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is a principle of the law of nations, that a capture by pirates does not, like a capture by an enemy in solemn war, change the title, or divest the original owner of his right to the property, and it does not require the doctrine of postliminy to restore it. In France, property may be reclaimed by the owner within a year and a day; but in some other countries (and Grotius mentions Spain and Venice) the rule formerly was, that the whole property recaptured from pirates went to the retaker, and this rule was founded on the consideration of the desperate nature of the recovery.
The jus postliminii was a fiction of the Roman law, by which persons or things taken by the enemy were restored to their former state, upon coming again under the power of the nation to which they formerly belonged. Postliminium fingit eum qui captus est, in civitate semper fuisse. It is a right recognised by the law of nations, and contributes essentially to mitigate the calamities of war. When, therefore, property taken by the enemy is either recaptured or rescued from him, by the fellow subjects or allies of the original owner, it does not become the property of the recaptor or rescuer, as if it had been a new prize, but it is restored to the original owner, by right of postliminy, upon certain terms. Moveables are not entitled, by the strict rules of the laws of nations, to the full benefit of postliminy, unless retaken from the enemy promptly after the capture, for then the original owner neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them. Real property is easily identified, and therefore, more completely within the right of postliminy; and the reason for a stricter limitation of it in respect to personal property arises from its transitory nature, and the difficulty of identifying it, and the consequent presumption that the original owner had abandoned the hope of reco
a Grotius, b. 3. c. 9. sec. 16, 17.
c Inst. 1. 12. 5.
Bynk. Q. J. P. c. 15 and 17.
109 very. This right does not take effect in neutral countries, because the neutral nation is bound to consider the war on each side as equally just, so far as relates to its effects, and to look upon every acquisition made by either party, as a lawful acquisition; with the exception of cases where the capture itself is an infringement of the jurisdiction or rights of the neutral power. If one party was 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. The right of postliminy takes place, therefore, only within the territories of the nation of the captor, or of his ally; and if a prize be brought into a neutral port by the captors, it does not return to the former owner by the law of postliminy, because neutrals are bound to take notice of the military right which possession gives, and which is the only evidence of right acquired by military force, as contradistinguished from civil rights and titles. They are bound to take the fact for the law. Strictly speaking, there is no such thing as a marine tort between belligerents. All captures are to be deemed lawful, and they have never been held within the cognizance of the prize tribunals of neutral nations. With respect to persons, the right of postliminy takes place even in a neutral country, so that if a captor brings his prisoners into a neutral port, he may, perhaps, confine them on board his ship, as being, by fiction of law, part of the territory of his sovereign, but he has no control over them on shore.e
a Vattel, b. 3. c. 14. sec. 209.
b McDonough v. Daunery, 3 Dallas, 188. 198. The Josefa Segunda, 5 Wheaton, 338. 358. See also post, p. 121.
c Vattel, b. 3. c.14. sec. 207, 208.
d L'Amistad de Rues, Wheaton, 390.
e Vallel, b. 3. c. 7. sec. 132. Bynk. by Duponceau, p. 116, 117. notes. Austrian Ord. of Neutrality, August 7th, 1803, art. 19. By one of the provisions of a commercial treaty betwen Carthage and Rome, in the earliest period of the Roman republic, soon after the
In respect to real property, the acquisition by the conqueror is not fully consummated until confirmed by the treaty of peace, or by the entire submission or destruction of the state to which it belonged. If it be recovered by the original sovereign, it returns to the former proprietor, notwithstanding it may, in the mean time, have been transferred by purchase. The purchaser is understood to have taken the property at the hazard of a recovery or reconquest before the end of the war. But if the real property, as a town or portion of the territory, for instance, be ceded to the conqueror by the treaty of peace, the right of postliminy is gone for ever, and a previous alienation by the conqueror would be valid.
