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The Law of Nations or the Principles of Natural Law (1758)

Emmerich de Vattel

BOOK 3, CHAPTER 13
Of Acquisitions by War, and Particularly of Conquests

§ 193. How war is a method of acquisition.
IF it be lawful to carry off things belonging to an enemy, with a view of weakening him (§ 160), and sometimes of punishing him (§ 162), it is no less lawful in a just war to appropriate them to our own use, by way of compensation, which the civilians term expletio juris (§ 161). They are retained as equivalent for what is due by the enemy, for the expenses and damages which he has occasioned, and even (when there is cause to punish him) as a commutation for the punishment he has deserved. For, when I cannot obtain the individual thing which belongs or is due to me, I have a right to an equivalent, which, by the rules of expletive justice, and in moral estimation, is considered as the thing itself. Thus, according to the law of nature, which constitutes the necessary law of nations, war, founded on justice, is a lawful mode of acquisition.

§ 194. Measure of the right it gives.
But that sacred law does not authorize even the acquisitions made in a just war, any farther than as they are approved by justice, — that is to say, no farther than is requisite to obtain complete satisfaction in the degree necessary for accomplishing the lawful ends we have just mentioned. An equitable conqueror, deaf to the suggestions of ambition and avarice, will make a just estimate of what is due to him, — that is to say, of the thing which has been the subject of the war (if the thing itself is no longer recoverable), and of the damages and expenses of the war, — and will retain no more of the enemy’s property than what is precisely sufficient to furnish the equivalent. But if he lias to do with a perfidious, restless, and dangerous enemy, he will, by way of punishment, deprive him of some of his towns or provinces, and keep them to serve as a barrier to his own dominions. Nothing is more allowable than to weaken an enemy who has rendered himself suspected and formidable. The lawful end of punishment is future security. The conditions necessary for rendering an acquisition, made by arms, just and irreproachable before God and our own conscience, are these, — justice in the cause, and equity in the measure of the satisfaction.

§ 195. Rules of the voluntary law of nations.
But nations cannot, in their dealings with each other, insist on this rigid justice. By the rules of the voluntary law of nations, every regular war is on both sides accounted just, as to its effects (§ 190); and no one has a right to judge a nation respecting the unreasonableness of her claims, or what she thinks necessary for her own safety (Prelim. § 23). Every acquisition, therefore, which has been made in regular warfare, is valid according to the voluntary law of nations, independently of the justice of the cause and the reasons which may have induced the conqueror to assume the property of what he has taken. Accordingly, nations have ever esteemed conquest a lawful title; and that title has seldom been disputed, unless where it was derived from a war not only unjust in itself, but even destitute of any plausible pretext.

§ 196. Acquisition of movable property.1
The property of movable effects is vested in the enemy from the moment they come into his power; and if he sells them to neutral nations, the former proprietor is not entitled to claim them. But such things must be actually and truly in the enemy’s power, and carried to a place of safety. Suppose a foreigner, coming into our country, buys a portion of the booty which a party of enemies have just taken from us: our men, who are in pursuit of this party, may very justly seize on the booty which that foreigner was over precipitate in buying. On this head, Grotius quotes from De Thou the instance of the town of Lierre in Brabant, which having been captured and recaptured on the same day, the booty taken from the inhabitants was restored to them, because it had not been twenty-four hours in the enemy’s hands.2 This space of twenty-four hours, together with the practice observed at sea,3 is an institution of the law of nations established by agreement or custom, and is even a civil law in some states. The natural reason of the conduct adopted towards the inhabitants of Lierre is, that the enemy being taken as it were in the fact, and before they had carried off the booty, it was not looked upon as having absolutely become their property, or been lost to the inhabitants. Thus, at sea, a ship taken by the enemy may be retaken and delivered by other ships of her own party, as long as she has not been carried into some port, or into the midst of a fleet: her fate is not decided, nor is the owner’s property irrecoverably lost, until the ship be in a place of safety with regard to the enemy who has taken her, and entirely in his power. But the ordinances of every state may make different regulations on this head between the citizens,4 with a view either to prevent disputes, or to encourage armed vessels to retake merchant ships that have fallen into the enemy’s hands.

