Commerce. takes of the nature of recapture: it occurs where the weaker Sect. III. Of the party, before he is overpowered, obtains relief from the arrival of Detention, Seizure, Capture, fresh succours, and is thus preserved from the force of the enemy. and Confiscation, by Belligerents, From the case of the Helen (1), though that case indeed turned of upon the duty of recapture, it may fairly be inferred, that it is employed in also a duty among fellow-subjects, and equally incumbent of course upon allies, to attempt the rescue of one another from the enemy, wherever there appears to be any reasonable prospect of success. But as to the other kind of rescue, that which is effected by the rising of the captured to defeat their captor, this is a matter rather of merit than of duty. In the case of the Two Friends (2), Sir William Scott said, "Seamen are not bound by their general duty, as mariners, to attempt a rescue ; nor would they have been guilty of a desertion of their duty in that capacity if they had declined it. It is a meritorious act to join in such attempts; and if there are persons who entertain any doubt whether it ought to be so regarded, I desire not to be considered as one of that number. As to the situation and character of persons engaged in such attempts, it is certainly to be regarded an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship, or in discharge of any official duty, either ordinary or extraordinary." The distinction between the obligation to the performance of the two kinds of rescue, appears to be perfectly reasonable. If it were the bounden duty of the conquered to rise against their conquerors, their original surrender would have been a nugatory act, availing them absolutely nothing; the presumption is always, that a surrender does not take place till conquest and even escape are hopeless; and under such circumstances, it is but reasonable, that each man be allowed to judge for himself of the opportunities that may justify a subsequent insurrection. But the case is otherwise with a newly arriving force they are bound to attempt the rescue of their friends. Their strength is fresh and untried, and unless there be a clear superiority against them, it seems but just that they should brave the risk of a contest. Nor is a letter of marque, nor any other commission of the state, required by the law of nations, in order to subject a newly arriving force to the duties of rescue and recapture (3). (1) 3 Rob. Rep. 224.; and also the Two Friends, 1 Rob. Rep. 271. (2) 1 Rob. Rep. 271. As to in a ship, see Newman v. Walters, (3) The Helen, 3 Rob. Rep. 224. Sect. III. Of the Postliminium, or the Return of Property to the original Owner on Recapture. (1) Out of the questions of rescue and recapture arises the consiDetention, Sei- deration of postliminium and salvage. "The right of postlimizure, Capture, and Confiscation, nium," says Vattel (2), " is that in virtue of which persons by Belligerents, of Property and things, taken by the enemy, are restored to their former employed in state on coming again into the power of the nation to which Commerce. 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." 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, by what is called the right of postliminium, or jus postliminii, upon certain conditions which we shall presently have occasion to consider. But (3) the right of postliminium 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. 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 favour of the former, and departing from the line of neutrality. Moveables, however, are not entitled to the full benefit of postliminium. Lands, houses, and other fixed possessions, are easily identified, and therefore are completely within the right: and the reason for the exception of moveables is, that in general the identification of them is impracticable, and the original owners are therefore presumed to have given them up as lost. However, even moveables 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. This is the general law of nations with regard to the effect of the right of postliminium upon moveables; but particular nations, as we shall presently see, have relaxed the rigour of that rule in regard to their own subjects, and (by mutual consent) in regard to the (1) Marten's L. N. 290 to 293. (3) Vattel. b. 3. c. 14. s. 208. (2) Lib. 3. c. 14. s. 204. subjects of one another. "Prisoners (1) of war who have given Sect. III. Of the their parole, territories and towns which have submitted to the Detention, Seizure, Capture, enemy, and have sworn or promised allegiance to him, cannot and Confiscation, of themselves return to their former condition by the right of by Belligerents, of Property postliminium; for faith is to be kept even with enemies. But employed in 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 re-establish them in their pristine condition." But it is not so with countries or persons taken by a belligerent state, who were not the subjects of that state during any preceding part of the same war. For 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. Upon this principle was decided an important question in the case of the Boedus Lust. (2) We will now inquire what rights of postliminium attach upon property which has been alienated by the enemy. Here we must attend to the distinction before laid down, between immoveable property, which is recoverable by the rights of postliminium, and things moveable, to which that right does not, by the