money arising from the sale of the ship and cargo was then in the Admiralty, and all the doctors agreed, that their Court would not suffer the money to be taken out till the hostages were released; and that the Court of Admiralty in France, on having proof that the money was in our Court of Admiralty, would order the hostages to be released (r).

If the vessel ransomed perish by storms, the ransom is not discharged thereby; for the captor guarantees the vessel against all dangers from the cruisers of his own country or its allies, but not against the perils of the sea; unless a clause providing for that contingency be expressed in the contract. A clause providing that the ransom should not be due, if the vessel should founder at sea, would not extend to a case of wreck. If it were so extended, the master might wreck the vessel so as to save the most valuable parts of the cargo, for the express purpose of discharging the ransom (s). Where a ransomed vessel is captured a second time out of the course, or beyond the time, prescribed by the safe conduct, and condemned; the ransom bill is discharged, and the stipulated amount is a charge upon proceeds of the ship and cargo, of which only the surplus is payable to the second captor (†). Where the captor's vessel is captured with the ransom bill, the ransom bill is discharged; and having been so discharged, it cannot be revived by recapture (u). So where the captor, having transmitted the ransom bill, is taken with the hostage on board, the ransom is discharged by capture (v). But in other cases the hostage is a mere collateral security, so that the ransom bill is not discharged by his escape or death (w). But where the captor's vessel is taken after delivery of the hostage and

(r) Cited by Buller, J., Arguendo, Yates v. Hall, 1 T. R. 80.
(8) Val. Tr. xi. 2, § xxvi; Pothier, ibid. § 139.

(t) Val. Tr. xi. 2, xix; Pothier, ibid. § 139.

(u) Val. Tr. xi. 2, xiv.

(v) Val. Tr. xi. 2, xiv. xv.—

-3, xi.

(w) Ibid. Bicord v. Bettenham, 3 Burr. 1734

the

ransom bill, the ransom remains due notwithstanding the capture. In that case there is nothing on board that represents the ransomed vessel; and where the ransom bill and hostage have been conveyed to a place of safety, it is the same thing as if the vessel had been conveyed thither as a prize, in which case it would enure to the benefit of the captor, notwithstanding the subsequent capture of his own vessel (2). So where the vessel of the captor was captured with the ransom bill concealed on board, which was never delivered up to the captors, nor ever possessed by them; it was determined, on the authority of Grotius, that under these circumstances there never had been any capture of the ransom bill, and that the ransom was still due. For no man can be said to have possession of that, of which he does not even know the existence (y). Where the captor's vessel was captured with the ransom bill and hostage on board; but the ransom bill contained a special clause that the ransom should be payable, although the captor's ship should be captured with the hostage and ransom bill, and an action was brought by the captor in his own name, Lord Mansfield delivered his opinion in favour of the plaintiff; but Willes and Buller Justices, thinking the Courts of common law had no jurisdiction, and that that objection might be taken, though not pleaded, and Ashurst, J., expressing doubts upon that point, judgment pro formâ was given for the plaintiff, in order to give an opportunity of bringing a writ of error. Afterward, by the unanimous opinion of all the Judges of the Common Pleas and the Exchequer; who concurred in holding, that an alien enemy cannot, by the municipal law of this country, sue for the recovery of a right claimed to be acquired by him in actual war, the judgment of the Court of King's Bench was reversed (z). This rule works no injustice during the life of the hostage, for

(x) Val. Tr. xi. 2, xvi.

(y) Corme v. Blackburne, 2 Doug. 640; Grot. iii. 21, xxviii.
(z) Anthon v. Fisher, 2 Doug. 648, (n).

proceedings on the ransom bill may be had in his name. But in case of his death, this rule would suspend the remedy of the captor during the war. In the case of Ricord v. Bettenham, Mr. Blackstone, who was to have argued in support of this objection (the hostage being dead,) said, that he had made inquiries abroad, and had answers from very eminent. lawyers in France and Holland, "that such an action had been allowed, and on principles that could not be disputed;" and therefore he did not choose to argue it; for the only objection, which seemed to weigh in the former argument, was, that such an action would not lie in other countries of Europe (a). It seems probable, that in such case the Court of Admiralty would hold in analogy to the cases of alien enemies suing for wages earned on board vessels protected by licenses, that the parties to the contract are estopped from taking the objection (b).

