Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Captured Goods Revert by the Right of Postliminy When Brought into the Territory of a Neutral
ONE would suppose that this question had been disposed of by Pomponius when he writes that a citizen who has been captured by the enemy is understood to be returned among us ‘if he arrives among our friends or upon our territory’; for the rules of postliminy that apply to persons apply equally to things. When Pomponius uses the phrase ‘among our friends’ one might suppose that he intended to include neutrals, since neutrals might well be considered friends. But Grotius holds, and in my opinion rightly, that the word ‘friends’ does not include all with whom we are at peace, but only those who are engaged in the same war with us. And Grotius gives the same interpretation to the passage in Paulus, who says that not only those who have entered our territory are considered as having returned to us by right of postliminy, but also those who have arrived within the dominions of a ‘friend or ally’, because there they begin to have political protection. If we interpret the or as conjunctive, since it is frequently used as an explicative, the passage in Paulus will support the interpretation of Grotius, and the phrase means: a friend, or in other words, one who is allied to us. If we should interpret the or disjunctively, it would be sufficient for the prisoner to return to any country at peace with us, as Alberico Gentili holds. Gentili, in fact, ought not to base his whole argument upon the motive adduced by Paulus, namely, that ‘there they begin to have political protection’, for this argument would be even more applicable under our interpretation that the prisoner must return to the territory of an ally.
The opinion of Grotius was previously held by Antonio de Gama, whom Gentili therefore undertook to refute. Zouche is as usual content to relate the different opinions of others without giving his own judgement, although he seems to me somewhat to favour the view of Gentili. Grotius, moreover, supports his view merely by precedents without adducing reasons for what he says. In the note referred to above he says: ‘Among those who are friends but not allies, captives do not change their status unless this has been stipulated in treaties,’ a rule which he adduces from the second peace treaty between Rome and Carthage. But Zouche properly observes that it is not entirely clear whether the rule adopted in that treaty should be considered a principle of international law or an exception to it. In various treaties of modern as well as ancient times this uncertainty arises so frequently that it is a dangerous thing to adduce the rules of the law of nations from treaties alone without also consulting reason. In his notes Grotius adds that it appears from de Thou that the King of Morocco and Fez held the same opinion, but no one would care to accept such men as teachers of public law. Huber agrees with Grotius when he defines as ‘returned’ a prisoner who has come back to our territory or to that of an ally. Hertius also agrees when with many others he derives the right of postliminy not from the law of nations, but from national law. Hence he answers ‘the question so often argued between nations, whether a captured person or article secures liberty by right of postliminy upon entering neutral territory’. His answer ‘is in the negative, since neutrals must accept facts as law, and are not in a position to overrule the status of the captive’.
However, if we consider this question from the point of view of reason alone, this whole discussion seems to me so idle that I wonder that so many brilliant men have concerned themselves with it. He who returns to the territory of an ally has the right of postliminy because he seems to have returned to his own country, since allies constitute as it were one nation with us. At any rate, so far as concerns the war which is being fought with common forces, they are not to be considered as separate nations. Therefore, I would interpret the term ‘friends’, as used by Pomponius, as being friends in the highest degree, that is to say, those who are in alliance with us against the same enemy; and when Paulus speaks of ‘friend or ally’ I would interpret the phrase as meaning: ‘friend, that is to say, ally’, otherwise he might have used only the word ‘friend’. It is only among allies and because of the actual alliance, that the right of postliminy obtains, but among those who are simply friends of both parties the status of persons and things does not change, since there is no reason for a change. I am accordingly surprised at the view of Gentili and others, who think that whatever is brought within neutral territory reverts by right of postliminy, and consequently that prisoners of war become free on entering neutral territory. This incorrect doctrine about prisoners is fully stated by Joannes de Imola and Pierino Belli, with whom Zouche seems to agree. But it is so clear that the very contrary is true, that not even the Sceptics would seriously have doubted this fact; for all agree that ownership is established by capture in war, and that this right continues in the country of a friend. If this is true, then the prizes and prisoners that I have taken remain mine. By what right then can a sovereign who is our friend take from us goods that are lawfully ours and give them to others who are no more his friends than we are? It is absolutely clear that this cannot be done without injury to us. Neither can he do this by his courts of justice, for he cannot judge between us and our enemy except by agreement. Since, therefore, captured goods remain in the same status in neutral territory, the Swedish ambassador was wrong when in 1657 he claimed the right of possession of letters of his that had been intercepted by the enemy, the Danes, and delivered over to the States-General, a friendly power.
