Commentaries on American Law

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 deprive cruisers of the chance of recapture, it *105 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.

(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 * 106 insured the prize against the perils 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 (6) 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

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.

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

(d) 3 Burr. 1734.

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 security, and the plaintiff was, accord- *107 ingly, 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 (c) 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.

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

allowance of a reasonable compensation to the retaker in * 108 the nature of salvage; for it 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) 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.

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) * This right does * 109 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)

* In respect to real property, the acquisition by the *110 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. Dannery, 3 Dallas, 188, 198; The Josefa Segunda, 5 Wheaton, 338, 358. See also post, 121.

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

(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.

« Προηγούμενη Συνέχεια »

Βιβλία

Commentaries on American Law, Τόμος 1