The justice or injustice of the cause does not here become an object of consideration. There would be no stability in the affairs of mankind, no safety in trading with nations engaged in war, if we were allowed to draw a distinction between a just and an unjust war, so as to attribute lawful effects to the one which we denied to the other. It would be opening a door to endless discussions and quarrels. This reason is of such weight, that, on account of it, the effects of a public war, at least with regard to movables, have been allowed to expeditions which deserved no other name than that of predatory enterprises, though carried on by regular armies. When, after the wars of the English in France, the grandes Compagnies ranged about Europe, sacking and pillaging wherever they came, none of the sufferers was ever known to claim the booty which those plunderers had carried off and sold. At present, it would be in vain to claim a ship taken by the Barbary corsairs, and sold to a third party, or retaken from the captors; though it is very improperly that the piracies of those barbarians can be considered as acts of regular war. We here speak of the external right: the internal right and the obligations of conscience undoubtedly require, that we should restore to a third party the property we recover from an enemy who had despoiled him of it in an unjust war, — provided he can recognize that property, and will defray the expenses we have incurred in recovering it. Grotius quotes many instances of sovereigns and commanders who have generously restored such booty, even without requiring any thing for their trouble or expense.5 But such conduct is pursued only in cases where the booty has been recently taken. It would be an impracticable task, scrupulously to seek out the proprietors of what has been captured a long time back; and moreover they have, no doubt, relinquished all their right to things which they had no longer any hope of recovering. Such is the usual mode of thinking with respect to captures in war, which are soon given up as irrecoverably lost.

§ 197. Acquisition of immovables, — or conquest.6
Immovable possessions, lands, towns, provinces, etc., become the property of the enemy who makes himself master of them: but it is only by the treaty of peace, or the entire submission and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect.

§ 198. How to transfer them validly.
Thus, a third party cannot safely purchase a conquered town or province, till the sovereign from whom it was taken has renounced it by a treaty of peace, or has been irretrievably subdued, and has lost his sovereignty: for, while the war continues, — while the sovereign has still hopes of recovering his possessions by arms, — is a neutral prince to come and deprive him of the opportunity by purchasing that town or province from the conqueror? The original proprietor cannot forfeit his rights by the act of a third person; and if the purchaser be determined to maintain his purchase, he will find himself involved in the war. Thus, the king of Prussia became a party with the enemies of Sweden, by receiving Stettin from the hands of the king of Poland and the czar, under the title of sequestration.7 But, when a sovereign has, by a definitive treaty of peace, ceded a country to the conqueror, he has relinquished all the right he had to it; and it were absurd that he should be allowed to demand the restitution of the country by a subsequent conqueror, who wrests it from the former, or by any other prince, who has purchased it, or received it in exchange, or acquired it by any title whatever.

§ 199. Conditions on which a conquered town is acquired.
The conqueror, who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorizes him to possess himself of what belongs to his enemy: if he deprives him of the sovereignty of that town or province, he acquires it such as it is, with all its limitations and modifications. Accordingly, care is usually taken to stipulate, both in particular capitulations and in treaties of peace, that the towns and countries ceded shall retain all their liberties, privileges, and immunities. And why should they be deprived of them by the conqueror, on account of his quarrel with their sovereign? Nevertheless, if the inhabitants have been personally guilty of any crime against him, he may, by way of punishment, deprive them of their rights and privileges. This he may also do if the inhabitants have taken up arms against him, and have thus directly become his enemies. In that case, he owes them no more than what is due from a humane and equitable conqueror to his vanquished foes. Should he purely and simply incorporate them with his former states, they will have no cause of complaint.

Hitherto I evidently speak of a city or a country which is not simply an integrant part of a nation, or which does not fully belong to a sovereign, but over which that nation or that sovereign has certain rights. If the conquered town or province fully and perfectly constituted a part of the domain of a nation or sovereign, it passes on the same footing into the power of the conqueror. Thenceforward united with the new state to which it belongs, — if it be a loser by the change, that is a misfortune which it must wholly impute to the chance of war. Thus if a town which made part of a republic or a limited monarchy, and enjoyed a right of sending deputies to the supreme council or the general assembly of the states, be justly conquered by an absolute monarch, she must never more think of such privileges: they are what the constitution of the new state to which she is annexed does not permit.

§ 200. Lands of private persons.
In the conquests of ancient times, even individuals lost their lands. Nor is it matter of surprise that in the first ages of Rome such a custom should have prevailed. The wars of that era were carried on between popular republics and communities. The state possessed very little, and the quarrel was in reality the common cause of all the citizens. But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.

