Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Rights of Belligerent Nations in Relation to Each Other
THE end of war is to procure by force the justice which cannot otherwise he obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked, and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients, and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and. a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited all his rights, and whose life, liberty, and property, lay at the mercy of the conqueror. Every thing done against an enemy watt held to be lawful. He might be destroyed, though unarmed and defenseless. Fraud might be employed as well as force, and force without any regard to the means.1 But these barbarous rights of war have been questioned, and checked., in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life and property, as equally useless and injurious; and it controls the violence of war by the energy and severity of its reproaches.
Grotius, even in opposition to many of his own authorities, and under a due sense of the obligations of religion and humanity, placed bounds to the ravages of war, and mentioned that many things were not fit and commendable, though they might be strictly lawful; and that the law of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held, that the law of nations prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners;2 and the moderation which he inculcated had a visible influence upon the sentiments amid manners of Europe. Under the sanction of his great authority, men began to entertain more enlarged views of national policy, and to consider a mild and temperate exercise of the rights of war, to be dictated by an enlightened self-interest, as well as by the precepts of Christianity. And, notwithstanding some subsequent writers, as Bynkershoek and Wolfius, restored war to all its horrors, by allowing the use of poison, and other illicit arms, yet such rules became abhorrent to the cultivated reason and growing humanity of the Christian nations. Montesquieu insisted,3 that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigor was condemned by the reason and conscience of mankind. Rutherforth4 has spoken to the same effect, and Martens5 enumerates several modes of war, and species of arms, as being now held unlawful by the laws of war. Vattel6 has entered largely into the subject, and he argues, with great strength of reason and eloquence, against all unnecessary cruelty, all base revenge, and all mean and perfidious warfare; and he recommends his benevolent doctrines by the precepts of exalted ethics and sound policy, and by illustrations drawn from some of the most pathetic and illustrious examples.
There is a marked difference in the rights of war carried on by land, and at sea. The object of a maritime war is the destruction of the enemy’s commerce and navigation, in order to weaken or destroy the foundations of his naval power. The capture or destruction of private property is essential to that end, and it is allowed in maritime wars by the law and practice of nations. But there art; great limitations imposed upon the operations of war by land, though depredations upon private property, and despoiling and plundering the enemy’s territory, is still too prevalent a practice, especially when the war is assisted by irregulars. Such conduct has been condemned in all ages by the wise and virtuous, and it is usually severely punished by those commanders of disciplined troops who have studied war as a science, and are animated by a sense of duty, or the love of fame. We may infer the opinion of Xenophon on this subject, (and he was a warrior as well as a philosopher,) when he states, in the Cyropaedia7 that Cyrus of Persia gave orders to his army, when marching upon the enemy’s borders, not to disturb the cultivators of the soil; and there have been such ordinances in modern times for the protection of innocent and pacific pursuits.8 Vattel condemns very strongly the spoliations of a country without palpable necessity; and he speaks with a just indignation of the burning of the Palatinate by Turenne, under the cruel instructions of Louvois, the war minister of Louis XIV.9 The general usage now is not to touch private property upon land, without making compensation, unless in special cases dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all the overtures for a capitulation. Contributions are sometimes levied upon a conquered country, in lieu of a confiscation of property, and as some indemnity for the expenses of maintaining order, and affording protection.10 If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes private property of pacific persons for the sake of gain, and destroys private dwellings, or public edifices, devoted to civil purposes only; or makes war upon monuments of art, and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world.11
Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Rutherforth12 not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because the community, of which he is a member, is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle, that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals who may have committed some enormous violation of public law. On this subject of retaliation, Professor Martens is not so strict.13 While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, yet he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retaliation as a sad extremity, and it is frequently threatened without being put in execution, and. probably, without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war, occurred in this country during the revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war.14
Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy. If subjects confine themselves to simple defense, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies, and the captures which they make in such a case, are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of their sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the protection of the mitigated rules of modern war.15
It way the received opinion in ancient Rome, in the times of Cato and Cicero,16 that one who was not regularly enrolled as a soldier, could not lawfully kill an enemy. But the law of Solon, by which individuals were permitted to form associations for plunder, was afterwards introduced into the Roman law, and has been transmitted to us as part of their system.17 During the lawless confusion of the feudal ages, the right of making reprisals was claimed, and exercised, without a public commission. It was not until the fifteenth century that commissions were held necessary, and began to be issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without license, and there were ordinances in Germany, France, and England, to that effect.18 It is now the practice for maritime states to make use of the voluntary aid of individuals against their enemies, as auxiliary to the public force; and Bynkershoek says, that the Dutch formerly employed no vessels of war but such as were owned by private persons, and to whom the government allowed a proportion of the captured property, as well as indemnity from the public treasury. Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission.19 Sir Matthew Hale held it to be depredation in a subject to attack the enemy’s vessels, except in his own defense, without a commission.20 The subject has been repeatedly discussed in the Supreme Court of the United States,21 and the doctrine of the law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under a commission, but they may still lawfully seize hostile property in their own defense. If they depredate upon the enemy without a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy are not warranted to consider them as criminals, and, as respects the enemy, they violate no rights by capture.
.Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous; and they would probably expose the party to the unchecked severity of the enemy, but they are not acts of piracy. Vattel, indeed, says,22 that private ships of war, without a regular commission, are not entitled to be treated like captures made in a formal war. The observation is rather loose, and the weight of authority undoubtedly is, that non-commissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates. They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favor of the government of the captor, as droits of the admiralty. It is said, however, that, in the United States, the property is not strictly and technically condemned upon that principle, but jure reipublicae; and it is the settled law of the United States, that all captures made by non-commissioned captors, are made for the government.23
In order to encourage privateering, it is usual to allow the owners of private armed vessels to appropriate to themselves the property, or a large portion of the property they may capture; and to afford them, and the crews, other facilities and rewards for honorable and successful efforts. This depends upon the municipal regulations of each particular power, and as a necessary precaution against abuse, the owners of privateers are required, by the ordinances of the commercial states, to give adequate security that they will conduct the cruise according to the laws and usages of war, and the instructions of the government, and that they will regard the rights of neutrals, and bring their prizes in for adjudication. These checks are essential to the character and safety of maritime nations.24 Privateering, under all the restrictions which have been adopted, is very liable to abuse. The object is not fame or chivalric warfare, but plunder and profit. The discipline of the crews is not apt to be of the highest order, and privateers are often guilty of enormous excesses, and become the scourge of neutral commerce.25 They are sometimes manned and officered by foreigners, having no permanent connection with the country, or interest in its cause. This was a complaint made by the United States, in 1819, in relation to irregularities and acts of atrocity, committed by private armed vessels sailing under the flag of Buenos Aires.26 Under the best regulations, the business tends strongly to blunt the sense of private right, and to nourish a lawless and fierce spirit of rapacity. Efforts have been made, from time to time, to abolish the practice. In the treaty of amity and commerce between Prussia and the United States, in 1785, it was stipulated that, in case of war, neither party should grant commissions to any private armed vessel to attack the commerce of the other. But the spirit and policy of maritime warfare, will not permit such generous provisions to prevail. That provision was not renewed with the renewal of the treaty. A similar attempt to put an end to the practice was made in the agreement, between Sweden and Holland, in 1675, but the agreement was not performed. The French legislature, soon after the breaking out of the war with Austria, in 1792, passed a decree for the total suppression of privateering, but that was a very transitory act, and it was soon swept away in the tempest of the revolution. The efforts to stop the practice have been very feeble and fruitless, notwithstanding that enlightened and enlarged considerations of national policy have shown it to be for the general benefit of mankind, to surrender the licentious practice, and to obstruct, as little as possible, the freedom and security of commercial intercourse among the nations.27
It has been a question, whether the owners and officers of private armed vessels were liable, in damages, for illegal conduct, beyond the amount of the security given. Bynkershoek28 has discussed this point quite at large, and he concludes that the owner, master, and sureties, are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, and the sureties are bound only to the amount of the sums for which they became bound. This rule is liable to the modifications of municipal regulations, and though the French law of prize was formerly the same as the rule laid down by Bynkershoek, yet the new commercial code of France,29 exempts the owners of private armed vessels in time of war, from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15. is to the same effect, in respect to embezzlements in the merchants’ service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject, (and there is none with us,) the general principle is, that the liability is commensurate with the injury. This was the rule as declared by the Supreme Court of the United States, in Del Col v. Arnold,30 and though that case has since been shaken as to other points,31 it has not been disturbed as to the point before us, We may, therefore, consider it to be a settled rule of law and equity, that the measure of damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not rateably pro tanto.32
