burn was instructed that the President expected him "to overlook all points of ceremony and of past offense, real or imaginary, on the part of the allied governments or any of them, and of past neglect, real or imaginary, on the part of Admiral Godon, and adopt whatever course in your discretions may seem best to reach Asuncion.” (MS. Inst. Paraguay, 1. 90.) In a later instruction Mr. Seward said: "The allies have at length yielded to the final and more positive demand that you should be allowed to pass; and you have thus safely arrived at Asuncion. After this, it would be as inconvenient as it is unusual for the United States to prefer any retrospective complaints against either Brazil, the Argentine Republic, or that of Uruguay, more especially as with each of those Governments we have friendly relations, and as each of them, and especially Brazil, has made concessions to us in relinquishing objections both to the fact and the manner of your passing their fleets and lines on the rivers Parana and Paraguay." (Mr. Seward, Sec. of State, to Mr. Washburn, No. 67, May 24, 1867, MS. Inst. Paraguay, 1. 101.) Moore's Digest, vol. IV, p. 561; see H. Ex. Doc. 79, 40 Cong. 3 sess.; In the spring of 1868 Admiral Davis, who was then in command of the South Atlantic squadron, sent the U. S. S. Wasp to the seat of war in Paraguay for the purpose of taking Mr. Washburn out of Paraguay, in compliance with Mr. Seward's request that he be relieved from the embarrassing and probably dangerous situation in which he then stood at Asuncion. The Wasp arrived at Curupaiti. the headquarters of the allies, on the 25th of April, and remained there until the 11th of June, when her commander returned to Montevideo without accomplishing the object of his visit, in consequence of the refusal of the Brazilian admiral, the Marquis of Caxias, who commanded the allied fleet, to permit the vessel to pass up to Asuncion. His refusal was based on "military reasons," and he suggested other modes of exit for Mr. Washburn, which the latter did not consider desirable or feasible. Admiral Davis laid the matter before Mr. Webb, the American minister at Rio de Janeiro, with a suggestion that he procure an order from the Brazilian Government to allow the Wasp to proceed up the Paraguay to a convenient point of embarkation. Mr. Webb, on July 1, 1868, accordingly addressed himself to Mr. Silveira de Souza, Brazilian minister of foreign affairs; and as the latter sustained the position of the Brazilian admiral, a discussion ensued in which Mr. Webb quoted from his instructions of 1866, as given above, and demanded that the Wasp be allowed to pass. In advising the Department of State of his request to the Brazilian Government for permission for the Wasp to pass, Mr. Webb, referring to the instructions of 1866, intimated that in the event of an unfavorable reply he would ask for his passports and retire from Brazil. In an instruction of August 17, 1868, Mr. Seward said that he was not then authorized nor did he deem it necessary, with such information as he possessed, to pronounce the sense of the Government of the United States concerning Mr. Webb's contemplated close of his mission; but that, with regard to the other matters, it was not thought to be premature to say that the United States held that it had a lawful right to send a ship of war up the Parana to Asuncion for the purpose of receiving the American minister and his family and conveying them from the scene of siege and war to neutral territorial waters; that the refusal of the Brazilian admiral to permit the Wasp to pass up to Asuncion "violates becoming comity on the part of Brazil and the allies towards the United States, and is in contravention of the law of nations;" and that the alternative modes of exit suggested for Mr. Washburn were properly declined. During the discussion at Rio de Janeiro, a change in the Brazilian cabinet took place, and on August 5, 1868, the new minister of foreign affairs, in a note to Mr. Webb, stated that, if the other modes of relieving Mr. Washburn should be declined, the allies would agree that a United States man-of-war should proceed to Asuncion, "subject only to such trifling delay as may arise from the active execution. of any military operation which may transpire at the time; the allies being well assured that the assertions of General Webb (which they have never doubted) with regard to the observance of the duties of a strict neutrality on the part of the vessel and of the representative of the Union shall most rigorously be carried out.” September 15, 1868, Mr. Webb, who had accepted the foregoing note as a settlement of the question, was instructed to express the appreciation of the Government of the United States of "the just and friendly manner in which the transaction has been brought to a satisfactory end on the part of the Government of Brazil." Mr. Webb, min. to Brazil, to Mr. Seward, Sec. of State, No. 68, July 7, 1868, Dip. Cor. 1868, II. 273; Mr. Webb to Mr. Silveira de Souza, min. of for. aff., July 1, 1868, id. 275; Mr. Silveira de Souza to Mr. Webb, July 9, 1868, id. 287; Mr. Webb to Mr. Silveira de Souza, July 13, 1868, id. 289–294, with extracts Webb, Aug. 5, 1868, id. 295; Mr. Seward, Sec. of State, to Mr. Webb, No. 233, Aug. 17, 1868, and No. 235, Sept. 15, 1868, id. 298, 299. That safe conducts should be granted to neutral diplomatic representatives through a blockading squadron, and that this privilege is secured by the law of nations, see Mr. Fish, Sec. of State, to Mr. Kirk, min. to Argentine Republic, June 17, 1869, MS. Inst. Argentine Republic, XV. 317. In relation to the incident of the Wasp, see Davis's Life of Charles Henry Davis, 321 et seq. POSTLIMINY. Immoveable property. Immoveable property, public or private, can, according to the modern understanding of International Law, be acquired under a sure title only in consequence of a Treaty of Peace or the entire subjugation of the country of the original proprietor. Until one or other of these events the jus postliminii remains. The question whether, if the people shake off the subjugation, the jus postlimini would revive, is not without difficulty. Pando wisely distinguishes between two predicaments:-- 1st. If the subjugation presents the appearance of being a mere temporary and involuntary submission to violence, the state of War continues, and therefore the jus postliminii continues. 