§ 201. Conquest of the whole state.8
But if the entire state be conquered, if the nation be subdued, in what manner can the victor treat it, without transgressing the bounds of justice? What are his rights over the conquered country? Some have dared to advance this monstrous principle, that the conqueror is — that he may dispose of it as his property, — that he may treat it as he pleases, according to the common expression of treating a state as a conquered country; and hence they derive one of the sources of despotic government. But, disregarding such writers, who reduce men to the state of transferable goods or beasts of burthen, — who deliver them up as the property of patrimony of another man, — let us argue on principles countenanced by reason and conformable to humanity.

The whole right of the conqueror is derived from justifiable self-defense (§§ 3, 26, 28), which comprehends the support and prosecution of his rights. When, therefore, he has totally subdued a hostile nation, he undoubtedly may, in the first place, do himself justice respecting the object which had given rise to the war, and indemnify himself for the expenses and damages he has sustained by it: he may, according to the exigency of the case, subject the nation to punishment, by way of example; he may even, if prudence so require, render her incapable of doing mischief with the same ease in future. But, for the attainment of these different objects, he is to prefer the gentlest methods, — still bearing in mind that the doing of harm to an enemy is no further authorized by the law of nature, than in the precise degree which is necessary for justifiable self-defense, and reasonable security for the time to come. Some princes have contented themselves with imposing a tribute on the conquered nation, — others, with depriving her of some of her rights, taking from her a province, or erecting fortresses to keep her in awe: others, again, confining their quarrel to the sovereign alone, have left the nation in the full enjoyment of all their rights, — only setting over her a new sovereign of their own appointment.

But if the conqueror thinks proper to retain the sovereignly of the conquered state, and has a right to retain it, the same principles must also determine the manner in which he is to treat that state. If it is against the sovereign alone that he has just cause of complaint, reason plainly evinces that he acquires no other rights by his conquest than such as belonged to the sovereign whom he has dispossessed: and, on the submission of the people, he is bound to govern than according to the laws of the state. If the people do not voluntarily submit, the state of war still subsists.

A conqueror who has taken up arms, not only against the sovereign, but against the nation herself, and whose intention it was to subdue a fierce and savage people, and once for all to reduce an obstinate enemy, — such a conqueror may with justice lay burthens on the conquered nation, both as a compensation for the expenses of the war, and as a punishment. He may, according to the degree of indocility apparent in their disposition, govern them with a tighter rein, so as to curb and subdue their impetuous spirit: he may even, if necessary, keep them for some time in a kind or slavery. But this forced condition ought to cease from the moment the danger is over, — the moment the conquered people are become citizens: for then the right of conquest is at an end, so far as relates to the pursuit of those rigorous measures, since the conqueror no longer finds it necessary to use extraordinary precautions for his own defense and safety. Then at length every thing is to be rendered conformable to the rules of a wise government and the duties of a good prince.

When a sovereign, arrogating to himself the absolute disposal of a people whom he has conquered, attempts to reduce them to slavery, he perpetuates the state of warfare between that nation and himself. The Scythians said to Alexander the Great, “There is never any friendship between the master and slave: in the midst of peace the rights of war still subsist.”9 Should it be said, that in such a case there may be peace, and a kind of compact by which the conqueror consents to spare the lives of the vanquished, on condition that they acknowledge themselves his slaves, — he who makes such an assertion, is ignorant that war gives no right to take away the life of an enemy who has laid down his arms and submitted (§ 140). But let us not dispute the point: let the man who holds such principles of jurisprudence, keep them for his own use and benefit: he well deserves to be subject to such a law. But men of spirit, to whom life is nothing, less than nothing, unless sweetened with liberty, will always conceive themselves at war with that oppressor, though actual hostilities are suspended on their part through want of ability. We may, therefore, safely venture to add, that if the conquered country is to be really subject to the conqueror as to its lawful sovereign, he must rule it according to the ends for which civil government has been established. It is generally the prince alone who occasions the war, and consequently the conquest. Surely it is enough that an innocent people suffer the calamities of war: must even peace itself become fatal to them? A generous conqueror will study to relieve his new subjects, and mitigate their condition: he will think it his indispensable duty. “Conquest (says an excellent man) ever leaves behind it an immense debt, the discharge of which is absolutely necessary to acquit the conqueror in the eye of humanity.”10

