these words:-Sane in libro, qui inscribitur Consulatus Maris, c. 287, ita, ut modo dicebam, res definita est: nam is, qui navem et onus ab hoste recuperavit, jubetur navem et onus restituere pristino domino, salvo tamen servaticio; idque servaticium, ut justum sit, constituitur pro modo operæ et impensæ in recuperationem factæ, præterit âomni distinctione, quamdiu navis onusque in potestate hostium fuerint. Recte autem ibi additur eam restitutionem duntaxat obtinere, si navis nondum fuerit deducta in locum tutum; sed si in locum tutum, dominio sic plane et plene in hostem translato, navem mercesque deinde recuperatas ex asse recuperatori cedere (h). Grotius expresses himself very much to the same effect (i); and Loccenius considers this rule as the general law of Europe (k). In Lord Stair's decisions, also, the same rule is laid down as the rule of law in Scotland. According to Valin, a similar practice prevailed in France (1); and Crompton, in his Treatise on Courts, states it as the ancient law of this country, that a possession of twenty-four hours was a sufficient conversion of the property, and that the owner was devested of his property, unless it was reclaimed ante occasum solis. So that according to the ancient law of England, which was in accordance with the ancient law of Europe, there was a total obliteration of the rights of former owners. This rule has since been receded from by this country, when its commerce increased. During the time of the usurpation, when England was becoming commercial, an alteration was effected by the ordinance of 1649, which directed a restitution upon salvage to British subjects; and the same indulgent rule was continued afterwards, when this country became still more commercial; but the common law still prevailed and controlled the provisions of the statute, where the enemy had fitted out the prize (h) Q. J. P. i. 5, p. 202. (i) iii. 6. iii. (k) Locc. de J. M. ii. 4, iv. §§ 4 & 8. (1) Comm. iii. 9, viii. vol. 2, p. 236. as a ship of war. In the most recent change of the law it is determined, that a vessel belonging to a British subject loses her character on capture by the enemy and conversion into a ship of war (m). This country, as a commercial country, has departed from the old law, and has made a new and peculiar law for itself in favour of merchant property recaptured, introducing a policy not then adopted by other countries, and differing from its own ancient practice. A rule of policy so introduced must be considered as an exception from the general law; and is to be interpreted, where any doubt arises, with a leaning to that general law, which is no farther to be departed from, than is expressed. The Prize Act provides, that if such ship or vessel, so taken by his Majesty's enemies, shall appear to have been by them set forth as a ship or vessel of war, the said ship or vessel shall not be restored to the former owners or proprietors; but shall in all cases, whether retaken by any of his Majesty's ships or by any privateer, be adjudged lawful prize for the benefit of the captors. When the former character of the vessel has been once obliterated by her conversion into a ship of war, the title of the former owner, and his claim to restitution, are extinguished, and cannot be revived by any subsequent variation of the character of the vessel. The words of the act are broad and general, and in a retrospective form. Where a captured vessel had been fitted out and had cruised as a privateer, it was held, that the former owner was not entitled to restitution, though the ship was employed as a merchant vessel, and had no commission of war, when recaptured (n). Setting forth does not necessarily mean sending out of port with a regular commission; it is sufficient, if the captured vessel has been used in the operations of war, and constituted a part of the naval or military force of the enemy, by those who had competent authority so to employ her. In the case of the Castor, which ship was not carried (m) The Ceylon, 1 Dod. 105. (n) L'Actif, Edw. 185. into port, there was no regular commission, for it is not in the power of the admiral to grant a regular commission; he has only an inchoate authority for that purpose, and his acts require confirmation; yet in that case it was held that the ship, though commissioned only by the admiral, was sufficiently clothed with the character of a vessel of war. A commission of war is conclusive of itself as to the character of the vessel; but it by no means follows, that a regular and formal commission is in all cases indispensable. The want of such an instrument may be supplied in various ways by acts equivalent to a commission. Where an armed East Indiaman, captured by an enemy's squadron, had additional guns and a complement of men capable of fighting the ship put on board her, and sailed under an officer having a military commission, and was first engaged in offensive and defensive operations of war, and was afterwards dismantled and used as a prison ship; it was