THE end of war is to procure by force the justice which cannot otherwise be obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited his rights, and whose life, liberty, and property lay at the mercy of the conqueror. Everything done against an enemy was held to be lawful. He might be destroyed, though unarmed and defenceless. Fraud might be employed as well as force, and force without any regard to the means. (a) But these barbarous rights of war have been questioned and checked in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life {90} and property, as equally useless and injurious; and it controls the violence of war by the energy and severity of its reproaches.

l. Moderation a duty. — Grotius, even in opposition to many of his own authorities, and under a due sense of the obligations of religion and humanity, placed bounds to the ravages of war, and mentioned [maintained?] that many things were not fit and commendable, though they might be strictly lawful; and that the law

(a) Grotius, b. 3, c. 4 and 5; Puff. lib. 2, c. 16, sec. 6; Bynk. Q. J. Pub. b. 1, c. 1, 2, 3; Burlamaqui, pt. 4, c. 5.

of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held that the law of nations prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners; (a) and the moderation which he inculcated had a visible influence upon the sentiments and manners of Europe. Under the sanction of his great authority men began to entertain more enlarged views of national policy, and to consider a mild and temperate exercise of the rights of war to be dictated by an enlightened self-interest as well as by the precepts of Christianity. And notwithstanding some subsequent writers, as Bynkershoek and Wolfius, restored war to all its horrors, by allowing the use of poison and other illicit arms, yet such rules became abhorrent to the cultivated reason and growing humanity of the Christian nations. Montesquieu insisted (b) that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigor was condemned by the reason and conscience of mankind. Rutherforth (c) has spoken to the same effect, and Martens (d) enumerates several modes of war and species of arms as being now held unlawful by the laws of war. Vattel (e) has entered largely into the subject, and he argues with great strength {91} of reason and eloquence against all unnecessary cruelty, all base revenge, and all mean and perfidious warfare; and he recommends his benevolent doctrines by the precepts of exalted ethics and sound policy, and by illustrations drawn from some of the most pathetic and illustrious examples. (x)

(a) B. 3, c. 4, 5, 7. (b) Esprit des Lois, b. 15, c. 2. (c) Inst. 2, c. 9. (d) Summary, b. 8, c. 3, sec. 3. (e) B. 3, c. 8.

(i) The sentiment of the age condemns the employment of such instruments or weapons as will cause a useless shedding of blood. It is now considered a violation of right if weapons of war are turned against non-combatants or unfortified cities or towns, or if a captured city is sacked or demolished; and the bombardment of forts and other fortified places is regarded as a measure of extreme rigor, justifiable only when it is impossible to secure a surrender

by other means. Wheaton says that usage, which has acquired the force of law, excepts from the operations of war churches, public edifices exclusively devoted to the civil service, monuments of art, museums, and scientific establishments. Modern usage does not permit the use of barbarous weapons, as bar-shot, poisoned weapons, explosive bullets, or balls so shaped as to make death the result of a wound. So the assassination of commanders, poison-

There is a marked difference in the right of war, carried on by land and at sea. The object of a maritime war is the destruction of the enemy's commerce and navigation, in order to weaken and destroy the foundations of his naval power. The capture or destruction of private property is essential to that end, and it is allowed in maritime wars by the law and practice of nations. But there are great limitations imposed upon the operations of war by land, though depredations upon private property, and

ing of wells or of provisions are looked upon as odious crimes. In 1868, a compact was made at St. Petersburg, between all the European powers, absolutely forbidding the use of explosive balls; and by the Geneva Convention of 1864, ambulances and hospitals when used for the care of the sick or wounded, were to be acknowledged as neutral, and persons, including medical men and chaplains, employed in connection therewith, were also to have the benefit of such neutrality. So the enemy's soldiers, when taken prisoner, or disabled, are not to be maimed or put to death, when the preservation of their lives is consistent with safety and the enemy has not by cruelty justified retaliation. Prisoners are not to be sold into captivity, and the employment of savages, uncivilized Indians, and cannibals in war is also condemned. But the rules of war justify stratagems by land or sea, disguise of uniform, the use of spies, the ambush, mines, bombs, cheveaux de frieze, grape, and shell; also the false flag, but not a false signal of distress, at least after a naval battle is begun; the employment of privateers, if not forbidden by treaty; the wrecking or cutting off of the enemy's resources by the devastation, not merely wanton, of the adjacent territory, or the stopping of water supplies; or the confiscation of any property belonging to the individual inhabitants of the enemy's country and taken therein. See 3 Phillimore, Int. Law, (3d ed.) cc. 6, 7; Hosack's Law of Nations, 121; Maine's Int. Law, 136; Gallaudet's Manuel, p.

219; Halleck's Int. Law, p. 357; Glass, Marine Int. Law, p. 38; 3 Wharton's Int. Law, §§ 348 a, 384; Walker's Int. Law, c. 6; David Dudley Field's Memoir, 36 Alb. L. J. 284; 26 Revue Droit Int. 9, 586; 24 id. 406. As to divulging military secrets, see 21 Journ. du Droit Int. 265, 489.

Prisoners of war are no longer required to give information to their captors respecting their own army or country, and are not to be punished for giving false information; they are also permitted to retain their money and valuables, to a reasonable amount, and their extra clothing; and persons forced to serve as guides are not to be punished for so doing. Instructions for the U. S. Armies (1863), § 3, cl. 72, 80, 94.

The influence of the United States in promoting international arbitration is shown historically in 26 Am. Law Rev. 66, 85; 24 id. 897; 48 Alb. L. J. 291. As to disarmament by international agreement, see 19 Revue de Droit Int. 472, 479; 26 id. 573. Upon the international rights of railroads, owned by belligerents or by neutrals, in time of war, see 17 Revue de Droit Int. 332; 19 id. 164; 20 id. 362, 383; 21 Journal du Droit Int. 435, 641. As to the protection of marine telegraph cables, see 15 Revue de Droit Int. 17. By the Postal Treaty of Aug. 30, 1890, between Great Britain and France, postal packets are not liable to seizure or detention in case of war, until postal communication is ordered discontinued by either nation, and then they may return home.

despoiling and plundering the enemy's territory, are still too prevalent, especially when the war is assisted by irregulars. Such conduct has been condemned in all ages by the wise and virtuous, and it is usually severely punished by those commanders of disciplined troops who have studied war as a science, and are animated by a sense of duty or the love of fame. We may infer the opinion of Xenophon on this subject (and he was a warrior as well as a philosopher), when he states, in the Cyropasdia, (a) that Cyrus of Persia gave orders to his army, when marching upon the enemy's borders, not to disturb the cultivators of the soil; and there have been such ordinances in modern times, for the protection of innocent and pacific pursuits. (b)1

(a) Lib. 5.

