16 US 78 The Star
16 U.S. 78
3 Wheat. 78
4 L.Ed. 338
The STAR.—Dickenson, et al. Claimants.
Feb. 16, 1818
APPEAL from the circuit court for the district of New-York.
It appeared by the libel, claim, evidence, and admissions of the parties in this cause, that the ship Star was captured by the American privateer Surprise, on the high seas, on the 27th of January, 1815. That the ship Star was then on a voyage from the British East Indies to London. That she was under the British flag, had British papers as a trading vessel, and a license from the British East India Company, and that her ostensible owners were British subjects, residing in London. It further appeared, that previously to the late war, and till, and at the time of the capture and condemnation in the British court of admiralty hereinafter mentioned, the said ship was a duly registered American ship, and was owned by Isaac Clason, deceased, an American citizen, residing in New-York, or by the claimants, his executors, who were also American citizens, residing in New-York.
That soon after the commencement of the late war, the said ship sailed from the United States on a foreign voyage, and immediately after leaving a port of the United States on the said voyage, was captured by a British vessel of war, and carried into Halifax, Nova Scotia, where she was regularly libelled and condemned as prize in the court of vice-admiralty of that province; after which she was purchased by the British subjects who claimed to own her, at the time she was re-captured by the Surprise. This last mentioned capture having been made, the ship Star was brought into the port of New-York, and libelled in the district court of New-York, as prize to the said privateer; upon which libel the appellants put in a claim, claiming the said ship as the property of their testator, and claiming to have the said ship restored to them upon the payment of salvage; which claim was rejected, and the ship was condemned. The cause was then carried to the circuit court, where the decree of the district court has affirmed. It was then brought, by appeal, to this court.
Mr. Key, for the appellants and claimants. The question in this cause arises under the prize act of the 26th of June, 1812, sec. 5. which, it is contended repeals the salvage act of 1800, as to this matter. The latter act provides, that condemnation in the enemy's prize courts shall be a bar to restitution on salvage to the original owner. The 5th section of the prize act of 1812, declares, 'that all vessels, goods and effects, the property of any citizen of the United States, or of persons resident within, and under the jurisdiction of the United States, or of persons permanently resident within, and under the protection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners, upon payment by them respectively, of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law.' This section directs all vessels, goods, and effects, of citizens and neutrals, recaptured from the enemy, to be restored on payment of salvage, without reference to the fact, whether they had been previously condemned or not; and so far it modifies and repeals the salvage act of 1800. The original owner is, therefore, entitled to restitution, notwithstanding the British condemnation. Upon any other interpretation, the entire section would become wholly inoperative, as every case is included in the previous act of 1800. When that act passed, our law conformed to the English rule, which then prevailed. England subsequently altered her law and our act of 1812 copied the British statute of the 43d George III.1 That act must have been intended to make some change in the existing legislation on the subject; and it is probable that congress meant to make a distinction between recaptures by public ships and by private ships, unfavourable to the latter. The 'provisions heretofore established,' do not refer to all the provisions of the act of 1800; these words merely refer to the rate of salvage fixed by that act, and not to the principle of restitution. The latter is changed; the former remains unaltered.
Mr. Winder, and Mr. Harper, contra. The act of 1800 was not a prize act for privateers. The provision in the act of 1812, is merely incidental, and refers to the pre-existing law. Our policy of 1812 was not like that of England, which contemplates the extreme probability of the recapture of British vessels, even after condemnation by the enemy. Our object was to hold out the most liberal encouragement to cruizing. The British salvage acts merely refer to the recapture of British property; our act extends to neutral, as well as American property. The British statutes are merely an exception to the general rule, municipal and local. Our law is founded on the law of nations. The construction contended for might extend to enforce a demand of restitution after the lapse of an indefinite length of time, and after the intervention of repeated treaties of peace. The act of 1800 is merely in affirmance of the law of nations, which universally devests the title of the original owner after condemnation. The very term recapture, implies former ownership still subsisting; but it does not subsist here. How could the former owner be considered the 'lawful owner' after condemnation? 'The nature of each case' is to be determined by reference to the act of 1800, and imports something more than the mere rate of salvage. The contrary construction would make a distinction between public ships and privateers, unfavourable to the latter, contrary to the uniform policy of the country; and would create a confusion as to the recapture of the property of friends, which it cannot be supposed the legislature intended to introduce. The equitable rule of reciprocity would be prostrated; and neutral property must, in all cases, be restored, (after or before twenty-four hours possession by the enemy,) although the friendly power would not in the same case restore. Such a departure from the public law of the world is not to be lightly presumed; and statutes made in pari materia are to be construed together, and nothing is to be repealed by mere implication that may stand consistently with former enactments.