The ransom of vessels being considered less beneficial to the state, than their capture, by the French ordinance of 1756 captains of privateers were forbidden to ransom any vessel, until they had sent in three prizes in the course of their cruise. But this ordinance was practically inoperative (c). For the same reason, and because the power of ransoming vessels was deemed to be very liable to be abused by captors, to the great inconvenience of neutral trade, it was taken away by acts of Parliament in England; except in cases of necessity, to be allowed by the Court of Admiralty (d). In the case of Havelock v. Rockwood it was held, that the purchase of a captured vessel by the owner from the captor in a neutral port, before condemnation, is a ransom within the meaning of these acts (e).

(a) 3 Burrow, 1741.

(b) The Frederick, 1 Dod. 266; The Maria Theresa, 1 Dod. 303. (c) Val. Tr. xi. 1, vii.; Pothier, ibid. § 128.

(d) 22 Geo. 3, c. 25; 35 Geo. 3, c. 66. ss. 35, 36; 45 Geo. 3, c. 72,

ss. 16, 17, 18, 19.

(e) 8 T. R. 268.

276

CHAPTER VIII.

OF RECAPTURE AND SALVAGE.

SALVAGE may be considered with respect to the recapture of property; first, of the subjects of Great Britain; secondly, of allies; thirdly, of neutrals; fourthly, with respect to persons entitled to claim it.

First. Of the recapture of British property. No question of salvage arises in the case of recapture of ships sold to neutrals after condemnation by a competent tribunal (a); or where they have been sold to neutrals before condemnation, but a valid condemnation (b), or peace has intervened, before recapture (c); or where they have been so sold after confiscation by sovereign authority without a regular condemnation, according to the custom of Moorish states (d); or where they have been set forth for war by the enemy: in these cases the former owners have no jus postliminii.

The Prize Act was drawn with the intention of expressing the sense and meaning of the law of nations as it at present exists (e). It provides, that if any ship, or vessel, or boat, taken as prize, or any goods therein, shall appear and be approved in any Court of Admiralty, having a right to take

(a) The Henrick and Maria, 4 Rob. 43; The Comet, 5 Rob. 285; The Cornelia, Edw. 244; The Purissima Conception, 6 Rob. 45. (b) The Falcon, 6 Rob. 194.

(c) The Schoone Sophie, 6 Rob. 138.

(d) The Helena, 4 Rob. 3.

(e) Per Cur. The Ceylon, 1 Dod. 116.

cognizance thereof, to have belonged to any of his Majesty's subjects of Great Britain or Ireland, or of any of the dominions and territories remaining and continuing under his Majesty's protection and obedience, which were before taken or surprised by any of his Majesty's enemies, and at any time afterwards again surprised and retaken by any of his Majesty's ships of war, or any privateer or other ship, vessel, or boat under his Majesty's protection and obedience; that then such ships, vessels, boats, and goods, and every such part and parts thereof as aforesaid formerly belonging to such his Majesty's subjects, shall in all cases (save in such as are hereafter excepted), be adjudged to be restored, and shall be by the decree of the said Court of Admiralty accordingly restored to such former owner or owners, or proprietor or proprietors, he or they paying for and in lieu of salvage (if retaken by any of his Majesty's ships or hired armed ships), one-eighth part of the true value of the ships, vessels, boats, and goods respectively so to be restored, which said salvage of one-eighth shall be answered and paid to the flag officers, captains, officers, seamen, marines, and soldiers in his Majesty's said ship or ships of war, to be divided in such manner as before in this act is directed touching the share of prizes belonging to the flagofficers, &c., where prizes are taken by any of his Majesty's ships of war; and if retaken by any privateer or other ship, vessel, or boat, one-sixth of the true value (ƒ).

By the ancient law of Europe, the perductio infra præsidia, infra locum tutum, was a sufficient conversion of the property; by a later law, a possession of twenty-four hours was sufficient to devest the former owner. This is laid down in the 287th article of the Consolato del Mare, in terms not very intelligible in themselves, but which are satisfactorily explained by Grotius and his Commentator Barbeyrac, in his notes upon that article (g). Bynkershoek lays it down to the same effect in (f) 45 Geo. 3, c. 72, s. 7.

(g) Grot. iii. 6, iii.; Barb. (n), 1 & 7.