« PreviousContinue »
obvious; for in the one case the capture is still im perfect, and in the other it is complete. The law of nations does not require that a vessel should be commissioned in any manner, in order to entitle her, and, indeed, to impose upon her the obligation, to effect a recapture, if they are possessed of such superiority as to render it just that they should hazard a contest.
Out of the questions of rescue and recapture, arise the important considerations of postliminium
and salvage. The right of Postliminium is thus defined by Vattel: “The considered. right of postliminium is that, in virtue of which,
persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged. When persons or things, captured by the enemy, are retaken by our allies or auxiliaries, or in any other manner fall 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.”2 So that, when possessions, taken by the enemy, are 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, by what is called the right of postliminium or jus postliminii, upon certain condition presently
· The Helen, 3 Rob., 224.
• Vattel, Lib. III., c. xiv., $ 204.
to be considered.' But the right of postliminium does not take effect in neutral countries, for when a nation chooses to remain neutral in war, she is bound to consider it as equally just on both sides, as far as relates to its effects, and consequently to look upon every capture made by either party as a lawful acquisition. 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, or the right of postliminium, would be declaring in favor of the former, and departing from the line of neutrality.
The full benefit of postliminium is not attached to movable property, as are lands, houses, and other fixed possessions. The reason of this is simply the impracticability of perfect identification as a general thing, and the consequent presumption of abandonment of the owner.
But if the recapture of movables follow hard upon the capture, the right of postliminium is per. fect. This is the general law of nations with regard to the right of postliminium upon movables. But, “prisoners of war, who have given their parole, territories and towns which have submitted to the enemy, and have sworn or promised allegiance to him, cannot of themselves return to their former position, by the right of postliminium, for faith is to be kept, even with enemies. But if the sovereign retake those towns, countries or prisoners, who had surrendered to the enemy, he recovers all his former rights over them, and is bound to reestablish them in their pristine condition."?
'Vattel, Lib.III., c. xiv., 8208. 'Vattel, Lib. III., c. xiv., 88.210,211.
The rights of postliminium upon property which has been alienated by the enemy is a
is a subject of much importance. The distinction here exists between movable and immovable property. “Let it be remembered,” says Vattel, “ as to immovables, that the acquisition of a town taken in war, 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. 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 to 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. It therefore resumes its immovable possessions from the hands of those persons who have been so prematurely forward as to purchase them. In buying them of one who had not an absolute right to dispose of them, the purchasers made a hazardous bargain, and if they prove losers by the transaction, it is a consequence to which they deliberately exposed themselves. But if that town had been ceded to the enemy by the treaty of peace, or was 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, nor can she lay claim to them, if in the sequel some fortunate revolution should liberate her from the yoke of the conqueror."l
As to movables, we find the law to be otherwise, as Vattel states in the same section:
“When movable property has passed into the hands of the enemy, unless its recovery be immediate, and under those rare circumstances as repel the presumption of its abandonment and render it susceptible of a complete identification, the right of postliminium, as we have seen, does not attach to it; a fortiori, does it cease to be affected by any such right, after having passed into the complete possession of the enemy, it has been by him in good faith transferred to a neutral."?1
Although it is very clearly established by the law of nations, that the right of postliminium, as to movables, is so far extinguished when they have arrived to the complete possession of the enemy, as to enable him to confer, by alienation, an indefeasible title upon a neutral, yet the question in this connection, of what constitutes such complete possession has been the subject of no little discussion. While some writers have stated it to be sufficient if the property have been twenty-four hours in the enemy's possession, others have declared it to be requisite that it should be carried infra præsidia, that is, within the camps, towns, ports or fleets of the enemy; and still others have drawn various arbitrary lines. It has become in later days a well settled principle, that a possession of a more absolute and decided character is requisite to confer such a title as to extinguish the right of postli. minium.
“I apprehend,” says Lord Stowell, in a case involving the question, “ that by the general practice of the law of nations, a sentence of condemnation is,
at present, deemed generally necessary—and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation, as one
of the title-deeds of the ship, if he buys a prize A sentence of vessel. I believe there is no instance, in which a necessary to man having purchased a prize-vessel of a belligerent, change proper has thought himself quite secure in making that the vendoe of purchase, merely because that ship had been in the
enemy's possession twenty-four hours, or carried infra præsidia."1
The rule which requires a sentence of condemna·tion is undoubtedly the established rule in England. It is there held, that until such condemnation, the property is not changed in favor of the vendee or recaptor, so as to bar the original owner.?
As long ago as in the reign of Charles II., a solemn judgment was rendered on this point, and restitution of a ship was decreed, after she had been fourteen weeks in the enemy's possession, because she had not been condemned: This early judgment of the Court of Admiralty is cited with approval by Lord Mansfield in a case before him in which the point arose.
The English courts of common law have since enforced the rule, and even to the extent of holding, that after four years' possession, and the performance of several voyages, the title to the property is not changed without a sentence of condemnation,
A sentence of condemnation has been universally
'The Flad Oyen, 1 Rob., 134. ? 3 Rob., 236.
* Assievedo vs. Cambridge, 10 Mod., 79; vide The Constant Mary, 3 Rob., 97, 237.