be frequently applied to the case of mere private property, which, by the general rule of modern nations, is exempt from confiscation. There are some exceptions to this general rule, and wherever private real property has been confiscated by the enemy, and again comes into the possession of the nation to which the individual owner belongs, it is subject to the right of postliminy. The effect of complete conquest and retrocession will be considered in another paragraph. Grotius proposes the question with respect to the immovable. property belonging to a prisoner of war, but situate in a neutral country. But Vattel summarily disposes of it with the just remark, that nothing belonging to a prisoner can be disposed of by the captor, unless he can seize it and bring it within his own possession. But the rule becomes of great practical importance when applied to questions arising out of alienations of real property belonging to the government, made by the opposite belligerent while in the military occupation of the country. We have already stated, that the purchaser of any portion of the national domain in the occupation of an enemy, previous to the confirmation or consummation of the conquest, takes it at the peril of being evicted by the original sovereign owner when he is restored to his dominions. But if the victor be so firmly established in possession, that opposition to his rule is overcome or virtually ceases, or if the conquest is accompanied by internal revolution and a recognition of the new government, in other words, if the conquest is legally complete, alienations of the public domain will not be annulled, even though the former sovereign should be restored. (Vattel, Droit des Gens, liv. 3, ch. 14, § 212; Kent, Com. on Am. Law, vol. 1, pp. 108, 109; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 17; eiber, Political Ethics, b. 2, §86; Phillimore, On Int. Law, vol. 3, §§ 406, 539-574, 583; Vide ante, chapters xxxii. and xxxiii.)

§ 9. Towns, provinces, and territories, which are retaken from the conqueror during the war, or which are restored to their former sovereign by the treaty of peace, are entitled to the right of postliminy, and the original sovereign owner on recovering his dominion over them, whether by force of arms or by treaty, is bound to restore them to their former state. In other words, he acquires no new rights over them

either by the act of recapture or of restoration. The conqueror loses the rights which he had acquired by force of arms; but those rights are not transferred to the former sovereign, who resumes his dominion over them precisely the same as though the war had never occurred. He rules, not by a newly acquired title which relates back to any former period, but by his ancient title, which, in contemplation of law, has never been divested. The places which are reconquered or restored, therefore returns to him with the rights and privileges which they would have possessed if they had never fallen into the power of the enemy. But if the conquered provinces and places are confirmed to the conqueror by the treaty of peace, or otherwise, they can claim no right of postliminy. Their condition is established by the rights of conquest and the will of the conqueror. The right or title of the new sovereign is not that of the original possessor, and therefore is not subject to the same limitation or restriction. It had its origin in force, and is confirmed by treaty, incorporation, length of possession, or otherwise. It dates back to the actual conquest, but not to any period anterior to the conquest. The relations between the conquered and the conqueror are therefore very different from those which existed between the conquered and their former sovereign. They have, in their new condition, such rights only as belong to them by the general law of nations, and the stipulations of the treaty of cession, or such others as may be given to them by the will of the conqueror. If, however, the provinces and places have not themselves been considered as having been in a hostile attitude to the conqueror, he is regarded as merely replacing the former sovereign in his rights over them. They are regarded as acquired by conquest, rather than as actually conquered, and, in such cases, the acquisition or change of sovereignty is not usually attended by loss of rights. But in whatsoever way the conquest is completed it operates as an entire severance of the relations between the conquered territory and the former sovereignty. A subsequent restoration of such territory to its former sovereign is regarded in law as a retrocession, and carries with it no rights of postliminy. When the inhabitants of such conquered territory become a part of the new state

they must bear the consequence of the transfer of their allegiance to a new sovereign; and, should they subsequently fall into the power of their former sovereign, he is, in turn, to be regarded as a conqueror, and they cannot claim, as against him, any rights of postliminy. The correctness of the principle of international law, as stated above, is never disputed; but there is great difficulty in determining when the conquest is complete, or in drawing the precise line between absolute conquest and mere military occupation. This distinction has been discussed in the preceding chapters. (Heffter, Droit International, § 188; Chitty, Law of Nations, pp. 95, 96; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 16; Bello, Derecho International, pt. 2, cap. 4, §8; Rayneval, Inst. du Droit Nat., liv. 3, ch. 18; Vattel, Droit des Gens, liv. 3, ch. 14, §§ 213, 214; Leiber, Political Ethics, b. 2, § 86; W heaton, Elem. Int. Law, pt. 1, ch. 2, § 18; pt. 4, ch. 2, § 16; Vide ante chapters xxxii. and xxxiii.)

