent that this determination must vary with the varying circumstances of fog, and storm, and darkness, and intervening obstructions, which may be the attending incidents of a capture.