Barbeyrac, and the whole subject has been most ably discussed by Bynkershoek. Nevertheless, it was left unsettled whether the right of postliminy should apply to all maritime recaptures, or only to ships; whether they must be taken infra praesidia of the captor, or whether the bringing infra praesidia of a neutral was sufficient to change the property; moreover, it was often a matter of dispute what should be understood by the phrase infra praesidia. This state of the question led to various treaty stipulations and municipal statutes, by which the subject of recapture was regulated with respect to the contracting parties and their own subjects; and with respect to countries with which the recaptor had no treaty in relation to the application of postliminy to such cases, the courts have sometimes adopted the rule of reciprocity. Sir William Scott consideres this the most liberal and rational rule which can be applied. "To the recaptured," he says, "it presents his own consent, bound up in the legislative wisdom of his own country; to the recaptor, it cannot be considered as injurious, where the rule of the recaptured would condemn, whilst the rule of the recaptor prevailing among his own countrymen, would restore, it brings an obvious advantage; and even in case of immediate restitution, under the rules of the recaptured, the recapturing country would rest secure in the reliance of receiving reciprocal justice in its turn. It may be said, what if this reliance should be disappointed? Redress must then be sought from retaliation; which, in the disputes of independent states, is not to be considered as vindictive retaliation, but as the just and equal measure of civil retribution. This will be their ultimate security, and it is a security sufficient to warrant the trust. For the transactions of states cannot be balanced by minute arithmetic; something must, on all occasions, be hazarded on just and liberal presumption." (Phillimore, On Int. Law, vol. 3, § 409; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 12; The Santa Cruz, 1 Rob. Rep., pp. 58–63; Goss, et al. v. Withers, 2 Bur. Rep., p. 693; Bello, Derecho Internacional, pt. 2, cap. 5, § 6; Heffter, Droit International, § 191; Hautefeuille, Des Nations Neutres, tit. 13, ch. 3; Fistoye et Duverdy, Des Prises, tit. 7; Loccenius, De Jure Maritime, lib. 2, cap. 4; Dalloz, Repertoire, verb. Prises Maritimes, sec. 3.)

§14. Every power is obliged to conform to the law of nations, relative to postliminy, where the interest of neutrals are concerned, unless otherwise regulated by treaty stipulations. But such conventions or treaty stipulations establish a factitious right, which relates only to the contracting parties, and cannot bind others. So, with respect to allies, two allies may enter into an agreement by which the rights of postliminy may be restricted or extended, as between themselves, but such agreement can in no way affect the rights of postliminy of the third co-ally, who is not a party to it. His rights and duties in that respect, are governed and regulated by the rules of postliminy, which are recognized and established by the law of nations. But, in many cases, as already remarked, there is no recognized and well established rule of international law, which can be applied. So of municipal laws, they may modify the right of postliminy in its application to cases arising between the subjects of the same belligerent state, but they cannot change it so as to prejudice the absolute rights of citizens of other states, whether allies or neutrals. In other words, municipal statutes cannot deprive the subject of an ally of the benefit of postliminy, in case of recapture, nor take from the subject of a neutral state what he holds by a title, which is regarded as valid by the law of natious. They may, however, give to both, certain benefits of postliminy, which they could not claim under the well established principles of the law of nations as absolute rights. Such has been the general character of the modifications of postliminy which have been made, or attempted, by municipal laws and regulations. (Bello, Derecho Internacional, pt. 2, cap. 4, § 8; cap. 5, §6; Kent, Com. on Am. Law, vol. 1, p. 111; Wheaton, Elem. Int. Law, pt. 1, ch. 1, § 12; Vattel, Droit des Gens, liv. 3, ch. 14, § 222; Heffter, Droit International, § 191.)

§ 15. The British prize act, section nine, provides that, "Any ship, vessel, goods or merchandise belonging to any of her majesty's subjects captured by any of her majesty's enemies, and afterwards recaptured from the enemy by any of her majesty's ships or vessels of war, shall be adjudged by the decrees of the court of admiralty, to be restored to the owner or proprietor thereof, upon payment for, and in lieu of, sal

vage of one-eighth part of the true value of the said ship, vessel, goods, or merchandize, respectively, and such salvage of one-eighth shall be divided and distributed in such manner and proportion as is herein before directed in cases of prize; provided, nevertheless, that if any such ship or vessel captured and recaptured as aforesaid shall have been by her majesty's enemies set forth or used as a ship or vessel of war, it shall not be restored to the former owner or proprietor thereof, but shall be adjudged lawful prize for the benefit of the captors." It has been shown elsewhere, that, according to the practice of the British prize courts, property captured in war is not deemed to be changed so as to debar the owner or captor, till there has been a sentence of condemnation; and therefore, until that period, the title of the original owner is not divested, and he is entitled to restitution, in the hands of whomsoever he may find the property. But if such sentence of condemnation has passed, it is a sufficient title to a vendee, and would also have entitled a recaptor to condemnation of the property, if the statute did not step in, and, as to British subjects, revive the jus postliminii of the original owner, on payment of salvage. This principle of ownership would extend to allies and neutrals the benefit of postliminy till after condemnation, if the courts had not engrafted on it the rule of reciprocity already alluded to. The United States by the act of March 3d, 1800, have enacted-"That when any vessel other than a vessel of war or privateer, or when any goods which shall hereafter be taken as prize by any vessels, acting under authority of the government of the United States, shall appear to have before belonged to any person or persons, resident within or under the protection of the United States, or under authority, or pretence of authority, from any prince, government or state, against which the United States have authorized, or shall authorize, defence or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners, he or they paying for, and in lieu of, salvage, if retaken by a public vessel of the United States, one-eighth part, and if retaken by a private vessel of the United States, one-sixth part, of the true value of the