law of nations, extend. "Let it be remembered," says Vattel (3), as to immoveables, 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 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. It therefore resumes its immoveable possessions from the hands of those persons who have been so prematurely forward 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 (1) Vattel. b. 3. c. 14. s. 210, 211. (3) Vattel. b. 3. ch. 14. s. 212. Marten's L. N. 290, 1, 2. Commerce. Sect. III. Of the exposed themselves. But if that town had been ceded to the Detention, Seizure, Capture, enemy by the treaty of peace, or was completely fallen into his and Confiscation, power by the submission of the whole state, she has no longer by Belligerents, of Property any claim to the right of postliminium; and the alienation of employed in any of her possessions by the conqueror, is valid and irreverCommerce. sible; nor can she lay claim to them, if, in the sequel, some fortunate revolution should liberate her from the yoke of the conqueror." As to things moveable, we find from the same section that the law is otherwise. And this, indeed, is of course: for, as moveable property, according to the law of nations, is held to be irrecoverable by the original owner, in virtue of any postliminium, when once it has passed by a land war into the complete possession of the enemy twenty-four hours, much more is such property to be protected from the effect of postliminium, when it has not only passed into the complete possession of the enemy, but been by him transferred bonâ fide to a neutral (1). To this may be added (2), that "as things not mentioned in the treaty of peace remain in the same condition in which they happen to be at the time when the treaty is concluded, and are on both sides tacitly ceded to the present possessor, it may be said, in general, that the right of postliminium no longer exists after the conclusion of the peace. That right entirely relates to the state of war." Though the law of nations in general most clearly establishes that the right of postliminium, with respect to moveables, is extinguished, as soon as those moveables are completely reduced into the possession of the enemy, and that they then may be immediately alienated to neutrals as indefeasible property, yet there has been a considerable difference of opinion and of practice as to the question, what shall be deemed to constitute this complete possession. Some writers on the law of nations have stated it to be merely requisite that the property shall have been twenty-four hours in the enemy's power; others, that the property must have been brought infra præsidia, that is, within the camps, towns, ports, or fleets of the enemy; and others have drawn other lines of an arbitrary nature (3). Of late years, however, a more absolute species of possession seems to (1) 2 Wooddes. p. 441. sect. 34. Marten's L. N. 292. (2) Vatt. b. 3. ch. 14. s. 216. (3) Marten's L. N. 290, 1. Detention, Seizure, Capture, Commerce. ́have been required, at least as far as respects a maritime cap- Sect. IH. Of the ture (1). "I apprehend," said Sir William Scott, in the case of the Flad Oyen (2), "that by the general practice of the law and Confiscation, by Belligerents, of nations, a sentence of condemnation is at present deemed gene- of Property rally necessary; and that a neutral purchaser in Europe, during employed in war, does look to the legal sentence of condemnation as one of the title-deeds of the ship, if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prizevessel of a belligerent, has thought himself quite secure in making that purchase, merely because that ship had been in the enemy's possession twenty-four hours, or carried infra præsidia.” At any rate, the rule of condemnation is the general rule applied by England. In our Courts of Admiralty it has always been holden that the property is not changed in favour of a vendee or recaptor, so as to bar the original owner, till there has been a regular sentence of condemnation (3); and in the reign of King Charles the Second, a solemn judgment was given upon this point, and restitution of a ship taken by a privateer was decreed, after she had been fourteen weeks in the enemy's possession, because she had not been condemned; and this judgment of the Court of Admiralty was cited by Lord Mansfield in the case of Goss and Withers (4); and the courts of common law have enforced the same rule, as will be seen from the case of Assievedo against Cambridge (5), where it was holden that four years possession, and several voyages performed, will not change the property without a sentence of condemnation; and this condemnation must be pronounced by a court of competent jurisdiction, in the country either of the enemy himself, or of some of his allies, and not in a neutral country. But if, after the time of the enemy's transferring his prize to a neutral, a peace be concluded between that enemy and the state from whose subject the prize was taken; then the transfer to the neutral becomes valid, even though there was no legal condemnation. For, as we have already seen from Vattel, the right of postliminium no longer exists after the conclusion of peace. And therefore, in the case of the schooner Sophie (6), (1) Marten's L. N. 292. (2) 1 Rob. Rep. 134. (3) Vid. et 3 Rob. Rep. 236, 7,8. (4) Goss and Withers, 2 Burr. 683. See also the case of the Constant Mary, reported in a note to the case of the Kierlighett, (5) Assievedo against Cam- (6) 6 Rob. Rep. 142. |