1818. Although the letter of the ordinances previous to the reThe Star. volution, condemns as good prize, French property recaptured after being twentyfour hours in possession of the enemy, whether the same be retaken by public or private armed vessels; yet it seems to have been the constant practice in France to restore such property when recaptured by the king's ships. Valin sur l'Ord. Liv. 3. tit. 9. Des Prises, art. 3. Traité des Prises. ch. 6. sect. 1. n. 8. s. 88. Pothier. De Propriété. n. 97. Emerigon, Des Assurances, tom. 1. p. 497. The reservation contained in the above ordinance of 1779, made the salvage discretionary in every case, it being regulated by the king in council according to the particular circumstances. Emerigon. Ib. France applies her own rule to recaptures of the property of friendly nations. Pothier, De Propriété, n. 100. Emerigon, Des Assurances, tom. 1. p. 499. By the Réglement of the 2 Praireal, 11th year, art. 54. this relaxation of the rule as to captures by public ships, is extended to allies. nerally, so as to grant them restitution after twenty-four hours possession by the enemy upon the payment of a salvage of one tenth; but restitution on recaptures by public ships has always been made to the subjects of Spain on account of the intimate relation subsisting between the two powers, whilst it is refused even to them in recaptures by privateers. Azuni, Part 2, ch. 4. s. 11. Bonnemant's Translation of De Habreu, tom. 2. p. 83, 84. The French law, also, restores upon payment of salvage, even after twenty-four hours possession by the enemy, in cases where the enemy leave the prize a derelict, or it reverts to the original proprietor in consequence of the perils of the seas, without a military recapture. Ordonnance de 1681, liv. 3. tit. 9. Des Prises, art. 9. Vide ante, vol. II. Appen. p. 47. totalité aux équipages preneurs; mais dans le cas où la reprise aura été faite avant les vingt-quatre heures, le droit de recousse ne sera que du tiers de la valeur du navire repris et de sa cargaison." Loi d'Octobre, 1793. By the réglement of the 2d of Praireal, year 11, art. 54. the rate of salvage on recaptures by public ships, before twenty-four hours possession, was fixed at one thirtieth. Spain formerly adopted the law of France, having taken its prize code from that country, with which it had been so long connected by the closest ties; and in the case of the San lago, (mentioned in the Santa Cruz, 1 Rob. 50.) it was applied by the lords of appeal upon the principle of reciprocity as the rule in British recaptures of Spanish property. But by the Spanish prize ordinance of the 20th of June, 1801, art. 38, it was modified as to the property of friends, it being provided that when it appears that recaptured ships of friends are not laden for enemy's account, they shall be restored, if recaptured by public vessels, for one eighth, if by privateers, for one sixth salvage provided, that the nation to whom such property belongs, has adopted, or agrees to adopt, a similar conduct towards Spain. The ancient rule is preserved as to recaptures of Spanish property; it being restored without salvage if recaptured by a king's ship, before or after twenty-four hours possession; and if recaptured by a privateer within the twenty-four hours, upon payment of one half for salvage; if recaptured after that 1818. time it is condemned to the recaptors. The Spanish law has the same provisions with The Star. the French in cases of captured property becoming derelict, or reverting to the possession of the former owners by civil salvage. Portugal had adopted the French and Spanish law in her ordinances of 1704, and of December, 1796. But, in May, 1797, after the Santa Cruz was taken, and before the judgment in that case, Portugal revoked her former rule that twenty-four hours possession devested the property, and allowed restitution, on salvage of one-eighth, if the recapture was by a public ship, and onefifth if by a privateer. In the Santa Cruz and its fellow cases, Sir W. Scott distinguished between recaptures made before and since the ordinance of May, 1797; condemning the former where the property had been twenty-four hours in the enemy's possession, and restoring the latter upon payment of the salvage fixed by the Portuguese ordinances. The ancient law of Holland regulated restitution on salvage at different rates, according to the length of time the property had been in the ene 1818. The Star. my's possession. Bynk. Q. J. Pub. 1. 1. ch. 5. But as between the United States and the Netherlands, this matter is regulated by the convention of 1782, the first article of which provides, that recaptured vessels of either nation, not having been twenty-four hours in possession of the enemy of either, shall be restored on payment of one-third salvage, if re-captured by a privateer. By the 2d article, if the vessel has been twenty-four hours in possession of the enemy, and is recaptured by a privateer, she shall be condemned to the re-captors. By the 3d article, if the recapture is made by a public ship, the property is to be restored on payment of a thirtieth part for salvage, in case it has been twenty-four hours in possession of the enemy; if longer, a tenth part. The treaties between the United States and Prussia of 1785, and 1799, by which recaptures from a common enemy were regulated, have both expired. The ancient law of Denmark condemned after twenty-four hours possession by the enemy, and restored, if the property had been a less time in his possession, upon payment of a moiety for salvage. But the ordinance of the 28th of March, 1810, restored