§ 10. A state is sometimes entirely subjugated and its personality extinguished by a compulsory incorporation into another sovereignty. As the towns, provinces and territories of which it was composed now become subordinate portions of another society, their relations to each other and to the new state result from the will of the new sovereign. If, by a subsequent revolution, the extinguished state resumes its independence, and again becomes a distinct and substantive body, its constituent parts may resume their former relations, or assume new positions and rights, according to the character of the society which is recognized, and the constitution or government which it adopts. This is a question of local public law, rather than of international jurisprudence. But if the subjugated state is delivered by the assistance of another, the question of postliminy may arise between the restored state and its deliverer. There are two cases to be considered: first, where the deliverance is effected by an ally, and second, where it is effected by a friendly power unallied. In either case, the state so delivered, is entitled to the right of postliminy. If the deliverence be effected by an ally, the duty of restoration is strict and precise, for an ally can claim no right of war against its co-ally. If the deliverance be effected by a state unallied but not hostile, the reëstablish

ment of the rescued nation in its former rights is certainly the moral duty of the deliverer. He can claim no rights of conquest against the friendly state which he rescues from the hands of the conqueror. How much stronger, then, is the duty of restoration where the deliverance is effected with the concurrence and assistance of the subjugated people, and under the expectation on their part of recovering their ancient rights and privileges. A denial of the right of postliminy, in such a case would be contrary to the law of nations and a breach of public morality. (Puffendorf, de Jur. Nat. et Gent., lib. 8, cap. 6, § 26; Vattel, Droit des Gens, liv. 3, ch. 14, § 213; Wheaton, Hist. Law of Nations, p. 490; Phillimore, On Int. Law, vol. 1, § 125; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 16.)

§ 11. The history of Genoa furnishes an illustration of this principle. The ancient republic of Genoa had been subverted, in consequence of the French invasion and conquest of Italy, and was annexed to the French empire in 1805. In 1814 the city of Genoa was surrendered to the British troops, under the command of Lord Bentinck, who issued a proclamation on the 26th of April, stating "that considering the general desire of the Genoese seems to be to return to that ancient form of government under which it enjoyed liberty, prosperity, and independence; and considering, likewise, that this desire seems to be conformable to the principles recognized by the high allied powers, of restoring to all their ancient rights and privileges," and declaring "that the Genoese state, as it existed in 1797, with such modifications as the general wish, the public good, and the spirit of the original constitution seem to require, is reëstablished." Nevertheless, by the second article of the treaty of Paris, of the 30th of May, 1814, the states of Genoa were ceded to the king of Sardinia. The provisional government of Genoa remonstrated against this cession, and appealed to the guarrantee of its independence contained in the treaty of Aix-laChapelle, 1745. The conduct of England was severely censured in parliament at the time, and has since been condemned by publicists generally. (Wheaton, Hist. Law of Nations, pp. 487, 488; Kluber, Acten des Wiener Congresses, b. 7, §§ 420-433; Mackintosh, Miscel. Works, pp. 508-524; Phil

limore, On Int. Law, vol. 1, § 244; Alison, Hist. of Europe, vol. 4, pp. 370, 503; Rotteck, Hist. of the World, vol. 4, p. 248; Annual Register, British, 1814, p. 191; Hansard, Parliamentary Debates, vol. 30, pp. 894, et seq.)

§ 12. Having considered the law of postliminy applicable to the retaking of movable and immovable property captured on land, it remains to examine its application to the retaking of prizes, or property captured at sea,- what was called in latin, recuperatio, and is known in English law, as recapture. There is a manifest difficulty in applying the right of postliminy to maritime recaptures, on account of the uncertainty of the time when the title of the original proprietor is completely divested. If all nations had adopted the principle, that condemnation, by a competent court of prize, was necessary, in all cases, to effect a change of ownership, the rules of postliminy applicable to prizes, would be the same in all countries; but as this principle has not been universally adopted, there is not, in practice, any well established rule of maritime recapture. Different text-writers have advocated different principles, and different legislators have enacted different laws, and, as a consequence, the prize courts of different countries have adopted different rules of decision. (Philimore, On Int. Law, vol. 3, § 407; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 12; The Santa Cruz, 1 Rob. Rep., pp. 58-63; Bello, Derecho Internacional, pt. 2, cap. 5, § 6; Heffler, Droit International, § 191; Hautefeuille, Des Nations Neutres, tit. 13, ch. 3; Jouffroy, Droit Maritime, p. 313; Poehls, Seerecht, etc., b. 4, §§ 509, et seq.; Kaltenborn, Seerecht, etc., b. 3, p. 378; Dalloz, Repertoire, verb. Prises Maritime, sec. 3; Pistoye et Duverdy, Des Prises, tit. 7; Manning, Law of Nations, p. 141.)

§ 13. It is remarkable, says Phillimore, that of all the ancient codes of maritime law,-the Consolato del Mare, the Rôle des judgemens d'Oleon, the laws of Wilsby, the ancient Statutes of IIamburg, Lubeck, Bremen, and the Hans-Towns, -the Consolato del Mare alone deals with the case of recaptures. The doctrine of perductio infra praesidia, as constituting a sufficient conversion of property, is there expressed, but not in terms very intelligible in themselves. These terms, however, have been satisfactorily explained by Grotius and