capture it from the enemy have a right to the property, it Such are the opinions of the text-writers on the operation of the law of Postliminium; but, with regard to maritime captures, a great number of different regulations have been made by different states, for the conduct of their own subjects; and many treaties have included articles guaranteeing a reciprocity of favourable treatment respecting recaptures. Almost all these regulations decree restitution to the original owner, upon the payment of a certain salvage to the recaptor; and this salvage varies continually in different instruments, but generally depends partly upon the length of time during which the enemy has possessed the prize, and partly upon whether the recapture has been made by a privateer, or by a ship of war belonging to the government. By the French ordinance of 1584, if a French ship were retaken before she had been twenty-four hours in the enemy's possession, she was to be restored to the original owners, on payment of one-third of the value to the recaptors; but if she had been twenty-four hours in the enemy's possession, the whole prize was to belong to the recaptors. (4) The (1) Quæst. Jur. Pub. lib. I. C. V. (2) Droit des Gens. liv. III. ch. XIV. § 209, 212. (3) Précis, liv. VIII. ch. IV. $283. (4) Robinson's Collectanea Maritima, p. 116. Different regulations on this subject in different countries. Our own practice. same regulation is made in the French ordinance of 1681,(1) and in that of 1779; (2) and the same, varying amount of salvage, is agreed to be paid for ships and cargo of either party, recaptured by the other, in the treaty between France and the United Provinces in 1781: (3) such is also the regulation for salvage on recaptures in the treaty between the United States and United Provinces, in 1782, provided the recapture was made by privateers, but if recaptured by the vessels of war of either of the contracting parties, then one-thirtieth of the value of the ship and cargo was to be paid, if the recapture took place within twenty-four hours, and one-tenth if the enemy had had possession for that period. (4) The same agreement was made in the treaty between the United States and Sweden, in 1783; (5) in that between the United States and Prussia, in 1785; (6) and in that between Great Britain and France, in 1786. (7) By the treaty between the United States and Prussia, in 1799, if a ship were recaptured" before being carried into a neutral or enemy's port," one-eighth of the value of the ship and cargo was to be paid to the recaptor, if a ship of war, or one-sixth, if a privateer. (8) By the ordinance of the King of Denmark, in 1810, the recaptor of Danish property was to have one-third of the value of ship and cargo, whether the prize had been more or less than twenty-four hours in the enemy's possession: neutral ships recaptured by Danish vessels, to be restored on payment of a "just compensation." (9) Thus it will be seen that no general rule obtains regarding Postliminium, different states having different regulations on the subject; and as it is a question which (1) Valin, liv. III. tit. 1x. (2) De Martens, Rec. III. 128. (4) Id. 463, 465. (5) Id. 574. (6) Id. iv. 46. (7) Id. 175. (8) Id. vi. 686. (9) Id. Supp. v. 497. concerns members of the same state, rather than subjects of different states, its details belong to municipal law rather than to the law of nations. In our own country, property captured at sea and afterwards recaptured, is restored to the original proprietors upon payment of salvage, however long it has been in possession of the enemy, and whether it has been regularly condemned or not. But peace extinguishes all right to claim captured property, whether condemned in a prize-court or not, as the right of Postliminium only exists during war. (1) (1) Vattel, Droit des Gens. liv. III. ch. xiv. § 216. CHAPTER VII. Greater cruelty in modern warfare. OF THE RIGHTS OF WAR WITH REGARD TO THE PERSON OF THE ENEMY. IN no part of the law of nations do we perceive more in ancient than forcibly the advance which civilization has produced in morality, than in the diminished cruelty which marks the usages of modern warfare. But it is not only civilization, but Christianity, which has produced this improvement, for it is to the influence of this religion that we must attribute the spread of those correct rules for human intercourse, which are proclaimed by its doctrines, and enforced by its revelations. This will appear evident from remarking how, with all our reasons for desiring a more frequent reference to moral responsibility, the influence of Christianity has placed us, in our social and international relations, far beyond the condition of the classic nations of antiquity, even at the most refined periods of their history, when they were bequeathing to us creations of art, which later ages regard as the guides of criticism rather than its objects, and which alternately animate the student by their beauty, and discourage him by their unapproachable merit. Grecian and Roman warfare. The practice of the Grecian states was more cruel than that of the Romans; their occasional slaughter of their prisoners, their executing the ambassadors sent to them by an enemy, and killing the crews of merchant vessels captured in war, were not imitated by the Romans, whose fecial college preserved them from such enormities; although the barbarous gratification of their triumphs partook more of the exultation of a savage over a fallen enemy, than of the generous treatment that might have been expected from warriors such as the Romans. northern The northern swarms who overran the Empire were And of the destitute of any trace of respect for humanity, and pur-horr sued the horrors of war to their fullest extent; ignorant of any moral law to restrain their cruelty, and animated by a brutalizing religion, which inflamed, instead of mitigating, their ferocity. Under the feudal system, the influence of chivalry was Cruelty of the manifested in the introduction of a more generous prac- chivalry. days of tice into the usages of warfare; but this was principally the case in the intercourse of the knights with each other; and they who have had their ideas of the days of chivalry coloured by those beautiful romances which so engross us by imagination as to leave the judgment for a time inactive, will find, with surprise and regret, that that æra of heroic virtues was also marked by cruelties that are hardly surpassed in the warfare of savages. What will the admirers of the days of chivalry think of its being the custom of warfare to execute captives in the sight of a besieged town, in order to terrify their comrades into submission?—yet this was done by the hero of Agincourt: or of executing, in cold blood, the garrison of towns that defended themselves bravely?-yet this was done by that favourite of romance, our Richard I.; or of hanging all who attempted to succour a place besieged?— as was done by the Duke of Burgundy, Charles the Bold. Nor were these solitary instances of barbarity; but appear to have been the usual custom of the times, and to have continued in use till nearly the sixteenth century. Poisoned arms were also occasionally used, and wells and fountains were poisoned, and the barbarous practice of L |