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ations of the public domain will not be annulled, even though the former sovereign should be restored.1

§ 9. Towns, provinces, and territories, which are retaken from the conqueror during the war, or which are restored to their former sovereign by the treaty of peace, are entitled to the right of postliminy, and the original sovereign owner on recovering his dominion over them, whether by force of arms

1 Vattel, Droit des Gens, liv. iii. ch. xiv. § 212; Kent, Com. on Am. Law, vol. i. pp. 108, 109; Leiber, Political Ethics, b. ii. § 86; Phillimore, On Int. Law, vol. iii. §§ 406, 539-574, 583; vide ante, chapters xxxiii. and xxxiv.

The courts of the United States have determined, that grants of territory made by Great Britain, after the Declaration of Independence, are invalid. In the case of Harcourt v. Gaillard (7 Curtis R.,332), concerning a piece of land, lying between the Mississippi and Chatahouchee rivers and granted under the above circumstances, it was laid down by the Supreme Court, as follows :-Two questions here occur: first, whether this separation had taken effect by any valid act; and, secondly, if it had, whether it made any difference in the case upon international principles. On both these points we are of opinion that the law is against the validity of this grant. It is true that the power of the Crown was at that time admitted to be very absolute over the limits of the royal provinces; but there is no reason to believe that it had ever been exercised by any means less solemn and notorious than a public proclamation. And although the instrument by which Georgia claimed an extension of her limits to the northern boundary of that territory was of no more authority or solemnity than that by which it was supposed to have been taken from her, it was otherwise with South Carolina. Her territory had been extended to that limit by a solemn grant from the Crown, to the lords proprietors, from whom, in fact, she had wrested it by a revolution, even before the right of the proprietors had been bought out by the Crown. But this is not the material fact in the case; it is this: that this limit was claimed and asserted by both of those States in the Declaration of Independence, and the right to it was established by the most solemn of all international acts, the treaty of peace. It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by that treaty. It has been viewed only as a recognition of pre-existing rights, and on that principle the soil and sovereignty within their acknowledged limits were as much theirs at the Declaration of Independence as at this hour. By reference to the treaty, it will be found that it amounts to a simple recognition of the independence, and the limits of the United States, without any language purporting a cession or relinquishment of right on the part of Great Britain. In the last article of the Treaty of Ghent will be found a provision respecting grants of land made in the islands then in dispute between the two States, which affords an illustration of this doctrine. By that article, a stipulation is made in favour of grants before the war, but none for those which were made during the war; and such is unquestionably the law of nations. War is a suit prosecuted by the sword, and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails can only derive validity from treaty stipulations. It is not necessary here to consider the rights of the conqueror in the case of actual conquest, since the views previously presented put the acquisition of such rights out of this case.'

or by treaty, is bound to restore them to their former state. In other words, he acquires no new rights over them either by the act of recapture or of restoration. The conqueror loses the rights which he had acquired by force of arms; but those rights are not transferred to the former sovereign, who resumes his dominion over them precisely the same as though the war had never occurred. He rules, not by a newly acquired title, which relates back to any former period, but by his ancient title, which, in contemplation of war, has never been divested. The places which are reconquered or restored therefore return to him with the rights and privileges which they would have possessed if they had never fallen into the power of the enemy. But if the conquered provinces and places are confirmed to the conqueror by the treaty of peace, or otherwise, they can claim no right of postliminy. Their condition is established by the rights of conquest, and the will of the conqueror. The right or title of the new sovereign is not that of the original possessor, and therefore is not subject to the same limitation or restriction. It had its origin in force, and is confirmed by treaty, incorporation, length of possession, or otherwise. It dates back to the actual conquest, but not to any period anterior to the conquest. The relations between the conquered and the conqueror are therefore very different from those which existed between the conquered and their former sovereign. They have, in their new condition, such rights only as belong to them by the general law of nations, and the stipulations of the treaty of cession, or such others as may be given to them by the will of the conqueror. If, however, the provinces and places have not themselves been considered as having been in a hostile attitude to the conqueror, he is regarded as merely replacing the former sovereign in his rights over them. They are regarded as acquired by conquest, rather than as actually conquered, and, in such cases, the acquisition or change of sovereignty is not usually attended by loss of rights. But in whatsoever way the conquest is completed, it 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 the preceding chapters.'

§ 10. A State is sometimes entirely subjugated and its personality extinguished by a compulsory incorporation into 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 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 restora

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.; Wheaton, Elem. Int. Law, pt. i. ch. ii. § 18; pt. iv. ch. ii. § 16; vide ante, chapters xxxiii. and xxxiv.

tion 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.'

§ II. The history of Genoa furnishes an illustration of this principle. The ancient republic of Genoa had been subverted, 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 the 26th of April, 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 the 30th of May, 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.2

12. Having considered the law of postliminy applicable to the retaking of movable and immovable property captured 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

1 Puffendorf, De Jur. 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, Miscel. 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.

of the time when the title of the original proprietor is completely divested. If all nations had 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 text-writers 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

§ 13. It is remarkable, says Phillimore, that of all the ancient codes of maritime law,-the Consolato del Mare, the Rôle des Judgemens d'Oleron, the Laws of Wilsby, the ancient Statutes of Hamburg, Lubeck, 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

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 12; the 'Santa Cruz,' ! Rob., 58; 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, etc., b. iv. §§ 509 et seq.; Kaltenborn, Seerecht, etc., b. iii. p. 378; Dalloz, Répertoire, verb. Prises Maritimes, § 3; Pistoye et Duverdy, Des Prises, tit. vii.

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 & 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 primâ facie evidence being shown by the recaptors, the onus of proof of reciprocity shifts to the claimant.-The 'Santa Cruz,' 1 Rob., 60.

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