Vattel admits,33 that an individual may, with a safe conscience, serve his country by fitting out privateers but he holds it to be inexcusable and base, to take a commission from a foreign prince, to prey upon the subjects of a state in amity with his native country. The laws of the United States have made ample provision on this subject, and they may be considered in affirmance of the law of nations, and as prescribing specific punishment for acts which were before unlawful.34 An act of Congress prohibits citizens to accept, within the jurisdiction of the United States, a commission, or for any person, not transiently within the United States, to consent to be retained or enlisted, to serve a foreign state in war, against a government in amity with us. It likewise prohibits American citizens from being concerned, without the limits of the United States, in fitting out, or otherwise assisting, any private vessel of war, to cruise against the subjects of friendly powers.35 Similar prohibitions are contained in the laws of other countries;36 and the French ordinance of the marine of 1681, treated such acts as piratical. The better opinion is, that a cruiser, furnished with commissions from two different powers, is liable to be treated as a pirate; for though the two powers may be allies, yet one of them may be in amity with a state with whom the other is at war.37 In the treaty of 1825, between the United States and the Republic of Colombia, it is declared, that no citizen, of either nation, shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under pain of being treated as a pirate.
The right to all captures vests primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, but what he receives under the grant of the state. This is a general principle of public jurisprudence, bello parta cedunt reipublicae, and the distribution of the proceeds of prizes, depends upon the regulations of each state, and unless the local laws have otherwise provided, the prizes vest in the sovereign.38 But the general practice under the laws and ordinances of the belligerent governments is, to distribute the proceeds of captured property, when duly passed upon, and condemned as prize, (and whether captured by public or private commissioned vessels,) among the captors, as a reward for bravery, and a stimulus to exertion.39
When a prize is taken at sea. it must be brought, with due care, into some convenient port, for adjudication by a competent court; though strictly speaking, as between the belligerent parties, the title passes, and is vested when the capture is complete, and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects,40 and the authors he refers to, maintain with. great strength, as Lord Mansfield observed in Goss v. Withers,41 that occupation of itself transferred the title to the captor, per solam occupationem dominium praedae hostibus acquiri. The question never arises but when the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to the change of title is open to dispute, and many arbitrary lines have been drawn, partly from policy, to prevent too easy dispositions of the property to neutrals, and partly from equity, to extend the jus postliminii in favor of the owner. Grotius,42 and many other writers, and some marine ordinances, as those of Louis XIV. and of Congress during the American war, made twenty-four hours quiet possession by the enemy, the test of title by capture. Bynkershoek43 says, that such a rule is repugnant to the laws and customs of Holland, and he insists, that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra preasidia, do most clearly change the property. But by the modern usage of nations, neither the twenty-four hours possession. nor the bring in the prize infra praesidia, is sufficient to change the present enlightened practice of the commercial nations has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of a vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact, to support his title. This salutary rule, and one so necessary to check irregular conduct, and individual outrage, has been long established in the English admiralty,44 and it is now every where recognized as the law and practice of nations.45
The condemnation must be pronounced by a prize court of the government of the captor, sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be,46 that the sovereign of the captors has a right to inspect their behavior, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally, but it is not lawful for such a court to act in a neutral territory. Neutral ports are not intended to be auxiliary to the operations of the power at war, and the law of nations has clearly ordained, that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations.47
It was for some time supposed that a prize court, though sitting in the country of its own sovereign, or of his ally, had no jurisdiction over prizes lying in a neutral port, because the court wanted that possession which was deemed essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted to be correct by Sir William Scott, in the case of the Henrick & Maria,48 and he acted upon it in a prior case.49 But he considered that the English admiralty had gone too far, in supporting condemnations, in England, of prizes abroad in a neutral port, to permit him to recall the vicious practice of the court to the acknowledged principle; and the English rule is now definitively settled, agreeably to the old usage, and the practice of other nations. The Supreme Court of the United States has followed the English rule, and it has held valid the condemnations, by a belligerent court, of prizes carried into a neutral port, and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war, and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub potestate, of the captor.50
