If a State be en But in whatsoever way the conquest is complet uit 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 chapters xxxiii. and xxxiv.1 § 10. A State is sometimes entirely subjugated and its tirely sub- personality extinguished by a compulsory incorporation into jugated 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 recognised, 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 deliverance be effected by an ally, the duty of 1 Heffter, Droit International, § 188; Chitty, Law of Nations, pp. 95, 96; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. xvi.; Bello, Derecho Internacional, pt. ii. cap. iv. § 8; Rayneval, Inst. du Droit Nat., liv. iii. ch. xviii. 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 re-establishment 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.' 1814 § 11. The history of Genoa furnishes an illustration of Case of this principle. The ancient republic of Genoa had been sub- Genoa in verted, 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 April 26, 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 recognised 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 re-established.' Nevertheless, by the second article of the treaty of Paris, of May 30, 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 guarantee of its independence contained in the treaty of Aix-la-Chapelle, 1745. The conduct of England was severely censured in Parliament at the time, and has since been condemned by publicists generally.* 1 Puffendorf, De Jure Nat. et Gent., lib. viii. cap. vi. § 26. 2 Wheaton, Hist. Law of Nations, pp. 487, 488; Kluber, Acten des Wiener Congresses, b. vii. §§ 420-433; Mackintosh, Miscell. Works, pp. 508-524; Alison, Hist. of Europe, vol. iv. pp. 370, 503; Rotteck, Hist. of the World, vol. iv. p. 248; Annual Register, 1814, p. 191; Hansard, Parliamentary Debates, vol. xxx. pp. 894 et seq. Application of post mar.time captures § 12. Having considered the law of postliminy applicable to the retaking of movable and immovable property captured lininy to 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, by their municipal laws, 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 textwriters 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.' 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 12; Bello, Derecho Internacional, pt. ii. cap. v. § 6; Heffter, Droit International, § 191; Hautefeuille, Des Nations Neutres, tit. xiii. ch. iii.; Jouffroy, Droit Maritime, p. 313; Poehls, Seerecht, &c., b. iv. §§ 509 et seq.; Kaltenborn, Seerecht, &c., b. iii. p. 378; Dalloz, Répertoire, verb. Prises Maritimes,' § 3; Pistoye et Duverdy, Des Prises, tit. viii. ་ There is one species of recapture from the enemy which vests the whole interests in the recaptors-viz. when an enemy's ship, taken originally by one English vessel, and lost again to an enemy's cruiser, is subsequently recaptured by another English vessel. (Note to the 'John and Jane,' 4 Rob., 217.) By virtue of 7 Edw. IV., c. 14, a recaptured vessel belonged neither to the king, the admiral, nor the former owners, but to the recaptors (Weston's case, 2 Brownl., 11), unless the owner claimed it on the day on which it was retaken, and ante occasum solis (Jenk., 201; Pl., 22). So also as to recaptured ships, the property of allies of Great Britain, and retaken by British subjects from a common enemy. (Ibid.) If a ship be taken by letters of marque, and be not brought infra præsidia of that State by whose subjects it was taken, it is no lawful prize, and the property is not altered, and therefore a sale in such a case is void. (Anon., 6 Vin. Abr., 519.) It was not essential, to constitute a capture, or such a one as to give occasion to a recapture under the former Prize Acts of Great Britain, that the enemy should have taken actual possession. (The 'Edward and Mary,' 3 Rob., 305.) In questions of restitution of property recaptured, the onus probandi in the first instance lies on the recaptors, to show the absence of recipro city as to restitution, by the laws of the claimant's country, but on primá facie evidence being shown by the recaptors, the onus of proof of reciprocity shifts to the claimant. (The 'Santa Cruz,' 1 Rob., 60.) In a cause of possession, at the suit of the former British owner of a writers § 13. It is remarkable that of all the ancient codes of Textmaritime law—the Consolato del Mare, the Rôle des Juge- and prize ments d'Oleron, the Laws of Wilsby, the ancient Statutes of courts Hamburg, Lübeck, Bremen, and the Hanse Towns-the Consolato del Mare alone deals with the case of recaptures. The doctrine of perductio infra præsidia, 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 Barbeyrac, and the whole subject has been most ably discussed by Bynkershoek. Nevertheless, it was left unsettled whether