Sometimes, however, states adopt different regulations in their treaties, as for instance the Romans and Carthaginians in the above-cited second treaty of peace, which Grotius quoted from Polybius. Again, in Article 20 of the treaty of peace between the King of Portugal and the States-General, dated August 6, 1661, it was agreed that whatever property the enemy of either party should capture and carry into a port of the other should revert to the original owner if demanded within a definite time after the capture. But such treaties cannot but result in injury to those who capture goods and bring them into a friendly port in the belief that it is safe. Hence such treaties can neither alter reason nor the law of nations. He who desires a fuller statement of this view will find it in Cunaeus, De Causa Postliminii, and Loccenius, De Jure Maritime, who gives an epitome of the arguments of Cunaeus.
These principles obtain only if the goods have been captured in a just war, for if the captors are pirates, the goods must by all means be restored to their former owners. And such is the stipulation in Article 4 of the treaty of September 24, 1610, between the Sultan of Morocco and the States-General, in Article 20 of the peace of Portugal of August 6, 1661, in Article 45 of the commercial treaty between the French and the States-General of April 27, 1664, and in Article 11 of the peace of September 14, 1662, between the English and the States-General. It is indeed a rule of law adopted everywhere that capture by pirates does not change ownership; and this subject has been very fully treated by others as I shall show in Chapter XVII.
According to the above-said, if our property that has been captured by the enemy reaches the territory of our ally, it is restored to us as though our ally had delivered it from the control of our common enemy. And yet the French in an instance of this kind once adopted a different practice, in consequence of which the States-General on December 4 and 5, 1637, retaliated by adopting the same practices against the French.
It is more doubtful whether our enemy can sell in neutral territory and exact the price for goods taken from us. Article 12 of the peace with England made on September 14, 1662, stipulates that such sales cannot be made, and that if the price has not been paid the article is returned to the former owner; and Aitzema relates that the States-General ordered the observance of this clause in a case that happened afterwards. But I should like to know what rational ground there was for this clause. Was it adopted in the belief that our enemy would benefit by the right to sell? But that is by no means certain. It certainly is lawful for us to aid our friends even though they be hostile to each other, provided we do not aid them with instruments of war or show more favour to one side than to the other. We cannot, therefore, be required to close our ports to our friends and prohibit all intercourse between them and our citizens. I therefore think that this Article 12 must be classed with special treaties, of which we do not know the particular grounds and reasons; for in general we may retain ownership of our property in neutral territory, whether we have acquired the property by the civil law or by the law of nations.
However, though this permission to carry captured goods into neutral territory and to sell it there is entirely reasonable, it has repeatedly been explicitly denied. On August 9, 1658, the States-General decreed that no foreign captor who might be compelled to bring his prize into our ports should sell it or unload any part, but he must announce his arrival to the master of the port, who must place a guard to watch the ship until it could depart, imposing furthermore a minimum fine of a thousand florins upon any one who would buy anything from the vessel or assist in unloading. On November 7 of the same year, they added to the edict a new clause to the effect that no one should bring such a vessel into the very harbour, but merely into the outer roads, for safety’s sake, and that no one should sell anything or unload any part of the cargo, and that if any one acted to the contrary the prize should be treated as not captured and returned to the former owner, the captor should be arrested and his own vessel seized and condemned, if he was proved guilty. The rest of this supplement is in agreement with the edict of August 9, 1658. Whether this edict was wrested from the States-General through fear or through some other cause, I do not know; but we would do well to accept these rules as temporary, not as final, lest in the future they militate against rational principles.