for adjudication. In former times he was permitted to take his prize into a neutral port. This is still the rule of international law, but the almost invariable practice of neutrals in recent wars has been to forbid such a use of their ports except in cases of distress or emergency:1 1 Vessels captured on the high seas are sent into port under charge of a prize-master, who, with an adequate prize-crew, is placed on board for that purpose. It is the duty of the prize-master to secure the ship and goods in his charge from spoliation or damage during the homeward passage, and to deliver his prize, immediately upon her arrival, into the legal possession of the court having jurisdiction over the case. The ship's papers, log-book, register, sea-letters, and bills of lading are sealed by the commanding officer of the capturing vessel, and they, with two or more members of the ship's company, are conveyed into port by the prize-master, and are delivered with the prize into the custody of the court." Crews of Captured Vessels. The crews of enemy merchant vessels captured on the high seas become prisoners of war, and are entitled to the rights guaranteed to that class by the rules of war. Such as are neutral subjects are II Phillimore, §§ 361 - 364; Dana's Wheaton, § 388, note 186; Vattel, liv. iii. chap. xiii. § 196; II Halleck, p. 385; Hall, § 277; V Calvo, $83012-3033; Snow, p. 166; the Wilhelmsbrog, 5 Robinson, Adm. Rep. p. 143; the Catharina Elizabeth, 1 Acton, Adm. Rep. p. 309. "A captured vessel must be brought within the jurisdiction of the country to which the captor belongs before a regular condemnation can be awarded."-I Opin. Att.-Gen. p. 78. "Captures must be determined upon competent evidence, and no rules for determining the competency of such evidence are more proper for the use of the executive department than those which prevail in the courts of admiralty."-I Ibid. p. 401. "Though it is the duty of the captor, under the law of nations, affirmed by the act of Congress (Rev. Stats. § 4615), to send in captured property for adjudication by a court of his own country having competent jurisdiction, yet he may be excused by imperative circumstances for making a sale of such property and afterwards seasonably subjecting the proceeds to the jurisdiction of a proper court of prize."-Jecker vs. Montgomery, 13 Howard, 498. II Halleck, p. 409; III Phillimore, $$ 348-355; Hall, § 277; Dana's Wheaton, § 388, note 186, par. v.; II Twiss, § 166; the Purissima Concepcion, 5 Robinson, Adm. Rep. p. 33; Die Fire Danier, Ibid. p. 356; the William, 6 Ibid. p. 316. 2 exempt from capture, and are entitled to be released upon their written promise not to serve on an enemy ship during the continuance of the war. Those officers and members of the crew who are subjects of the enemy state are not made prisoners of war if they give a similar undertaking not to take part in any service connected with the operations of the war.' The crews of captured neutral vessels cannot be regarded as prisoners of war. They are simply detained subject to the action of the prize-court upon the ship on board of which they are employed. They are not enemies, and are not subject to detention or punishment. No measures of severity towards them are justifiable except in cases of great emergency, and for such injuries, when shown to be unnecessary, prize-courts may decree damages to the injured parties.2 Destruction of Captured Vessels. As the present tendency of neutral states is to close their ports to maritime prizes, such disposition of prizes is more likely to increase than decrease in frequency. The practice of destroying prizes has been objected to, but rather on the ground of humanity than legality. If the right to capture enemy property at sea be admitted, the right to destroy it follows as a natural consequence. The title of the original owner has been forcibly divested by an act of war. If any injury has been inflicted upon the belligerent, that injury consists in the fact of capture, which amounts to a destruction of the property in so far as the owner and his government are concerned. It can matter little to either what disposition is made of the property after the owner's title has been extinguished. The right to destroy neutral prizes and their cargoes stands upon a different footing, however, and has not received such general acceptance as to warrant 1 For text of convention, see Appendix F, Convention No. II. 2 Abdy's Kent, p. 276. Sce, also, note 1, p. 365, post. Hall, § 150; the Felicity, 2 Dod fi son, 381, 386; the Leucade, Spinks, the practice to be regarded as a lawful disposition of captured neutral property.' The Ransom of Captured Vessels. The practice of furnishing prize-crews tends to deplete the fighting strength of the captor, and, if a number of captures are made, a time must come when a commander, having a due regard to the safety and efficiency of his own ship, can no longer make such detachments from his crew. This emergency is recognized and provided for by the law of nations, and by the municipal law of most states, which authorize him in such an emergency to destroy his prize or to accept a ransom.2. Ransom Contracts. Ransom consists in an agreement entered into between a captor and the master of a captured vessel, acting in behalf of the owners, by which, in consideration of the latter binding himself to pay a stipulated sum, he is permitted to continue