(b) 1 Emerigon, des Ass. 129, 130, 457, refers to ordinances of France and Holland, in favor of protection to fishermen; and to the like effect was the order of the British government in 1810, for abstaining from hostilities against the inhabitants of the Faroe Islands and Iceland. So it is the practice of all civilized nations to consider vessels employed only for the purpose of discovery and science, as excluded from the operations of war. The American Commissioners (John Adams, Benjamin Franklin, and Thomas Jefferson), in 1784, submitted to the Prussian Minister a proposition to

1 Cotton was treated as a proper subject for capture under the peculiar circumstances of the rebellion, although private property and on land. Mrs. Alexander's Cotton, 2 Wall. 404; United States v. Padelford, 9 Wall. 531, 540 [Lamar v. Brown, 92 U. S. 187; Young 0. United States, 97 U. S. 39]; post, 357, n. 1. See Mitchell v. Harmony, 13 How. 115; 1 Blatchf. 549. Both North and South also passed limited confiscation acts which applied to property on land, including credits; and the acts of Congress have been upheld by the Supreme Court as a legitimate exercise of the war powers of the government. Miller v. United States, 11 Wall. 268. See Wheat. Dana's notes 156, 157. The Confederate acts, to be sure, were treated as invalid in the United States courts. Texas v. White, 7 Wall. 700; Knox v. Lee, 12 Wall. 457, 554; Hickman v. Jones, 9 Wall. 197; post, 108, n. 1. Compare Shortidge v. Macon, 1 Phillips, N. C. 392, 2 Am. Law Rev. 95; Perdicaris v. Charles-

ton Gaslight Co., 10 Int. Rev. Rec. 110, 2 Am. Law Times, 117, with United States v. Keehler, 9 Wall. 83. But it may be doubted in view of the practice of the United States and other nations in cases where expediency has dictated the taking of private property on land, whether the immunity of such property in general is so firmly established, that an argument can be drawn from it in favor of extending the exemption to private property at sea. The objections to the latter principle are forcibly stated by Professor J. N. Pomeroy, in the North American Review, cxiv. 376, for April, 1872, and the treaty between the United States and Prussia, mentioned in the note (b), the course of the United States with regard to the abolition of privateering by the Congress of Paris, post, 98, n. 1, and the adoption of the principle by Prussia in the war with France in 1870, are discussed and explained. See also Wheat. Dana's notes 158, 171, and the history in Wheat. Lawrence's note 192.

Vattel condemns {92} very strongly the spoliation of a country without palpable necessity; and he speaks with a just indignation of the burning of the Palatinate by Turenne, under the cruel instructions of Luvois, the war minister of Louis XIV. (a) The general usage now is not to touch private property upon land, without making compensation, unless in special cases, dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all the overtures for a capitulation. Contributions are sometimes levied upon a conquered country, in lieu of confiscation of property, and as some indemnity for the expenses of maintaining order and affording protection. (b) If the conqueror goes beyond these limits wan-

improve the laws of war, by a mutual stipulation not to molest non-combatants, as cultivators of the earth, fishermen, merchants and traders in unarmed ships, and artists and mechanics inhabiting and working in open towns. These restrictions on the rights of war were inserted in a treaty between the United States and Prussia, in 1785. (See post, 98.) General Brune stated to the Duke of York, in October, 1799, when an armistice in Holland was negotiating, that if the latter should cause the dikes to be destroyed, and the country to be inundated, when not useful to his own army, or detrimental to the enemy's, it would be contrary to the laws of war, and must draw upon him the reprobation of all Europe and of his own nation. Nay, even the obstinate defence of a town, if it partake of the character of a mercantile place, rather than a fortress of strength, has been alleged to be contrary to the laws of war. (See the correspondence between Genera] Laudohn and the Governor of Breslau, in 1760. Dodsley's Ann. Reg. 1760.) So, the destruction of the forts and warlike stores of the besieged in the post of Almeida, by the French commander, when he abandoned it with his garrison by night, in 1811, is declared by General Sarazin, in his history of the Peninsular War, to have been an act of wantonness which justly placed him without the pale of civilized warfare. When a Russian army, under the command of Count Diebitsch, had penetrated through the passes of the Balkan to the plains of Romelia, in the summer of 1829, the Russian commander gave a bright example of the mitigated rules of modern warfare, for he assured the Mussulmans that they should be entirely safe in their persons and property, and in the exercise of their religion; and that the Mussulman authorities in the cities, towns, and villages might continue in the exercise of their civil administration for the protection of person and property. The inhabitants were required to give up their arms, as a deposit, to be restored on the return of peace, and in every other respect they were to enjoy their property and pacific pursuits as formerly. This protection and full security to the persons and property of the peaceable inhabitants of conquered towns and provinces are according to the doctrine and declared practice of modern civilized nations. (See Dodsley's Ann. Reg. 1772, p. 37.

(a) Vattel, b. 3, c. 9, sec. 167.

(b) Vattel, b. 2, c. 8, sec. 147; c. 9, sec. 165; Scott's Life of Napoleon, iii. 58. Contributions exacted from the inhabitants by the armies of an invader, without payment, is contrary to the ordinary usages of modern warfare, though the practice is not consistent. The campaigns of revolutionary France, and of Napoleon, in modern Europe, were melancholy exceptions, of the severest character. Upon the invasion of

tonly, or when it is not clearly indispensable to the just purposes of war, and seizes private {93} property of pacific persons for the sake of gain, and destroys private dwellings,

Mexico by the armies of the United States, in 1846, the American Secretary of War (Marcy) instructed General Taylor (September 22, 1846) to abstain from appropriating private property to the public uses, until purchased at a fair price, though he said that was in some respects going far beyond the common requirements of civilized warfare, and that an invading army had the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war. He further observed, that upon the liberal principles of civilized warfare, either of three modes might be pursued in relation to obtaining supplies from the enemy: first, to purchase them on such terms as the inhabitants of the country might choose to exact; second, to pay a fair price without regard to the enhanced value resulting from the presence of a foreign army; and, third, to require them as contributions, without paying or engaging to pay therefor; that the last mode was the ordinary one, and General Taylor was instructed to adopt it, if in that way he was satisfied he could get abundant supplies for his forces. The previous instructions in that campaign had been to abstain from appropriating private property to the public use without purchase, at a fair price; but the instructions had now, in the progress of the campaign, risen to a severer character. The principle of kindness and liberality towards the enemy seems to be of a flexible character, and to be swayed by considerations of policy and circumstances. The President of the United States (James K. Polk), in his letter to the Secretary of the Treasury, of the 23d March, 1847, declared the right of the conqueror to levy contributions upon the enemy, in their seaports, towns, or provinces, which may be in his military possession by conquest, and to apply the same to defray the expenses of the war. He further declared, that the conqueror possessed the right to establish a temporary military government over such seaports, towns, or provinces, and to prescribe the terms of commerce with such places; that he might, in his discretion, exclude all trade, or impose terms upon it, — such, for instance, as a prescribed rate of duties on tonnage and imports. The President of the United States, therefore, with a view to impose a burden on the enemy, and deprive him of the revenue to be derived from trade, and secure it to the United States, ordered that all the ports and places in Mexico, in the actual possession of the land and naval forces of the United States, by conquest, should be opened, while the military occupation continued, to the commerce of all neutral nations, as well as of the United States, in articles not contraband of war, upon the payment of a prescribed tariff of duties and tonnage, prepared under the instructions of the President, and by him adopted, and to be enforced by the military and naval commanders. All these rights of war undoubtedly belong to the conqueror or nation who holds foreign places and countries by conquest; but the exercise of those rights and powers, except those that temporarily arise from necessity, belong to that power in the government to which the prerogative of war is constitutionally confided. The President of the United States, in his official letter to the Secretary of the Navy, of March 31, 1847, claimed and exercised, as being charged by the Constitution with the prosecution of the war, this belligerent right to levy military contributions upon the enemy, and to collect and apply the same towards defraying the expenses of the war, and to open the Mexican ports for that purpose, on a footing favorable to neutral commerce. The whole execution of the commercial regulations was placed under the control of the military and naval forces, and, with the policy of blockading some and opening other