It fortunately happens, that, in this particular as in every thing else, sound policy and humanity are in perfect accord. What fidelity, what assistance, can you expect from an oppressed people? Do you wish that your conquest may prove a real addition to your strength, and be well affected to you? — treat it as a father, as a true sovereign. I am charmed with the generous answer recorded of an ambassador from Privernum. Being introduced to the Roman senate, he was asked by the consul — “if we show you clemency, what dependence can we have on the peace you are come to sue for?” “If (replied the ambassador) you grant it on reasonable conditions, it will be safe and permanent: otherwise, it will not last long.” Some took offence at the boldness of this speech; but the more sensible part of the senate approved of the Privernian’s answer, deeming it the proper language of a man and a freeman. “Can it be imagined (said those wise senators) that any nation, or even any individual, will longer continue in an irksome and disagreeable condition, than while compelled to submit to it? If those to whom you give peace receive it voluntarily, it may be relied on: what fidelity can you expect from those whom you wish to reduce to slavery?”11“The most secure dominion,” said Camillus, “is that which is acceptable to those over whom it is exercised.”12

Such are the rights which the law of nature gives to the conqueror, and the duties which it imposes on him. The manner of exerting the one, and fulfilling the other, varies according to circumstances. In general, he ought to consult the true interests of his own state, and by sound policy to reconcile them, as far as possible, with those of the conquered country. He may, in imitation of the kings of France, unite and incorporate it with his own dominions. Such was the practice of the Romans: but they did this in different modes according to cases and conjunctures. At a time when Rome stood in need of an increase of population, she destroyed the town of Alba, which she feared to have as a rival: but she received all its inhabitants within her walls, and thereby gained so many new citizens. In after times the conquered cities were left standing, and the freedom of Rome was given to the vanquished inhabitants. Victory could not have proved so advantageous to those people as their defeat.

The conqueror may likewise simply put himself in the place of the sovereign whom he has dispossessed. Thus the Tartars have acted in China: the empire was suffered to subsist in its former condition, except that it fell under to dominion of a new race of sovereigns.

Lastly, the conqueror may rule his conquest as a separate state, and permit it to retain its own form of government. But this method is dangerous: it produces no real union of strength; it weakens the conquered country, without making any considerable addition to the power of the victorious state.

§ 202. To whom the conquest belongs.13
It is asked, to whom the conquest belongs, — to the prince who has made it, or to the state? This question ought never to have been heard of. Can the prince, in his character of sovereign, act for any other end than the good of the state? Whose are the forces which he employs in his wars? Even if he made the conquest at his own expense, out of his own revenue or his private and patrimonial estates, does he not make use of the personal exertions of his subjects in achieving it? Docs he not shed their blood in the contest? But, supposing even that he were to employ foreign or mercenary troops, does he not expose his nation to the enemy’s resentment? Does he not involve her in the war? And shall he alone reap all the advantages of it? Is it not for the cause of the state, and of the nation, that he takes up arms? The nation, therefore, has a just claim to all the rights to which such war gives birth.

If the sovereign embarks in a war, of which his own personal interests are the sole ground, — as, for instance, to assert his right of succession to a foreign sovereignty, — the question then assumes a new face. In this affair the state is wholly unconcerned: but then the nation should be at liberty either to refuse engaging in it, or to assist her prince, at her own option. If he is empowered to employ the national force in support of his personal rights, he should, in such case, make no distinction between these rights and those of the state. The French law, which annexes to the crown all acquisitions made by the king, should be the law of all nations.14

§ 203. Whether we are to set at liberty a people whom the enemy had unjustly conquered.
It has been observed (§ 196) that we may be obliged, if not externally, yet in conscience, and by the laws of equity, to restore to a third party the booty we have recovered out of the hands of an enemy who had taken it from him in an unjust war. The obligation is more certain and more extensive, with regard to a people whom our enemy had unjustly oppressed. For a people thus spoiled of their liberty, never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued, — if they have not freely aided her in the war against us, — we certainly ought so to use our victory, as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend. The canton of Schweitz, having wrested the country of Glaris from the house of Austria, restored the inhabitants to their former liberties; and Glaris, admitted into the Helvetic confederacy, formed the sixth canton.15, 16


NOTES

     1.    See further, as to the effect of capture, as to movables and immovables, and the doctrine of postliminium, and the principle on which it is in general founded, post. 392, §§ 204, 205; and the other authorities and modern decisions, Marten’s L.N. 290-293; 1 Chitty’s Commercial Law, 414-435; and Id. Index, tit. Postliminium.