In a land war, moveable property, after it has been in complete possession of the enemy for twenty-four hours, (and which goes by the name of booty, and not prize,) becomes absolutely his, without any right of postliminy in favour of the original owner; and much more ought this species of property to be protected from the operation of the rule of postliminy, when it has not only passed into the complete possession of the enemy, but been bona fide transferred to a neutral. By the ancient and strict doctrine of the law of nations, captures at sea fell under the same rule as other moveable property, taken on land, and goods so taken were not recoverable by the original owner from the rescuer or retaker. But the municipal regulations of most states, have softened the rigour of the law of nations on this point, by an equitable extension of the right of postliminy, as against a recaption by their own subjects. The ordinances of several of the continental powers confined the right of restoration, on recaption, to cases where the pro
expedition of Tarquin, it was stipulated, that if either party should bring into the ports of the other, prisoners taken from an ally, the prisoners might be reclaimed and set free. Polybius, b. 3. c. 3.
a Vattel, b. 3. c. 14. sec. 212. Marlens, b. 8. c. 3. sec. 11, 12. b 2 Dodson's Adm. 446.
perty had not been in possession of the enemy above twenty-four hours. This was the rule of the French ordinance of 1681, but now the right is every where understood to continue until sentence of condemnation, and no longer.
It is also a rule on this subject, that if a treaty of peace makes no particular provisions relative to captured property, it remains in the same condition in which the treaty finds it, and it is tacitly conceded to the possessor. The right of postliminy no longer exists, after the conclusion of the peace. It is a right which belongs exclusively to a state of war, and, therefore, a transfer to a neutral, before the peace, even without a judicial sentence of condemnation, is valid, if there has been no recovery or recaption before the peace. The intervention of peace cures all defects of title, and vests a lawful possession in the neutral, equally as the title of the enemy captor himself is quieted by the intervention of peace. The title, in the hands of such a neutral, could not be defeated in favour of the original owner, even by his subsequently becoming an enemy. It would only be liable, with his other property, to be seized as prize of war.d
Every power is obliged to conform to these rules of the law of nations relative to postliminy, where the interests of neutrals are concerned. But in cases arising between her own subjects, or between them and those of her allies, the principle may undergo such modifications as policy dictates. Thus, by several English statutes, the maritime right of postliminy, as among English subjects, subsists to the end of the war; and, therefore, ships or goods, captured at sea by an enemy, and retaken at any period during the war, and whether before or after sentence of condemnation, are to be restored to the original proprietor, on securing to the recaptors certain rates of salvage, as a compensation or re
a Liv. 3. tit. 9. Des Prizes, art. 3.
b Vattel, b. 3. c. 14. sec. 216.
c Schooner Sophie, 6 Rob. 138.
d The Purissima Conception, 6 Rob. 45.
ward for the service they have performed. law of England gives the benefit of this liberal rule of restitution, with respect to the recaptured property of her own subjects, to her allies, unless it appears that they act on a less liberal principle, and then it treats them according to their own measure of justice. The allotment of salvage, on recapture or rescue, is a question not of municipal law merely, except as to the particular rates of it. It is a question of the jus gentium, when the subjects of allies or neutral states claim the benefit of the recaption. tion is a matter not of strict right, after the property has been vested in the enemy, but one of favour and relaxation; and the belligerent recaptor has a right to annex a reasonable condition to his liberality. Neutral property, retaken from the enemy, is usually restored, without the payment of any salvage, unless, from the nature of the case, or the usages of the enemy, there was a probability that the property would have been condemned, if carried into the enemy's ports, and, in that case, a reasonable salvage ought to be allowed, for a benefit has been conferred.d
The United States, by the act of Congress of 3d March, 1800, directed restoration of captured property, at sea, to the foreign and friendly owner, on the payment of reasonable salvage; but the act was not to apply when the property had been condemned as prize by a competent court, before recapture; nor when the foreign government would not restore the goods or vessels of the citizens of the United States, under the like circumstances. The statute continu
a 1 Chitty on Commercial Law, 435.
b The Santa Cruz, 1 Rob. 49.
c The Two Friends, 1 Rob. 271.
Marshall on Ins. 474. Doug. 648.
d The War Onskan, 2 Rob. 299. The Carlotta, 5 Rob. 54.