the right of postliminy should apply to all maritime recaptures, or only to ships; whether they must be taken infra præsidia of the captor, or whether the bringing infra præsidia of a neutral was sufficient to change the property; moreover, it was often a matter of dispute what should be understood by the phrase infra præsidia. This state of the question led to various treaty stipulations and municipal statutes, by which the subject of recapture was regulated with respect to the contracting parties. and their own subjects; and with respect to countries with which the recaptor had no treaty in relation to the application. of postliminy to such cases, the courts,have sometimes adopted the rule of reciprocity. Sir William Scott considers this the most liberal and rational rule which can be applied. To the recaptured,' he says, 'it presents his own consent, bound up in the legislative wisdom of his own country; to the recaptor, it cannot be considered as injurious, where the rule of the recaptured would condemn, whilst the rule of the recaptor prevailvessel which had been captured by the French, and carried into a port of Spain, then an ally of the French, where she was condemned by the prize tribunal at Paris, but was afterwards seized by Spain on becoming an eneiny of France, and sold, it was held, on proof of such first sale, that the right of the former British owner was divested, and that the Spanish seizure was not in the nature of a recapture enuring to the benefit of the former British. owner. (The Victoria,' Edw., 97.) Where a British vessel has been seized in a French port for an asserted violation of French municipal laws, condemned, and sold under that sentence to a French merchant, and afterwards recaptured on the breaking out of a war between France and England, it was held that it could not be restored on salvage to the former British proprietor: the restitution to the former owner mentioned in the Prize Act being confined to property taken by the enemy as prize. (The 'Jeune Voyageur,' 5 Rob., 1.) The French Prize Court decided in 1802 that a belligerent is not bound to accept any notification of the cessation of hostilities, unless it be communicated to him by his own government. See the Swineherd,' Merlin, Répert. de Jurisprudence, vol. xiii. p. 183. Regulated treaty stipula tions ing amongst his own countrymen, would restore, it brings an obvious advantage; and even in case of immediate restitution, under the rules of the recaptured, the recapturing country would rest secure in the reliance of receiving reciprocal justice in its turn. It may be said, what if this reliance should be disappointed? Redress must then be sought for retaliation, which, in the disputes of independent States, is not to be considered as vindictive retaliation, but as the just and equal measure of civil retribution. This will be their ultimate security, and it is a security sufficient to warrant the trust. For the transactions of States cannot be balanced by minute arithmetic; something must, on all occasions, be hazarded on just and liberal presumption.' 1 § 14. Every power is obliged to conform to the law of nations, in part by relative to postliminy, where the interests of neutrals are concerned, unless otherwise regulated by treaty stipulations. But such conventions or treaty stipulations establish a factitious right, which relates only to the contracting parties, and cannot bind others. So, with respect to allies, two allies may enter into an agreement by which the rights of postliminy may be restricted or extended, as between themselves, but such agreement can in no way affect the rights of postliminy of the third co-ally, who is not a party to it. His rights and duties in that respect are governed and regulated by the rules of postliminy, which are recognised and established by the law of nations. But, in many cases, as already remarked, there is no recognised and well-established rule of international law, which can be applied. So of municipal laws, they may modify the right of postliminy in its application to cases arising between the subjects of the same belligerent State, but they cannot change it so as to prejudice the absolute rights of citizens of other States, whether allies or neutrals. In other words, municipal statutes cannot deprive the subject of an ally of the benefit of postliminy, in case of recapture, nor take from the subject of a neutral State what he holds by a title, which is regarded as valid by the law of nations. They may, however, give to both certain benefits of postliminy, which they could not claim under the well-established principles of the law of nations as absolute rights. Such has been the 'The 'Santa Cruz,' 1 Rob., 63; Goss et al. v. Withers, 2 Bur. R., 693 ; Loccenius, De Jure Maritimo, lib. ii. cap. iv. |