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 presumptions.

"Or, it may it be asked, what if there is no rule in the country of the re-captured? I answer, first, this is scarcely to be supposed; there may be no ordinance, no prize acts, immediately applying to re-capture, but there is a law of habit, a law of usage, a standing and known principle on the subject, in all civilized, commercial countries; it is the common practice for European states, in every war, to issue proclamations and edicts on the subject of prize, but till they appear Courts of Admiralty have a law and usage on which they proceed, from habit and ancient practice, as regularly as they afterwards conform to the express regulations of the Prize Acts. But, secondly, if there should exist a country in which no rule prevails, the recapturing country must then, of necessity, apply its own rule, and rest on the presumption that that rule will be adopted and be administered in the future practice of its allies.

"Again it is said, that a country applying to other countries their own respective rules will have a practice discordant and irregular; it may be so: but it will be a discordance proceeding from the most exact uniformity of principle; it will be idem per diversa. A rule may bear marks of apparent inconsistency, and nevertheless contain much relative fitness and propriety; a regulation may be extremely unfit to be

made which, yet, shall be extremely fit, and shall, indeed, be the only fit rule to be observed towards other parties who have originally established it for themselves.

The actual rule of the maritime law of England on this subject I understand to be clearly this: that the maritime law of England having adopted a most liberal rule of restitution on salvage, with respect to the re-captured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In the words of Sir E. Simson, the rule is, 'that England restores, on salvage, to its allies; but if instances can be given of British property retaken by them, and condemned as prize, the Court of Admiralty will determine these cases according to their own rule.'” Lord Stowell,

ub. sup.)

Neutral property, captured by one belligerent, and recaptured by another, is not entitled to seek compensation from the original captor, unless it can be proved that he, bona fidei possessor, has committed irregularities which produce irreparable loss. "The law," says Lord Stowell, The Betsey (1 Rob. 95), " is clear, that a bona fidei possessor is not responsible for casualties; but that he may, by subsequent misconduct, forfeit the protection of his fair title, and render himself liable to be considered as a trespasser from the beginning. This is the law, not of this court only, but of all courts, and one of the first principles of universal jurisprudence. Objects of recapture cannot be covered under the plea of donation." "It has been attempted," said Lord Stowell, in The Santa Cruz (ub.sup. 75), "to raise distinctions between these titles;

but on all legal considerations, they are precisely the same; they are both equally matter of prize: donation between enemy and enemy cannot take effect. The very character of enemy at once extinguishes all civil intercourse, from which such a title could arise."

A neutral vessel recaptured from the enemy may, if necessary for the mutual safety and interest of herself and the recaptors, be equipped, armed and employed in protecting herself aud the recaptors from the attack of the enemy's cruizers at her own risk; and should she become a wreck whilst and in consequence of being so employed, there is no claim on the part of neutral owners for restitution in value. (The Swift, 1 Acton, 1.)

That kind of rescue which is effected by the rising of the captured to defeat their captor, is, as contradistinguished from recapture, a matter rather of merit than of duty. In the Two Friends (1 Rob. 271), Lord Stowell said, "Seamen are not bound, by their general duty as mariners, to attempt a rescue; nor would they have been guilty of a desertion of their duty in that capacity if they had declined it. It is a meritorious act to join in such attempts; but it is an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship in discharge of any official duty, either ordinary or extraordinary."

A rescue effected by the crew, after capture, when the captors are in actual possession, does not exempt the prize from condemnation. "For a rescue,” said Lord Stowell, in The Dispatch (3 Rob. 278), "can be nothing else than, as the very term imports, a delivery from force by force." In The Elsebe (4 Rob. 408), it is laid down, that the resistance of the con

voying ships is the resistance of the whole convoy; whence it follows, that in such cases the whole convoy is subject to confiscation. But from The Pennsylvania (1 Acton, 33), it appears, that if a neutral vessel has been captured, and the captors, whether from want of hands to navigate her, or for the sake of making other prizes, or from any other motive, allow the neutral commanders to resume the direction of the vessel, without any express agreement binding those commanders to bring her in for adjudication in pursuance of the original capture, then the escape of the neutral will not be regarded as a rescue or a resistance. On the same principle, it was held in The San Juan Battista (5 Rob. 33), that a mere attempt to escape before any possession assumed by the captor does not draw with it the consequences of condemnation. And the same case establishes, that, unless the neutral vessel have reasonable grounds to be satisfied that a war has actually broken out, even a direct resistance will not superinduce the penalty.

"If a neutral master," says Lord Stowell (The Catharina Elizabeth, 5 Rob. 232), "attempts a rescue, he violates a duty which is imposed on him by the law of nations, to submit to come in for inquiry as to the property of ship or cargo; and if he violates that obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner; and it would, I think, extend also to the confiscation of the whole cargo entrusted to his care, and thus fraudulently attempted to be withdrawn from the rights of war. With an enemy master the case is very different; no duty is violated by such an act on his part: lupum auribus teneo, and if he can withdraw himself he has a right to do so."

SALVAGE.

Salvage, in the military sense of the term, is the reward given to the recaptor of a captured ship by the owner of the property; for although it is the rule of this country, as among its own subjects, to restore such recaptured property to the original owner, it is not the rule to make the recaptor afford this restitution altogether gratuitously. By the 43rd Geo. 3, c. 160, s. 39, the legislature fixed certain rates of salvage, according to the circumstances of the recapture. The salvage therein allotted to British recaptors is at the rate of one-eighth of the beneficial interest in the whole recaptured property, where the recapture is effected by ships belonging to the royal navy; and one-sixth, where it is effected by private ships; the judge of the court being at liberty, in cases of recapture by the joint efforts of king's ships and private vessels, to order such salvage as he shall deem reasonable. (The Dickenson, Hay & Marriott, 48; The Betsey, ib. 81; The Two Friends, 1 Rob. 279; and see the recent Prize Proclamation in Appendix.)

To support a claim for military salvage, two circumstances must concur; first, the taking must be lawful; secondly, there must be meritorious service rendered to the recaptured.

Salvage is not confined to recapture alone; it is given also in cases of rescue, where rescue is not the result of the arrival of fresh succour, which relieves the weaker party before he falls into the power of the adversary. In The Franklin (4 Rob. 147), Lord Stowell said, "No case has been cited, and I know of none in which military salvage has been given, where the property rescued