In this decision of the English Court, the authority of Vattel appears to have (1) been greatly overestimated and not a little overstrained; the inferences from the language of Grotius and Puffendorf appear to be ingenious rather than sound while to the high authority of Story and the American Tribunals, no allusion was or could then have been made by counsel or judge.

The question for the International Jurists who review this judgment is really this, whether the practice of nations was so rooted and confirmed in opposition to the strict right as to have superseded it—whether, to repeat a former passage in this work, this was one of those cases in which a usage, which had its origin in the precarious concession of Comity, had become transferred, through uninterrupted exercise and the lapse of time, into the certain domain of Right (m).

It must be remembered that this was a decision against a foreigner for obeying the law of his own country, and that this law was warranted by the authority of most eminent jurists and judges. There were, no doubt, traces of mala fides in this case, which had their effect upon the minds of the English judges; but, as far as the general principle is concerned, the decisions of the American, Dutch, and German Courts (none of which, strange to say, were quoted), appear much sounder; and perhaps, if the occasion should present itself, the decision of Lord Ellenborough might be reversed in England. It was the decision of a single Court, not much accustomed to deal with questions of International Law. Moreover, the argument was not, as in the case of Potts v. Bell (n), before Lord Kenyon, or in the more recent slave case of the Felicidade, argued with the assistance of

ein solches Verfügungsrecht ausgesprochen, u. s. w."-Heffters, § 134; Calvo, § 914, &c.

civilians (o), and some of the principal International authorities were not referred to.

DLXXVIII. Where a Treaty has awarded compensation for confiscated property, there have been various decisions in England upon cases alleged to fall under this category: they have been principally decided by the Privy Council, on appeal from Commissioners appointed to inquire into the claims. Among the principal cases the following relate to Individuals. It has been decided by the Privy Council that a person who possesses the characters both of a French subject under the municipal Law of France, and of a British subject under the Statute 13 Geo. III. c. 26 (now repealed), as the grandson of a natural-born British subject, although both he himself and his father were born in a foreign country, is not entitled to claim compensation for a loss he has sustained from a confiscation of his property by the French Government under a Treaty between Great Britain and France, giving compensation for such a loss to British subjects (p). That an Englishman who has taken out letters of naturalisation in France is not entitled to compensation as a British subject under such a Treaty (q). That the foreign wife of a British subject is not entitled to compensation for the loss of her separate property, under a Treaty providing such a compensation for British subjects, unless she has herself acquired a domicile in Great Britain at the time of her loss (r). That a foreigner domiciled in Great Britain is, under such a Treaty, entitled to claim compensation for his losses (s).

The same judicial body has decided, with respect to Corporations, that a corporation of British subjects in a

(0) Vide antè, vol. i. § cccix.

Denison's Crown Cases reserved, vol. i. p. 154.

(p) Drummond's Case, 2 Knapp's Privy Council Rep. p. 295. (4) Fanning's Case, ib. p. 301.

(r) Countess de Conway's Case, 2 Knapp's Privy Council Rep. p. 364. (s) Ibid.

foreign country, existing for objects in opposition to British law, and under the control of a foreign government, is not entitled to claim any compensation from the government of the country in which they existed for the confiscation of their property under a Treaty giving the right to British subjects (t). It has been also decided that the individual members of such a corporation are also equally incapacitated from making any claim, as British subjects, from the loss of their income arising from the funds of such a corporation (u). That a corporation of Irishmen, existing in a foreign country, and under the control of a foreign government, must be considered as a foreign corporation, and is not therefore entitled to claim compensation for the loss of its property, under a Treaty giving the right of doing so to British subjects (r). That it makes no difference whether the purposes for which such a corporation existed were or were not contrary to the law of Ireland (y).

And generally the English Privy Council has decided, that a country re-conquered from an enemy reverts to the same state that it was in before its conquest. The British inhabitants of a part of the French dominions which was conquered by the Dutch, and afterwards re-conquered by the French, ought therefore, the Privy Council decided, to have had, after the re-conquest of that part, the same protection that they were entitled to under a Treaty of Commerce of 1786; and this Tribunal awarded them compensation in respect of losses after the re-conquest, incurred by sequestration of their property in contravention of that Treaty by the French Government (z).

(t) Daniel v. Commissioners for Claims on France, 2 Knapp's Privý Council Rep. p. 23.

(u) Ibid.

(x) Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep. p. 51.

(y) Ibid.

(z) Gumbe's Case, 2 Knapp's Privy Council Rep. p. 369.

CHAPTER VIII.

DOCTRINE OF POSTLIMINIUM AS TO PRIVATE RIGHTS AND PROPERTY WHICH HAVE BEEN DURING THE WAR UNDER THE DOMINION OF THE ENEMY, AND NOT CONFISCATED BY THE STATE.

DLXXIX. WE have now inquired into the effect of Peace upon the Public Property and Contracts of States; (II.) it remains to consider the effect of Peace, so far as the State is concerned, upon the Private Rights, Property, and Contracts (a) of the subjects of the contracting parties who have been Belligerents, and also partially and incidentally upon the subjects of Neutrals. The general principles which it is important to lay down are these:-First, that a distinction is to be observed between the question of the competency of the State to sacrifice for public domestic purposes the property of the Individual, together with the right of compensation thereby accruing to him, and the question with respect to the competency of the State to surrender property of Individuals to Foreign States. The former question is one of Public if not of Municipal Law, the latter is one of International Jurisprudence; or, as it is clearly stated by Grotius (b)," externis, qui cum rege contrahunt, sufficit "factum regis, non tantum ob præsumtionem quam secum "adfert dignitas personæ, verùm etiam ob Gentium Jus, quod bona subditorum obligari ex facto regis patitur,” it is only necessary, in applying the principle contained in this passage to bear in mind that Grotius must be considered to

66

(a) Vide antè, p. 115.

(b) L. iii. c. xx. s. 10.

use the expression Rex as synonymous with the constitutional government, whatever it may be, of the State.

Secondly. The losses of Private Persons, like the losses of the State, inflicted by the war, cannot, unless in the event of a special convention to that effect, be recovered after the peace (c).

Thirdly. Obligations under which either the State or Private Persons, members of it, lie to Private Persons members of another State, due before the war, are, generally speaking, not cancelled by the war, but sleep during its continuance and awaken at its close (d).

DLXXX. We have considered the doctrine of postliminium as growing out of the silence of the Treaty which concludes the Peace in its application to States and Public Property. We have now to consider the same doctrine in its application to Private Persons, Rights, and Property.

This consideration will relate to the

1. Personal Status.

2. Immoveable Property (immobilia). 3. Moveable Property (mobilia).

4. Obligations, such as Contracts, Debts (jura incorporalia; Forderungsrechte).

To all these subdivisions of the subject the general principles mentioned at the beginning of this chapter are of course applicable and it may be added that it is a proposition equally affecting both kinds of property, that the property of one enemy found within the territory of another at the time of the declaration or breaking out of war, and which has not been confiscated pending the war (e), may be claimed. by its owner at the end of the war (f).

DLXXXI. (1.) With respect to Personal Status (g), the doctrines of the Roman Law form a very small part of

(c) Grot. 1. iii. c. xx. s. 15.

(d) Ib. s. 16.

(e) Vide antè, pp. 128, 129, 130, 134.

(f) The Adventure, 1 Curtis's (Amer.) Rep. p. 103.

(g) Heffters, s. 189.