Mr. Jones, in reply. The claimants found their claim to restitution on payment of salvage, upon the 5th section of the act of the 26th of June, 1812. The captors resist the claim because the vessel was condemned before the recapture—and contend that the act of the 3d of March, 1800, is the law which is to determine the rights of the parties. This seems, in fact, to be contending that a prior law repeals a subsequent one. If the act of 1812 is taken by itself, there can be no doubt but there must be restitution. But the captors insist that the words, 'according to the nature of the case agreeably to the provisions heretofore established by law,' which are found in the act of 1812, refer to the act of 1800, so as to determine by that law when restitution is, or is not to be made. Yet it seems obvious that these words refer to that law only for the measure and rule of salvage. According to the law of 1812, property of a citizen of the United States, re-captured from the enemy, is liable to be restored, but it is to be restored upon the payment of salvage, agreeably to the nature of the case. And to determine the nature of the case, and for no other purpose, we are referred to the pre-existing laws. If the act of 1812 is to be construed as the captors would construe it, then this fifth section is an absolute nullity. For if the law of 1800 is to be resorted to in order to determine, as well when restitution is to be made, as the salvage to be paid, there is no case in which the law of 1812 can have any operation. By the marine law of England, as it stood previously to any statute regulation on the subject, there could be no restitution after condemnation. Our law of 1800 adopted this principle. But by the English law, restitution is now to be made in all cases on the payment of salvage. The act of 1812 was doubtless intended to be in conformity to this just modification of the English law, of which it is almost a literal copy. There was good reason for this modification of the marine law in respect to our privateers. The enemy had their courts of viceadmiralty at our very doors; our vessels would be captured one day and condemned the next. The legislature did not intend that the American owner should be deprived of his right of restitution by a condemnation, when there would be no more merit in recapturing a vessel that had been condemned than one that was not. There might have been reason for distinguishing between captures by our public and by private armed vessels. It was to be supposed that our privateers would be cruising about the ports of the enemy in our neighbourhood, and would be likely to recapture American property recently captured and recently condemned. The employment of our men of war, it might have been contemplated, would be more distant and difficult. Why should the condemnation have any effect as to the right of restitution, when the property is recaptured from the hands of an enemy? The law, as to restitution on salvage, would have no operation, if the property after condemnation came to the hands of a citizen or a neutral, because then there could be no recapture. To let the title to restitution depend on the condemnation, is to let the right of the citizen depend on the act of the enemy.
Mr. Justice STORY delivered the opinion of the court.
This is the case of an American ship, captured by the enemy during the late war, and after condemnation and sale to an enemy merchant, recaptured by the American private armed ship Surprise. And the question is, whether, under these circumstances, the ship is to be restored on salvage to the former American owner, or condemned as good prize of war. If the case were to stand on the general salvage act of 1800, in cases of recapture, (act of 3d of March, 1800, ch. 14.) it is perfectly clear that the claimants are barred of all right; for that act expressly excepts from its operation, all cases where the property has been condemned by competent authority. The same result would flow from the principles of the law nations. It is admitted, on all sides, by public jurists, that in cases of capture a firm possession changes the title to the property; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture or on the pernoctation, or on the carrying infra praesidia, of the prize; it is universally allowed, that at all events a sentence of condemnation completely extinguishes the title of the original proprietor, and transfers a rightful title to the captors or their sovereign. It would follow, of course, that property recaptured from an enemy after condemnation would, by the law of nations, be lawful prize of war, in whomsoever the antecedent title might have vested.
