standing 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. (a)

In a land war, movable 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 favor 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 movable 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 rigor 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 * 111 restoration, on recaption, to cases where the property *had not been in possession of the enemy above twenty-four hours. This was the rule of the French ordinance of 1681; (b) but now the right is everywhere 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, (c) and therefore, a transfer to a neutral, before the peace, even without a judicial

(a) Vattel, b. 3, c. 14, sec. 212. Martens, b. 8, c. 3, sec. 11, 12.
(b) Liv. 3, tit. 9. Des Prises, art. 8.

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. (a) The title, in the hands of such a neutral, could not be defeated in favor 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. (b)

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 its 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 reward for the service they have per- 112 formed. (c) The maritime 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. (d) Great Britain seems to have no fixed rule as to the quantum of salvage on a foreign vessel in cases of recapture, and the rate of salvage in other nations of Europe is different, as allowed by different nations. (e) 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

(a) Schooner Sophie, 6 Rob. Rep. 138.

(b) The Purissima Conception, 6 Rob. Rep. 45. (c) 1 Chitty on Commercial Law, 435.

(d) The Santa Cruz, 1 Rob. Rep. 49.

(e) Wheaton on Captures, 245, 246, 297. vol. i. 435.

VOL. I.

11

Opinions of the Attorneys-General,

the recaption. The restitution is a matter not of strict right, after the property has been vested in the enemy, but one of favor and relaxation; and the belligerent recaptor has a right to annex a reasonable condition to his liberality. (a) 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 is 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. (b) 1

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 113 like circumstances. The statute continued the jus postliminii, until the property was divested by a sentence of condemnation, and no longer; and this was the rule adopted in the English courts, before the extension of the right of postliminy, by statutes, in the reigns of Geo. II. and Geo. III. (c)

Marshall on Ins. 474.. Doug. Rep. 648.
The Carlotta, 5 Rob. Rep. 54.

(a) The Two Friends, 1 Rob. Rep. 271.
(b) The War Onskan, 2 Rob. Rep. 299.
(c) Lord Mansfield, 2 Burr. Rep. 693, 1209.

L'Actif, 1 Edw. Adm Rep. 186.

1 Though private property may be taken by a military commander for public use, or to prevent its falling into the hands of the enemy, yet the danger must be imminent, and the necessity admitting of no delay. Mitchell v. Harmony, 1 Blatchford's R. 549. S. C. 13 How. U. S. 115.

LECTURE VI.

OF THE GENERAL RIGHTS AND DUTIES OF NEUTRAL NATIONS.

THE rights and duties which belong to a state of neutrality, form a very interesting title in the code of international law. They ought to be objects of particular study in this country, inasmuch as it is our true policy to cherish a spirit of peace, and to keep ourselves free from those political connections which would tend to draw us into the vortex of European contests. A nation that maintains a firm and scrupulously impartial neutrality, and commands the respect of all other nations by its prudence, justice, and good faith, has the best chance to preserve unimpaired the blessings of its commerce, the freedom of its institutions, and the prosperity of its resources. Belligerent nations are interested in the support of the just rights of neutrals, for the intercourse which is kept up by means of their commerce, contributes greatly to mitigate the evils of war. The public law of Europe has established the principle, that, in time of war, countries not parties to the war, nor interposing in it, shall not be materially affected by its action; but they shall be permitted to carry on their accustomed trade, under the few necessary restrictions which we shall hereafter consider.

Neutrals

*116

It belongs not to a common friend to judge between must be imthe belligerent parties, or to determine the question of partial. right between them. (a) The neutral is not to favor one of them to the detriment of the other; and it is an essential character of neutrality, to furnish no aids to one party, which the neutral is not equally ready to furnish to the other.(b) A nation which would be admitted to the privileges

(a) Bynk. 1. 1, c. 9. Burlamaqui, vol. ii. part 4, c. 5, sec. 16, 17.

(b) Mr. Manning, after referring to the practice of former times on the subject of foreign levies in neutral countries, and critically examining the reasoning of Vattel, justly concludes that foreign levies may not be allowed to one belligerent, while

of neutrality, must perform the duties it enjoins. Even a loan of money to one of the belligerent parties, is considered to be a violation of neutrality. (a) A fraudulent neutrality is no neutrality. But the neutral duty does not extend so far as to prohibit the fulfilment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to become an associate in the war.(b) If a nation be under a previous stipulation made in time of peace, to furnish a given number of ships or troops to one of the parties at war, the contract may be complied with, and the state of peace preserved, except so far as the auxiliary forces are concerned. The cantons of Switzerland have been accustomed to furnish such assistance to the other European powers. In 1788, Denmark furnished ships and troops to Russia, in her war with Sweden, in consequence of a previous treaty prescribing the amount; and this was declared by Denmark to be an act consistent with a spirit of amity and commercial intercourse with Sweden. It was answered by the latter in her counter declaration, that though she could not reconcile the practice with the law of nations, yet she embraced the Danish declaration, and confined her hostility, so far as Denmark was concerned, to the Danish auxiliaries furnished to Russia.(c) But, if a neutral power be under contract to furnish succors to one party, he is said not to be bound if his ally was the aggressor; and in this solitary instance the 117 neutral may examine into the merits of the war, so far as to see whether the casus fœderis exists. (d) An inquiry of this kind, instituted by the party to the contract, for the purpose

refused to his antagonist, consistently with the duties of neutrality, unless such an exclusive privilege was granted by treaty antecedent to the war. Manning's Commentaries, p. 180.

(a) Mr. Pickering's Letter to Messrs. Pinckney, Marshall, and Gerry, 2d of March, 1798. In Dewutz v. Hendricks, 9 Moore's C. B. Rep. 586, it was held to be contrary to the law of nations, for persons residing in England to enter into engagements to raise money, by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England, and no right of action attached upon any such contract.

(b) Vattel, b. 3, c. 6, sec. 99, 100, 101. Ib. c. 7, sec. 104, 105. Martens's Summary, b. 8, c. 5, sec. 9. Mr. Jefferson's Letter to Mr. Pinckney, September 7th, 1793. (c) New Ann. Reg. for 1788, tit. Public Papers, p. 99.

(d) Bynk. Q. J. Pub. b. 1, c. 9. Vattel, b. 2, c. 12, sec. 168.