or public edifices devoted to civil purposes only, or makes war upon monuments of art and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world. (a)

2. Law of Retaliation. — Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Ruther-

Mexican ports, to compel the whole commerce for the supply of Mexico to pass under the control of the American forces, subject to the contributions, exactions, and duties to be imposed. (See President Folk's Letter of March 31, 1847, to the Secretary of the Navy, and his letter of March 23, 1847, to the Secretary of the Treasury, and the letter of Mr. Walker, of the 30th March, 1847, to the President, containing a scale of duties to be collected, as a military contribution, in the ports of Mexico, and with a recommendation that the Mexican coastwise trade, and the interior trade, above ports of entry, be confined to American vessels, and that in all other respects the ports of Mexico in our possession be freely opened.) These fiscal and commercial regulations, issued and enforced at the mere pleasure of a President, would seem to press strongly upon the constitutional power of Congress to raise and support armies, to lay and collect taxes, duties, and imports, and to regulate commerce with foreign nations, and to . declare war, and make rules for the government and regulation of the land and naval forces, and concerning captures on land and water, and to define offences against the law of nations. Though the Constitution vests the executive power in the President, and declares him to be commander-in-chief of the army and navy of the United States, these powers must necessarily be subordinate to the legislative power in Congress. It would appear to me to be the policy or true construction of this simple and general grant of executive power to the President, not to suffer it to interfere with those specific powers of Congress which are more safely deposited in the legislative department, and that the powers thus assumed by the President do not belong to him, but to Congress.

(a) Vattel, b. 3, c. 9, sec. 168. In the case of The Marquis de Somerueles (Stewart's Vice-Adm. Rep. 482), the enlightened judge of the vice-admiralty court at Halifax restored to the Academy of Arts in Philadelphia a case of Italian paintings and prints, captured by a British vessel in the war of 1812, on their passage to the United States; and he did it "in conformity to the law of nations, as practised by all civilized countries," and because "the arts and sciences are admitted to form an exception to the severe rights of warfare." Works of art and taste, as in painting and sculpture, have, by the modern law of nations, been held sacred in war, and not deemed lawful spoils of conquest. When Frederick II. of Prussia took possession of Dresden as conqueror, in 1756, he respected the valuable picture gallery, cabinets, and museums of that capita], as not falling within the rights of a conqueror. But Bonaparte, in 1796, compelled the Italian states and princes, including the Pope, to surrender their choicest pictures and works of art, to be transported to Paris. The chefs d'œuvre of art of the Dutch and Flemish schools, and in Prussia, were acquired by France in the same violent way. This proceeding is severely condemned by distinguished historians, as an abuse of the power of conquest, and a species of military contribution contrary to the usages of modern civilized warfare. Alison's History of Europe, iii. 42; Sir Walter Scott's Life of Napoleon, iii. 58-68.

forth (b) not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because the community of which he is a member is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation Professor Martens is not so strict. (a)1 While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retaliation as {94} a sad extremity, and it is frequently threatened without being put in execution, and probably without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war. (a)

Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy.1 If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies; and the captures which they make in such a case

(b) Inst. b. 2, c. 9.

(c) Summary of the Law of Nations, b. 8, c. 1, sec. 3, note.

(a) Journals of Congress under the Confederation, ii. 245; vii. 9 and 147; viii. 10; British Orders in Canada, of October 27 and December 12, 1813, and President's Message to Congress of December 7, 1813, and of October 28, 1814.

1 But it is said that the above view does not appear in the last edition of Martens's work, and that the whole subject is discussed in a different spirit. Abdy's

Kent, 245, citing Vergé's ed. 1858, t. ii. 1. viii. c. 2, §§ 252, 262. 1Post, 96, n. 1.

are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of their sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the protection of the mitigated rules of modern warfare. (b)

It was the received opinion in ancient Rome, in the times of Cato and Cicero. (c) that one who was not regularly enrolled as a soldier could not lawfully kill an enemy. But the law of Solon, by which individuals were permitted to form associations for plunder, was afterwards introduced into the Roman law, and has been transmitted to us as {95} part of their system. (a) During the lawless confusion of the feudal ages, the right of making reprisals was claimed and exercised without a public commission. It was not until the fifteenth century that commissions were made necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without license. There were ordinances in Germany, Prance, Spain, and England to that effect. (b) It is now the practice of maritime states to make use of the voluntary aid of individuals against their enemies as auxiliary to the public force; and Bynkershoek says that the Dutch formerly employed no vessels of war but such as were owned by private persons, and to whom the government allowed a proportion of the captured property, as well as indemnity from the public treasury. Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission. (c) Sir Matthew Hale held it to be depredation in a subject to attack the enemy's vessels, except in his own defence, without a commission. (d) The subject has been repeatedly

(b) Bynk. Q. J. Pub. b. 1, c. 20; Vattel, b. 3, c. 15, sec. 226; Journals of Congress, vii. 187; Martens, b. 8, c. 3, sec. 2.

(c) De Off. b. 1, c. 11.

(a) Dig. 47. 22. 4; Bynk. Q. J. Pub. b. 1, c. 18.

(b) Code des Prizes, i. 1; Martens on Privateers, 18; Robinson's Collectanea Maritima, 21.

(c) Bynk. ubi supra; Martens, b. 8, c. 3, sec. 2; Judge Croke, in the case of The Curlew, Stewart, Vice-Adm. 326.

(d) Harg. Law T. 245, 246, 247.

discussed in the Supreme Court of the United States, (e) and the doctrine of the law of nations is considered to be that private citizens cannot acquire a. title to hostile property, unless seized under a commission, but they may still lawfully seize hostile property in their own defence. If they depredate upon the enemy without {96} a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted to consider them as criminals, and, as respects the enemy, they violate no rights by capture.

Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous, and they would probably expose the party to the unchecked severity of the enemy; but they are not acts of piracy unless committed in time of peace. Vattel, indeed, says, (a) that private ships of war, without a regular commission, are not entitled to be treated like captures made in a formal war. The observation is rather loose, and the weight of authority undoubtedly is, that noncommissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates.1 They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favor of the government of the captor, as droits of the admiralty. It is said, however, that in the United States the property is not strictly and technically condemned upon that principle, but jure reipublicæ; and it is the settled law of the United States that all captures made by non-commissioned captors are made for the government. (b)

(e) Brown v. United States, 8 Cranch, 132-135; The Nereide, 9 Cranch, 449; The Dos Hermanos, 2 Wheaton, 76, and 10 Wheaton, 306; The Amiable Isabella, 6 Wheaton, 1.

(a) B. 3, c. 15, sec. 226.

(b) Com. Dig. tit. Admiralty, E. 3; 2 Wood. Lect. 432; The Georgiana, 1 Dods.

1 This passage has been criticised as inconsistent with p. 94, and it has been thought that although captures at sea by persons without regular commissions are lawful with respect to the government of the captors, such acts might be punished as piracy by the opposing belligerents. Halleck, c. 16, § 10. But see Abdy's

Kent, 249 et seq. It is competent for any person to take possession of enemy's property coming within the hostile jurisdiction, unless it is protected by license, and to assist the sovereign to proceed against it to adjudication. The Johanna Emilie, Spinks, Prize C. 12, 14.

3. Privateering. — In order to encourage privateering, it is usual to allow the owners of private armed vessels to appropriate to themselves the property, or a large portion of the property, they may capture; and to afford them and the crews other facilities {97} and rewards for honorable and successful efforts. This depends upon the municipal regulations of each particular power; and, as a necessary precaution against abuse, the owners of privateers are required, by the ordinances of the commercial states, to give adequate security that they will conduct the cruise according to the laws and usages of war and the instructions of the government, and that they will regard the rights of neutrals, and bring their prizes in for adjudication. These checks are essential to the character and safety of maritime nations. (a) Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is, not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce. (b) They are sometimes manned and officered by foreigners having no permanent connection with the country, or interest in its cause. This was a complaint made by the United States, in 1819, in relation to irregularities and acts of atrocity committed by private armed vessels sailing under the flag of Buenos Ayres. (c) Under the best regulations, the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity. Efforts have

397; The Brig Joseph, 1 Gallison, 545; The Dos Hermanos, 10 Wheaton, 306; [The Siren, 13 Wall. 389. See Hall, Int. Law, pt. 3, c. 7, § 183.] The American Commissioners at the court of France, in 1778 (Benjamin Franklin, Arthur Lee, and John Adams), in a letter to the French government, laid down accurately and with precision the law in the text as to capture of enemy's property without a commission. Diplomatic Correspondence, by J. Sparks, i. 443.

(a) Bynk. Q. J. pub. b. 1, c. 19; Journals of Congress, 1776, ii. 102, 114; Acts of Congress of June 26, 1812, c. 107, and April 20, 1818, c. 83, sec. 10; President's instructions to private armed vessels, 2 Wheaton, App. p. 80; Danish instructions of March 10, 1810, Hall's L. J. iv. 263, and App. to 5 Wheaton, 91; Vattel, b. 3, c. 15, sec. 229; Martens, Summ. 289, 290, note; Ord. of Buenos Ayres, May, 1817, in App. to 4 Wheaton, 28; Digest of the Code of British Instructions, App. to 5 Wheaton, 129.

(b) Reports of the United States Secretary of State, March 2, 1794, and June 21, 1797.

(c) Mr. Adams's letter of 1st January, 1819, to Mr. De Forrest, and his official report of 28th January, 1819.

been made, from time to time, to abolish {98} the practice. In the treaty of amity and commerce between Prussia and the United States, in 1785, it was stipulated that, in case of war, neither party should grant commissions to any private armed vessels to attack the commerce of the other. But the spirit and policy of maritime warfare will not permit such generous provisions to prevail. That provision was not renewed with the renewal of the treaty. A similar attempt to put an end to the practice was made in the agreement between Sweden and Holland, in 1675, but the agreement was not performed. The French legislature, soon after the breaking out of the war with Austria, in 1792, passed a decree for the total suppression of privateering; but that was a transitory act, and it was soon swept away in the tempest of the revolution. The efforts to stop the practice have been very feeble and fruitless, notwithstanding that enlightened and enlarged considerations of national policy have shown it to be for the general benefit of mankind to surrender the licentious practice, and to obstruct as little as possible the freedom and security of commercial intercourse among the nations. (a)1

(a) 1 Emerigon, des Ass. 129-132, 457; Mably's Droit Public, c. 12, sec. 1; Edinburgh. Review, viii. 13-15; North American Review, N. S. ii. 166. During the war between the United States and Great Britain, the legislature of New York went so far as to pass an act to encourage privateering associations, by authorizing any five or more persons, who should be desirous to form a company for the purpose of annoying the enemy and their commerce, by means of private armed vessels, to sign and file a certificate, stating the name of the company and its stock, &c., and that they and their successors should thereupon be a body politic and corporate, with the ordinary corporate powers. Laws, N. Y. 38 Sess. c. 12, Oct. 21, 1814.

1 At the Congress of Paris of April 16, 1856, a declaration was signed by the representatives of Great Britain, Austria, France, Prussia, Russia. Sardinia, and Turkey, of which the first principle was that "Privateering is and remains abol-

(x) The provision of the U. S. Constitution (Art. I, § 8) empowering Congress to grant letters of marque and reprisal, has been thought to deprive Congress of power to abrogate this constitutional prerogative by permanently joining in the Treaty of Paris or other like treaty. See 28 Am. L. Rev. 615; 24 id. 902; 19 Law Mag.

ished."(x) The United States refused to accede to this unless it should be amended by adding that "the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the

& Rev. (4th Series), 35. A merchantman, armed for purely defensive purposes, though carrying a license, was subject to condemnation in the limited war with France, defined by the act of Congress of July 9, 1798. Cushing's Case, 22 Ct. Cl. 1; Hooper's Case, id. 408; see Gray's Case, 21 id. 340; Holbrook's Case, id. 434.