It is supposed, however, that the provisions of the salvage act of 1800, ch. 14, are materially changed, in cases of captures by private armed ships, by the fifth section of the prize act of the 26th of June, 1812, ch. 107. That section declares, 'that all vessels, goods, and effects, the property of any citizen of the United States, or of persons resident within and under the protection of the United States, or of persons permanently resident within, and under the protection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners upon payment by them respectively of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law.' The argument is, that as the section directs all vessels, goods, and effects of citizens and neutrals recaptured from the enemy to be restored, without any reference to the fact, whether they had been previously condemned or not, it so far qualifies and repeals the salvage act of 1800; and that consistently with this construction, the words 'agreeably to the provisions heretofore established by law,' may and ought to be referred to the rate of salvage fixed by the act of 1800, and not to the provisions of that act generally. In support of this argument, it has been urged, that upon any other construction the whole section becomes completely inoperative, as every case is embraced in the previous law. That congress may well be presumed to have intended to make a discrimination between cases of recapture by public and private ships of war, unfavourable to the latter; and that congress may have had in view a conformity to the British prize code, which since the passing of the act of 1800 had been changed in the manner now contended for by the claimant.
The argument asserted from the British prize code, certainly, cannot be supported upon the notion of any supposed recent change in the law relative to recaptures. So early as the reign of George II. the jus postliminii was, by statute, reserved to British subjects upon all recaptures of their vessels and goods, by British ships, even though a previous condemnation had passed upon them, with the exception of cases where such vessels, after capture, had been set forth as ships of war. The statute of 43 Geo. III. ch. 160, s. 39. has no farther altered the previous laws, than to fix the salvage at uniform stipulated rates, instead of leaving it to depend upon the length of time the recaptured ship was in the hands of the enemy. And the terms of this statute, are very different from the language of the fifth section of our prize act of 1812, and expressly exclude from its operation and benefits all neutral property.
In respect to the legislative intention, it is extremely difficult to draw any conclusion unfavourable to private armed ships from the language or policy of the prize act, or any subsequent act of congress passed-during the war. The bounties held out to these vessels, not only by the prize act, but by other auxiliary acts, manifest a strong solicitude in the government to encourage this species of force. But we are not at liberty to entertain any discussions in relation to the policy of the government, except so far as that policy is brought judicially to our notice in the positive enactments, and declared will of the legislature. We must interpret, therefore, this clause of the prize act by the general rules of construction applicable to all statutes; and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail.
In the first place, the section in question contains no repealing clause of any of the provisions of the salvage act of 1800, and therefore the whole laws on this subject are to be construed together, and unless so far as there is any repugnancy between them, are to be considered as in full force. That the section is free from all doubt in its language need not be asserted; but that every portion of it may by fair rules of interpretation, be deemed merely affirmative of the existing law, is with great confidence maintained. There is no repugnancy which requires or even affords a presumption of legislative intent to repeal any portion of the salvage act. It is true that the section declares that all vessels, goods, and effects recaptured shall be restored; but to whom are they to be restored? Certainly, by the very terms of the act, to the 'lawful owners,' which to prevent the most injurious, and we had almost said absurd, consequences, must mean the 'lawful owners' at the time of the recapture. But the lawful owners of the recaptured property, which has been, already, lawfully condemned, is not the original proprietor, but the person who has succeeded to that title under the decree of condemnation. Suppose the property at the time of the capture had belonged to one neutral, and after condemnation had been sold to another neutral, and then captured and recaptured by the enemy, can there be a doubt that the latter is, to all intents and purposes, the true and lawful owner, and that he may assert his title against the first proprietor? Besides, recapture by force of the term would seem most properly applied to cases where an inchoate title only was vested by capture, Can it be said in strict propriety of language, that property captured from an enemy which at the time is the lawful property of an enemy purchaser, is recaptured from his hands? The recapture is always supposed to be from persons who have, by operation of law, succeeded to the title acquired under a decree of condemnation.
The section, however, does not stop here; nor is it necessary to rest its construction upon the import of a few detached terms. It proceeds to declare that the recaptured property shall be restored to the lawful owners upon payment of a reasonable salvage, 'according to the nature of each case, agreeably to the provisions heretofore established by law.' Here is a direct and palpable reference to the salvage act, not for the purpose of repeal, but for the purpose of recognizing it as in full force in respect to all cases of recapture. It is argued that the reference is confined to the mere rates of salvage established by that act. Let us see whether, consistently with any supposed legislative intention, or any reasonable principle, such a construction can be sustained.