Sometimes circumstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to ransom it. It was formerly the general custom to redeem property from the hands of the enemy by ransom, and the contract is undoubtedly valid, when municipal regulations do not intervene. It is now but little known in the commercial law of England; for several statutes in the reign of Geo. III. absolutely prohibited to British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity, to be judged of by the court of admiralty.51 A ransom bill, when not locally prohibited, is a war contract, protected by good faith and the law of nations; and notwithstanding that the contract is considered in England as tending to relax the energy of war, and deprive cruisers of the chance of recapture, it is, in many views, highly reasonable and humane. Other maritime Nations regard ransoms as binding, and to be classed among the few legitimate commercia belli. They have never been prohibited in this country; and the act of Congress of August 2d, 1813, interdicting the use of British licenses or passes, did not apply to the contract of ransom.52
The effect of a ransom is equivalent to a safe conduct granted by the authority of the state to which the captor belongs, and it binds the commanders of other cruisers to respect the safe conduct thus given; and under the implied obligation of the treaty of alliance, it binds equally the cruisers of the allies of the captor’s country.53 From the very nature of the connection between allies, their compacts with the common enemy must bind each other, when they tend to accomplish the objects of the alliance. If they did riot, the ally would reap all the fruits of the compact, without being subject to the terms and conditions of it; and the enemy with whom the agreement was made, would be exposed, in regard to the ally, to all the disadvantages of it, without participating in the stipulated benefits. Such an inequality of obligation is contrary to every principle of reason and justice.54
The safe conduct implied in a ransom bill, requires that the vessel should be found within the course prescribed, and within the time limited by the contract, unless forced out of her course by stress of weather, or unavoidable necessity.55 If the vessel ransomed perishes by a peril of the sea, before arrival in port, the ransom is, nevertheless, due, for the capture has riot insured the prize against the perils of the sea, but only against recapture by cruisers of his own nation, or of the allies of his country. If there should be a stipulation in the ransom contract, that the ransom should not be due if the vessel was lost by sea perils, the provision ought to be limited to total losses by shipwreck, and not to mere stranding, which might lead to frauds, in order to save the cargo at the expense of the ship.56
If the vessel should be recaptured out of the route prescribed by the contract for her return, or after the time allowed for her return, and be adjudged lawful prize, it has been made a question whether the debtors of the ransom are discharged from their contract. Valin57 says, that, according to the constant practice, the debtors are discharged in such case, and the price of the ransom is deducted from the proceeds of the prize, and given to the first captor, and the residue goes to the second taker. So, if the captor himself should afterwards be taken by an enemy’s cruiser, together with his ransom bill, the ransom becomes part of the lawful conquest of the enemy, and the debtors of the ransom are, consequently, discharged.58
In the case of Ricard v. Bettingham,59 an English vessel was captured by a French privateer in the war of 1756, and ransomed, and a hostage given as a security for the payment of the ransom bill. The hostage died while in possession of the French, and it was made a question in the K. B. in a suit brought upon the ransom bill after the peace, whether the death of the hostage discharged the contract, and whether the alien could sue on the ransom bill in the English courts. It was shown, that such a contract was valid among the other nations of Europe, and that, the owner of the bill was entitled to sue upon it, and that it was not discharged by the death of the hostage, who was taken as a mere collateral security, and the plaintiff was, accordingly, allowed to recover. But it has been since decided, and it is now understood to be the law, that, during war, and while the character of alien enemy continues, no suit will lie in the British courts, by the enemy, in proper person, on a ransom bill, notwithstanding it is a contract arising jure belli.60 The remedy to enforce payment of the ransom bill for the benefit of the enemy captor, is by an action by the imprisoned hostage, in the courts of his own country, for the recovery of his freedom. This severe technical objection would seem to be peculiar to the British courts, for it was shown in the case of Ricard v. Bettenham, to be the practice in France and Holland, to sustain such actions by the owner of the ransom contract. Lord Mansfield considered the contract as worthy to be sustained by sound morality and good policy, and as governed by the law of nations, and the eternal rules of justice.61 The practice in France,62 when a French vessel has been ransomed, and a hostage given to the enemy, is for the officers of the admiralty to seize the vessel and her cargo, on her return to port, in order to compel the owners to pay the ransom debt, and relieve the hostage; and this is a course dictated by a prompt and liberal sense of justice.