As to removables captured in a land war, some writers on the law of nations state it to be merely requisite that the property shall have been twenty-four hours in the enemy’s power, after which they contend, that the right of postliminium is completely divested, so that immediately after the expiration of that time, they may be alienated to neutrals, as indefeasible property. Others contend, that the property must have been brought infra Præsidia, that is, within the camps, towns, ports, or fleets of the enemy; and others have drawn lines of an arbitrary nature. Marten’s L.N. 290-1; 2 Wooddeson’s Vin. L. 444, § 34.

With respect to maritime captures, a more absolute and certain species of possession has been required. In the case of Flad Oyen. 1 Rob. Rep. 134; Atcheson’s Rep. 8, n. 9; and 8 Term Rep. 270, in notes. Sir Wm Scott said, “By the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary; and a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship, if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prize-vessel of a belligerent, has thought himself secure in making that purchase, merely because that ship had been in the enemy’s possession twenty-four hours, or carried infra præsidia. At any rate, the rule of condemnation is the general rule applied by England.” So that, by the general law of nations, if a vessel be retaken before condemnation, by any ship of the nation of which the original owner is a subject, although even four years after the capture he has a right to have the same restored to him, subject to his paying certain salvage to the re-captor. See Goss and Withers, 2 Burr. 683; Constant Mary, 3 Rob. Rep. 97; The Huldah Id. 235 Assivedeo v. Cambridge, 10 Mod. 79. And such sentence of condemnation must also have been pronounced by a court of competent jurisdiction, and in the country either of the enemy himself, or of some ally, and not in a neutral country. Flad Oyen, 1 Rob. Rep. 134; Havelock v. Rockwood, Atchesons Rep. 8, n. 9.

But if, after the time of the enemy’s transferring his prize to a neutral, a peace be concluded between that enemy and the state from whose subject the prize was taken, then the transfer to the neutral becomes valid and perfect even though there was no legal condemnation, for, as observed by Vattel the right of postliminium no longer exists after the conclusion of peace. And see Sir W. Scott’s decision on that point, in Schooner Sophie, 6 Rob. Rep. 142.

In cases arising between British subjects with one another, and also in cases arising between such subjects and those of her allies, peculiar modifications of the general law of nations were introduced or acknowledged by Great Britain. Thus, it was established by several acts of parliament (13 Goo. 2, c. 4; 17 Geo. 2, c. 34; 19 Geo, 2, c. 34; 43 Geo. 3, c. 160. and see Hamilton v. Mendes, 2 Burr. 1198; 1 Bla. Rep 27), that the maritime right of postliminium shall subsist even to the end of the war; and, therefore, the ships or goods of the subjects of this country, taken at sea by an enemy, and afterwards retaken, even at any indefinite period of time, and whether before or after sentence of condemnation, are in general to be restored to the original proprietors, but subject to certain specified exceptions, and, in general, also subject to the payment of salvage to the re-captor. 1 Chitty’s Com L. 434-6; and see Franklin. 4 Rob. Rep. 147; 1 Edward’s Rep, 279, the Two Friends, 1 Rob. Rep. 271; Cornu v. Blackburne, Dougl. 648. {Muller v. The Resolution, 2 Dall. Rep. 1.}

In the absence of express stipulations with allies. Sir Wm. Scott observed, “I understand that the actual rule of the English maritime law is this: — viz., that the maritime law of England having adopted a most liberal rule of restitution with respect to the re-captured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice.” — Santa Cruz, 1 Rob. Rep. 49. — C.
     2.    Grotius, de Jure Belli et Pacis, lib. iii. cap. vi. § iii. n. vii.
     3.    See Grotius, ibid, and in the text.
     4.    Grotius, ibid.
     5.    Grotius, lib. iii. cap. xvi.
     6.    See further as to postliminium, post, chap. xiv; and the case of Bredes Lust, 5 Rob. Rep. 233-251. — C.
     7.    By the treaty of Schwedt, October 6, 1713.
     8.    When a country has been conquered by the British, or any other arms, and having become a dominion of the king in right of his crown, the conquered inhabitants, once received by the conqueror, become his subjects, and are universally to be regarded in that light, and not as enemies or aliens. Elphinstone v. Bedreechund, Knapp’s Re, 338; Campbell v. Hall, 23 State Trials, p. 322; and Cowper, 205; and Fabrigas v. Moslyn, Cowp. Rep. 165.

