neutral port by the captors, it does not return to the former 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. (e) 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. (d)

*In respect to real property, the acquisition by the con- *110 queror 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. (a) 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. (b)

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 has not only passed into

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

(d) 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.

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

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 prop*111 erty * had not been in possession of the enemy above twenty-four hours. This was the rule of the French ordi nance 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 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

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

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

(c) Schooner Sophie, 6 Rob. Adm. 138.

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

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. (a) The * 112 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

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

(a) 1 Chitty on Commercial Law, 435.

(b) The Santa Cruz, 1 Rob. Adm. 49.

(c) Wheaton on Captures, 245, 246, 297; Opinions of the Attorneys-General, vol. i.

435.

(d) The Two Friends, 1 Rob. Adm. 271; Marshall on Ins. 474; Doug. 648. (e) The War Onskan, 2 Rob. Adm. 299; The Carlotta, 5 Rob. Adm. 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 Blatch. C. C. 549; S. C. 13 How. U. S. 115.

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. *113 The statute continued the jus postliminii, 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. 693, 1209; L'Actif, 1 Edw. Adm. 186.

LECTURE VI.

OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL NATIONS.

THE rights and duties which belong to a state of neutrality form a very interesting title in the code of international law. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connections which would tend to draw us into the vortex of European contests. A nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources. Belligerent nations are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.

Neutrals must be im

partial.

*116

It belongs not to a common friend to judge between the belligerent parties, or to determine the question of right between them. (a) The neutral is not to favor one of them to the detriment of the other; and it is an essential character of neutrality, to furnish no aids to one party which the neutral is not equally ready to furnish to the other. (a) A nation which would be admitted to the privileges of neutrality,

(a) Bynk. b. 1, c. 9; Burlamaqui, vol. ii. part 4, c. 5, sec. 16, 17.

(a) Mr. Manning, after referring to the practice of former times on the subject of foreign levies in neutral countries, and critically examining the reasoning of Vattel, justly concludes that foreign levies may not be allowed to one belligerent, while refused to his antagonist, consistently with the duties of neutrality, unless such an exclusive privilege was granted by treaty antecedent to the war. Manning's Commentaries, p. 180.