*CHAPTER VI.

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POSTLIMINIUM.-RECAPTURE.-RANSOM.

CCCCIII. THE jus postliminii(a) of the Roman Law related to persons and to things.

I. With respect to the former, the person who was liberated from prison, and who returned to his country, had a right to be replaced in his original legal status. It was said of him, "pristinum jus suum recipit," or "postliminium fingit eum qui captus est, in civitate semper fuisse."(b) This jus postliminii had a double effect :(c) partly of a passive character, inasmuch as in some instances it replaced the returned person within the dominion of the right of another person; as, for instance, the returned son fell again under the power of his parent, the returned slave under the power of his master. To produce this passive effect, the only requisite was the simple return of the individual. to produce the active effect, the jus postliminii required that the individual should have returned for the purpose of regaining his rights; that he should not have been abandoned by his country; that he should not have been the subject of a deditio, either during war, or at the time of making peace. The jus postliminii was denied to those who illegally returned to their country during an armistice, to deserters, and to those who had surrendered in battle.

But

II. With respect to things. The Roman Law considered things taken by the enemy as withdrawn from the category of *legal relations [*503] during the period of the enemy's possession of them; but they were restored to this category when they were recovered, either by the State to which the original proprietor belonged, or immediately by the original proprietor himself. In the former case, they were considered as booty, or prize of war, and the original right of property was holden to have been extinguished by the intervening hostile possession; with certain exceptions, indeed, which included parcels of territory, horses, mules, and ships used for purposes of war. To these things the jus postliminii was accorded. (d)

CCCCIV. It will be seen, that this maxim of Roman policy has not been engrafted into modern International Law. But, generally speaking, the jus postliminii is fully recognized by that law(e) as an incident to the state of war; it is a right which, strictly speaking, belongs exclusively to war. The recognition of this right by International Law, has a tendency to mitigate the necessary evils of war; and it is a true general proposition of that law, that property captured by the enemy and recaptured by the fellow-subjects, or allies, of the original owner, does not

(a) Dig. 49, 15, 19, De Capt. et Postlim. X. 4 28 5-1, Quibus mod. jus. pot. solv. (b) Inst., i. 12, 5.

(c) Puchta. Instit., II. 499-500, % 220, (a); 324–5, § 223, (m. q.) 637, § 241, (2). (d) Puchta. Instit., II. 687, ?? 241, 2.

(e) Kent's Comm., vol. i. p. (108,) 115.

become the property of the recaptor, as if it had been a new booty or prize, but it must be restored jure postliminii, upon certain conditions, to the original owner.

It is to be observed, that this right cannot be enforced in Neutral States; because, as we have seen, the Neutral is bound to consider each Belligerent as equally just in his position and demands; and it follows, that he looks upon the acquisitions of both parties as equally lawful; unless, indeed, it has been accompanied by an infringement of neutral territory or neutral rights. It is only, therefore, within the territory or jurisdiction of the Captor or his ally, (f) that the jus postliminii can

accrue.

[*504] *CCCCV. As to persons, a different principle is applicable.

While, indeed, they remain on board the Captor's ship, or within the Captor's army, they are, by a recognized international custom, without the neutral jurisdiction:(9) but if they are found on shore, and not within the military lines, then the jus postliminii with respect to them may be protected by the Neutral.(h)

CCCCVI. We have now to consider the doctrine of the jus postliminii, according to the doctrine of International Law,(i) and its application to movable and immovable property captured in war; a distinction, it may be observed, deeply rooted in both branches of International Law, public and private.

With respect to movable property or prize captured in a war by sea, all such property is vested in the Captor. If he part with them to a Neutral, the former proprietor is not entitled to claim them. But such things must be actually and truly in the enemy's power; whether the criterion of their being so be, according to the standard of some authors, twenty-four hours' possession, or, according to the standard of others, the deductio infra præsidia, that is, within the army, fleet, towns, or ports of the belligerent Captor.

This latter standard appears to the writer of these pages the best warranted by practice and reason. Vattell, however, inclines to the standard of twenty-four hours.

Upon the question of recaptures of booty on land, as of recaptures of prize at sea, by the fellow-countryman of the original proprietor, [*505] there may of course be, and in many *instances there are, private or municipal regulations of individual States.

With respect to immovable property captured in war, the established doctrine of International Law may now be said to be, that the acquisition of it is not holden to be completed before (1.) either the territory in which it is situated has by submission, and consequent extinction, of its national personality, become incorporated in the possessions of the conqueror; or (2.), what is a much safer title to property so acquired, before (ƒ) Vattel, 1. iii. c. 14, ss. 207, 8. L'Amistad de Rues, 5 Wheaton's Amer. Rep., p. 390. (g) Vide anté vol. i. pp. 366, 7. 1. i. c.

XV.

