The debts of HesseCassel

§ 29. The Prince of Hesse-Cassel also denied the validity of the payment or cancellation of the debts which were owing to his government in 1806, and which had been paid or alienated prior to his restoration. Being absolute lord over his subjects, who were exceedingly poor, he had enriched himself by selling their valour and lives, to fight the battles of other sovereigns, and the gold thus acquired had been invested in his own name, as sovereign, in loans and mortgages, to the inhabitants of other States. On the conquest of HesseCassel, by Napoleon, these debts were confiscated, and made. payable only to the treasury of what was called the 'domaine extraordinaire.' And when the greater part of this Electorate was incorporated into the kingdom of Westphalia, a compact was entered into at Berlin, between King Jerome and Napoleon, for the division and adjustment of the debts owing to the extinguished Electorate. The Bonapartes had no difficulty in collecting those due from the subjects of their newly-acquired dominions, for there force could be resorted to, in order to compel payment; but where the debtors resided in other States the payment was in a measure voluntary, and even where the debtors were willing to pay a difficulty occurred in releasing the mortgages, as the record could be cancelled only by the authority of the creditor therein named. To remove this difficulty in the Duchy of Mecklenburg, the Duke issued an order, circular rescript, on June 15, 1810, which, after reciting the complete conquest of Hesse-Cassel by Napoleon, and the extinguishment of the former sovereignty, directed the court of registration to record, as extinguished, those mortgages in favour of HesseCassel on estates in that duchy, for which a discharge or receipt had been given by Napoleon, or by his appointee for that purpose. Among the estates so mortgaged and released were those of a certain Count van Hahn, whose case acquired much celebrity and will serve to illustrate the fact and thelaw. After the death of the Count and the restoration of the Prince of Hesse-Cassel, the latter instituted proceedings as a creditor against his estate, denying the validity of the payment and the legality of the discharge of the mortgage. The first tribunals (the University of Breslau in 1824, and that of Kiel in 1831) decided, in substance, that the Prince might recover that portion of the debt which had not been actually

paid to Napoleon, and no more. Both parties being dissatisfied with this judgment, an appeal was taken to another university (tribunal), which learned body delivered at great length the reasons of their final decision, which was, in substance, that all the debts to Hesse-Cassel, for which discharges had been given in full by Napoleon, whether the whole sum had been actually paid or not, were validly and effectually cancelled, and that the debtors could not be called upon to pay a second time. These learned jurists drew a broad distinction between the acts of a transient conqueror on mere military occupation, and those of one whose rights and titles had been ratified by the public acts of the State, and recognised in treaties with foreign powers. The judgments of the tribunals of Breslau and Kiel were based on the supposition that the conquest was only a temporary one; but the learned judges said it was impossible to consider the return of the Prince of HesseCassel as a continuation of his former government. They rejected the consideration of the justice or injustice of the war, in which the Electorate had been conquered, nor did they attach any importance to the fact, that the Prince had carried away with him, and retained possession of, the instruments containing the written acknowledgment of the debtor. will be noticed that this decision virtually confirms the validity of the alienation of domains made by the de facto government of the conquests of Napoleon.'

1 Heffter, Droit International, §§ 186, 188; Zachariæ, Ueber die Verpflichtung, &c., b. iv. p. 104.

Right of postliminy

defined

CHAPTER XXXV

RIGHTS OF POSTLIMINY AND RECAPTURE

1. Right of postliminy defined-2. Its foundation-3. 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 -7. Upon movables on land-8. 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-16. Laws of the United States 17. Laws of different European States-18. Quantum of salvage on recaptures-19. Recapture of neutral property-20. International law on salvage-21. Military and civil salvage-22. Special rules of military salvage-23. When original capture was unlawful-24. In case of ransom-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 postliminii 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 civitate 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 his parent, and the returned slave under the power of his master; and active, inasmuch as the returned person claimed to exercise his original rights over other persons or things. To produce this passive effect, the only requisite was the simple return of the individual; but to produce the active effect, the individual must have returned legally and for the purpose of regaining his rights. The jus postliminii was denied to those who illegally returned to their country during an armistice, to deserters, to those who had surrendered in battle, to those who had been abandoned by their country, or who had been the subject of a deditio, either during the war, or at the time of making peace.