But statutes previously passed do not in general extend to a conquered country: see 2 Merivale’s Rep. 156; 4 Modern Rep. 222; 1 Chitty’s Com. L. 639, 640; 1 Bla. Com. 102-3. As to the application of the laws of England to her foreign possessions, see Gardiner v. Pell, 1 Jac. & Walk. 27; and Id. 30, n. (a) — C.
     9.    Inter dominum et servum nulla amicitia est: etiam in pace, belli tamen jura servantur. — Q Curt. lib. vii. cap. viii.
     10.    Montesquieu, in his Spirit of Laws.
     11.    Quid, si pœnam (inquit consul) remittimus vobis, qualem nos pacem vobiscum habituros speremus? Si bonam dederitis, inquit, et fidam et perpetuam; si malam, haud diuturnam. Tum vero minari, nec id ambigue Privernatem, quidam, et illis vocibus ad rebellandum incitari pacatos populos. Pars melior senatus ad meliora responsa trahere, et dicere viri et liberi vocem auditam: an credi posse ullum populum, aut hominem denique, in ea conditione cujus eum pœniteat, diutius quam necesse sit, mansurum? Ibi pacem esse fidam, ubi voluntarii pacati sint; neque eo loco, ubi servitutem esse velint, fidem sperandam esse. — Tit. Liv. lib viii. cap. xxi.
     12.    Certe id firmissimum longe imperium est, quo obdedientes gaudent. — Tit. Liv. lib. viii. cap. xiii.
     13.    Ante, § 164, and chap. 9, note 3.
     14.    Ibid.
     15.    Histoire de la Confederation Helvetique, par M. de Watteville, liv. iii. under the year 1351.
     16.    As nations are independent of each other, and acknowledge no superior (ante, in several places), there is, unfortunately, no sovereign power among nations to uphold or enforce the international law; no tribunal to which the oppressed can appeal, as of right against the oppressor; and consequently, if either nation refuse to give effect to the established principles of international law, the only redress is by resorting to arms, and enforcing the performance of the national obligation and this is the principle of just war. So, there is no regular international or even municipal court to adjudicate upon questions of lawful capture or prize. And in Great Britain, no municipal court, whether of common law or equity, can take cognizance of any questions arising out of hostile seizure; nor can any question respecting the infraction of treaties be directly agitated before courts of law, any more than questions respecting booty acquired in a continental inland war. In general, in all states, this is a jurisdiction assumed only by the sovereign in whom the right or power of declaring war and peace, and modifying their terms, is vested, excepting in some cases of particular facts, where the king has thought fit to act with the concurrence of his nation at large, instead of proceeding only upon his prerogative. In Great Britain, the king usually, by a special commission, delegates his power to decide upon question of capture and prize to the chief judge of the Admiralty Court, but quite separate from his ordinary jurisdiction, with an appeal to the Privy Council; and before that tribunal alone con any question of capture or prize be discussed; (Elphinstone v. Bedreechund, Knapp’s Rep. Privy Council, 316 to 361; Le Caux v. Eden, Dougl. 594; Hill v. Reardon, 2 Russell’s Rep. 608;) and not in an action at law or court of equity, excepting in the case of a trust. Id. ibid; and Faith v. Pearson, Holt’s Cas. Ni. Pri. 113. Therefore, where the members of the provisional government of a recently conquered country seized the property of a native of it, who had been refused the benefit of the articles of capitulation of a fortress of which he had been the governor, but had been permitted to reside, under military surveillance, in his own house in the city in which the seizure was made, and which was at a considerable distance from the scene of actual hostilities; it was held by the House of Lords, in England, that the seizure having been made flagrante et nondum cessante bello, must be regarded in the light of a hostile seizure, and that a municipal court had no jurisdiction on the subject; (Elphinstone v. Bedreechund, Knapp’s Rep. 316 to 361; and see Hill v. Reardon, 2 Sim. & Stu. 431; but which on one point, respecting a trust, was afterwards overruled in Chancery; Id. 2 Russ. 608;) and per Lord Tentereden —; We think the proper character of the transaction was that of a hostile seizure, made, if not flagrante, yet nondum cessante bello, regard being had both to the time, the place, and the person; and, consequently, that the municipal court had no jurisdiction to adjudge upon the subject: but that, if any thing was done amiss, — recourse could only be had to the government for redress. We shall therefore recommend it to his majesty to reverse the judgment of the Supreme Court of Bombay .” — id. page 360-1. — Again, it has been held that the circumstances that a recently conquered city, where a seizure of the property of a native is made by the members of a provisional government during time of war, had been some months previously in the undisturbed possession of that government, and that courts for the administration of justice were then sitting in it, under the authority of that government, do not alter the character of the transaction, so as to make it a subject of cognizance by a municipal court.” — id, 316. — And there is no distinction, in this respect, between the public and private property of an absolute monarch; and, therefore, money in the hands of the banker of an absolute monarch, whose territory has been conquered by the British, may be recovered from the banker, on an information, on behalf of the crown. Advocate-General of Bombay v. Amerchund, Knapp’s Rep. 329, note; Elphinstone v. Bedreechund, Knapp’s Rep. 357.

