lecting military contributions. The principle of uti possidetis being the basis of every treaty of peace, unless otherwise specially provided in the treaty itself, it follows that the conqueror (the treaty being silent on this point,) is entitled to all the contributions which he has collected, by the right of military occupation, of the belligerent territory now surrendered; but not to those which he has levied but failed to collect. His rights over the inhabitants of such territory are military rights, and, consequently, terminate with the right of possession, i. e., with the treaty of peace which restores the conquest. (Vattel, Droit des Gens, liv. 4, ch. 3, § 29; Duponceau, Translation of Bynkershoek, p. 116, note; Wheaton, Elem. Int. Law, pt. 4, ch. 4, § 4; Vide Ante, chapters xxxii and xxxiii; Heffter, Droit International, §§ 176, et seq.; Bello, Derecho Internacional, pt. 2, cap. 9, § 6.) § 21. We have already spoken of the general obligations of a treaty of peace, and have shown that when made by competent authority, it is binding upon the whole state. The question has been raised, how far the plea, that the treaty of peace was obtained through intimidation, or extorted by by force, may dispense with its observance. Vattel says, that such a plea will not invalidate a treaty, or dispense with its observance: "First, were this exception admitted, it would destroy, from the very foundations, all the security of treaties of peace; for there are few treaties of that kind which might not be made to afford such a pretext as a cloak for the faithless violation of them." But, according to the opinion of the same author, there may be exceptions to this rule, as in the case of a forced submission to conditions equally offensive to justice and to all the duties of humanity. If a rapacious and unjust conqueror subdues a nation and forces her to accept of hard, ignominious, and insupportable conditions, necessity obliges her to submit; but this apparent tranquility is not a peace; it is an oppression which she endures only so long as she wants the means of shaking it off, and against which men of spirit rise on the first favorable opportunity. When Fernando Cortes attacked the empire of Mexico, without any shadow of reason, without even a plausible pretext,— if the unfortunate Montezuma could have recovered his liberty by submitting to the iniquitous and cruel conditions of receiving Spanish garrisons into his towns and his capital, of paying an immense tribute, and obeying the commands of the king of Spain,-will any man pretend to assert that he would not have been justifiable in seizing a convenient opportunity to recover his rights, to emancipate his people, and to expel or exterminate the Spanish horde of greedy, insolent, and cruel usurpers? No! such a monstrous absurdity can never be seriously maintained. Although the law of nature aims at protecting the safety and peace of nations, by enjoining the faithful observance of promises, it does not favor oppressors." (Vattel, Droit des Gens, liv. 4, ch. 4, § 37; Puffendorf, De Jure Nat. et Gent., lib. 8, cap. 8, § 1; Heffter, Droit International, §§ 85, 98, 99; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 14; Wildman, Int Law, vol. 1, p. 140.) § 22. A treaty of peace may revive former treaties by express stipulation, or, in certain cases, without any stipulalation whatever. As a general rule, the obligations of treaties are dissipated by war, and they are regarded as extinguished and gone forever, unless expressly revived by the treaty of peace. But this rule is by no means universal. "Where treaties contemplate a permanent arrangement of national rights," says Kent, "or which, by their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by the event of war. They revive at peace, unless waived, or new and repugnant stipulations be made." (Kent, Com. on Am. Law, vol. 1, p. 177; Vattel, Droit des Gens, liv. 3, ch. 10, § 174; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 25; Heineccius, Elem. Jur. Nat. et Gent., lib. 2, cap. 9; Sutton v. Sutton, 1 Russell and Milne Rep., p. 663; The S. for P., the Gospel v. New Haven, 8 Wheaton Rep., p. 494; Phillimore, On Int. Law, vol. 3, §§ 531, et seq., Wheaton, Elem. Int. Law, pt. 3, ch. 2, §§ 9-11; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 13.) § 23. "The breach of a treaty of peace," says Vattel, “consists in violating the engagements annexed to it, either by doing what it prohibits, or by not doing what it prescribes. Now, the engagements contracted by treaty may be violated in three different ways,-by a conduct that is repugnant to to the nature and essence of every treaty of peace in gene ral,- by proceedings which are incompatible with the particular nature of the treaty in question, or, finally, by the violation of any article expressly contained in it." These different modes by which a treaty of peace may be violated, are discussed by Vattel at considerable length. We shall allude here only to the last, that is, how far the breach of a single article is a breach of the whole treaty. The violation of any one article of a treaty of peace, abrogates the whole treaty, if the injured party so elects to consider it; for all the articles