Danish or allied property without regard to the length of time it might have been in the enemy's possession, upon payment of one-third for salvage. By the ancient Swedish ordinances, and that of July, 1788, it is provided, that the rates of salvage on Swedish property shall be one half of the value, without regard to the length of time the property may have been in the enemy's possession. The treaty between the United States and Sweden of 1783, which has expired, contained precisely the same stipulations on this subject as that with the Netherlands. Although our salvage act may not, perhaps, extend to cases of recapture from pirates, yet there can be little doubt that the benefit of the same equitable rule of reciprocity which is recognized by the statute, and is also a principle of public law, would be imparted to such cases. Thus Valin is of the opinion that the property of friendly nations, retaken from pirates by French captors, ought not to be restored to them upon payment of salvage, if the law of their own country gives it wholly to the retakers, otherwise there would be a defect of reciprocity, which would offend against that impartial justice which is due from one state to another.1 As a capture by pirates cannot devest the title of the original owner by any length of possession, however great, it is. obvious that the former proprietor is entitled to restitution in case of recapture from them by friendly powers, upon the payment of a reasonable salvage. But certain nations have established a different rule, at least as respects the property of their own subjects, and give the whole property recapture ed from pirates to the re-takers. Such was, or is, the usage of Holland, Spain, and some of the Italian States. Grotius, De J. B. ac P. L. 3. ch. 9, s. 17. De Habreu, Part 2, ch. 6. But Grotius is of the opinion that such a municipal regulation cannot prevent foreigners from reclaiming their property, upon payment of a reasonable salvage, because by the universal law of nations the property of the original owner is not devested on a capture by pirates. Ib. And by the 9th article of the treaty of 1795 between the United States and Spain, the latter has dispensed with her peculiar law in this respect, both parties having stipulated to restore the property of either nation recaptured from pirates. In case of recapture from pirates, the French law restores the property of subjects and allies, (in which last term, neutrals are included,) on payment of one-third for salvage." A capture by a cruizer of the Barbary powers is not a 1. "Me feroit penser, que les alliés qui aux termes de notre article, ont droit de réclamer leur effets repris sur des pirates par des François, ne doivent s'en tendre que de ceux qui suivent la même jurisprudence que nous; autrement, il n'y auroit pa de reciprocité: ce qui blesseroit l'egalité de justice, que les états se doivent les uns aux autres. Sur l'Ord. L. 3. tit. 9. art. 10. Traité des Prises, ch. 6. s. 2. n. 8. 2 "Les navires et eflets de nos sujets ou alliés repris sur les pirates, et réclamés dans l'an et jour de la Déclaration qui en aura été faite en l'Amirauté, seront rendus aux propriétaires, en payant le tiers de la valeur du vaisseau, et des marchandises pour frais de recousse. Ord. de 1681. L. 3. tit. 9, Des Prises, art. 10. 1818. The Star. 1818. The Star. > piratical seizure, which will have the effect of invalidating the conversion of property under it. They were formerly considered as pirates, but have since acquired the rights of legation and of war in form. Consequently, recaptures from them are to be judged by the same rule as those from any other public enemies. The Helena, 4 Rob. 3. Sir L. Jenkins's Works, Vol. II. p. 791. Bynk. Q. J. Pub. L. 1. ch. 17. Emerigon, Des Assurances, tom. 1. p. 526. 1 But the law of nations, as received among the nations of Europe and the countries colonized by them, or that portion of the human race denominated Christendom, is not to be applied to them, to the Turks, and other Mohammedan people, with the same rigour and in all the details with which it is administered among that class of nations to which it is peculiarly applicable. The Helena, 4 Rob. 3. The Kinders Kinder, 2 Rob. 88. The Hurtige Hane, 3 Rob. 324. The Madonna del Burso. 4 Rob. 169. Ward's History of the Law of Nations. The same formalities in proceeding to condemn captured property, are not required in order to devest the title of the original owner. It is sufficient, if the confiscation takes place in their way, and according to the established custom of that part of the world. The Helena, 4 Rob. 3. But they are held to be bound to an observance of the law of blockade, that being one of the most universal and simple operations of war; and if a European army or fleet is blockading a town or port, they are not at liberty to trade with it. The Hurtige Hane, 3 Rob. 324. And, though, in prize causes, an indulgence is granted to the subjects of the Ottoman empire, which is not allowed to any foreigners of Christendom, in consideration of their peculiar situation and character, and of their not being professors of exactly the same law of na 1. Depuis long-temps, les mœurs antiques étoient disparues des Bords Africains. Les Barbaresques étoient devenus de vrais pirates. Bugia, ed algieri, infami, nidi di corsari, dit le Tasse; Jérusalem délivrée, chant, 15, st. 21. Mais au jourdhui ils ne merite plus cette qualification, parce que dans leur guerre, ils se conforment à l'ancien droit des gens. Ce n'est que par représailles que leurs prisonniers deviennent esclaves parmi nous," Emerigon, loc. cit. Tom. 1. P. 256. |