With respect to things taken by the enemy, the Roman law considered them as withdrawn from the category of legal relations during the period of the enemy's possession of them. If retaken by their former owner, they became his by the recapture; but, if retaken by the State, they were considered as booty, or prize of war, the original right of property being extinguished by the intervening hostile possession. But certain things were excepted from this rule, as real property, horses, vessels used for purposes of war, &c.; and to these the jus postliminii was accorded. This general maxim of the Roman law, although not in all its details, is engrafted into modern international jurisprudence, and is fully recognised as an incident to the state of war, and contributes essentially to mitigate its calamities.'

with re

status and

§ 2. The right of postliminy is founded upon the duty of Postliminy every State to protect the persons and property of its citizens against the operations of the enemy. When, therefore, a sub- gard to personal ject who has fallen into the hands of the enemy is rescued by the State or its agents, he is restored to his former rights and rights condition under his own State, for his relations to his own country are not changed either by the capture or the rescue. So, of the property of a subject recaptured from the enemy by the State or its agents; it is no more the property of the State than it was before it fell into the hands of the enemy; it must, therefore, be restored to its former owner. But if, by the well-established rules of public law, the title to the captured property has become vested in the first captor, the former owner cannot claim its restoration from the recaptor, because his original title has been extinguished.

The jus postliminii of the Roman law applied almost exclusively to questions of private rights, but the principles of natural justice embodied in that law are applicable to States as well as to individuals, in their intercourse with each other. It has, therefore, been held in modern times to extend not only to individuals of the same State, but also to individuals o different States, and to the international relations of States themselves.2

1 Phillimore, On Int. Law, vol. iii. § 403; Justinian, Institutes, lib. i. tit. xii. § 5; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 15; Kluber, Droit des Gens, §§ 256 et seq.

2 Martens, Précis du Droit des Gens, § 283; Heffter, Droit International, §§ 187 et seq.; Voet, Ad Pandect., tit. iv. p. 642; Pfeiffer, Das

Postliminy in regard to things

Right of

postliminy belongs exclu

a state of war

§ 3. Postliminy is considered as taking effect the moment that the persons, or property taken on land by an enemy, come within their sovereign's territory, or within places under his command, or into the hands of his officers or agents. But, in cases of prize and maritime recapture, the question of restoration usually involves that of military salvage, which must be determined by a court of competent jurisdiction. Vessels and goods taken by the enemy as prizes, and recaptured by the principal belligerent, or his allies, must, therefore, be brought infra præsidia, and adjudicated precisely the same as in case of a prize,'

§ 4. The right of postliminy belongs exclusively to a state of war, and no longer exists after the conclusion of a treaty of peace. The intervention of peace cures all defects of title to property of every kind, acquired in war, and such title cannot be subsequently defeated in favour of the original owner, not even in the hands of a neutral possessor, who himself becomes an enemy. Such property may be liable to capture as booty, or prize of war, the same as any other property of that neutral, now an enemy, but it is not affected by the right of postliminy, By the principle of uti possidetis, which, as already stated, applies to every treaty of peace, unless otherwise specially stipulated, all captured property is tacitly conceded to the possessor, and, if recaptured in a subsequent war, it is subject to the laws of capture, but not to those of postliminy. Nevertheless, there are many cases where, the treaty of peace being silent, and the principle of uti possidetis not applicable, it is necessary to resort to the jus postliminii, in order to determine the true condition of things at the time of the treaty, or the moment they were freed from the pressure of the captor's force, as an enemy; in other words, whether, when the captor ceases to be an enemy, the thing captured legally becomes his property, or returns to the former owner. Hence, the very intimate connection between treaties of peace and the rights of postliminy.2

Recht der Kriegseroberung, pp. 40 et seq.; Bello, Derecho Internacional, cap. iv. § 8,

pt.

ii.

Vattel, Droit des Gens, liv. iii. ch. xiv. § 206; Kent, Com. on Am. Law, vol. i. p. 108; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. v.; Pando, Derecho Púb. Int., p. 409.

See ante, vol. i. ch. ix.; Phillimore, On Int. Law, vol. iii. § 539; Wheaton, Elem. Int. Law, pt. iv. ch. iv. § 4 ; the Purissima Concepcion, 6 Rob., 45; the 'Sophia,' 6 Rob., 138; Heffter, Droit International, § 188.