e 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]

[Sidenote: Salvage.]

The costs and damages paid t