It has been a question, whether the owners and officers of private armed vessels were liable in damages for illegal conduct beyond the amount of the security given. Bynkershoek (b) has discussed this point quite at large, and he concludes that the owner, master, and sureties are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, though the sureties are bound only to the amount of the sums for which they become bound. This rule is liable to the modifications of municipal regulations; {99} and though the French law of prize was formerly the same as the rule laid down by Bynkershoek, yet the new commercial code of France (a) exempts the owners of private armed vessels in time of war from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in respect to embezzlements in the merchants' service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject (and there is none with us), the general principle is, that the liability is commensurate with the injury. This was the rule as declared by the Supreme Court of the United States, in Del Col v. Arnold; (b) and though that case has since been shaken as to other points, (c) it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure or [of] damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not ratably pro tanto. (d)

(b) Q. J. Pub. b. 1, c. 19. (a) Code de Commerce, art. 217. (b) 3 Dallas, 333. (c) 1 Wheaton, 259; 1 Paine, 111, to the same point. (d) The Karasan, 5 C. Rob. 291; The Anna Maria, 2 Wheaton, 327. But the owners of a privateer are not liable civilly beyond the security given by law, and the

other belligerent, except it be contraband;" on the ground that this was necessary to prevent a nation which should maintain a powerful navy from having an undue advantage over one whose marine was wholly commercial. Ann. Reg. 1856, p. 221; Wheat. Lawrence's note

192; ante, 91, n. 1. See also the act of March 3, 1863, c. 85; 12 U. S. St. at L. 758; although the authority thereby given to the President for three years to commission privateers was not exercised during the rebellion.

Vattel admits (e) that an individual may, with a safe conscience, serve his country by fitting out privateers; but he holds it to be inexcusable and base to take a commission from a foreign prince to prey upon the subjects of a state in amity with his native country. The laws of the United {100} States have made ample provision on this subject, and they may be considered as in affirmance of the law of nations, and as prescribing specific punishment for acts which were before unlawful. (a) An act of Congress prohibits citizens to accept, within the jurisdiction of the United States, a commission, or for any person not transiently within the United States, to consent to be retained or enlisted, to serve a foreign state in war, against a government in amity with us. It likewise prohibits American citizens from being concerned, without the limits of the United States, in fitting out, or otherwise assisting, any private vessel of war, to cruise against the subjects of friendly powers. (b) Similar prohibitions are contained in the laws of other countries: (c) and the French Ordinance of the Marine of 1681 treated such acts as piratical. The better opinion is, that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate; for, though the two powers may be allies, yet one of them may be in amity with a state with whom the other is at war. (d)1 In the various treaties

loss of a vessel, for piratical acts committed by the officers and crew of the privateer. They are only liable, by the maritime law, for the conduct of the officers and crew while in the execution of the business of the cruise. Dias v. Privateer Revenge, 3 Wash. 262. The New York scheme (see supra, 98, n. a) of making privateering companies actual corporations or bodies politic would seem to exempt the members from the personal responsibility ordinarily incident to the owners of privateers. (e) B 3, c. 15, sec. 229.

(a) Talbot v. Janson, 3 Dallas, 133; Brig Alerta v. Bias Moran, 9 Cranch, 359.

(b) Act of Congress of 20th April, 1818, c. 83.

(c) See the Austrian Ordinance of Neutrality of August 7, 1803, art. 2, 3. By the law of Plymouth Colony, in 1682, it was declared to be felony to commit hostilities on the high seas, under the flag of any foreign power, upon the subjects of another foreign power in amity with England. Bailie's Historical Memoir, ii. pt. 4, 35. The same acts were declared to be felony by a law of the colony of New York, in 1699. Smith's edition of the laws of the colony, i. 25.

(d) Valin's Comm. ii. 235, 236; Bynkershoek, b. 1, c. 17, and note by Duponceau to his translation, 129; Sir L. Jenkins's Works, 714. See post, 188, 191.

1 1 Phillimore, § ccclviii., "The better opinion seems to be that [sailing under two or more commissions granted by allied

powers against a common enemy] is irregular and inexpedient, but does not carry with it the substance or name of Piracy."

between the powers of Europe in the two last centuries, and in the several treaties between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared that no subject or citizen of either nation shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under pain of being treated as a pirate.

4. Prizes. — The right to all captures vests primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, but what he receives {101} under the grant of the state.1 This is a general principle of public jurisprudence, bello parta cedunt reipublicæ, and the distribution of the proceeds of prizes depends upon the regulations of each state; and unless the local laws have otherwise provided, the prizes vest in the sovereign. (a) But the general practice, under the laws and ordinances of the belligerent governments, is, to distribute the proceeds of captured property, when duly passed upon and condemned as prize (and whether captured by public or private commissioned vessels), among the captors, as a reward for bravery and a stimulus to exertion. (b)

When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; though, strictly speaking, as between the belligerent parties, the title passes, and is vested when the capture is complete; and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects, (c) and the authors he refers to, maintain with great strength, as Lord Mansfield observes in

(a) Grotius, b. 3, c. 6; Vattel, b. 3, c. 9, sec. 164; The Elsebe, 5 C. Rob. 173; Home v. Earl Camden, 2 H. Bl. 533. At common law, the goods taken from an enemy belong to the captor. Finch's Law, 28, 178; 12 Mod. 135; 1 Wils. 213. See infra, 357.

(b) Lord Loughborough, 1 H. Bl. 189-191; 2 Wheaton, App. 7, note c, and 71.

(c) ii. 1155.

1 The Siren, 7 Wall. 152, 162, 163; The Banda & Kirwee Booty, L. R. 1 Ad. & Ec. 109, 134; Jecker v. Montgomery, 13 How. 498, 515; The Anglia, Blatchf. Pr. 566; The Aigburth, ib. 635; Stewart v. United States, 1 Ct. of Cl. (Nott & H.)

113. For a discussion as to who are entitled to share as joint captors at sea and on land, see The Cherokee, 2 Sprague, 235; The Selma, 1 Lowell, 30; Banda & Kirwee Booty, supra.

Goss v. Withers, (d) that occupation, of itself, transferred the title to the captor, per solam occupationem dominium prædæ hostibus acquiri. The question never arises hut between the original owner and a neutral purchasing from the captor, and between the original owner and. a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to the change of title is open to dispute; and many arbitrary lines have been drawn, partly from policy, to prevent too easy dispositions of the property to neutrals, {102} and partly from equity, to extend the jus postliminii in favor of the owner. Grotius (a) and many other writers, and some marine ordinances, as those of Louis XIV. and of Congress during the American war, (b) made twenty-four hours' quiet possession by the enemy the test of title by capture. Bynkershoek (c) says that such a rule is repugnant to the laws and customs of Holland; and he insists that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra præsidia do most clearly change the property. But by the modern usage of nations, neither the twenty-four hours' possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor;1 and the purchaser must be able to show documentary evidence of that

(d) 2 Burr. 683. (a) B. 3, c. 6.

(b) Valin, lib. 3, tit. 9. art. 8; Journals of the Confederation Congress, March 27, 1781, vii. 59.

(c) Q. J. Pub. b. 1, c. 4 and 5; Martens, Summary, b. 8, c. 3, sec. 11, S. P.

