CHAPTER III. WHERE, HOW, AND UNDER WHAT LIMITATIONS THE DOCTRINE OF POSTLIMINIUM MAY BE APPLIED TO STATES AND THE SUBJECTS OF STATES ON THE RETURN OF PEACE. DXXXIX. WHERE the Treaty of Peace is silent, containing no express or implied provision concerning rights or property which have undergone a de facto change during the vicissitudes of War, some rules of justice must be applied, when the War is over, to settle the condition of these rights or this property, whether they appertain to a nation or an individual subject. These rules belong to the category of Postliminium (a), a name which has, ever since its introduction into the Roman Law, obtained universally in Public and International Jurisprudence. It is true that, strictly speaking, the name itself appertains to a state of War; but the principle, which the doctrine conveys, is applicable to the state of things now under our consideration. For the doctrine of Postliminium applies to personal status, to property, and to obligations, and says, in its general language, that these, being de facto freed from the pressure of the enemy's force, shall return to the channels in which they flowed before they were by the pressure of (a) Vide antè, vol. i. pp. 301, 337, 338. Heffters, s. 187. Dig. xlix. t. xv. De Captivis, et de Postliminio, et Redemptis ab Hostibus. Voet. t. iv. p. 642, upon Dig. xlix. t. xv. that force diverted from them. The principle upon which the doctrine rests is, that rights duly acquired cannot be permanently taken away, either by the act of an individual or by the act of an enemy State, without the consent of the State, to which the original owner belongs. It is true that the provisions in the Roman Law upon this subject are applied, almost exclusively, to the question of Private Rights; but, as has been often before observed in the course of this work, the principles of natural justice embodied in the Roman Law are applicable to States, as well as to individuals, in their intercourse with each other (b). DXL. Having made these general observations as to the effect of the doctrine of Postliminium upon the property of the State after the conclusion of a War, and in the absence of any express stipulations in the Treaty of Peace, it becomes necessary to examine the subject a little further as to its practical application. It is a subject which has undergone at different periods, both of modern and ancient history, much discussion, and elicited a variety of opinions. An examination of these opinions seems to demonstrate that there has been too often a want of clearness and discrimination upon two cardinal points. 1. As to the distinction which exists between the question considered as a matter of Public, and considered as a matter of International Law, or, in other words, between the subjects and the government of the same State, and between the government of one State and the subjects or the government of another State. 2. As to the distinction which exists between (a) the effect of a simple conquest or the acts of a conqueror; and (B) the effect of an interregnum (c) or the acts of a de facto Sovereign. (b) Vol. i. § xxxvi. (c) Pfeiffer: In wiefern sind Regierungshandlungen eines Zwischenherr It is necessary for the due unravelling of this question to keep these distinctions continually in mind. It has been already observed in an earlier part of this work, that "Conquest, fortified by subsequent Treaty, gives "a valid international title to territory" (d). The distinction between the effect of the doctrine of Postliminium upon moveable and immoveable property has been already the subject of remark; it is one indeed which has been pretty generally observed by all writers upon the subject. DXLI. Conquest and occupation are distinct things, governed as to their legal effects in various respects by different principles and attended with different consequences. Nevertheless, there is an analogy between the two, and, in some respects, the rules of occupation are applicable to the case of conquest. Conquest is often defined as occupatio bellica; and it so far partakes of the nature of occupation, that unless the conqueror has actual possession of the thing conquered he can exercise no right over it. "Vox ipsa capta," Cocceius observes, "indicat rem ita in nostrâ custodiâ et potestate "esse ut eximi non potest" (e): and Grotius, speaking of the nature of acquisition by conquest, "non causa aliqua "sed ipsum nudum factum spectatur, et ex eo jus nas"citur" (f). DXLII. It has been already seen that, in the case of immoveable property, even actual possession by the conqueror does not confer a right of alienation, which, after the conqueror has departed, will enure to oust the original owner, unless such a result has formed part of the stipulations of a Treaty or been ratified by some public act of the State. schers für den rechtmässigen Regenten nach dessen Rückkehr verbindlich, 1819. (d) Vide antè, vol. i. p. 327. (e) Grotius Illustr. iïïì. p. 308. n. (m.) (ƒ) L. iii. c. vi. s. 2, n. 4. DXLIII. It is upon this principle that the Courts of the United States of North America have determined that grants of territory made by British governors after the Declaration of Independence by the Americans are invalid. In the case of a grant of land lying between the Mississippi and the Chatahouchee rivers made after the Declaration, by the British Governor of Florida, the American Justice Johnson said, "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 inter"national principles. 66 "On both these points we are of opinion that the law is against the validity of this grant. It is true that the 66 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 pro"clamation. And although the instrument by which Georgia "claimed an extension of her limits to the northern boun 66 66 dary of that territory was of no more authority or solem“nity 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 rights 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 Inter"national 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 66 "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" (g). 66 DXLIV. This doctrine therefore of the necessity of an actual possession, as a foundation for the rights incident to an occupatio bellica, finds its principal application with respect to (1) moveables, and to (2) incorporeal things or rights. The former may be alienated by the conqueror, who has actual possession of them, and are not subject, as we have seen (h), to Postliminium. The latter raises a question as to the power of the conqueror to alienate incorporeal things or rights, which is one of no mean difficulty, and which, indeed, ranks among the most remarkable and arduous subjects both of Public and of International Jurisprudence. It will be necessary to consider the (I.) Theory of International Law, and (II.) The Practice of States, upon this important subject. (g) Harcourt v. Gaillard, 7 Curtis's (Amer.) Rep. p. 332. |