As the capture, in general, belongs to the sovereign of the state (although, by municipal regulations, the actual captors may acquire some subordinate rights), it also follows that no British subject can maintain an action against the captor. Caux v. Eden, 2 Dougl. 573. In a state resulting from a state of war, if property be seized under an erroneous supposition that it belongs to the enemy, it may be liberated by the proper authorities; but no action can be maintained against the party who has taken it, in a court of law. Caux v. Eden, 2 Dougl. 573; Elphinstone v. Bedreechund, Knapp’s Rep. 357. If an English naval commander seize any movable as enemies’ property, that turns out clearly to be British property, he forfeits his prize to the Prize Court (sometimes confounded with the Court of Admiralty), and that court awards the return of it to the party from whom it was taken, The Court of Admiralty is the proper tribunal for the trial of questions of prize or no prize, and it exercises this jurisdiction as a court of prize, under a commission from his majesty: and if it makes an unsatisfactory determination, an appeal lies to his majesty in council; for, the king reserves the ultimate right to decide on such questions by his own authority, and does not commit their determination to any municipal court of justice.

Booty taken under the color of military authority, falls under the same rule. If property be taken by an officer under the supposition that it is the property of a hostile state, or of individuals, which ought to be confiscated, no municipal court can judge of the propriety or impropriety of the seizure: it can be judged of only by an authority delegated by his majesty, and by his majesty, ultimately, assisted by the lords in council. There are no direct decisions on such questions, because, as was stated by Lord Mansfield, in Lindo v. Rodney, they are cases of rare occurrence. Elphinstone v. Bedreechund, Knapp’s Rep. 340, 357-8; Caux v. Eden. Dougl. 592; Lindo v. Rodney, Id. 313.

For these reasons, it is usual, when questions of importance between two sovereigns, or their subjects, arise, by particular treaty, to constitute a tribunal for that special purpose; and municipal statutes have been passed in England in aid of such treaty. Thus, by additional articles of the definitive treaty of peace between Great Britain and France, of the 30th May 1814, certain conventions were made for indemnifying British subjects for the confiscation of their property by the French revolutionary government, and certain commissioners were appointed between the two countries, to examine and decide upon such British claims; and the statute 59 Geo., 3, c. 51, was passed with the same object; and such claims were adjudicated upon between the two countries. It was held, however, that these conventions and treaties and the act for carrying the same into effect, did not exclude the jurisdiction of a court of equity to examine and enforce equities attaching upon the compensation in the hands of the person in whose favor the award of the commissioners had been made; (Hill v. Reardon, 2 Russell’s Rep. 609, overruling S.C. in 2 Sim. & Stu. 437;) and it was holden that, where a person, in whose favor an adjudication under such conventions has been made by the commissioners or by the Privy Council is affected by a trust or by fraud, a court of equity has jurisdiction to enforce the trust or relieve against the fraud (id. ibid.); and the same principle would, no doubt, be extended to cases of capture or prize. — C.