tration of their property in contravention of that Treaty by the French Government.(*) [*728] *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, verum 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 [*729] to 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. (b) 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 (z) Gumbe's Case, 2 Knapp's Privy Council Rep., p. 369. (a) Vide ante, p. 104. (c) Grot., 1. iii. c. xx. s. 15. 1. Personal Status. 2. Immovable Property (immobilia.) 3. Movable 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.(ƒ) DLXXXI. (1.) With respect to Personal Status, (g) *the doctrines of the Roman Law form a very small part of International [*730] Law. By the latter the right of Postliminium and the recovery of Personal Status is not always taken away from an individual unless by the municipal law of his own country, or by the express stipulation of the Treaty. The Roman Law might furnish some analogies for determining, when the captivity of a prisoner of war was at an end, whether if his freedom had been obtained by breach of his parole of honour, or whether, when he had escaped into a neutral territory, he ought or ought not to be delivered back to the enemy. But these are causes not relating to the subject now under consideration. And with respect to those Private Rights which are restored by Postliminium, it may be said, generally, that under this category are included all Rights appertaining to Person, or Property, or to Obligation. International Law rejects all distinctions of the Roman Law upon this point. There are, indeed, two ways by which this Postliminium of Rights, so to speak, may take effect. a. When the prisoner returns during war and re-enters upon the Rights taken from him during the period of his captivity. This is a subject which has been already discussed in the earlier pages of this volume. B. When the original owner claims, after the restoration of peace, Rights forcibly taken from him by the enemy during war. It is with this predicament that we are now concerned.(h) DLXXXII. As to the Personal Status, it unquestionably returns with all its incidents, unless, indeed, it should have been affected by traitorous dealings with the enemy during the war. But this, and also the question as to any claim to a return of the profits of any office from which a person may have been ejected during the war, are matters of public and constitutional, not, strictly speaking, of International Law. But it may be observed that, as to the relation of marriage, *of which the earlier Roman Law appears to have required a reintegratio, there [*731] is no doubt that it remains unaffected by the captivity of either party to the contract.(i) DLXXXIII. (2.) With respect to Immovable Private Property, it has been already observed that the laws which relate to the effect of peace upon Public and Private Property are in principle the same, and(k) that the rule of International Law is that the Immovable Property returns, on Peace being made, to its original owner, unless there has been an express stipulation to the contrary.(). The conqueror dethrones the sovereign and assumes the dominion of the conquered territory; but as a general rule he does no more. It has been well laid down by the tribunals of the North American United States that the modern usage of nations, that large and important part of International Law, would be violated-the sense of justice and of right, which is felt and acknowledged by the civilized world, would be outraged, if Private Property were generally confiscated and Private Rights annulled. The people, indeed, change their allegiance, their relation to their ancient sovereign is dissolved; but their relation to each other and their Rights of Property remain undisturbed. And it may be observed that this doctrine applies even more strongly to an amicable cession of territory. The cession of a territory by its owner from one state to another, while it conveys, in intent at least, *both the [*732] lands and the people who inhabit them, must be by moral necessity understood to pass the sovereignty only, and not to interfere with the Private Property of individuals.(m) DLXXXIV. It may be observed, with respect to both kinds of property, according to the authority of Vattel, those things, of which the restitution is, without further explanation, simply stipulated in the Treaty of Peace, are to be restored in the same state in which they were when taken; for the word "restitution" naturally implies that everything should be replaced in its former condition. Thus, the restitution of the thing is to be accompanied with that of all the Rights which were annexed to it when taken. But this rule must not be extended to comprise those changes which may have been the natural consequences and effects of the war itself, and of its operations. A town is to be restored in the condition it was in when taken, as far as it still remains in that condition, at the conclusion of the peace. But if the town has been razed or dismantled during the war, that damage was done by the right of arms, and is buried in oblivion by the Act of Amnesty. We are (i) See the provisions in the Roman Law, 1. xii. t. xxv. (xxxvi.) s. 1. de Re Milit. Nov. xxii. c. vii. (k) Vide ante, p. 135. (1) Heffters, s. 190. "Integer autem populus si vel propriis viribus, vel sociorum armis jugum hostile excusserit, sine dubio libertatem et statum antiquum recuperat. Quod si autem aliqua pars bonorum, quæ antea ad ipsum pertinuerant, adhuc sub potestate hostis remaneat, ad illam recuperandam prætensionem retinet, quamdiu bellum pace nondum fuit compositum."-S. Puffendorfii de Jure Nat. et Gent., 1. viii. c. vi. s. 26. See Memorandum of Sardinia as to the sequestration by Austria of the property of Lombardo-Venetians who had become Sardinian subjects.