The recapture of the ransom bill, according to Valin,63 puts an end to the claim of the captor. He may be deprived of the entire benefit of his prize, as well as of the ransom bill, either by recapture or rescue, and the questions arising on them lead to the consideration of postliminy and salvage. Upon recapture from pirates, the property is to be restored to the owner, on the allowance of a reasonable compensation to the retaker, in the nature of salvage; for it is a principle of the law of nations, that a capture by pirates does not, like a capture by an enemy in solemn war, change the title, or divest the original owner of his right to the property, and it does not require the doctrine of postliminy to restore it.64 In France, property may be reclaimed by the owner within a year and a day; but in some other countries (and Grotius mentions Spain and Venice) the rule formerly was, that the whole property recaptured. from pirates went to the retaker, and this rule was founded on the consideration of the desperate nature of the recovery.65
The jus postliminii was a fiction of the Roman law, by which persons or things taken by the enemy were restored to their former state, upon cooling again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est, in civitate semper fuisse.66 It is a right recognized by the law of nations, and contributes essentially to mitigate the calamities of war. When, therefore, property taken by the enemy is either recaptured or rescued from him, by the fellow subjects or allies of the original owner, it does riot become the property of the recaptor, or rescuer, as if it had been a new prize, but it is restored to the original owner, by right of postliminy, upon certain terms. Moveables are not entitled, by the strict rules of the law of nations, to the full benefit of postliminy, unless retaken from the enemy promptly after the capture, for then the original owner neither finds a difficulty in recognizing his effects, nor is presumed to have relinquished them. Real property is easily identified, and therefore wore completely within the right of postliminy; and the reason, for a stricter limitation of it is respect to personal property, arises from the transitory nature of it, and the difficulty of identifying it, and the consequent presumption that the original owner had abandoned the hope of recovery.67 This right does not take effect in neutral countries, because the neutral nation is bound to consider the war on each side as equally just, so far as relates to its effects, and to look upon every acquisition made by either party, as a lawful acquisition. If one party was allowed, in a neutral territory, to enjoy the right of claiming goods taken by the other, it would be a departure from the duty of neutrality. The right of postliminy takes place, therefore, only within the territories of. the nation of the captor, or of his ally.68 If a prize be brought into a neutral port by the captors, it does not return to the former owner by the law of postliminy, because neutrals are bound to who notice of the military right which possession gives, and which is the only evidence of right acquired by military force, as contradistinguished from civil rights and titles. They are bound to take the fact for the law. With respect to persons, the right of postliminy takes place even in a neutral country, so that if a captor brings his prisoner. into a neutral port, he may, perhaps, confine them on board of his ship, as being, by fiction of law, part of the territory of his sovereign, bait he has no control over them on shore.69
In respect to real property, the acquisition by the conqueror is not fully consummated until confirmed by the treaty of peace, or by the entire submission or destruction of the state to which it belonged. If it be recovered by the original sovereign, it returns to the former proprietor, notwithstanding it may, in the mean time, have been transferred by purchase. The purchaser is understood to have taken the property at the hazard of a recovery or reconquest before the end of the war. But if the real property, as a town or portion of the territory, for instance, be ceded to the conqueror by the treaty of peace, the right of postliminy is gone for ever, and a previous alienation by the conqueror would be valid.70
In a land war, moveable property, after it has been in complete possession of the enemy for twenty-four hours, becomes absolutely his, without any right of postliminy in favor of the original owner; and much more ought this species of property to be protected from the operation of the rule of postliminy, when it has not only passed into the complete possession of the enemy, but been bona fide transferred to a neutral. By the ancient and strict doctrine of the law of nations, captures at sea fell under the same rule as other moveable property, taken on land, and goods so taken were not recoverable by the original owner from the rescuer or retaker. But the municipal regulations of most states have softened the rigor of the law of nations on this point, by an equitable extension of the right of postliminy, as against any recaption by their own subjects. The ordinances of several of the continental powers confined the right of restoration, on recaption, to cases where the property. had not been in possession of the enemy above twenty-four hours. This was the rule of the French ordinance of 1681,71 but now the right is every where understood to continue until sentence of condemnation, and no longer.