(h) 1 Kent, p. (109,) 116. Vattel, l. iii. c. vii. s. 132. Bynk., Q. J. P., See note to M. Duponceau's translation, pp. 116, 117.

The classical reader may consult the provisions on this subject in the commercial Treaty between Rome and Carthage, Polyb. III. c. iii,

(i) Vattel, 1. iii. cc. xiii-xiv.

a Treaty of Peace has recognized and ratified the possession of the conqueror. Further observations upon the whole subject will be found in the latter part of this volume, where the effect of Peace upon Prize and Booty, concerning which no provision is made in the Treaty which establishes the Peace, is discussed.

CCCCVII. Having considered the law applicable to the retaking of movable and immovable property captured during the course of hostilities carried on by land, it remains to examine the question of property retaken at sea.

A prize taken from the enemy who had taken it, is called in our language a Recapture,(k) and the law respecting it requires a particular consideration.

The best mode of dealing with this subject appears to be-First, to consider the general principle of International Law respecting it. Secondly. The Private or Municipal Laws of States upon this subject.

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Thirdly. The decisions of Prize Courts more especially those of England and the North American United States, *which are in principle and practice almost identical, and which constitute a complete code upon the subject of Recapture as of Capture.

CCCCVIII. First. As to the general principles of International Law upon the subject.

The sources from which these principles are derived were specified in the beginning of the present work,(7) and they are assumed to have been correctly specified in this and in other discussions arising in the course of this work, in which discussions the particular subject requires that these sources should be, and indeed presumes that they are, carefully remembered by the reader,

"Omnia mendosè fieri, atque obstipa necessum est."(m)

In the observations which follow as to Recapture, it is of course taken for granted that the first Capture has been completed according to the mode specified in the former chapter, and up to the time of the Recapture, the title of the original proprietor has been entirely divested.

CCCCIX. As to general principles of International Law upon Recapture, it is remarkable, that of all the ancient codes of Maritime Law,such as the Consolato del Mare, the Rôle des jugements d'Oleron, the laws of Wilsby, the ancient statutes of the cities of Hamburg, Lubeck, Bremen, and the League of the Hanse Towns,-the Consolato del Mare alone deals with the case of Recaptures.

(k) In Latin, Recuperatio; in French, Reprise or Recousse; in Italian, Ripresa; in Spanish, Recobro; in German, Wiedereroberung or Wiedernehmung; in Dutch, Hernoomen Schepen.

The authorities principally relied upon by me on the subject of Recapture, are De Martens, Essai concernant les Armateurs, les Prises, et surtout les Reprises, à Gottingue, 1795. Translation by T. Hartwell Horne, London, 1801. The recent work, already cited, of MM. De Pistoye et Duverdy.

(1) Vol. I., chapters iii-viii.

(m) Lucretius, de Jure Nat., 1. iv. pp. 516-19.

That venerable authority declares, (n) in article a, chapter 287, [*507] that if a ship and its cargo, taken by an enemy, *are retaken by a friendly ship, the Recaptor ought to restore this property to those who are on board the ship, if there is any person still alive, as a reward for the expenses and trouble of salvage, which shall be estimated according to the expenses and trouble occasioned by the Recapture; that if, on the contrary, the enemy had already conducted it into a place of safety, the ship and merchandise shall belong wholly to the Recaptor.

That if he who has taken the prize abandons it in sight, and for fear of an hostile ship, which becomes master of it, it shall be restored to the proprietors in consideration of a similar reward.(0)

That if he who has taken the prize abandons it voluntarily, and after having taken out of it what pleased him most, and, afterwards, the ship abandoned is recaptured, the Recaptor shall restore it to the first proprietor for a reward; and, if there is no proprietor, it shall be used as a treasure trove,(p) which is disposed of by the 157th and 249th articles, or rather chapters.

That if, finally, the ship taken is either ransomed of the enemy, or is ransomed of others, or purchased out of the enemy's hands, we are to distinguish whether the ship was already in a place of safety or not. In the first place, the purchaser shall keep it without restoring it; in the second, the ransomer or purchaser shall be obliged to offer it to the proprietor, in consideration of his restoring him the value or ransom, and a reward, if, at the time of the ransom, the enemy was already master of the ship in such a manner that there were no other means of saving it.(q) *Lord Stowell remarks(r) upon the first of the articles or [*508] chapters cited, viz., the 287th, that the doctrine of the perductio infra præsidia, infra portum tutum, as constituting a sufficient conversion of property, is expressed therein in terms, indeed, not very intelligible in themselves, but which are satisfactorily explained by Grotius, (s) and by his commentator Barbeyrac, in his notes upon that article.(t) Bynkershoek lays it down to the same effect in these words: "Sane in libro, quæ inscribitur Consulatus Maris, c. 287, ita, ut modo dicebam, res definita est: nam is, qui navem et onus ab hoste recuperavit, jubetur