held, that she had been set forth for war (o). So where a captured vessel was sent out as a merchant ship with a letter of marque (p). So where a vessel captured by an enemy's frigate had a number of men and guns put on board her, and was employed under a commissioned officer in cruising against British vessels (q). But the mere act of putting an additional number of men on board an armed prize by the privateer that captured her, without arming or furnishing her with a commission, is not a setting forth to war (r). Where a ship has been armed without any authority, that has not of itself been held sufficient to bring the case within the exception of the statute. The Court has never gone so far as to say, that a mere arming will do; the Court has always required some semblance of authority, although it has not thought it necessary to look minutely into the foundation of that authority. If sailors were (0) The Ceylon, 1 Dod. 105. (p) The Nostra Signora, 3 Rob. 10. (r) The Horatio, 6 Rob. 320. very merely to put arms on board a vessel and go out upon a cruise, there would be a deficiency of authority, and the vessel could not be considered as set forth for war according to the true construction of the act of Parliament (s). With these exceptions, the owner of a British vessel is entitled to restitution or recapture; and the recaptors are entitled to salvage. Recapture implies capture, but it is not necessary for that purpose, that the possession of the enemy should be long maintained, nor that it should be a complete and firm possession, which for some purposes is, in contemplation of law, not held to be effected, till the prize is carried infra præsidia. The rule of infra præsidia, however, is not the rule to be applied to cases of this kind; the clause of the Prize Act alludes to cases of salvage in which no such complete possession is supposed, since it speaks of vessels recaptured and permitted to continue on their original voyage. But in the case of a convoying ship it is not even necessary, that the ship should have been out of sight to found a case of recapture. It will be sufficient, if there has been that complete and absolute possession which supersedes the authority of the convoying ship. Thus, where a vessel under convoy was captured by a privateer, while the convoy was becalmed, and the convoying vessel put out her boats, pursued the privateer, and recaptured the vessel; it was held, that by these acts the former relation subsisting between the vessel and the convoying ship was necessarily superseded. A ship in the possession of the enemy can obey no signal, nor support its former duties and subordination to the convoying ship. There might still remain a duty on the convoying ship to attempt the recapture, as far as it could be done consistently with the safety of the other vessels under her protection. Such a duty would result from the injunctions of the Prize Act, which provides a reward for the recaptor, when the service is effected, and cannot, therefore, (s) Per Cur. The Georgiana, 1 Dod. 397. be intended to preclude the demand of salvage, though the service rendered to the individual by recapture may be no more, than a sense of public duty would otherwise require of him. Under these circumstances, it was held that the convoying ship was entitled to salvage (t). Nor is it necessary, to constitute a recapture, that the vessel should have been in the actual possession of the enemy. There have been many instances of capture, where no man has been put on board, as in ships driven on shore or into port. There was a case of a small British vessel armed with two swivels, which took a privateer row-boat from Dunkirk, that had attacked her. The British vessel having only three men on board, and no arms but the swivels, was afraid to board the row-boat, which was full of men armed with muskets and cutlasses; but by the terror of her swivels she compelled their submission, and obliged them to put into the port of Ostend, then the port of an ally, following them all the way at a proper distance. Such a case may not be within the terms of the act of Parliament, which seem to point to a case attended with the circumstances of an actual possession taken. But, if it is not a case of recapture under the act, it is a case of salvage under the general maritime law. Thus where a merchantman, separated from her convoy during a storm, had been brought to by an enemy's lugger, which came up and told the master to stay by her till the storm had abated, when they would send a boat on board, and a British frigate coming up, chased and captured the lugger, and the merchantman made her escape and rejoined the convoy; the frigate was held to be entitled to salvage (u). So where a vessel was brought out of a port, which was in the power, though not in the actual occupation of the enemy, and thus rescued from considerable peril (v). The abandonment of a vessel by the enemy having possession (t) The Wight, 5 Rob. 315. (u) The Edward and Mary, 3 Rob. 305. |