POSTLIMINIUM.-RESTITUTION.

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, on their coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est, in civitate semper fuisse. (Instit, i. 12, 5.) It is a right, says Chancellor Kent (i. 115), recognized by the law of nations, and contributes essentially to mitigate the calamities of war. When property captured by the enemy is retaken by our allies or auxiliaries, or in any other manner falls into their hands, this, so far as relates to the effect of the right, is precisely the same thing as if they were come again into our power; since, in the cause in which we are jointly embarked, our power and that of the allies is but one and the same. So that when possessions, taken by the enemy, are either recaptured or rescued from him by the fellow-subjects or allies of the original owner, they do not become the property of the recaptor or rescuer, as if they had been a new prize; but are restored to the possession of the original owners upon certain terms. Moveables are not, in strictness, entitled to the benefit of postliminium, their identification being difficult, if not impracticable; but even these are restored to the original owners, if retaken from the enemy immediately after his capture of them; in which case the proprietor neither finds a difficulty in recognizing his effects, nor is presumed to have relinquished them. Real property, being readily identified, is more completely within the scope of the right.

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Postliminium, however, does not take effect in neutral countries: for when a nation chooses to remain neuter in war, she is bound to consider it as equally just on both sides, so far as relates to its effects; and consequently, to look upon every capture 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. (M'Donough v. Dannery, 3 Dallas, 188, 189; The Josepha Segunda, 5 Wheaton, 338, 358.) For a neutral to allow one of the parties, in prejudice to the other, to enjoy in her dominions the right of claiming things taken by the latter, would be declaring in favour of the former, and departing from the line of neutrality.

The law of postliminium implies that the party claiming it returns to his previous character; and he who, during the whole war, has been the subject of the enemy alone, must be considered, when he falls into the hands of the rival state, not as returning to a previous character, but as acquiring a character absolutely new. (The Boedes Lust, 5 Rob. 233.) The right of postliminium takes place only within the territories of the captor or of his ally (Vattel b. 3, c. 14, s. 207, 208); and if a prize be brought into a neutral port by the captors, it does not return to the former owner by postliminium, 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 cap

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tures are to be deemed lawful, and they have never been held within the cognizance of the prize tribunals of neutral nations. (L'Amisted de Rues, 5 Wheaton, 390.) With respect to persons the right of postliminium 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. (Vattel, b. 3, c. 7, s. 132; Kent, i. 116; Bynkershoeck, by Duponceau, p. 116; Austrian Ordinance of Neutrality, Aug. 7, 1803, Art. 19.)

With respect to real property, the acquisition is not fully consummated till confirmed by a treaty of peace, or by the entire submission or destruction of the state to which it belonged. (Puffendorff, Droit de la Nature, par Barbeyrac, Liv. 8, c. 6, s. 20.) Till then the sovereign of that town has hopes of retaking it, or of recovering it by a peace; and from the moment it returns into his power, he restores it to all its rights, and consequently it recovers all its possessions, as far as in their nature they are recoverable. But if the property, town, or territory, or part of territory, whatever it may be, has been ceded to the enemy by the treaty of peace, or has completely fallen into his power by the submission of the whole state, she has no longer any claim to the right of postliminium; and the alienation of any of her possessions by the conqueror is valid and irreversible. (Vattel, ub. sup.; Martens, b. 8, c. 3, s. 11.)

In a land war, moveable property, after it has been in the possession of the enemy twenty-four hours, becomes absolutely his, without any right of postli

minium in favour of the original owner, and by the ancient and strict rule of the law of nations, confirmed by various ordinances of continental powers, captures at sea fell under the same rule. (Ordon. des Prises, 1681, Art. 8.) The right, however, as to naval prize, is now everywhere understood to continue until sentence of condemnation and no longer. (Lord Stowell, The Flad Oyen, 1 Rob. 134; Goss v. Withers, 2 Burr. 683; The Constant Mary, 3 Rob. 97; Hamilton v. Mendes, 1 Blackstone, 27; Assievedo v. Cambridge, 10 Mod. 79; The Huldah, 3 Rob. 237; 13 Geo. 2, c. 4; 17 Geo. 2, c. 34; 19 Geo. 2, c. 34; 43 Geo. 3, c. 160.)

The United States, by the act of Congress, 3rd March, 1800, directed the restoration of captured property 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. This statute, also, continued the Jus Postliminii until the property was divested by a sentence of condemnation.

If, however, a treaty of peace makes no specific provision relative to captured property, it remains in the same position in which the treaty finds it, and is tacitly conceded to the possessor. The right of postliminium no longer exists after the conclusion of the peace; it is a right which belongs exclusively to a state of war (Vattel, b. 3, c. 14, s. 216); and, therefore, in the case of The Sophie (6 Rob. 138), the British Court of Admiralty decided that a ship which

had been sold to a neutral, after an illegal condemnation by a prize tribunal, and which would, therefore, not have been considered as fairly transferred during war, was to be deemed, by the intervention of peace, a legitimate possession in the neutral's hands, and cured of all defects in the title. For as the title of the enemy captor himself would have been quieted by the intervention of peace, so it was thought to be but reasonable that the general amnesty should have the same effect upon property in the hands of those to whom that enemy might have assigned it. "Otherwise," observed Lord Stowell, "it could not be said that the intervention of peace would have the effect of quieting the possession of the enemy; because, if the neutral possessor was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him. And as to a renewal of war, though that may change the relation of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before."

When the assignment has been made by the hostile captor, regularly and bonâ fide, and the party to whom the captor has so made that assignment was, at the time of making it, a neutral, the title in the hands of such assignee will not be defeated by his subsequently becoming an enemy; it would only be liable with his other property to be seized as prize of war. (The Purissima Concepcion, 6 Rob. 45.)

The statute 43 Geo. 3, c. 160, s. 39, makes an exception as to ships which have been set forth by the enemy as vessels of war, enacting that these shall not be restored to the original owners, but belong wholly