Commentaries on American Law

minii.

The jus postliminii was a fiction of the Roman law, Jus Postliby which persons or things taken by the enemy were restored to their former state upon coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est, in civitate semper fuisse. (a) 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 not 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. Movables 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, more completely within the right of postliminy; and the reason for a stricter limitation of it in respect to personal property, arises from its transitory nature, and the difficulty of identifying it, and the consequent presumption that the original owner had abandoned the hope of recovery. (b) *This *109 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; with the exception of cases where the capture itself is an infringement of the jurisdiction or rights of the neutral power. (c) 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 captors, or of its ally; (d) and if a prize be brought into a neutral port by the captors, it does not return to the former

(a) Inst. 1, 12, 5.

(b) Vattel, b. 3, c. 14, sec. 209.

(d) Vattel, b. 3, c. 14, sec. 207, 208.

owner by the law of postliminy, because neutrals are bound to take 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. Strictly speaking, there is no such thing as a marine tort between belligerents. All captures are to be deemed lawful, and they have never been held within the cognizance of the prize tribunals of neutral nations. (a) With respect to persons, the right of postliminy takes place even in a neutral country; so that if a captor brings his prisoners into a neutral port, he may, perhaps, confine them on board his ship, as being, by fiction of law, part of the territory of his sovereign, but he has no control over them on shore. (b)

*110

*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. (c) 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 forever, and a previous alienation by the conqueror would be valid. (d)

In a land war, movable property, after it has been in complete possession of the enemy for twenty-four hours, (and which goes by the name of booty, and not prize,) 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

(a) L'Amistad de Rues, 5 Wheaton, 390.

(b) Vattel, b. 3, c. 7, sec. 132. Bynk. by Duponceau, pp. 116, 117, notes. Austrian Ord. of Neutrality, August 7th, 1803, art. 19. By one of the provisions of a commercial treaty between Carthage and Rome, in the earliest period of the Roman republic, soon after the expulsion of Tarquin, it was stipulated, that if either party should bring into the ports of the other, prisoners taken from an ally, the prisoners might be reclaimed and set free. Polybius, b. 3, c. 3.

(c) Puff. Droit de la Nature par Barbeyrac, liv. 8, c. 6, sec. 20. (d) Vattel, b. 3, c. 14, sec. 212. Martens, b. 8, c. 3, sec. 11, 12.

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 movable 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 a 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 *111 not been in possession of the enemy above twenty-four hours. This was the rule of the French ordinance of 1681; (a) but now the right is everywhere 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, (b) 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. (c) 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 as prize of war. (d)

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 its own subjects, or between them and those of her allies, the principle may un

VOL. I.

(a) Liv. 3, tit. 9. Des Prises, art. 8.

(b) Vattel, b. 3, c. 14, sec. 216.

(d) The Purissima Conception, 6 Rob. Rep. 45.

dergo 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 * 112 compensation or reward for the service they have performed. (a) 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. (b) Great Britain seems to have no fixed rule as to the quantum of salvage on a foreign vessel in cases of recapture, and the rate of salvage in other nations of Europe is different, as allowed by different nations. (c) 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. (d) Neutral property, 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 is 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. (e)1

(a) 1 Chitty on Commercial Law, 435. (b) The Santa Cruz, 1 Rob. Rep. 49.

(d) The Two Friends, 1 Rob. Rep. 271.

Marshall on Ins. 474. Doug. Rep. 648.

(e) The War Onskan, 2 Rob. Rep. 299. The Carlotta, 5 Rob. Rep. 54.

1 Though private property may be taken by a military commander for public use, or to prevent its falling into the hands of the enemy, yet the danger must be imminent, and the necessity admitting of no delay. Mitchell v. Harmony, 1 Blatchford's R. 549. S. C. 13 How. U. S. 115.

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 post- *113 liminii, until the property was devested 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 reigns of Geo. II. and Geo. III. (a)

(a) Lord Mansfield, 2 Burr. Rep. 693, 1209. L'Actif, 1 Edw. Adm. Rep. 186.

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Commentaries on American Law, Volum 1