or the traffic in which it is engaged, may stamp it with a hostile character, although the owner may happen to be a neutral domiciled in a neutral country. Such are the familiar instances of engagements in the colonial, coasting, fishing, or other privileged trade of the enemy. So, the produce of an estate belonging to a neutral in an enemy's colony is impressed with the character of the soil, notwithstanding a neutral residence. So, if a vessel purchased in the enemy's country is, by consent and habitual occupation, employed in the trade of that country during the war, she is deemed a vessel of the country from which she is so navigating, whatever may be the domicile of the owner.' The principle, says Sir Travers Twiss, 'to be extracted from these cases seems to be, that where a person is engaged in the ordinary or extraordinary commerce of an enemy's country upon the same footing and with the same advantages as native resident subjects, his property so employed is to be deemed incorporated with the general commerce of that country, and subject to confiscation, be his residence where it may.'1 Property Afloat. The property, whether public or private, of the enemy afloat, whether at sea or in port, is liable to capture and confiscation. Ransom at Sea. The position of a captor afloat is obviously, in many respects, very different from that of the captor on land; conspicuously so in the fact that his prize must in many instances prove so serious a burthen as to prompt the expediency of resorting to his right instantly to destroy it. This right, coupled with this difficulty, suggested the expedient of Ransom 1 Law of Nations-War, p. 307, where see cases quoted. Bills, or contracts entered into between the captor and the commander of the captured vessel, by which the former, for a sum agreed between them, releases and gives him safe-conduct within a given period to a given port. Mr. Justice Story remarks,—' Whether the property vests after twenty-four hours' possession, or after bringing infra præsidia, as seems the doctrine of the civilians; or after condemnation, as is the doctrine of Great Britain; it is clear that the right to take a Ransom exists from the moment of capture; but by the general practice of the maritime world, a decree of condemnation is deemed necessary to ascertain and confirm the inchoate title of the captors-at least, in respect to the Sovereign and subjects of their own country. Nor is a Ransom, strictly speaking, a repurchase of the captured property. It is rather a repurchase of the actual right of the captors at the time, be it what it may; or, more properly, it is a relinquishment of all the interest and benefit, which the captors might acquire or consummate in the property by the regular adjudications of a prize tribunal, whether it be an interest in rem, a lien, or a mere title to expenses. In this respect there seems to be no legal difference between the case of a ransom of the property of an enemy and of a neutral. For if the property be neutral, and yet there be a probable cause of capture, or if the delinquency be such that the penalty of confiscation might be justly applied; there can be no intrinsic difficulty in supporting a contract, by which the captors agree to waive their rights in consideration of a sum of money voluntarily paid, or agreed to be paid, by the captured." Ransom Bills have received different countenance by 1 Maissonaire and others v. Keating, 2 Gallison, p. 337. different governments. By the British they have, since the 22 Geo. III. c. 25 (1782), been altogether discountenanced. That Act declares that if any person or persons shall, after the 1st of June, 1872, ransom, or enter into any contract or agreement for ransoming, any such ship or vessel, or any merchandise or goods on board the same, every person so offending shall, for every such offence, forfeit and lose the sum of five hundred pounds.' Ransoms have never been prohibited by the United States; by the French they have.1 2 Ships have a peculiar character impressed upon them by the special nature of their documents, and are always held to be of the character with which they are so invested, to the exclusion of any claim of interest which persons resident in neutral countries may actually have in them. As to ships and goods captured at sea, and afterwards recaptured, rules are adopted somewhat different from those applicable to other personal property. These rules depend upon the nature of the different classes of cases to which they are applied. Thus the re-capture may be made either from a pirate; from a captor clothed with a lawful commission, but not an enemy; or lastly, from an enemy. In a report made to George II., in 1753, by Sir George Lee, Dr. Paul, Sir Dudley Ryder, and Mr. Murray (afterwards Lord Mansfield), we find the following statement as to the maritime rights of belligerents : 'When two nations are at war, they have a right to make prizes of the ships, goods, and effects of each other on the high seas. Whatever is the property of the 1 See Twiss, Law of Nations-War, pp. 355, 363. enemy may be acquired by capture at sea; but the property of a friend cannot be taken, provided he observes his neutrality. 'Hence the Law of Nations has established: (1.) That the goods of an enemy on board the ship of a friend may be taken. (2.) That the lawful goods of a friend on board the ship of an enemy ought to be restored. (3.) That contraband goods1 going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality." We may add, that by the declaration of 16th April, 1856, the Congress of Paris, held after the Crimean war, adopted four principles of International Law:-1. Privateering is to remain abolished. 2. The neutral flag covers the enemy's merchandise, with the exception of contraband of war. 3. Neutral merchandise with the exception of contraband of war, is not liable to seizure under an enemy's flag. 4. Blockades, in order to be binding, must be effective—that is to say, they must be maintained by a force really sufficient to prevent approach to an enemy's coast. This declaration was signed by the plenipotentiaries of the seven powers who attended the Congress, and it was accepted by nearly all the States of the world. But the United States of America, Spain, and Mexico refused their assent, because they objected to the abolition of privateering. Therefore the employment of private cruisers commissioned by the State still remains a perfectly legitimate mode of warfare. Great Britain and the other powers that acceded to 1 See Contraband of War, p. 327. the Declaration, are bound to discontinue the practice in hostilities with each other. But if we should have the misfortune to go to war with the United States, we should not be bound to abstain from privateering, unless the United States should enter into a similar and corresponding engagement with us. As to the other three articles in the Declaration of Paris, the only new point conceded by Great Britain was that the neutral flag covers the enemy's goods, except contraband.1 Recapture.-Assuming one of the belligerents to have made a capture of a vessel, whether public or private, belonging to the other belligerent, it is clearly the right of the despoiled nation, either by its public or private vessels, to recapture if possible. We have therefore to inquire what, in the event of a recapture, is its effect:-1, supposing the vessel to be public; 2, private; and 3, does the length of time during which the prize was in the enemy's possession, or does any other circumstance, affect the act of recapture? The fundamental principle upon this point is, 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. It must be restored, jure postliminii, upon certain conditions, to the original owner.* It is the duty of every citizen to assist his fellowcitizens in war, and to retake their property out of the possession of the enemy. No commission is necessary 1 Lord Mackenzie, p. 64. 2 See pp. 315 (note), 325 (note). 3 These conditions are regulated by the Municipal Law of the recaptor, and differ in different countries. See Phillimore, vol. iii. pp. 502-532. + Phillimore, Internat. Law, vol. iii. p. 503. |