the enemy, but no one would say that such terror would entitle them to share. Though the fact of terror were ever so strongly proved, there would not be that co-operation which the law requires to entitle non-commissioned vessels to be considered as Joint Captors. But if non-commissioned ships chase animo capiendi, they are entitled to share if the Capture be made by their contributions in this service (o). CCCXCIX. 4. With respect to conjunct operation by Land and Sea Forces, how far the former are permitted to share in prizes made by the latter, where no express provision is made by statute, depends upon the circumstances of the case. A mere general co-operation in the same general objects would not be sufficient (p); but an actual co-operation in the particular object is clearly sufficient (9). By 27 & 28 Vict. c. 25, § 34, it is provided as follows: "Where, in an expedition of any of Her Majesty's naval or "naval and military forces against a fortress or possession "on land, goods belonging to the State of the enemy or to a public trading company of the enemy exercising powers of government, are taken in the fortress or possession, or a ship is taken in waters defended by or "belonging to the fortress or possession, a Prize Court "shall have jurisdiction as to the goods or ship so taken, "and any goods taken on board the ship, as in case of Prize.” 66 CCCC. If the fleet of an ally and our own fleet serve together under a commander, who detaches the squadron of the ally, the latter is not entitled to share in Captures subsequently made; but if an ally actually co-operates in effecting a Capture, he is entitled to share as a Joint Captor. But the question whether he is a Joint Captor or not, is a question over which Courts of Common Law have (0) The Twee Gessuster and Le Franc, cited in 2 Rob. Adm. Rep. pp. 284, 285, notes (a) (b). (p) The Stella del Norte, 5 ib. p. 349. (q) Ibid. The Dordrecht, 2 ib. p. 55. no jurisdiction, and which belongs exclusively to the Admiralty (r). CCCCI. By the Convention (s) entered into between France and England during the Crimean war, it was stipulated (Art I.), that when a Joint Capture was made by the naval forces of the two countries, the adjudication thereof should belong to the jurisdiction of the country whose flag should have been borne by the officer having the superior command in the action. And (Art. 2) when a Capture shall have been made by a cruiser of either of the two Allied nations, in the presence and in the sight of a cruiser of the other, such cruiser having thus contributed to the intimidation of the enemy and the encouragement of the Captor, the adjudication thereof shall belong to the jurisdiction of the actual Captor. 66 66 By § 35 of 27 & 28 Vict. c. 25, it is provided that "where any ship or goods is or are taken by any of Her Majesty's naval or naval and military forces while "acting in conjunction with any forces of any of Her Majesty's allies, a Prize Court shall have jurisdiction as "to the same as in case of Prize, and shall have power, after "condemnation, to apportion the due share of the proceeds to "Her Majesty's ally, the proportionate amount and the dis"position of which share shall be such as may from time to time "be agreed between Her Majesty and Her Majesty's ally." CCCCII. In case of Joint Captures by public ships, the rule as to the proportion in which they are to share is established generally by statute. In the North American (r) Duckworth v. Tucker, 2 Taunt. p. 7. (s) May 20th, 1854. For the Law of France upon this subject, see Merlin, Rép. t. xiii. pp. 156-162. "XIV. Il faut " (he says), "sur cette matière, distinguer trois cas celui où les prises ont été faites par les vaisseaux de l'État, agissant avec ou sans le concours de corsaires particuliers; celui où elles ont été faites par des corsaires particuliers agissant isolément; et celui où elles ont été faites, soit par les vaisseaux de l'État, soit par des corsaires particuliers, avec le concours des garnisons de forts et batteries de terre ou des préposés des douanes.' United States the proportion is fixed by the Act of the 22nd April, 1800, c. 33, which provides that the capturing ships shall share" according to the number of men and guns "on board each ship in sight." In respect to privateers, no statute regulation exists; and by the general rule of the Prize Law, they are to share in proportion to their relative strength (t). This relative strength is, by the Law of Great Britain and the United States, ascertained by the number of men on board of such ship assisting in the Capture (u). Such, too, is the rule where an ally co-operates in the Capture (x). And the same rule seems applicable to the case of a Joint Capture by a public ship and a private ship of war, and this whether the latter be commissioned or not (y). (t) Bynk. Q. J. P. 1. i. c. xviii. (u) Roberts v. Hartley, Doug. p. 311. The Dispatch, 2 Gallison's (Amer.) Rep. p. 1. (x) Duckworth v. Tucker, 2 Taunt. p. 7. (y) The Twee Gessuster, 2 Rob. Adm. Rep. p. 284 note (a). CHAPTER VI. POSTLIMINIUM.-RECAPTURE.-RANSOM. CCCCIII. THE jus postliminii (a) of the Roman Law related to persons and to things. 66 I. With respect to the former, the person who was liberated from prison, and who returned to his country, had a right to be replaced in his original legal status. It was said of him, "pristinum jus suum recipit," or " postliminium fingit eum, qui captus est, in civitate semper fuisse" (b). This jus postliminii had a double effect (c): partly of a passive character, inasmuch as in some instances it replaced the returned person within the dominion of the right of another person; as, for instance, the returned son fell again under the power of his parent, the returned slave under the power of his master. To produce this passive effect, the only requisite was the simple return of the individual. But to produce the active effect, the jus postliminii required that the individual should have returned for the purpose of regaining his rights; that he should not have been abandoned by his country; that he should not have been the subject of a deditio, either during war, or at the time of making peace. The jus postliminii was denied to those who illegally returned to their country during an armistice, to deserters, and to those who had surrendered in battle. (c) Puchta. Instit. II. 499-500, § 220 (a); 324–5, § 223 (m. q.); 637, § 241 (2). II. With respect to things. The Roman Law considered things taken by the enemy as withdrawn from the category of legal relations during the period of the enemy's possession of them; but they were restored to this category when they were recovered, either by the State to which the original proprietor belonged, or immediately by the original proprietor himself. In the former case, they were considered as booty, or prize of war, and the original right of property was holden to have been extinguished by the intervening hostile possession; with certain exceptions, indeed, which included parcels of territory, horses, mules, and ships used for purposes of war. To these things the jus postliminii was accorded (d). CCCCIV. It will be seen, that this maxim of Roman policy has not been engrafted into modern International Law. But, generally speaking, the jus postliminii is fully recognised by that Law (e) as an incident to the state of war; it is a right which, strictly speaking, belongs exclusively to war. The recognition of this right by International Law has a tendency to mitigate the necessary evils of war; and it is a true general proposition of that law, that property captured by the enemy and recaptured by the fellow-subjects, or allies, of the original owner, does not become the property of the recaptor, as if it had been a new booty or prize, but must be restored jure postliminii, upon certain conditions, to the original owner. It is to be observed, that this right cannot be enforced in Neutral States; because, as we have seen, the Neutral is bound to consider each Belligerent as equally just in his position and demands; and it follows, that he looks upon the acquisitions of both parties as equally lawful; unless, indeed, it has been accompanied by an infringement of neutral territory or neutral rights. It is only, therefore, (d) Puchta. Instit. II. 687, §§ 241-2. · |