2nd. If the dominion of the conquerors has been confirmed by the consent, express or tacit, of the conquered-a consent which is presumed in law after the peaceable possession of some years-then War has ceased, and the jus postliminii is forever extinguished by Peace. Phillimore, vol. III, pp. 785, 786; Pando, pp. 403, 404. Postliminium on the return of peace. Where the Treaty of Peace is silent, containing no express or implied provision concerning rights or property which have undergone a de facto change during the vicissitudes of War, some rules of justice must be applied, when the war is over, to settle the condition of these rights or this property, whether they appertain to a nation or an individual subject. These rules belong to the category of Postliminium, a name which bas, ever since its introduction into the Roman Law, obtained universally in Public and International Jurisprudence. It is true that, strictly speaking, the name itself appertains to a state of War; but the principle, which the doctrine conveys. is applicable to the state of things now under our consideration. For the doctrine of Postliminium applies to personal status, to property, and to obligations, and says, in its general language, that these, being de facto freed from the pressure of the enemy's force, shall return to the channels in which they flowed before they were by the pressure of that force diverted from them. The principle upon which the doctrine rests is, that rights duly acquired cannot be permanently taken away, either by the act of an individual or by the act of an enemy State, without the consent of the State, to which the original owner belongs. It is true that the provisions in the Roman Law upon this subject are applied, almost exclusively, to the question of private rights; but as has been often before observed in the course of this work, the principles of natural justice embodied in the Roman Law are applicable to States, as well as to individuals, in their intercourse with each other. Phillimore, vol. III, pp. 812, 813. Having made these general observations as to the effect of the doctrine of Postliminium upon the property of the State after the conclusion of a War, and in the absence of any express stipulations in the Treaty of Peace, it becomes necessary to examine the subject a little further as to its practical application. It is a subject which has undergone at different periods, both of modern and ancient history, much discussion, and elicited a variety of opinions. An examination of these opinions seems to demonstrate that there has been too often a want of clearness and discrimination upon two cardinal points. 1. As to the distinction which exists between the question considered as a matter of Public, and considered as a matter of International Law, or, in other words, between the subjects and the government of the same State, and between the government of one State and the subjects or the government of another State. 2. As to the distinction which exists between the effect of a simple conquest or the acts of a conqueror; and the effect of an interregnum or the acts of a de facto Sovereign. It is necessary for the due unravelling of this question to keep those distinctions continually in mind. It has been already observed in an earlier part of this work, that "Conquest, fortified by subsequent Treaty, gives a valid international title to territory." The distinction between the effect of the doctrine of Postliminium upon moveable and immoveable property has been already the subject of remark; it is one indeed which has been pretty generally observed by all writers upon the subject. Phillimore, vol. III, pp. 813, 814. Immoveable property. It has been already seen that, in the case of immoveable property, even actual possession by the conqueror does not confer a right of alienation, which, after the conqueror has departed, will enure to oust the original owner, unless such a result has formed part of the stipulations of a Treaty or been ratified by some public act of the State. It is upon this principle that the Courts of the United States of North America have determined that grants of territory made by British governors after the Declaration of Independence by the Americans are invalid. In the case of a grant of land lying between the Mississippi and the Chatahouchee rivers made after the Declaration by the British Governor of Florida, the American Justice Johnson said, "Two questions here occur: first, whether this separation had taken effect by any valid act; and secondly, if it had, whether it made any difference in the case upon international principles. "On both these points we are of opinion that the law is against the validity of this grant. It is true that the power of the Crown was at that time admitted to be very absolute over the limits of the royal provinces; but there is no reason to believe that it had ever been exercised by any means less solemn and notorious than a public proclamation. And although the instrument by which Georgia claimed an extension of her limits to the northern boundary of that territory was of no more authority or solemnity than that by which it was supposed to have been taken from her, it was otherwise with South Carolina. Her territory had been extended to that limit by a solemn grant from the Crown, to the lords proprietors, from whom, in fact, she had wrested it by a revolution, even before the rights of the proprietors had been bought out by the Crown. "But this is not the material fact in the case; it is this, that this limit was claimed and asserted by both of those States in the Declaration of Independence, and the right to it was established by the most solemn of all International Acts, the Treaty of Peace. It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that Treaty. It has been viewed only as a recognition of pre-existing rights, and on that principle, the soil and sovereignty within their acknowledged limits were as much theirs at the Declaration of Independence as at this hour. By reference to the Treaty, it will be found that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession or relinquishment of right on the part of Great Britain. In the last article of the Treaty of Ghent, will be found a provision respecting grants of land made in the islands then in dispute between the two States, which affords an illustration of this doctrine. By that article, a stipulation is made in favour of grants before the War, but none for those which were made during the War; and such is unquestionably the Law of Nations. War is a suit prosecuted by the sword; and where the ques |