[Sidenote:  Salvage.]

The costs and damages paid to the recaptor are termed Salvage.  It was the ancient law of this country, that a possession of twenty-four hours was a sufficient conversion of the property, and unless it was reclaimed before sundown, the owner was divested of his property.  Thus there was a complete obliteration of the rights of former owners.  This was the ancient law of England, and was in accordance with the ancient law of Europe.

This rule has been receded from in this country, since the increase of her commerce.  During the time of the usurpation, when England was becoming commercial, an alteration was effected by the ordinance of 1649, which directed a restitution, upon salvage, to British subjects; and the same indulgent rule was continued afterwards, when this country became still more commercial.

This country, as a commercial country, has thus departed from the old law, and has made a new and peculiar law for itself, in favour of merchant property recaptured, introducing a policy not then introduced by other countries, and differing from its own ancient practice.

[Sidenote:  Recaptures converted into Ships of War are not restored.]

There is one exception to this law.  The Prize Act provides that if a recaptured ship, originally taken by her Majesty’s enemies, shall appear to have been by them “set forth as a ship or vessel of war,” the said ship or vessel shall not be restored to the former owners or proprietors; but shall, in all cases, whether retaken by any of Her Majesty’s ships, or by any privateer, be adjudged lawful prize for the benefit of the captors.  When the former character of the vessel has been once obliterated by her conversion into a ship of war, the title of the former owner, and his claim to restitution, are extinguished, and cannot be revived by any subsequent variation of the character of the vessel.

Setting forth does not necessarily mean sending out of port with a regular commission.  It is sufficient if she has been used as part of the national force of the enemy, by those in competent authority.[131]

[Sidenote:  Capture a material question in cases of Recapture.]

As it has been stated above, in cases of recapture, the material question is, whether there was such a capture made by the enemy, as to found a case of re-capture.

This is settled by the question whether the enemy have an effectual possession; by this is not meant the complete and firm possession obtained by condemnation in a Court of Prize, but that effectual possession, that if not interrupted by recapture, would have enabled the captor to exercise rights of war over her.  For this purpose it is not necessary that the possession should be long maintained.  The following are some examples of such effectual possession.

An English merchantman, separated from her convoy during a storm, was brought to by an enemy’s lugger, which came up and told the master to stay by her till the storm was abated, when they would send a man on board; a British frigate coming up afterwards chased the lugger and took her, thus releasing the merchantman; the frigate was held entitled to salvage.[132]