§ 28. When the Allied powers of Europe overthrew the dynasty of Napoleon, and restored to the countries which he had subdued, their legitimate sovereigns, no general provision was made in the peace of Paris for the protection of rights acquired under the de facto rulers, (the amnesty provided for in the 27th article being limited in its extent,) nevertheless, reason, good sense, and the law of nations, were generally allowed to prevail, and rights and titles so acquired were left undisturbed. The only exceptions were confined to one or two small German States, and these were considered as most discreditable to the petty sovereigns who made them. The most noted of these was the Prince of Hesse-Cassel, who was driven from the Electorate in 1806, and not restored till about the beginning of 1814. His country had remained about a year under the military government of Napoleon, and was then incorporated into the newly formed kingdom of Westphalia, of which Jerome Bonaparte was recognised as king, by the peaces of Tilsit and Schönbrunn. On his return to his hereditary dominions, in 1814, the prince refused to recognise the validity of the alienations of the domains of his country, which had taken place under the de facto governments, since his expulsion, in October, 1806; the purchasers of these lands were deprived of their possessions which they had purchased and paid for in good faith, and which had been delivered to them with every formality of law. The supreme

East India Company, 7 Jur. (N.S.) 350. See, also, the Secretary of State for India v. Kamachee Boye Sahaba, 7 Moo. Ind. App. Cas., 476.

An ordinance was made by the Government of Denmark in 1817, pending hostilities with Great Britain, whereby all ships, goods, money, and money's worth, of or belonging to the English subjects, were declared to be sequestrated and detained, and all persons were commanded, within three days, to transmit an account of debts, due to English subjects, in default of which, they were to be proceeded against in the Exchequer ; in consequence of this a suit then depending in the Danish Court, for recovering a debt due from a Danish to a British subject, was not further prosecuted, and the debt was afterwards paid by the Danish subject, at the rate specified by the ordinance, to commissioners appointed in virtue of the ordinance to receive payment, upon production of whose receipt the Danish Court quashed the suit. This was held, in the British Court of King's Bench, to be no answer to an action against the Danish subject, to recover the same debt in the courts of Great Britain, for the ordinance not being conformable to the usage of nations was held to be void.-G. Wolff and others v. Oxholm, 6 Man. and Selw., 92. The famous question of Alexander and the 100 talents of the Thebans, quoted by Quintilian, lib. v. ch. x., is discussed in this case. See also Recueil d'Arrêts notables des Cours Souveraines de France, by Johan Pepon, Paris, 1601, 4to.

court of appeal, in Cassel, was stopped by an inhibitorium from taking cognizance of the matter, and the unfortunate proprietors were, in some instances, driven from their possessions by a troop of the Elector's hussars. They appealed in vain for protection to the Congress of Vienna; Prussia, through the mouth of her chancellor, Prince von Hardenberg, declared in their favour; but the other nations represented in that Congress, gave no heed to the complaints made against a prince whom they had just restored to power. Resort was then had to the German Confederation, but this modern Amphictyonic assembly either could not, or would not, interfere between a sovereign prince and his own subjects. Public jurists, however, have not failed to condemn the conduct of the Elector, as contrary to law and justice. His pretext for denying the validity of these alienations was mainly founded upon the 'lex de captivis et postliminio' of the Roman law; but it was readily shown that this law could not be applied directly, and that the argument deduced from its analogy was adverse to his position. He virtually acknowledged the weakness of his case, by refusing to arbitrate the question, or even to permit his own courts to take cognizance of it.'

$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

1 Phillimore, On Int. Law, vol. iii. §§ 573, 574; Pfeiffer, Das Recht der Kriegseroberung, p. 237; Schweikart, Napoleon und die Ćurh., pp. 60, et seq.; Rotteck und Welcker, Staats-Lexicon, verb. Domainenkäufer; Conversations-Lexicon, verb. Domainenverkauf; Koch, Hist. de Traités de Paix, tome iii. p. 364; Encyclopædia Americana, verb. Domain, Digest

xlix. t. xv. 12, 3.

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 the 15th of June, 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 the law. 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 pay ment 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 actualy 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 Bresla 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. It will be noticed that this decision virtually confirms the validity of the alienation of domains made by the de facto governments of the conquests of Napoleon.1

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

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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 and U. S.-16. Setting forth as a vessel of war—17. Laws of France, Spain, and other 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. Where 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.

§ I. 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