In the first place it would make a discrimination between recaptures of property belonging to the United States, and property belonging to neutrals and citizens, wholly unaccountable upon any principles of national policy. In case of a previous condemnation the property, if belonging to citizens or neutrals, would be restored on salvage; if belonging to the United States, it would be wholly condemned as good prize of war, in the next place, the property of neutrals and citizens, if recaptured by public ships, would be good prize; but if recaptured by private armed ships, would be restored on salvage. Yet in respect to neutrals or citizens, if the intention was to confer a benefit on them, the reason would seem equally to apply to both cases, and if there was a policy in discouraging captures by privateers, and encouraging captures by public ships, it is strange that the legislature should not, in relation to captures not within the purview of this clause, have made a similar discrimination. The reason would be the same, and yet in those cases the salvage act uniformly gives a higher rate of salvage to private armed ships than to public ships; and the prize acts superadd an exclusive bounty on prisoners of war captured by private armed ships, of no inconsiderable value. And whatever might be the case in relation to our own citizens, it is somewhat singular that the legislature should be paying bounties out of the treasury to encourage privateers, when they were in favour of neutrals, having no legal title, taking from them a large proportion of the lawful proceeds of prize.
There is yet another case which affords a more striking illustration of the difficulties which surround this construction. The salvage act of 1800 declares, that upon the recapture of neutral property the rule of reciprocity shall prevail. If the neutral would in the like case restore on salvage; then the American courts are to restore on the same salvage: if otherwise, then they are to condemn. If, therefore, by the prize act of 1812, restitution is to be made in all cases of recapture of neutral property, and yet in the like cases the neutral sovereign would not restore, it would follow that the restitution would be without payment of any salvage, which would be repugnant not only to the intent, but to the words both of the salvage act and the prize act in any mode of interpretation. In a recent case in this court, (The Adeline, 9 Cranch. 244.) condemnation passed upon some French property which, during the late war, had been captured by the enemy, and recaptured by an American privateer, upon the ground that the rule of reciprocity established by the salvage act of 1800, applied to the case; and as France would deny restitution, our courts were bound to apply the same principle to her.
There does not, therefore, seem any solid reason on which to rest the construction contended for by the claimant. And there are the most weighty reasons, founded upon public inconveniency, upon national law, and upon the very terms of the salvage and prize acts, for the contrary construction. In considering the section in question as merely affirmative, every difficulty vanishes and the symmetry of a system apparently built up with great care and caution, as well as in strict accordance with the received principles of public law, is maintained and enforced.
But it has been asked if the section is merely affirmative, what reason can be assigned for its enactment? If no satisfactory answer could be assigned, it would not impair the force of the preceding reasoning. It is very common for the legislature to make laws in affirmance both of the common and statute law. This very act gives the district courts cognizance of captures, and yet it was clearly settled that the courts already possessed the same jurisdiction. Doubts may and often do arise how far a provision already in existence may be applied to cases contemplated in new statutes. To obviate such doubts, whether real or imaginary, is certainly not an irrational or unsatisfactory mode of legislation, and often prevents serious mischiefs during the fluctuations of professional opinions, prior to a legal adjudication. It was probably to obviate some doubt of this sort that the clause in question was inserted in the act. Nor is it difficult to perceive some room for subtle doubt from the generality of the preceding (s. 4) section. That section declares that 'all captures and prizes of vessels and property shall be forfeited,' and accrue to the owners, officers, and crew of the capturing private armed ship; and from the generality of this language it might possible (we do not say upon any sound interpretation) have been doubted whether the words 'all captures' might not be held to comprehend captures of neutral property, which had not yet been condemned. At all events upon every view of this case the court are of opinion that the property having been previously condemned and the title passed to the enemy, and, consistently with the salvage and prize acts, must be decreed to be good prize of war.
Decree affirmed, with costs.2 Page 97 Page 100
Park on Insurance, 94. 6th London ed. 2 Marshall on Ins. 501. Horne's Compendium, 34.
