As the ransom is in the nature of a pledge, the ransom cannot exceed the value of the ship, so that the master cannot bind his owner for a larger value; and on the same principle, the captor is bound to take the vessel or its value if abandoned by the owner, or what it sells for if the owner is insolvent.  He is also bound to maintain the hostage, and that is an item in the ransom bill.  In estimating the ransom and expenses of the hostage as a damage or loss, they are regarded in the nature of general average, and the several persons interested in the ship, freight, and cargo, must all contribute towards them.[129]

[Sidenote:  Recaptures.]

Although in strictness every prize legally made, may be adjudged to the captor, yet there are cases where he ought to restore, wholly, or in part, that which he may legally have taken from the enemy.  This is the case of recaptures.

According to the universal law of nations, the question whether the recapture ought to be restored to the first proprietor, seems to depend essentially on another, namely, whether the captor has become full proprietor of the prize, to the total extinction of the rights of the first proprietor.  If we admit that he may have become so, there would be no further perfect and external obligation on the recaptor to restore property which has become that of the enemy; and on which the first proprietor has lost all claim.  There may be a thousand reasons of equity why he should not enrich himself by the spoil of his fellow citizens or friends; but then, that restitution would not be according to the strict rule of natural law; if indeed all claim had so passed away.

The captor has, without doubt, a right to take away the enemy’s goods.  He may, without troubling himself with the proprietor’s rights, detain them, with intent to appropriate to himself, in the same manner, in every respect, as he may seize res nullius in the time of peace; but it does not follow from thence that the effect of these two actions is the same, when applied to objects of so different a condition, or that the right of war alone, without cession or renunciation, is a title sufficient for a full property.

By the Laws of War the right and power of possession is in the captor; the right of property remains in the proprietor.  This right of war, which is personal in the captor, not being capable of cession, cannot bind a third person, who acquires the prize by recapture during war; and nothing prohibits the original proprietor from prosecuting his rights against him; accordingly, without making any distinction between conquest, booty, or prize; the goods taken by the enemy, however legal that capture might be, however certain the possession of them might be, do not become his full property till the moment of peace; and that during the whole course of the war it may be claimed by the first proprietor from the hands of every third possessor.  From this it follows that every recapture, made at any period of the war whatever, whether the capture may have been legal, or whether it may have been illegal; whether the recapture be made by a Sovran, or by a privateer; ought to be restored to the original owner on a just repayment of the costs and damages of every recaptor, unless the illegality of the recapture precludes the recaptor from the privilege of demanding the indemnification.[130]