It is also a rule on this subject, that if a treaty of peace makes no particular provisions relative to captured property, it remains in the same condition in which the treaty finds it, and it is tacitly conceded to the possessor The right of postliminy no longer exists, after the conclusion of the peace It. is a right which belongs exclusively to a state of war,72 and therefore, a transfer to a neutral, before the peace, even without a judicial sentence of condemnation, is valid, if there has been no recovery or recaption before the peace. The intervention of peace cures all defects of title, and vests a lawful possession in the neutral, equally as the title of the enemy captor himself is quieted by the intervention of peace.73 The title, in the hands of such a neutral, could not be defeated in favor of the original owner, even by his subsequently becoming an enemy. It would only be liable, with his other property, to be seized us prize of war.74
Every power is obliged to conform to these rules of the law of nations relative to postliminy, where the interests of neutrals are concerned. But in cases arising between her own subjects, or between them and those of her allies, the principle may undergo such modifications as policy dictates. Thus, by several English statutes, the maritime right of postliminy, as among English subjects, subsists to the end of the war; and, therefore, ships or goods, captured at sea by an enemy, and retaken at any period during the war, and whether before or after sentence of condemnation, are to be restored to the original proprietor, on securing to the recaptors certain rates of salvage, as a compensation or reward for the service they have performed.75 The maritime law of England gives the benefit of this liberal rule of restitution, with respect to the recaptured property of her own subjects, to her allies, unless it appears that they act on a less liberal principle, and then it treats them according to their own measure of justice.76 The allotment of salvage, on recapture or rescue, is a question not of municipal law merely, except as to the particular rates of it. It is a question of the jus gentium, when the subjects of allies or neutral states claim the benefit of the recaption. The restitution is a matter not of strict right, after the property has been vested in the enemy, but one of favor and relaxation; and the belligerent recaptor has a right to annex a reasonable condition to his liberality.77 Neutral properly, retaken from the enemy, is usually restored, without the payment of any salvage, unless, from the nature of the case, or the usages of the enemy, there was a probability that the property would have been condemned, if carried into the enemy’s, ports, and, in that case, a reasonable salvage ought to be allowed, for a benefit has been conferred.78
The United States, by the act of Congress of 3d March, 1800, directed restoration of captured property, at sea, to the foreign and friendly owner, on the payment of reasonable salvage; but the act was not to apply when the property had been condemned as prize by a competent court, before recapture; nor when the foreign government would not restore the goods or vessels of the citizens of the United States, under the like circumstances. The statute continued the jus postliminii, until the property was divested by a sentence of condemnation, and no longer; and this was the rule adopted in the English courts, before the extension of the right of postliminy by statutes, in the two last reigns.79
1. Grotius, b, 3. c. 4, and 5. Puf. lib. 2. c. 16. sec. 6. Bynk. Q. J. Pub. b. 1. c. 1, 2, 3. Burlamaq. part 4. c. 5.
2. B. 3. c. 4. 5. 7.
3. B. 15. c. 2.
4. Inst. b. 2. c. 9.
5. Summary, b. 8. c. 3. sec. 3.
6. B. 3. c. 8.
7. Lib. 5.
8. 1 Emerigon des Ass. 129, 130. 457. refers to ordinances of France and Holland, in favor of protection to fishermen; and to the like effect was the order of the British government in 1810, for abstaining from hostilities against the inhabitants of the Feroe islands, and Iceland. General Brune stated to the Duke of York, in October, 1799, when an armistice in Holland was negotiating, that if the latter should cause the dikes to be destroyed, and the country to be inundated, when not useful to his own army or detrimental to the enemy’s, it would be contrary to the laws of war and must draw upon him the reprobation of all Europe, and of his own nation.