Vide ante, Vol. II. Appendix, note I. pp. 40-49. As by the salvage act of the 3d of March, 1800, ch. 168. the rule
of reciprocity, (or, as Sir William Scott calls it, amicable retaliation,) is the rule to be applied to cases of recaptures of the property of friendly nations, it may be useful to state the provisions contained in the different maritime codes on this subject, or which have been substituted in their place by treaty.
The present British law of salvage is established by the act of the 43d Geo. III. ch. 160. the 39th section of which provides that, 'If any ship, or vessel, taken as prize, or any goods therein, shall appear, in the court of admiralty, to have belonged to any of his majesty's subjects, which were before taken by any of his majesty's enemy's and at any time afterwards re-taken by any of his majesty's ships, or any privateer, or other ship, or vessel, under his majesty's protection; such ships, vessels, and goods, shall, in all cases, (save as, hereafter excepted,) be adjudged to be restored, and shall be accordingly restored, to such former owner, or owners, he or they paying for salvage, if re-taken by any of his majesty's ships, one eighth part of the true value thereof, to the flag officers, captains, &c. to be divided, &c. And if retaken by any privateer, or other ship, or vessel, one sixth part of the true value of such ships and goods to be paid to the owners, officers, and seamen of such privateer, or other vessel, without any deduction. And if re-taken by the joint operation of one or more of his majesty's ships, and one or more private ships of war, the judge of the court of admiralty, or other court having cognizance thereof, shall order such salvage, and in such proportions, to be paid to the captors by the owners, as he shall, under the circumstances of the case, deem fit and reasonable. But, if such recaptured ship, or vessel, shall appear to have been set forth by the enemy as a ship or vessel of war, the said ship or vessel shall not be restored to the former owners; but shall, in all cases, whether re-taken by any of his majesty's ships, or by any privateer, be adjudged lawful prize, for the benefit of the captors.
This rule, with respect to the property of British subjects, is applied to recaptures of the property of nations in amity with Great Britain, until
it appears that they act towards British property on a less liberal principle; in such case it adopts their rule, and restores, at the same rate of salvage, or condemns, under the same circumstances in which their own law and practice restores or condemns. The Santa Cruz, 1 Rob. 5. 63.
By the most recent French law, if a French vessel be re-taken from the enemy, after being in his hands more than twenty-four hours, if recaptured by a privateer, she is good prize to the re-captor; but if re-taken before twenty-four hours have elapsed, she is restored to the owner, with the cargo, upon the payment of one third the value for salvage, in-case of recapture by a privateer, and one thirtieth in case of a recapture by a public ship. But in case of recapture by a public ship, after twenty-four hours possession, she is restored on a salvage of one tenth.1
1. 'Si aucun navire de nos sujets pris par nos ennemis, a ete entre leur mains jusques a vingt-quatre heures, et apres, qu'il soit recous et repris par aucuns de nos navires de guerre ou autres de nos sujets, la prise sera declaree bonne: mais si ladite reprise est faite auparavant les vingt-quatre heures, il sera restitue avec tout ce qui etoit dedans, et en aura toutefois le navire de guerre qui l'aura recous et repris, le tiers.' Ordonnance d'Henri III. en Mars. 1584. art. 61. 'Si aucun navire de nos sujets est repris sur nos ennemis, apres qu'il aura demeure entre leur mains pendant vingt-quatre heures, il sera restitue au proprietaire, avec toutce qui etoit dedans a la reserve du tiers qui sera donne au navire qui aura fait la recousse.' Ordonnance de 1681, Liv. 3 tit. 9. des Prises, art. 8. 'Les reglemens concernant la recousse continueront d'etre observes suivant leur forme et toneur; en consequence, lorsque les navires de ses subjects auront ete repris par les corsuires armes en course contre les ennemis de l'etat, apres avoir ete vingt-quatre heures en leur mains, ils leur appartiendront en totalite; mais dans le cas ou la reprise aura ete faite avant les vingt-quatre heures, le droit de recousse ne sera que du tier de la valeur du navire recous et de sa cargaison. En se qui concerne les reprises faites par les vaisseaux, fregates ou outres batimenside sa majeste, le tiers sera adjuge a son profit pour droit de recousse, si elle est faite dans les vingt-quatre heures; et apres ledit delai, la reprise sera adjugee en totalite a sa majeste, sans que les etats-majors des dits vaisseaux et fregates puissent y rien pretendre, se reservant sa majeste d'accorder aux equipages, une gratification proportionee a la voleur du batiment et de sa cargaison, d'apres les connoisements et factures, comme aussi de donner au x etats majors des vaisseaux qui auront faites les reprises, et qui auroient eu soin de se distinguer par des actions de valeur telles graces ou recompenses que sa majeste avisera bon etre, suivant les circonstances.' Ordonnance de 15 Juin, 1779. 'Lorsque les batimens Francais auront ete repris par les vaisseaux de la republique, apres avoir ete 24 heures au pouvoir de l'ennemi, les batimens et leur cargaisons appartiendront en totalite aux equipages preneurs; mais dans le cas ou la reprise aura ete 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 reglement of the 2d of Praireal, year II. art. 54. the rate of salvage on recaptures by public ships, before twenty four hours possession, was fixed at one thirtieth.