(n) " Di nave pigliata e recuperata. Nave che sarà stato pigliato per suoi nimici, se alcun altra nave d' amici si riscontrerà con i detti nimici, e torrà la detta nave, quella e tutto quello che in quella sarà, debba esser ristaurato à quello, ò quelli, di chi sarà, ed essere debbe, se alcuno vivo ci sarà : quel imperò dando à quelli, che à i detti nimici solta haveranno, beveraggio conveniente secondo la fatica, e secondo il danno, che ne haveranno sofferto. Imperò, se i detti amici torrano, ò haveranno tolta la detta nave, ò navillio à i detti nimici in loco, dove la tenessero à sè, e in loco sicuro, non ne debba esser datto beveraggio, se loro vorranno; anzi debba essere del tutto di loro, senza contrasto," &c. (0) Consolato del Mare, n. 1.

(p) Ibid., n. 5.

(2) Ibid., n. 6, 7.

The Ceylon, 1 Dodson's Adm. Rep., p. 106. (s) "Cui consequens esse videtur, ut in mari naves, et res aliæ, captæ censeantur tum demum, cum in navalia aut portus, aut ad eum locum ubi tota classis se tenet, perducta sunt: nam tunc desperari incipit recuperatio, sed recentiori jure gentium inter Europæos populos introductum videmus, ut talia capta censeantur ubi per horas viginti quatuor in potestate hostium fuerint."—Grotius, de Jure Belli ac Pacis, 1. iii. cap. vi. s. 3.

(t) Lib. i. cap. 5.

navem et onus restituere pristino domino, salvo tamen servaticio, idque servaticium ut justum sit, constituitur pro modo operæ et impensæ in recuperationem factæ, præteritâ omni distinctione, quamdiu navis onusque in potestate hostium fuerint. Rectè autem ibi additur, eam restitutionem duntaxat obtinere, si navis nondum fuerit deducta in locum tutum, sed si in locum tutum, dominio sic plane et plene in hostem translato, navem mercesque deinde recuperatas, ex asse recuperatori cedere. Quæ apprime conveniunt cum his, quæ hoc capite disputavimus. Vellem omnia, quæ in illâ farragine legum nauticarum reperiuntur, æquè proba recta essent, sed non omnia ibi sunt tam bonæ frugis." Grotius, (u) expresses himself very much to the same effect, and Loccenius, (x) considers this rule as the general law of Europe.

*CCCCX. The subject of Capture and Recapture is admirably [*509] discussed by Bynkershoek.(y) The maxim of the Roman Law, "si quid bello captum est, in prædâ est, not postliminio redit," (z) was, as we have seen by that law, not applicable to Ships of War. Such retained the privileges of postliminy, others did not.

Bynkershoek, however, agrees with Grotius that movable goods are now, without distinction, subjects of Prize, and divested of the privileges of postliminy. As goods captured from the enemy, he argues, vest in the Captor, it follows, when recaptured, they vest in the Recaptor. He then considers when such goods have pleno jure become the Captor's property. Clearly, in his opinion, if taken infra præsidia of the enemy, the property has been vested in the Captor. But what are præsidia ? Those of the ally as well as of his ally; though the States General of his country decided, incorrectly, otherwise. In his opinion, too, the bringing the Capture infra præsidia of a Neutral suffices to change the property. He does not lay down the doctrine which, we have seen, is now well established in the Prize Courts of England, and of the North American United States, namely, the necessity of a sentence of condemnation by the Captor's tribunal on the Capture, which may be lying in the port of the Captor, the Ally, or the Neutral.

But into one of these ports it must be brought, if recaptured before the property has vested neither in the Captor nor the Recaptor. But has the original owner a right to receive back his property, paying no remuneration to the restorer of it? Certainly not,—on the principles of natural justice, and on the analogies of the Roman Law, into which these principles are so often transcribed, the Recaptor is entitled to a servaticium, as salvage reward. What considerations *shall govern the amount of the reward? First. Public policy requires that the award should be made with a liberal and not a grudging hand. Secondly, The amount of labour, of danger, of time, of cost expended on the Recapture should be duly weighed. Thirdly. The value of the recaptured

(u) Lib. iii. cap. 6.

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"Hodie naves ab hoste captæ, communi inter Christianos et Europæos populos sive jure sive consuetudine postliminio non recipiunter, si hostis eas non eodem die navali pugnâ iterum amisit, sed per viginti quatuor horas in potestate victoris fuerint. Tunc enim verè captæ, et proprii juris factæ censentur."-Loccenius, de Jure Maritimo, lib. ii. c. iv. s. 4.

(y) Q. J. P., l. i. cc. iv, v.

(z) Dig., 49, 15, 28, De Capt. et Postlim.