9. Vattel, b. 3. c. 9. sec. 167.
10. Vattel, b. 2. c. B. sec. 147, – c. 9. sec. 165.
11. Vattel, b. 3. c. 9. sec. 168.
12. Inst. b. 2. c. 9.
13. Summary of the Law of Nations, b. 8. c. 1. sec. 3. note.
14. Journals of Congress, vol. 2. p. 245. vol. 7. p. 9. and 147. Vol. 8L p. 10. British orders in Canada of 27th October, and December 12th, 1813, and President’s Message to Congress of December 7th, 1813, and of October 28th, 814.
15. Bynk. Q. J. P. ch. 20. Vattel, b. 3. c. 15. sec. 226. Journals of Congress, vol. 7. 187, Martens, b. 8. c. 3. sec, 2.
16. De O,$. b. 1. c. 11.
17. Dig. 47. 22. 4. Bynk. Q. J. P. b. 1. c. IS.
18. Code des Prizes, tom. 1. p. 1. Martens on Privateers, p. 15. Robinson’s Collectanea Maritima, p, 21.
19. Bynk. ub. sup. Martens, b. 8. c. 3. sec. 2.
20. Harg Law T. 245, 246, 241.
21. Brown v. United States, 8 Cranch, 132-136. The Nereide, 9 Cranch, 449. The Dos Hermanos, 2 Wheaton 76. and 10 Wheaton, 306. The Amiable Isabella, 6 Wheaton, 1.
22. B. 3. c. 15. sec. 226.
23. Com. Dig. tit. Admiralty, E. 3. 2 Wood. Lee. 432. 1 Dodson’s Adm. 397. The Georgiana. I Gall. Rep. 545. The brig Josepb. The Dos Hermanos, 15 Wheaton, 306.
24. Bynk. Q. J. P c. 19. Journals of Congress, 1776, vol. 2.102. 114. Acts of Congress of 26th June, 1812, ch. 107. and April 201h, 1818. ch. 83. sec. 10. President’s instructions to private armed vessels, 2 Wheaton, app. p. 80. Danish instructions of 10th March, 1810, Hall’s L. J. vol. 4. 263. and app. to 5 Wheaton, 91. Vattel, b. 3. c. 15 sec. 229. Martens’ Summ. 289, 290. note. Ord. of Buenos Ayres, A1ay, 1817, in app. to 4 Wheaton 28. Digest of the code of British instructions, app. to 5 Wheaton, 129.
25. Reports of the Secretary of State, March 2d, 1794, and June 21st, 17 97.
26. Mr. Adams’ Letter of 1st January, 1519, to Mr. De Forest, and hit Official Report of 28th January, 1819.
27. 1 Emerigon des Ass. 129, 132, 457. Mably’s Droit Public, ch. 12. sec. 1. Edinburgh Review, vol. 8. p. 13-15. North American Review, N. S. vol. S. p. 166.
28. Q. J. Pub. b. 1. ch. 19.
29. Code de Commerce, art. 217.
30. 3 Dallas 333.
31. 1 Wheaton, 259. 1 Paine’s Rep. 111. to the same point.
32. 5 Rob. 291. The Karasan. 2 Wheaton, 327. The Anna Maria.
33. B. 3. c. 15. sec. 229.
34. Talbot v. Janson, 3 Dallas, 133. Brig Alerta v. Blas Moran, 9 Cranch, 359.
35. Act of Congress of 20th of April, 1818, e. 83.
36. See the Austrian Ordinance of Neutrality of August 7th, 1803, art.
37. Valin’s Com. tom. 2. 235, 6. Bynkershoek, c. 17. and note by Duponreau to his Translation, p. 121). Sir L. Jenkins’ Works, 714.