are dependent on each other, and one is to be deemed a condition of the other. It is sometimes, however, expressly stipulated that if one article be broken, the others shall nevertheless be continued in force. But, without such stipulation, the injured party may regard the violation of a single article as overthrowing the whole treaty. "We have a strong instance in our own history," says Kent, "of the annihilation of treaties by the act of the injured party. In 1798, the congress of the United States declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated on the part of the French government, and all just claims for reparation refused." Publicists very properly distinguish between a void and a voidable treaty. If the treaty be violated by one of the contending parties, either by proceedings incompatible with its general spirit, or by a specific breach of any one of its articles, it becomes not absolutely void, but voidable at the election of the injured party. If he prefers not to come to a rupture, the treaty remains valid and obligatory. He may waive or remit the infraction committed, or he may demand a just satisfaction. (Wheaton, Elem. Int. Law, pt. 4, ch. 4, §7; Kent, Com. on Am. Law, vol. 1, pp. 175, 176; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 15, § 15; Vattel, Droit des Gens, liv. 4, ch. 4, §§ 38, 48, 54; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 14; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter, Droit International, § 184.) § 24. Affected delays in performing the conditions of a treaty of peace, are, says Vattel, equivalent to an express denial, and differ from it only by the artifice with which he, who practices them, seeks to palliate his want of faith; he adds fraud to perfidy, and actually violates the article which he should fulfill. But, if a real impediment stands in the way, time must be allowed, for no one is bound to perform impossibilities. If the obstacle be utterly insurmountable, the other party should accept of an indemnification, if the case will admit of it, and the indemnification be practicable. But if no equivalent can be offered, the intervening impossibility undoubtedly cancels the particular obligation. (Vattel, Droit des Gens, liv. 4, ch. 4, §§ 50, 51; Rayneval, Inst. du Droit Nat., etc., liv. 4, chs. 23-26; Bello, Derecho Internacional, pt. 2, cap. 9, § 6; Heffter, Droit International, § 184.) § 25. "There is," says Kent, "a very material and important distinction made by the writers on public law, between a new war for some new cause, and a breach of a treaty of peace. In the former case, the rights acquired by the treaty subsists, notwithstanding the new war; but in the latter case, they are annulled by the breach of the treaty of peace, on which they were founded. A new war may interrupt the exercise of the rights acquired by the former treaty, and, like other rights, they may be wrested from the party by the force of arms. But then they become newly acquired rights, and partake of the operation and result of the new war. To recommence a war by breach of the articles of a treaty of peace, is deemed much more odious than to provoke a war by some new demand and aggression; for the latter is simply injustice, but, in the former case, the party is guilty both of perfidy and injustice." (Kent, Com. on Am. Law, vol. 1, p. 175; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 20, §§ 27, 28; Vattel, Droit des Gens, liv. 4, ch. 4, § 42; The Schooner Sophie, 6 Rob. Rep., p. 143; Bello, Derecho Internacional, pt. 2, cap. 9, §6; Real, Science du Gouvernement, tome 5, ch. 3, sec. 5; Moser, J. J. Vermecht Abhandl, No.1; Heffter, Droit International, § 184.) CHAPTER XXXV. RIGHTS OF POSTLIMINY AND RECAPTURE. CONTENTS. 21. Right of postliminy defined 22. Its foundation -23. Time of its taking effect-4. Effect of a treaty of peace 5. Of allies who are associates in the war-6. Its effect upon things and persons in neutral territory — 27. Upon movables on land — 81 Real property - 9. Towns and provinces-10. Release of a subjugated state —11. Case of Genoa in 1814 - 12. Application of postliminy to maritime captures - 13. Text-writers and prize courts 14. Rights of postliminy modified by treaties and municipal laws - 15. Laws of Great Britain and U. S.-16. Setting forth as a vessel of war - 17. Laws of France, Spain, and other states18. Quantum of salvage on recaptures-2 19. Recapture of neutral property20. International law on salvage- 21. Military and civil salvage 22. Special rules of military salvage -? 23. Where original capture was unlawful - 24. In case of ransom 8 25. A vessel recaptured by her master and crew - 26. From pirates - 27. By land forces in foreign ports 28. By native and allied armies in native ports. - § 1. The jus postlim ni was a fiction of the Roman law by which persons, and, in some cases, things, taken by an enemy were restored to their original legal status immediately on coming under the power of the nation to which they formerly belonged. "Postliminium fingit eum qui captus est, in civite semper fuisse." With respect to persons, the right of postliminy had a double effect, passive and active. Passive, inasmuch as the returned son fell again under the power of |