I would understand him, who is at the same time in friendship and in alliance with us; for otherwise, it would have been sufficient to have made use of the word friend.* With such alone, because of the alliance, the right of postliminy

The doctrine of postliminy, among the ancient Romans, applied prin cipally to persons, it being the practice at the time when that country flourished, to make slaves of prisoners taken in war. To such, Pomponius and Paulus particularly meant to apply their principles on this subject, and therefore, it is not easy to refer them to the case of ships and goods taken at sea in a modern maritime war. Nor does it sufficiently appear whether those authors meant to speak of prisoners who made their escape into a friendly or allied country, as well as of those who came thither in the pos session of their masters who had purchased them from the captors. It is possible, that a different rule might have obtained in each of these different cases. The civilians take too much pains to apply the principles of the Roman law to every case that presents itself; not considering, that the difference between ancient and modern manners renders them, in many instances, little susceptible of a direct application.

There would be, in our opinion, little difficulty in settling this question of postliminy on neutral territory, if a proper attention were paid to the distinction which the law has established between military and civil rights. We call military rights those which belligerents acquire in war, by capture or conquest, to the property of their enemies, and civil rights, those which are acquired out of war by contract or otherwise. These dif ferent rights receive a different kind of proof. Military rights are evidenced by possession, and civil rights by the ordinary proofs of title. A prize, therefore, which is brought into a neutral territory, in the possession of the captors or of their agents, does not return to its former owner, by the law of postliminy, because neutrals are bound to take notice of the military right which the possession evidences. But they are not bound to receive any other proof of it than the possession itself; for with the mere right of property of the captor they have nothing to do; the right of possession is the only thing that they cannot controvert, and in that, as Hertius says, they are bound to take the fact for the law. If, therefore, a vessel, after capture, should escape, or be brought into a neutral territory by others than the captor, his agents, or those who otherwise lawfully claim under him, as there is no longer any legal evidence of the military right, no fact which is to be taken for law, the civil right of the former owner revives, and the property returns to him by the law of postliminy. We do not mean to speak here of property regularly condemned in the tribunals of the captor; such a condemnation converts the military into a civil right, of which the sentence is the legal evidence.

For want of attending to these distinctions, the broad and unqualified propositions of our author have led many into an error.

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takes place, but with those who are merely friends to both parties, the state or condition of our citizens, or of our property, does not change, because there is no reason for it. Wherefore, I wonder that Gentilis and others have been of opinion, that every thing which is brought into the dominions of a neutral country, returns by postliminy, and as a consequence thereof, that prisoners catried into the territory of a friend, become free.*

This doctrine, as to prisoners, is roundly asserted by Joannes de Immola,† and Petrinus Bellus, with whom Zouch appears to concur in sentiment. But the contrary is so plain, that even sceptics have never seriously entertained a doubt of it; for all unanimously agree, that a right of property is acquired by capture in war, and that that right continues in the country of a friend. And if it be true, that the prizes which I have taken, and the prisoners that I have made, remain my property, by what right shall a prince, who is my friend, take from me those things which belong to me, pleno jure, and give

By the law of nations, as at present understood, the right of postliminy takes place with respect to persons, even in a neutral country. For the moment that a prisoner sets his foot on neutral territory, no force whatever of the belligerent can protect him. "A privateer," says Vattel, "carries his prize into a neutral port, and there freely sells it; but he would not be allowed to put his prisoners ashore, in order to confine them; for to keep ar detain prisoners of war, in order to confine them, is a continuation of hostilities.” Law of Nat. l. 3. c. 7. § 132. True, the captor may confine them on board of his ship, even though in the neutral's port, or within his jurisdiction; because a ship is considered as it were a part of the territory of the sovereign to whom it belongs. (See above, p. 109, 110.), but beyond that, no force can lawfully be exercised by a belligerent on persons in a neutral country.

If, however, a passage should be granted to a body of land troops through a neutral territory, there is no doubt that they might keep under confinement the prisoners that they had with them. For this power would be incident to the right of passage, which otherwise would not be effectually granted. And an army (as well as a fleet) is considered, wherever it may be, in many respects, as a præsidium of the nation to whom it belongs. See above, p. 29.

† Consil. 50.

De Re Militari, p. 2. tit. 18. n. 12.

De Jure Fec. p. 2. § 9. Q. 8.

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them up to another, though he be equally his friend? It is sufficiently clear, that he cannot do it without injuring me. Nor can he do it by his courts of justice, for he cannot lawfully judge between me and my enemy, without the agreement of both. As therefore, what is taken in war remains the property of the captor, though in a neutral country, the Swedish ambassador was wrong, when, in the year 1657, he claimed certain letters of his, which had been intercepted by the Danes, with whom his sovereign was at war, and delivered to the states-general, who were his friends; contending that, by that delivery they had again become his own.t

Treaties, however, are sometimes made between sovereigns on a different principle, as was the case formerly between the Romans and Carthaginians, by the second treaty which Grotius quotes from Polybius. And thus, by the 20th article of the treaty of peace between the king of Portugal and the statesgeneral of the 6th of August 1661, it was stipulated, that "what should be taken by the enemy of either, and carried into the port of the other, if demanded within a certain time, should be restored." But such conventions cannot be made without injury to him who carries his prizes into the territory of his friend as into a safe place. Therefore, they effect no change in the principles of reason, or of the law of nations. For more upon this subject, see Cunaus's dissertation De Causa Postliminii, and Loccenius, De Jure Maritimo, where the arguments of Cunaus are briefly stated.||

As between the belligerents, the neutral is bound to see right wherever he sees possession: of a right unaccompanied with possession, he cannot take notice. We mean to speak only of rights acquired by or founded on the law of war, for of other rights he may judge as if no war existed. T.

