Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1673.
July.
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A caper having rescued a Scots merchant ship which had been seized on by some Dutch caper, it fell to be questioned, whether or no, jure postliminii quod obtinet in rebus bello captis, the former private owners and merchants of the said ship, so brought up and rescued, could lay any claim to the same. Wherein it was alleged for the caper, that the said vessel having been in the custody and power of the enemy by the space of twenty-four hours before they recovered her out of their hands, the same was jure gentium absolutely and irrevocably become the victor's and enemy's: and the owners, (whose right was inpendenti during the said space,) had utterly fallen from their right; and they having supervened and retaken her, she was become fully theirs: and the old owners had no claim or interest in her, unless they could say she was retaken before she was twenty-four hours in the enemy's possession, and which is a kind of prescription.
Answered,—That Grotius, lib. 3, de Jure Belli et Pacis, cap. 6, No. 3, et cap. 9, No. 14, who sees as far into these affairs as any, (and many other lawyers are of his opinion,) is positive that the enemy does not acquire the dominion and property of things taken, till the other has lost all probable hopes of recovering them; and which is not till they be brought within their castles, forts, harbours, and other stations for ships, or where their whole fleet is; nisi intra præsidia navalia, portus, fines imperii, aut eum locum ubi tota classis se tenet, perductæ sint; but so it is, this ship was not brought to their own country or præsidia, and therefore it still remained theirs, the recovery of it not being desperate till then.—See Joannes Voet, de Jure militari, cap. 5, pag. 286.
Replied,—The same Grotius, in the place cited, as also Loccenius, de jure maritimo, lib. 2, cap. 4, de jure postliminii, affirms, By the universal consent of nations, spatium 24 horarum is determined for the time after which they become irrecoverably the taker's, and so must appertain to them who have retaken them from them.
