difficulty in supporting a contract by which the captors agree to waive their rights in consideration of a sum of money voluntarily paid or agreed to be paid by the captured. Indeed, the case stands upon a stronger ground than that of a ransom between enemies; for the latter have not in general a capacity to enter into contracts. The very law of war prohibits all commercial intercourse and suspends all existing contracts between enemies; and the case of ransoms is almost the only exception which has been admitted from the general rule. If, then, neither the subject matter nor the nature of the title or consideration nor the capacity of the parties presents any serious objection to the contract, as between a friendly belligerent and a neutral, it remains to consider if there be anything in the objection that it is a remitter of the right of forfeiture which belongs exclusively to the sovereign.

"The commission of the sovereign, in general, authorizes only captures of enemies' property. But without any express clause, this commission clearly extends to the capture of all neutral property seized in violating neutral duties, for in such case the property is deemed quasi enemies' property; and for the same reason it authorizes the bringing in of property under neutral passports and papers for adjudication where there is probable cause to suspect its real character, for until adjudication it cannot be ascertained whether it be entitled to the protection of the neutral character. If, therefore, the commission gives hostile property to the captors and enables them to deliver it up on ransom, it also enables them to do the same in respect to neutral property which has acquired a hostile taint, and the ransom is not, in the one case, any more an exercise of the sovereign's prerogative to remit a forfeiture than it is in the other. In both instances it is considered by the law of nations as a mere remitter of the rights of the captors acquired jure belli, and every prohibition of its exercise must expressly depend upon the municipal regulations of the particular country. Upon principle, therefore, the distinction of the counsel for the defendant as to the incompetency of a belligerent to deliver neutral property on ransom is unsupported, and there is not a scintillation of authority in its favour."

FORMALITIES OF RECAPTURE

Great Britain

Recapture of a British Vessel

"261. It is the duty of the commander, if possible, to rescue any British vessel which he may find attacked or captured by the enemy.

"262. If he succeed in effecting the rescue of such a vessel, he may either at once send her in for adjudication, or at his option, unless she shall have been already carried into an enemy's port, or set forth or used by the enemy as a ship of war, allow her to prosecute her voyage and unlade and dispose of her cargo.

“263. Upon adjudication the Prize Court will order the vessel and cargo to be restored to their respective owners upon payment by them of prize salvage.

"264. If the commander shall have allowed the vessel so to prosecute her voyage, he will be allowed to defer proceedings for adjudication till the return of the vessel to a port within the United Kingdom.

"265. In case the vessel shall not within six months return to some port within the United Kingdom, the recaptors may nevertheless institute proceedings against the ship or goods in the Court exercising prize jurisdiction in England, and the Court may thereupon award prize salvage and may enforce the payment thereof either by warrant or arrest against the ship or goods or by monition and attachment against the owner.1

"266. The prize salvage which will be awarded to the recaptors for the recapture of any British vessel before she has been carried into an enemy's port is one-eighth part of the value of the prize; or in case the recapture has been made under circumstances of special difficulty or danger, a sum not exceeding one-fourth part of the value.2

"267. If, however, the vessel has, before her recapture, been set forth or used by the enemy as a ship of war, then upon recapture the original owner is not entitled to restitution, but both vessel and cargo will be condemned as lawful prize to the recaptors.3

"268. The commander will be justified in considering a vessel to have been set forth or used by the enemy as a ship of war if after capture she has been commissioned by the enemy as a ship of war, or has been used as a privateer, or has been armed by an enemy officer ostensibly in the exercise of authority; but not if no more has been done to her than the augmentation of her crew or the arming of her by persons not in authority.

Recapture of a British Prize

"269. It may happen that an enemy vessel which has been captured by a British cruiser is afterwards lost to an enemy's cruiser and finally recaptured by another British cruiser. The commander effecting such a recapture should send in the vessel for adjudication and the original captors are not entitled to restitution, but both vessel and cargo will be condemned as lawful prize to the recaptors.

Recapture of a Neutral Vessel

"270. If a commander recapture from the enemy a neutral vessel which would not have been liable to condemnation in the Prize Court of the enemy, he is not entitled to salvage; and should without delay and without taking ransom, set her free to prosecute her voyage.

Recapture of an Allied Vessel 4

"271. If a commander recapture from the enemy an allied vessel, his duty is generally regulated by treaty. In default of treaty regulations, he will send her into a British port for adjudication; and the Prize Court will award salvage or not, according as the Prize Court of the ally would or would not have awarded salvage to an allied ship for recapturing a British vessel." 5

1 See Naval Prize Act, 1864, sec. 41, Appendix.
2 Ibid., sec. 40.

3 Ibid.

4 "War Onskan," 2 Rob., 299 (1799).

Holland, Manual of Naval Prize Law, 76–79.