Capture at sea; Contraband of war; Privateering; Prize law; Prizes (Property captured at sea)
The final case remains of recaptures of vessels of an ally. Here
the question of the original captor's title enters in, for if the
original captor had good title, the vessel is enemy property and
should be condemned as good prize to the benefit of the recaptor;
but if the title of the original captor is incomplete the original
owner still has a certain title which must be respected. The question
therefore arises, when is the original captor's title complete? There
have been many rules on the subject. Thus Sir William Scott has said:
"It can not be forgotten that by the ancient law of Europe the
perductio infra praesidia, infra locum tutum was a sufficient
conversion of the property, that by a later law a possession of
twenty-four hours was sufficient to divest the former owner. This is
laid down in the 287th article of the Consolato Del Mare in terms
not very intelligible in themselves but which are satisfactorily
explained by Grotius and by his commentator Barbeyrac in his notes
upon that article."[3] Sir Leoline Jenkins, in 1672 said:
"In England we have not the letter of any law for our direction only
I could never find that the court of admiralty either before the
late troubles or since has in these cases adjudged the ships of one
subject good prize to another." He then refers to the Commonwealth
laws of 1649 and says, "Whether the usurpers intended this as a new
law or an affirmance of the ancient custom of England I will not take
upon me to determine, only I will say, condemnation upon the enemies
possession for twenty-four hours is a modern usage."[4] Later legal
adjudication and condemnation was clearly required before the title
of the captor state was complete. Thus Lord Mansfield said:
Public-domain text, read in full here on John Shaqi.
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