Although the letter of the ordinances previous to the revolution, condemns as good prize, French property recaptured after being twenty-four 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. Traite des Prises. ch. 6. sect. 1. n. 8. s. 88. Pothier. De Propriete. 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 propriete, n. 100. Emerigon, Des assurances, tom. 1.p. 499. By the Reglement of the 2 Praireal, 11th year, art. 54. this relaxation of the rule as to captures by public ships, is extended to allies generally, 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 an 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.
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 Iago, (mentioned in the Santa Cruz, 1 Rob. 50,) it was applied by the lords of appeal upon the principles 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 time it is condemned to the recaptors. The Spanish law has the same provisions with 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 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 one-fifth 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 enemy's
possession. Bynk, C. J. Pub. I. 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
1. 'Me feroit penser, que les allies qui aux termes de notre article ont droit de reclamer leur effets repris sur des pirates par des Francois ne doivent s'entendre que de ceux qui suivant la meme jurisprudence que nous; autrement, il n'y auroit pa de reciprocite: ce qui blesseroit, l'egalite de justice, que les etats se doivent les uns aux autres. Sur l'Ord. L. 3 tit. 9 art. 10. Traite des Prises; ch. 6 s. 2 n. 8.
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 recaptured 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 terms, neutrals are included,) on payment of one-third for salvage.2
2. 'Les navires et effects ds nos sujets ou allies repris sur les pirates et reclaimes dans l'an et jour de la Declaration qui en aura ete faite en l'Amiraute, seront rendus aux proprietaires, en payant le tiers de la valeur du va isseau, et des marchandises pour frais de recousse. Ord. de 1681. L. 3 tit. 9. Des Prises art. 10.
A capture by a cruizer of the Barbary powers is not a 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. Jenkin'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 part 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 Hurtage Hane, 3 Rob. 324. The Madonna del Burso. 4 Rob. 299. 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 Hurtege 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 nations with ourselves; yet in matters of contract between such persons, or between them and other foreigners, courts of justice have not thought themselves at liberty to act otherwise, than by the general rules applicable to all forensic business. The Jerusalem, 2 Gallis, 191-201.
1. Depuis long-temps, les moeurs antiques etoient disparues des Bords, Africaines. Les Barbaresques etoient devenus de vrais pirates. Bugia ed algieri, infami, nidi di corsari, dit le Tasse; Jerusalem deliveree, chant. 15, st. 21. Mais au jourdhui ils ne merite plus cette qualification, prace que dans laur guerre, ils se conforment a l'ancien droit des gens. Ce n'est que par represailles que leures prisonniers deviennent eselaves parmi nous.' Emerigon, loc. cit. Tom. 1 p. 256.
The case of the rescue of captured vessels and cargoes from the enemy, by the insurrection of the persons on board, is not provided for by our salvage act or the British statute. Nor is the case of rescue mentioned in the French and other continental ordinances. Restitution to the original owner, is, however, universally decreed in such cases, without regard to the length of time the recaptured property may have been in the enemy's possession; and the rate of salvage is discretionary and dependant upon the value of the services performed. The Two Friends, 1 Rob. 271. The Walker, Stewart, 105. Valin, Traite des Prises, ch. 6, s. 1, n. 18. Bonnemant's Translation of of De Habreu, tom. 2, o. 84. Emerigon, Des Assurances, tom. 1, p. 505.