his voyage, by a specified route, to a certain port of destination: The instrument containing this agreement is called a ransom contract, and, when regularly made, its binding force is recognized by the law of nations, The ransom contract is executed in duplicate, one copy being retained by the captor and the other by the master of the captured vessel, to whom it serves as a safe-conduct during the rest of his voyage. The precise route to be pursued is stated in the contract, and if he departs from it he is liable to a second capture.3 Hostages. It was the practice in former times to give hostages to the captor as additional security for the payment of ransom. They were conveyed to the captor's country, and were there detained as prisoners until the ransom was paid. They were not always treated as prison "If the prize is a neutral ship, no circumstances will justify her destruction before condemnation. The only proper reparation to the neutral, in such a case, is to pay him the full value of the property destroyed." II Twiss, Interna tional Law during War, § 167, p. 331. The Felicity, 2 Dodson, Admiralty Reports, p. 386; Boyd's Wheaton, pp. 432, 433. 2 III Phillimore, p. 690; Snow, p. 155. Hall, § 151; Snow, p. 101. ers of war, however, but were at times subjected to special hardships and restrictions, imposed upon them with a view of constraining the payment of the ransom contract. If they died in captivity, the ransom contract still remained binding, as they were only regarded as collateral security for its payment.1 Recapture and Postliminy. When a prize has been made at sea, it has been seen to be the duty of the captor to send it to a port of his own country, or that of an ally, for adjudication. In the prosecution of this voyage it is liable to recapture, and a question arises as to its ownership in such a case. The prize has been recaptured by an armed vessel of the same nationality as the original owner; but the recapture, in so far as the recaptor is concerned, was attended by the same risk and danger that would have been involved in an original capture of the same vessel from the enemy. The captor has acquired certain rights in the prize, and, at the same time, the title of the original owner to the property has been to a certain extent revested. The fiction of law which has been invented to adjust these conflicting claims is borrowed from the Roman law, and is called the rule of postliminy. It was applied by the Romans to all captures of persons or property made by an enemy in war, and a similar rule applied to such portions of the public territory as passed into the hands of an enemy as the result of conquest. The title to captured property vested in the captor so long as it remained in his secure possession. As prisoners taken in war became slaves of their captors, their status in Rome, as freemen, was suspended during captivity. If slaves were captured, the rule of property applied. When recaptured from the enemy, the title of the original owner was revived, and the 1 II Halleck, pp. 360, 536; Woolsey, 150; the ships taken at Genoa, 4 Rob. 388. Upton, p. 234; Creasy, pp. 510, 511; I Kent, pp. 104-108; the Resolution, 2 Dallas, p. 115; Pothier, Traité du Droit de Propriété, Nos. 134, 135; III Phillimore, pp. 644647; I Halleck, pp. 358-361; Boyd's Wheaton, 88 411, 411a; V Calvo, §§ 3169-3173, 3184. property was restored to him on payment of salvage. A person who was recaptured became, according to the rule of war, the property of his recaptor; but the law permitted him to resume his freedom, or citizenship, upon the payment of a specified sum.1. The modern rule of postliminy resembles in principle the rule of the Roman law, although it is more just and humane in its application. Persons recaptured in war resume, at once, all their personal and property rights. Slavery and private ransom are alike discountenanced by international law. Property recaptured from an enemy on land, if possible of identification, reverts to its owner without cost or payment. Property recaptured from an enemy at sea is restored to its original owner, but is charged with the payment of a reward to the recaptor, to reimburse him for the risk incurred and the service rendered.' The reward paid to recaptors for the recovery of property captured at sea is called salvage. The amount of salvage to be paid, in any particular case of recapture, is determined. by a prize-court, in accordance with the municipal law of the recaptor's state. The amount of salvage awarded varies with the difficulty of recapture and the value of the prize. It depends also upon the character of the vessel by which the recapture is made, the award being greater in the case of a privateer or merchant vessel than in that of a vessel of war; none being awarded for the recapture of one public armed vessel by another. "In general no salvage is due for the recapture of neutral vessels and goods, upon the principle that the liberation of a bona fide neutral, from the hands of the enemy to the captor, is no beneficial service to the neutral, inasmuch as the same enemy would be compelled, by the tribunals of his own 1 Inst. liv. i. chap. xii. § 5; I Kent, p. 109; Woolsey, § 151; II Phillimore, pp. 615, 616; V Calvo, § 3184. 2 Boyd's Wheaton, pp. 435, 465, 466; Hall, pp. 486-493; II Halleck, pp. 512-524; Woolsey, §§ 151-153; Upton, pp. 234-241; III Phillimore, pp. 615-643; V Calvo, §§ 3169-3173. |