§ 5. It is a general rule of international law, that allies in Postwar make but one party with the principal; the cause being regard to liminy in common, the rights and obligations are the same. It follows, allies therefore, that when persons and things belonging to one of the allies, which have been taken by the enemy, fall into the hands of another ally, they are subject to the rights of postliminy, and must be restored to their former condition. The recapture by an ally is regarded the same as a recapture by the principal, and vice versa. So, also, with respect to territory, persons and things brought within the territory of one ally are affected by the rights of postliminy precisely the same as if brought within the territory of their own sovereign. But, if the ally does not become an associate in the war, or a cobelligerent, and merely furnishes the succours stipulated by treaty, without coming to a rupture with the enemy, his dominions are regarded as neutral, and are governed by the laws of neutrality.

neutral

§ 6. The rights of postliminy, with respect to things, do not In a take effect in neutral countries, because the neutral is bound territory to consider every acquisition made by either party as a lawful acquisition, unless the capture itself is an infringement of his own neutral jurisdiction or rights. If one party were allowed in a neutral territory to enjoy the right of claiming goods taken by the other, it would be a departure from the duty of neutrality. Neutrals are bound to take notice of the military rights which possession gives, and which is the only evidence of right acquired by military force, as contradistinguished from civil rights and titles. The fact must be taken for the law. But with respect to persons, it takes effect, not only in the territory of the nation to which such persons belong, and in that of his allies, but also in a neutral country; so that if a belligerent brings his prisoners into a neutral territory he loses all control of them. So, if prisoners escape from their captors, and reach a neutral territory, they cannot be pursued and seized in such territory, and consequently are restored to their former condition. Prisoners of war who have given their parole may, or may not, claim the right of postliminy on reaching a neutral country, or coming again under the power of their own nation, according to the terms of their parole. If left entirely free to return to their own country, subject to certain stipulated conditions, such as not to serve again for a

Upon movables on land

certain period, or during the war, these conditions are not changed by recapture or rescue. But if they have only promised not to escape, or to remain within certain limits assigned to them, if they are rescued by their own party, or the place of their confinement falls into the hands of their own nation or its allies, they are released from their parole, and, by the right of postliminy, are restored to their former state. So if, by the incidents of the war, prisoners, not free to return to their own country, are brought into neutral territory, they are entitled to the benefit of that right. But it must be remembered, that prisoners brought into neutral ports on board a foreign ship of war, or any prize of hers, are not entitled to the right of postliminy, because such vessels in neutral ports have a right of extra-territoriality and such prisoners are not regarded as within neutral jurisdiction.1

§ 7. Naturally, property of all kinds is recoverable by the right of postliminy, and there is no intrinsic reason why movables should be excepted from the rule. Such, indeed, was the ancient practice, and by the jus postliminii of the Romans, certain articles, on being recovered from the enemy, were required to be restored to their former owners. But the difficulty of recognising things of this nature with any degree of certainty, and the endless disputes which would spring from a revendication of them, have introduced a contrary practice in modern times; and the title of the former owner to all booty is considered as completely divested by the captor, by a deductio in locum tutum, or by deductio infra præsidia, or by assignment to a neutral, or by a firm possession of the captor of twenty-four hours. Some apply the same rule to cases of prize, while others require the sentence of a competent court.

Upon real § 8. Real property is easily identified, and is not of a tranproperty sitory nature; it is, therefore, considered to be completely within the right of postliminy. The rule, however, cannot be frequently applied to the case of mere private property, which, by the general rule of modern nations, is exempt from

1 Wheaton, Elem. Int. Law, pt. iv. ch. iv. § 4; Vattel, Droit des Gens, liv. iii. ch. vii. § 132; ch. xiv. §§ 208, 210; Bynkershoek, Quæst. Jur. Pub., lib. i. caps. xv. xvi. ; Duponceau, Translation of Bynkershoek, note, pp. 116, 117; Cushing, Opinions of U.S. Attys.-Gen., vol. vii. p. 123; Bello, Derecho Internacional, pt. ii. cap. iv. § 8; Heffter, Droit International, §§ 189, 190; the 'Purissima Concepcion,' 6 Rob., 45; the ‘Amistad de Rues,' 5 Wheat. R., 390.

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 completealienations of the public domain will not be annulled, even though the former sovereign should be restored.'

1 Vattel, Droit des Gens, liv. iii. ch. xiv. § 212; Kent, Com. on Am. Law, vol. i. pp. 108, 109; Lieber, Political Ethics, b. ii. § 86; Phillimore, On Int. Law, vol. iii. §§ 406, 539–574, 583; vide ante, chapters xxxiii. and

χχχίν.

The courts of the United States have determined, that grants of territory made by Great Britain, after the Declaration of Independence, are invalid. In the case of Harcourt v. Gaillard (7 Curtis R., 332), concerning a piece of land, lying between the Mississippi and Chatahouchee rivers and granted under the above circumstances, it was laid down by the Supreme Court as follows:-'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

Upon towns and

provinces

§ 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 war, has never been divested. The places which are reconquered or restored therefore return to him with the rights and privileges which they would have possessed if they had never fallen into the power of the enemy. 'The conqueror,' says Calvo, 'who only occupies a territory, does not thereby become its sovereign, and in consequence has neither the right of alienating its public domain, nor of contracting engagements in its name. His rights are

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 right 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 question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails can only derive validity from treaty stipulations. It is not necessary here to consider the rights of the conqueror in the case of actual conquest, since the views previously presented put the acquisition of such rights out of this case.'

limited to the exercise alone of that authority which is required for military operations. This doctrine appears to have prevailed at the close of the last war between France and Prussia, 1871. The Prussians had entered into contracts with certain persons to permit them to cut wood in the French public forests, notably in those near Nancy. Some of these fellings not having been made when the treaty of peace was signed, the above persons, who had paid the price of their wood in vance to the German authorities, claimed that their contracts were still valid and obligatory as against France, and that they were at liberty to continue their fellings. The French government refused to allow the work to be continued; and it was specially declared, with the assent of Germany, on December 11, 1871, in an additional article to the treaty of peace, that France did not recognise the contracts as of legal value or binding force, and repudiated all responsibility, pecuniary or otherwise, that the above parties might desire to throw on her.''

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. 1 Calvo, On Int. Law, tome ii. § 1324.