38. Grotius, b. 3. c. 6. Vattel, b. 3. c. 9. sec. 164. The Elsebe, 5 Rob. 173. At common law the goods taken from an enemy belonged to the captor, Finch’s Law, 28. 178. 12 Mod. 135. 1 Wils. 21 J.
39. 1 H. Blacks. 189-191.
40. Tom p. 1155.
41. 2 Burr. 683.
42. B. 3. e. 6.
43. Q. J. Pub. b, 1. c. 4. and c. 5.
44. Carth. 423. 10 Mod. 79. 12 Mod. 143. 2 Burr. 694. 3 Rob. 97. in notis.
45. Flad Owen, 1 Rob. 117. Henrick and Maria, 4 Rob. 43. Vattel, b. 3. e. 14. sec. 216. Heineccii Opera, edit. Geneva, 1744, tom. 2. 310, 360. 5 Rob. 294. Doug. 591. 8 Cranch, 226. 4 Wheaton, 298. G Taunton, 25. 2 Dallas, 1, 2. 4.
46. Rutherforth’s Institutes, b. 2. c. 9.
47. Glass v. The Sloop Betsey, 3 Dallas, 6. Flad Owen, I Rob. 114. Havelock v. Lockwood. 8 Term, 266. Oddy v. Bovill, 2 East, 475. Answer to the Prussian Memorial, 1753. The L’Invincible, 1 Wheat. 338. The Estrella, 4 Wheaton, 298.
48. b. 43.
49. Note to the case of the Herstelder, I Rob. Adm. Rep.
50. 6 Rob. 138. Note to the case of the schooner Sophie. Smart v. Wolf, 3 Term, 323. Bynk. by Duponreau, p. 36 note. Hudson v. Guestier, 4 Cranch, 293. Williams v. Armroyd, 7 Cranch, 423.
51. 1 Chitty on Comm. Law, 428.
52. 2 Azuni on Maritime Law, ch. 4. art. 6. 1 Emerigon, c. 12, sec. 21. 2 Valin, art. 66. p. 149. Le Guidon, c. 6, art. 2; Grotius, b. 3, c. 19. 5 Johns. 6, Goodrich v. Gordon.
53. 2 Dallas, 15. Miller v. The Resolution.
54. 2 Dallas. 15. Pothier, Traite du Droit de Propriete, No. 134.
55. Pothier, ibid No. 134, 135.
56. Pothier, ibid. No. 138.
57. Ord. des Prises, art 19.
58. Pothier, Traite de Propriete, No. 139, 140.
59. 3 Burr. 1734.
60. Anthon v. Fisher, Doug. 649. note. I Rob. 169. The Hoop.
61. Cornu v. Blackburne, Doug. 641.
62. Pothier, de Propriete, No. 144.
63. Tom. 2. liv. 3. tit. 9. art. 19.
64. Grotius, b 3. c. 9. sec. 16, 17. Bynk. Q. J. P. c. 25. and 17.
65. Valin Com, tom. 2. 161.
66. Inst. 1. 12.5.
67. Vattel, b. 3. c. 14. sec. 209.
68. Vattel, ibid. sec. 207, 20£3.
69. Vattel, b. 3. c. 7. sec. 132. Bynk. by Dupenceau, p. 116, 117. notes. Austrian Ord. of Neutrality, August 7th, 1803. art. 19.
70. Vattel, b. 3. c 14. sec. 212. Martens, b. 8. c. 3. sec. 11, 12.
71. Liv. 3. tit. 9. Des Prizes, art. 8.
72. Vattel, b. 3. c. 14. sec. 216.
73. Schooner Sophie, 6 Rob. 139.
74. The Purissima Conception, 6 Rob. 49.
75. 1 Chilly on Commercial, Law 435.
76. The Santa Cruz, 1 Rob. 49.
77. The Two Friends, 1 Rob. 271. Marshall on Ins. 474. Doug. 648.
78. The War Onskan, 2 Rob. 299. The Carlotta. 6 Rob. 54.
79. 2 Burr. 691. 1209. The L’Actif, I Edw. Adm. 186.