1 The Peterhoff, Blatchf. Pr. 620. A captor does not forfeit his rights as such, and render himself liable to he treated as a trespasser, by delay in sending home his prize for adjudication, if he thinks it necessary, and uses discretion and good

faith. Jecker v. Montgomery, 18 How. 110; Fay v. Montgomery, 1 Curt. 266. See act of Congress, June 30, 1864; 13 U. S. St. at L., pp. 306, 314, c. 174, §§ 1, 28.

fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. (x) This salutary rule, and one so necessary to check irregular conduct and individual outrage, has been long established in the English admiralty, (d) {103} and it is now everywhere recognized as the law and practice of nations. (a)

The condemnation must be pronounced by a prize court of the government of the captor sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be, (b) that the sovereign of the captors has a right to inspect their behavior, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory

(d) Carth. 423; 10 Mod. 79; 12 Mod. 143; 2 Burr. 694; 3 C. Rob. 97, in notis; 1 C. Rob 139.

(a) The Flad Oyen, 1 C. Rob. 135; The Henrick and Maria, 4 C. Rob. 45; Vattel, b. 3, c. 14, sec. 216; Heineccii Opera, ed. Geneva, 1744, ii. 310, 360; 5 C. Rob. 249; Doug. 591; 8 Cranch, 226; 4 Wheaton, 298; 6 Taunt. 25; 2 Dallas, 1, 2, 4. Every court has the right to inquire into the competency of the jurisdiction of a foreign court to condemn captured property, and if it has none, the sentence is null. The consul of a belligerent in a neutral country has no power to condemn prizes. See cases, Abbott on Shipping, 5th Amer. ed., Boston, 1846, 30-32. But a prize carried into the country of an ally may be condemned there, and even by a consul belonging to the country of the captors; ib. 33.

(b) Rutherforth's Institutes, b. 2, c. 9.

(x) If there is probable cause for the seizure of a vessel which is not good prize, the captors may be awarded costs, though the vessel is not condemned. Hooper's Case, 22 Ct. Cl. 408. A captor, who unreasonably delays bringing suit for condemnation of a prize, is liable for demurrage if its restoration is decreed. The Neustra Senora De Regla, 108 U. S. 92. A belligerent who seizes a neutral vessel merely on suspicion is only excused for her loss when caused by unavoidable casualty. The Ship Tom, 29 Ct. Cl. 68. Captors

are not liable for the loss, without their fault, of a vessel which they seize and hold as contraband of war. The Caroline Wilmans, 27 Ct. Cl. 215. As to the English Prize Courts under recent legislation, see 4 Law Quart. Rev. 107. The captured vessel has the burden of proof to clear herself of suspicion. Hooper'a Case, 22 Ct. Cl. 408. A torpedo launch is a "ship" within the acts of Congress as to the distribution of prize money. United States v. Steever, 113 U. S. 747.

of the ally, but it is not lawful for such a court to act in a neutral territory. Neutral ports are not. intended to be auxiliary to the operations of the power at war; and the law of nations has clearly ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations. (a)

It was for some time supposed that a prize court, though sitting in the country of its own sovereign, or of his ally, had no jurisdiction over prizes lying in a neutral port, because the court wanted that possession which was deemed essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted to be correct by Sir William Scott, in the case of the Henrick and Maria, (d) and he acted {104} upon it in a prior case. (a) But he considered that the English admiralty had gone too far, in supporting condemnations in England of prizes abroad in a neutral port, to permit him to recall the vicious practice of the court to the acknowledged principle; and the English rule is now definitively settled agreeably to the old usage and the practice of other nations. The Supreme Court of the United States has followed the English rule, and it has held valid the condemnations, by a belligerent court, of prizes carried into a neutral port, and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war; and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub potestate, of the captor. (b)1

(c) Glass v. The Sloop Betsey, 3 Dallas, 6; The Flad Oyen, 1 C. Rob. 135; Havelock v. Rockwood, 8 T. R. 268; Oddy v. Bovill, 2 East, 475; Answer to the Prussian Memorial, 1753; L'Invincible, 1 Wheaton, 238; The Estrella, 4 Wheaton, 298; The Comet, 5 C. Rob. 285; The Victoria, Edw. Adm. 97.

(d) 4 C. Rob. 43.

(a) Note to the case of the Herstelder, 1 C. Rob. [119] 100, Philadelphia ed. 1810.

(b) 6 C. Rob. 138; note to the case of the Schooner Sophie: Smart v. Wolff, 3 T. R. 323; Bynk. by Duponceau, 38, note; Hudson v. Guestier, 4 Cranch, 293; Williams v. Armroyd, 7 Cranch, 423. In the treaty between the United States and the Re-

1 The Polka, Spinks, Prize C. 57; 18 id. 110; (x) See act of June 30, 1864, The Zavalla, Blatchf. Pr. 173; Jecker 13 U. S. St. at L. 306, 314, c. 174, § 28. v. Montgomery, 13 How. 498, 515; S. C.

(x) The Gauntlet, L. R. 3 A. & E. 381; L. R. 4 P. C. 184.

5. Ransom Bills. — Sometimes circumstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to ransom it. It was formerly the general custom to redeem property from the hands of the enemy by ransom; and the contract is undoubtedly valid, when municipal regulations do not intervene. It is now but little known in the commercial law of England, for several statutes in the reign of George III. absolutely prohibited to British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity, to be judged of by the court of admiralty. (c) A ransom bill, when not locally prohibited, is a war contract, protected by good faith and the law of nations; and notwithstanding that the contract is considered in England as tending to relax the energy of war, and {105} deprive cruisers of the chance of recapture, it is, in many views, highly reasonable and humane. Other maritime nations regard ransoms as binding, and to be classed among the few legitimate commercia belli. They have never been prohibited in this country; and the act of Congress of August 2, 1813, interdicting the use of British licenses or passes, did not apply to the contract of ransom. (a)

The effect of a ransom is equivalent to a safe-conduct granted by the authority of the state to which the captor belongs, and it binds the commanders of other cruisers to respect the safe-conduct thus given; and under the implied obligation of the treaty of alliance, it binds equally the cruisers of the allies of the captor's country. (b) From the very nature of the connection between allies, their compacts with the common enemy must bind each other, when they tend to accomplish the objects of the alliance. If they did not, the ally would reap all the fruits of the compact, without being subject to the terms and conditions of it; and the enemy with whom the agreement was made would be exposed, in regard to the ally, to all the disadvantages of it,

public of Colombia, in 1825, art. 21, and of Chili, in 1832, art. 21, it was agreed that the established courts for prize causes in the country to which the prize may be conducted should alone take cognizance of them. (c) 1 Chitty, Comm. Law, 428.

(a) Azuni on Maritime Law, ii. c. 4, art. 6; 1 Emerigon, c. 12, sec. 21; 2 Valin, art. 66, p. 149; Le Guidon, c. 6, art. 2; Grotius, b. 3, c. 19; Goodrich v. Gordon, 15 Johns. 6.