† Aitz. 1. 37. Because the possession of the captor continued in the hands of his donee; and because such things as letters and the like, when taken in war, do not require a sentence of condemnation to divest the right of property of the first owner. Statim capientium fiunt.

L. 2. c. 4. n. 6. 10.

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|| Ut enim victor intrà propria præsidia tutus est, ità si amici fidem elegerit, & in sua præsidia se et sua contulerit, etiam illic publico nomine tutus est.— Serum est atque inutile, hostem tentare in alieno territorio vi suum alteri adimere; aut cum communi amico agere, ut sibi restituat. Nihil enim hostile aut

This, however, is true only as to captures made in a just war, for if any thing has been taken by pirates, it is by all means to be restored to the former owners; and so it has been stipulated in various treaties between different nations.* And it is a rule generally adopted among all the nations of Europe, that a capture by pirates does not change the property, which subject has been treated more at large by others, as I shall shew hereafter.t

Agreeably to these principles, if my property, captured by enemies, comes into the territory of an ally, it returns to my use, and hence it is considered as if it had been delivered by my ally from the common enemy. And yet, the French in a similar case, formerly acted on a different principle, in consequence of which, the states-general, on the 4th and 5th of December 1637, decreed, that the same should be done with respect to them.+ $

violentum vel ipse molietur, vel alterum agitare in suos fines contra alterum patietur, quem FIDE PUBLICA in portum suum admisit. The same safety that the conqueror finds in his own fortresses, he will find in the dominions of his friend; if relying upon his honour, he has put himself and what belongs to him into his power, the public faith will protect him there. In vain shall his enemy endeavour to retake by force what was taken from him, or to prevail upon the neutral sovereign to restore it to him. The neutral sovereign will not commit an act of hostility against his friend, whom he has admitted into his country under the protection of the public faith; nor will he suffer any other person to hurt him within his territory. Loccen. ubi suprà, in Scriptor. de Jure Nautico & Marit. Fascicul. vol. ii. p. 976. We have thought that our readers would not be displeased with our transcribing this beautiful passage out of the writings of one of those Northern professors, against whom sir James Marriott has so unjustly and so illiberally vented his spleen. Vide his decree in the case of the ship Columbus, in the first volume of Collectanea Juridica.

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Treaty between the emperor of Morocco and the states-general, of the 24th of September 1610, art. 4.-Treaty of peace between the United Provinces and Portugal, of the 6th of August 1661, art. 20.-Treaty of commerce between France and the states-general, of the 27th of April 1662, art. 45.— Treaty of peace between England and the states-general, of the 14th of September 1662, art. 11.

† Post, c. 17.

Aitz. 1. 21. 24.

§ Aitzema relates, that France being in alliance with Holland, and both being at war with Spain, the French had refused to restore to the Dutch

It is more doubtful, whether a captor may in a neutral territory, sell the thing which he has taken from his enemy, and recover the price of the sale? By the 12th article of the treaty of peace between the United Provinces and England, of the 4th of September 1662, it was provided, that in such a case, if the consideration of the sale had not been paid to the captor, the property should return to its former owner, which article, in a particular case, that happened afterwards, the states-general ordered to be carried into execution.* But I would wish to know on what principle this stipulation was founded? And how, if the sale of the prize by the captor is lawful, his enemy can be made to derive an advantage from it? It will be difficult to account satisfactorily for this; for it is an established principle, that we may lawfully assist our friends, although enemies to each other, provided we do not supply them with implements of war, and do not shew more favour to one than to the other. It cannot, therefore, be required, that we should shut our ports against them, or prohibit all commercial intercourse between them and our citizens. I am of opinion, that this 12th article is to be classed among special treaties, the reason of which is often concealed from us; for in general, we are free to exercise the rights of

their property which they had recaptured from the Spanish privateers; whereupon, the Dutch, by way of retaliation, issued the edict which our author mentions, by which they ordered that no part of the French property which their vessels of war should retake from the Spaniards should be restored to the French, until they should pursue a different line of conduct with respect to them. 2 Aitz. p. 752. fol. ed. T.

* Aitz. l. 44. It is difficult to understand how prohibiting the sale of prizes in a neutral country is tantamount with interdicting all trade with the country of the captors; but this strong language of our author, shews how much he was in favour of the right of the belligerents to sell their prizes in neutral countries; and that this right exists, is not only the opinion of Bynkershoek, but of almost all the writers on the law of nations, and particularly of Vattel in the passage last above cited. The same right, however, should be granted to both parties alike, otherwise, the one to whom it is refused, will have a just right to complain. But neutral governments generally find it inconvenient to permit the privateers of contending nations to frequent their ports with their prizes at the same time, and therefore the right is either only granted to one of the parties, by virtue of a special treaty, or denied to both. T.