-Annuaire des Deux Mondes, (1852-3,) p. 915. (m) C. J. Marshall, in United States v. Percheman, 7 Peters' (Amer.) Rep., pp. 86, 77. under no obligation to repair the ravages that have been committed in a country which we restore at the peace; we restore it in its existing state. But, as it would be a flagrant perfidy to ravage that country after the conclusion of the peace, the case is the same with respect to a town whose fortifications have escaped the devastation of war: to dismantle it previous to the restoration would be a violation of good faith and honour. If the captor has repaired the breaches, and put the place in the same state it was in before the seige, he is bound to restore it in that state. If he has added any new works, he may indeed demolish these: but if he has razed the ancient fortifications, and constructed others on a new plan, it will be necessary to come to a particular agreement respecting this improvement, or accurately to define in what condition the place shall be restored. Indeed, Vattel adds, this last precaution should in every case be adopted, in order to obviate all dispute and difficulty.(n) [*733] It is a maxim, however, of universal justice (though Pando complains of its frequent violation in Spain during the recent civil wars of that country,) that if the thing restored have been improved by the temporary owner, the value of the improvement should be defrayed to him before he delivers it back to the original owner.( r.(0) DLXXXV. The English Prize Statute contains the following provisions respecting the authority of the Prize Court after the war is over: "This Act shall continue in force during the present war, and no longer, save and except as to all such matters and things as shall then be depending in judgment in the Court of Admiralty, or before the Judicial Committee of the Privy Council, or in any Court of Record within her Majesty's dominions, at the time when the present war shall cease, and also save and except as to the carrying out(p) and finally disposing of all such other matters or things as shall arise out of the present war, in reference to the Provisions of this Act; and also save and except as to all offences which may have been committed against, and *all penalties and forfeitures which may have been incurred under [*734] the Provisions of this Act, in respect whereof proceedings shall and may be taken as if this Act still continued in force." (q) DLXXXVI. (3.) With respect to Movable Property. (n) Vattel, 1. iv. c. iii. s. 31. (o) Pando (tit. tercero, seccion cuarta,) De las hostilidades contra las cosas del enemigo en la guerra terrestre: "Antiguamente no se hacia distincion entre las propriedades de los subditos y las de los soberanos: a todos se les miraba como á enemigos y se les trataba con la misma dureza. La politica moderna bajo el influjo de nociones mas sanas y mas analogas á los progressos de la razon humana ha modificado esa rigorosa e injusta jurisprudencia: y en general se respetan las propriedades particulares. . . . Cualquiera que en el dia de otra manera obrara, seria reputado con razon como violador del derecho de gentes, porque haria el mal sin utilidad para el objeto de la guerra."-Pando, p. 392. "Generalmente fué violado, lo decimos con amargura, varias veces en nuestra España el principio que presente se el adquirente ha hecho mejoras reales en la cosa que á restituir se la obliga, puede exigir que se le indemnice. Petitor ex alienâ jacturâ lucrum facere non debit.'-Ib., p. 412. (p) A barbarism meaning carrying into effect, or executing. (2) 17 Vict. c. xviii. s. 57, (Act for Manning the Navy.) It is a well established rule of International Law that if a Treaty of Peace contains no especial provisions relative to Movable Property captured during the war, that such property remains in the condition in which it exists at the time of the conclusion of the Treaty, and the title of the de facto possessor(r) is thereby tacitly and by implication confirmed.(s) The intervention of hostilities puts the property of an enemy in such a situation that confiscation may ensue; but unless some step is taken for that purpose, unless there is some legal declaration of the forfeiture, the right of the owner revives on the return of Peace. This, Lord Stowell observes, is an acknowledged principle of the Common Law of England, which it has borrowed from the stores of International Jurisprudence.(t) cases. At the same time due vigilance must be used by the claimant in such No Court of International Law will allow itself to be the depository of slumbering rights and antiquated claims after a lapse of time when it may be impossible to ascend to the whole justice of the case. The maxim "vigilantibus non dormientibus subveniunt leges" [*735] is a principle of limitation inherent in every sound system of jurisprudence.(u) DLXXXVII. It is a very general modern International usage to consider that the movables on land(x) of individuals who have taken no part in the war are exempted from hostilities and from consequent capture or confiscation. This is a matter, however, of Comity, not of strict Right. DLXXXVIII. It remains to say a word upon(y) the question of Obligations existing before the war, and more especially upon such as relate to covenants and debts. So far as this subject relates to transactions between states and the individuals of other states, it has been already considered. DLXXXIX. The sound rule of International Law is that war suspends but does not annul obligations contracted between individuals of different countries before its existence, or, as it has been happily expressed: "Jus exigendi nobis quæsitum fuit ante bellum, hoc jus non desinit nostrum esse existente bello, utpote quo non jus tollitur sed juris executio." () DXC. The principle of this rule covers the case of penal damages due (r) Thus, in the case of the Peregrinus who could not acquire property by mancipatio or by in jure cessio, the Prætor recognized a de facto possession as a principle of the jus gentium, and indeed of the jus inter gentes, for Puchta remarks, Instit. i. p. 360, "Denn so geschiet die Erwerbung im Krieg die unter allen Volken gilt." Heffters says: "Vermöge eines allgemeinen internationalen Herkommens." -s. 190. (s) 1 Kent's Comm. p. 117, (111.) See too Mably, vol. i. p. 143, some good remarks on the true title of conquest. Güntter, ii. pp. 20, 113, (Erwerbung im Kriege.) (t) Nuestra Señora de Los Dolores, 1 Edwards, (Ad. Rep.,) p. 60. (u) The Rebecca, 5 Robinson's Ad. Rep. p. 105. The Mentor, 1 Robinson, 180, note. (x) "Con excepcion de las buques de guerra y armadores," Pando remarks, p. 407. (y) 1 Curtis's (Amer.) Digest, pp. 484, 485, British Debts. |