(b) Miller v. The Resolution, 2 Dallas, 15.

without participating in the stipulated benefits. Such an inequality of obligation is contrary to every principle of reason and justice. (c)

The safe-conduct implied in a ransom bill requires that the vessel should be found within the course prescribed, and within the time limited by the contract, unless forced out of her course by stress of weather or unavoidable necessity. (d) If the vessel ransomed perishes by a peril of the sea, before arrival in port, the ransom is, nevertheless, due, for the captor has not insured the prize against the perils {106} of the sea, but only against recapture by cruisers of his own nation, or of the allies of his country. If there should be a stipulation in the ransom contract, that the ransom should not be due if the vessel was lost by sea perils, the provision ought to be limited to total losses by shipwreck, and not to mere stranding, which might lead to frauds, in order to save the cargo at the expense of the ship. (a) (x)

If the vessel should be recaptured, out of the route prescribed by the contract for her return, or after the time allowed for her return, and be adjudged lawful prize, it has been made a question whether the debtors of the ransom are discharged from their contract. Valin (b) says, that, according to the constant practice, the debtors are discharged in such case, and the price of the ransom is deducted from the proceeds of the prize, and given to the first captor, and the residue goes to the second taker. So, if the captor himself should afterwards be taken by an enemy's cruiser, together with his ransom bill, the ransom becomes part of the lawful conquest of the enemy, and the debtors of the ransom are, consequently, discharged from the contract under the ransom bill. (c)

In the case of Ricord v. Bettenham, (d) an English vessel was captured by a French privateer, in the war of 1756, and ransomed

(c) Miller v. The Resolution, 2 Dallas, 15; Pothier, Traité du Droit de Propriété, No. 134.

(d) Pothier, Traité du Droit de Propriété, Nos. 134, 135.

(a) Pothier, Traité de Propriété, No. 138.

(b) Ord. des Prises, art. 19.

(c) Pothier, ib. Nos. 139, 140. (d) 3 Burr. 1734.

(x) Generally there is no implied insurance in a ransom bill against loss by the

perils of the sea. 2 Halleck's Int. Law (3d ed.), 331.

and a hostage given as a security for the payment of the ransom bill. The hostage died while in possession of the French, and it was made a question in the K. B., in a suit brought upon the ransom bill after the peace, whether the death of the hostage discharged the contract, and whether the alien could sue on the ransom bill in the English courts. It was shown that such a contract was valid among the other nations of Europe, and that the owner of the bill was entitled to sue upon it, and that it was not discharged by the death of the hostage, who was taken as a mere collateral {107} security, and the plaintiff was, accordingly, allowed to recover. But it has been since decided, and it is now understood to be the law, that during war, and while the character of alien enemy continues, no suit will lie in the British courts by the enemy, in proper person, on a ransom bill, notwithstanding it is a contract arising jure belli. (a) The remedy to enforce payment of the ransom bill for the benefit of the enemy captor is by an action by the imprisoned hostage, in the courts of his own country, for the recovery of his freedom. This severe technical objection would seem to be peculiar to the British courts, for it was shown, in the case of Ricord v. Bettenham, to be the practice in France and Holland to sustain such actions by the owner of the ransomed contract. Lord Mansfield considered the contract as worthy to be sustained by sound morality and good policy, and as governed by the law of nations and the eternal rules of justice. (b) The practice in France (a) when a French vessel has been ransomed, and a hostage given to the enemy, is for the officers of the admiralty to seize the vessel and her cargo, on her return to port, in order to compel the owners to pay the ransom debt, and relieve the hostage; and this is a course dictated by a prompt and liberal sense of justice. The recapture of the ransom bill, according to Valin, (d) puts an end to the claim of the captor. He may be deprived of the entire benefit of his prize, as well as of the ransom bill, either by recapture or rescue, and the questions arising on them lead to the consideration of postliminy and salvage. Upon recapture from pirates, the property is to be restored to the owner, on the

(a) Anthon v. Fisher, Doug. 649, note; The Hoop, 1 C. Rob. 196.

(b) Cornu v. Blackburne, Doug. 641.

(c) Pothier, Traité de Propriété, No. 144.

(d) ii. liv. 3, tit. 9, art. 19.

allowance of a reasonable compensation to the retaker in the nature of salvage; for it {108} is a principle of the law of nations that a capture by pirates does not, like a capture by an enemy in solemn war, change the title, or divest the original owner of his right to the property, and it does not require the doctrine of postliminy to restore it. (a)1 In France, property may be reclaimed by the owner within a year and a day; (b) but in some other countries (and Grotius mentions Spain and Venice) the rule formerly was, that the whole property recaptured from pirates went to the retaker, and this rule was founded on the consideration of the desperate nature of the recovery.

6. Right of Postliminium. — The jus postliminii was a fiction of the Roman law, by which persons or things taken by the enemy were restored to their former state upon coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est in civitate semper fuisse. (c) It is a right recognized by the law of nations, and contributes essentially to mitigate the calamities of war. When, therefore, property taken by the enemy is either recaptured or rescued from him, by the fellow-subjects or allies of the original owner, it does not become the property of the recaptor or rescuer, as if it had been a new prize, but it is restored to the original owner, by right of postliminy, upon certain terms. Movables are not entitled, by the strict rules of the laws of nations, to the full benefit of postliminy, unless retaken from the enemy promptly after the capture, for then the original owner neither finds a difficulty in recognizing his effects, nor is presumed to have relinquished them. Real property is easily identified, and therefore more completely within the right of postliminy; and the reason for a stricter limitation of it in respect to personal property arises from its transitory nature, and the difficulty of identifying it, and the consequent presumption that the original owner had

(a) Grotius, b. 3, c. 9, sec. 16, 17; Bynk. Q. J. Pub. b. 1, c. 15 and 17. (b) Valin, Comm. ii. 261. (c) Inst. 1. 12. 5.

1 A similar principle was applied where a vessel was recaptured which was alleged to have been condemned and sold by a Confederate prize court.

The proceedings of such a court are of no validity in the courts of the United States. The Lilla, 2 Sprague, 177; S. C. 2 Cliff. 169; cf. ante, 91, n. 1.

abandoned the hope of recovery. (d) 109} This right does not take effect in neutral countries, because the neutral nation is bound to consider the war on each side as equally just, so far as relates to its effects, and to look upon every acquisition made by either party as a lawful acquisition; with the exception of cases where the capture itself is an infringement of the jurisdiction or rights of the neutral power. (a) If one party was allowed, in a neutral territory, to enjoy the right of claiming goods taken by the other, it would be a departure from the duty of neutrality. The right of postliminy takes place, therefore, only within the territories of the nation of the captors, or of its ally; (b) and if a prize be brought into a neutral port by the captors, it does not return to the former owner by the law of postliminy, because neutrals are bound to take notice of the military right which possession gives, and which is the only evidence of right acquired by military force, as contradistinguished from civil rights and titles. They are bound to take the fact for the law. Strictly speaking, there is no such thing as a marine tort between belligerents. All captures are to be deemed lawful, and they have never been held within the cognizance of the prize tribunals of neutral nations. (c) With respect to persons, the right of postliminy takes place even in a neutral country; so that if a captor brings his prisoners into a neutral port, he may, perhaps, confine them on board his ship, as being, by fiction of law, part of the territory of his sovereign, but he has no control over them on shore. (d)

{110} In respect to real property, the acquisition by the conqueror is not fully consummated until confirmed by the treaty of peace, or by the entire submission or destruction of the state to which it belonged. (a) If it be recovered by the original

(d) Vattel, b. 3, c. 14, sec. 209.