vessel or goods so to be restored, allowing and excepting all imports and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture or afterwards, and before the retaking thereof as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay for, and in lieu of salvage, one moiety of the true value of such vessel of war or privateer." The second section of this act extends the foregoing provisions to the recapture of property claimed by the United States, allowing a salvage of one-sixth in case of recapture by a private vessel, and one-twelfth if by a public vessel. Section third extends the provisions of the first section to the restoration of recaptured property claimed by alien friends, the amount of salvage to be paid being such proportion of the true value of the vessel or goods so to be restored, as by the law or usage of the prince, government or state, within whose territory such former owner or owners shall be so resident, shall be required, on the restoration of any vessel or goods of a citizen of the United States, under like circumstances of recapture, made by the authority of such foreign prince, government or state, and where no such law or usage shall be known, the same salvage shall be allowed as is provided by the first section of this act." But the act was not to apply to cases where the foreign government would not restore the vessels or goods of citizens of the United States under like circumstances. It is thus seen that the municipal laws of the United States relating to recaptures are essentially different from the British statutes on the same subject, and that they conform to the true principles of the jus postliminii as modified by the rule of reciprocity. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, §12; Kent, Com. on Am. Law, vol. 1, pp. 111, 112; Chitty, Law of Nations, pp. 99, et seq.; Chitty, Com. Law, p. 435; Phillimore, on Int. Law, vol. 3, §§ 418, 419; British Statutes, 17 Vice, c. 18; 43 Geo. iii., c. 160; 45 Geo. iii., c. 72; Goss, et al. v. Withers, et al., 2 Burr. Rep., p. 693; U. S. Statutes at Large, vol. 2, p. 16; The Adelaide, 9 Cranch. Rep., p. 244; Marshal, On Insurance, b. 1, ch. 12, § 8; The Sedulous, 1 Dod. Rep., p. 253; Le Caux v. Eden, Doug. Rep., pp. 613, 616; The Flad Oyen, 1 Rob. Rep., p. 135; The Santa

Cruz, 1 Rob. Rep., p. 50; The Fanny and Elmira, Edw. Rep., p. 117; The Purisima Concepcion, 6 Rob. Rep., p. 45; The Victoria, Ewd. Rep., p. 97; Hautefeuille, Des Nations Neutres, tit. 3, ch. 3.)

§ 16. The same provisions are made in the British and Ameriean statutes, with respect to the setting forth as a vessel of war, prior to the capture. We know of no American decision as to what constitutes such setting forth, but the meaning of the term has been fully settled by adjudications in the British prize courts. It has been decided that a commission of war is sufficient, if there be guns on board; that where the vessel has been fitted out as a privateer, after capture, although when recaptured she was navigating as a merchant vessel, it is conclusive against her, and the title of the former owner is considered as forever extinguished. So, where she has been employed in the military service of the enemy, by authority of the government, although she be not regularly commissioned; and the order of the commander of a single ship, will be presumed to have been given by competent authority. But the mere fact of employment in the military service of the enemy, is not a sufficient setting forth as a vessel of war. Where a ship was originally armed for the slave trade, and, after capture, an additional number of men were put on board, but where there was no commission of war and no additional arming, it was held not to be a setting forth as a vessel of war, under the act. Lord Stowell observed, that the act was drawn with the intention of expressing the sense and meaning of international law, with respect to what constitutes a vessel of war. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 12; Phillimore, On Int. Law, vol. 3, § 420; Valin, Sur l'Ordonnance, tome 2, p. 262; Wildman, Int. Law, vol. 2, pp. 279, et seq.; The Horatio, 6 Rob. Rep., p. 320; The Ceylon, 1 Dod. Rep., p. 165; The Actif, Edw. Rep., p. 185; The Santa Brigada, 3 Rob. Rep., p. 56; The Georgiana, 1 Dod. Rep., p. 397; The Nostra Sonora de Rosario, 3 Rob. Rep., p. 10; The Progress, Edw. Rep., pp. 210, 222.)

§ 17. Although the letter of the French ordinances, previous to the revolution, condemned, as good prize, French property recaptured after being twenty-four hours in possession of the enemy, whether the same be retaken by public or private