(a) M'Donough v. Cannery, 3 Dallas, 188, 198; The Josefa Segunda, 5 Wheaton, 338, 358. See also post, 121.

(b) Vattel, b. 3, c. 14, sec. 207, 208.

(c) La Amistad de Rues, 5 Wheaton, 390.

(d) Vattel, b. 3, c. 7, sec. 132; Bynk. by Duponceau, 116, 117, notes; Austrian Ord. of Neutrality, Aug. 7, 1803, art. 19. By one of the provisions of a commercial treaty between Carthage and Rome, in the earliest period of the Roman republic, soon after the expulsion of Tarquin, it was stipulated, that if either party should bring into the ports of the other prisoners taken from an ally, the prisoners might be reclaimed and set free. Polybius, b. 3, c. 3.

(a) Puff. Droit de la Nature par Barbeyrac, liv. 8, c. 6, sec. 20.

sovereign, it returns to the former proprietor, notwithstanding it may, in the mean time, have been transferred by purchase. The purchaser is understood to have taken the property at the hazard of a recovery or reconquest before the end of the war. But if the real property, as a town or portion of the territory, for instance, be ceded to the conqueror by the treaty of peace, the right of postliminy is gone for ever, and a previous alienation by the conqueror would be valid. (b)

In a land war, movable property, after it has been in complete possession of the enemy for twenty-four hours (and which goes by the name of booty and not prize), becomes absolutely his, without any right of postliminy in favor of the original owner; and much more ought this species of property to be protected from the operation of the rule of postliminy, when it has not only passed into the complete possession of the enemy, but been bona fide transferred to a neutral. By the ancient and strict doctrine of the law of nations, captures at sea fell under the same rule as other movable property taken on land; and goods so taken were not recoverable by the original owner from the rescuer or retaker. But the municipal regulations of most states have softened the rigor of the law of nations on this point by an equitable extension of the right of postliminy, as against a recaption by their own subjects. The ordinances of several of the continental powers confined the right of restoration, on recaption, to cases where the property {111} had not been in possession of the enemy above twenty-four hours. This was the rule of the French ordinance of 1681; (a) but now the right is everywhere understood to continue until sentence of condemnation, and no longer.

It is also a rule on this subject, that if a treaty of peace makes no particular provisions relative to captured property, it remains in the same condition in which the treaty finds it, and it is tacitly conceded to the possessor. The right of postliminy no longer exists, after the conclusion of the peace. It is a right which belongs exclusively to a state of war, (b) and therefore a transfer to a neutral, before the peace, even without a judicial sentence of condemnation, is valid, if there has been no recovery or recaption before the peace. The intervention of peace cures

(b) Vattel, b. 3, c. 14, sec. 212; Martens, b. 8, c. 3, sec. 11, 12.

(a) Liv. 3, tit. 9, Des Prises, art. 8. (b) Vattel, b. 3, c. 14, sec. 216.

all defects of title, and vests a lawful possession in the neutral, equally as the title of the enemy captor himself is quieted by the intervention of peace. (c) The title, in the hands of such a neutral, could not be defeated in favor of the original owner, even by his subsequently becoming an enemy. It would only be liable, with his other property, to be seized as prize of war. (d)

Every power is obliged to conform to these rules of the law of nations relative to postliminy, where the interests of neutrals are concerned. But in cases arising between its own subjects, or between them and those of her allies, the principle may undergo such modifications as policy dictates. Thus, by several English statutes, the maritime rights of postliminy, as among English subjects, subsists to the end of the war; and, therefore, ships or goods captured at sea by an enemy, and retaken at any period during the war, and whether before or after sentence of condemnation, are to be restored to the original proprietor, on securing to the recaptors certain rates of salvage, as a compensation or reward {112} for the service they have performed. (a) The maritime law of England gives the benefit of this liberal rule of restitution, with respect to the recaptured property of her own subjects, to her allies, unless it appears that they act on a less liberal principle, and then it treats them according to their own measure of justice. (b) Great Britain seems to have no fixed rule as to the quantum of salvage on a foreign vessel in cases of recapture, and the rate of salvage in other nations of Europe is different, as allowed by different nations. (c) The allotment of salvage on recapture or rescue is a question not of municipal law merely, except as to the particular rates of it. It is a question of the jus gentium, when the subjects of allies or neutral states claim the benefit of the recaption. The restitution is a matter not of strict right after the property has been vested in the enemy, but one of favor and relaxation; and the belligerent recaptor has a right to annex a reasonable condition to his liberality. (d) Neu-

(c) Schooner Sophie, 6 Rob. 138.

(d) The Purissima Conception, 6 C. Rob. 45.

(a) 1 Chitty on Commercial Law, 435.

(b) The Santa Cruz, 1 C. Rob. 50.

(c) Wheaton on Captures, 245, 246, 297; Opinions of the Attorneys-General, i. 435.

(d) The Two Friends, 1 C. Rob. 271; Marshall on Ins. 474; Doug. 648.

tral property, retaken from the enemy, is usually restored, without the payment of any salvage, unless, from the nature of the case, or the usages of the enemy, there is a probability that the property would have been condemned, if carried into the enemy's ports, and in that case a reasonable salvage ought to be allowed, for a benefit has been conferred. (e)

The United States, by the act of Congress of 3d March, 1800, directed restoration of captured property, at sea, to the foreign and friendly owner, on the payment of reasonable salvage; but the act was not to apply when the property had been condemned as prize by a competent court, before recapture; nor when the foreign government would not restore the goods or vessels of the citizens of the United States, under the like circumstances. The statute continued {113} the jus postliminii, until the property was devested by a sentence of condemnation, and no longer;1 and this was the rule adopted in the English courts, before the extension of the right of postliminy, by statutes, in the reigns of George II. and George III. (a)

(e) The War Onskan, 2 C. Rob. 299; The Carlotta, 5 C. Rob. 54. (a) Lord Mansfield, 2 Burr. 693, 1209; L'Actif, Edw. Adm. 186. [See, generally, Hall, Int. Law, pt. 3, c. 5.]

1 See now the substituted act of June 30, 1864, c. 174, § 29; 13 U. S. St. at L. 314; which allows salvage according to the circumstances of the case, when any

vessel or other property, captured by any force hostile to the United States, is recaptured before it has been condemned as prize by competent authority.