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ownership over our property in a neutral country, whether we have acquired it by the law of nations, or by the municipal law.
Although it be lawful, on rational principles, to carry a prize into a neutral territory, and there to sell it if the captor thinks proper, laws have, nevertheless, more than once, been made to the contrary. The states-general, on the 9th of August 1658, issued an edict, by which they ordered, that no foreign captor who might be compelled by stress of weather, or some other reasonable cause, to bring his prize into the ports of this country, should presume to sell any part of it, or even to break bulk, but that he should inform the bailiff of the place of his arrival, who, having placed a guard on board of the ship, should keep a strict watch over her, until her departure, inflicting, moreover, a discretionary penalty, and a fine of one thousand florins, on any one that should assist in unlading, or purchase any thing out of her. To which edict, the said states-general, on the 7th of November in the same year, enacted a supplement, by which it was ordered that no prizeship should be brought into the port itself, but merely into the outer roads, where she might be sheltered from danger, and that nothing should be unladen or sold out of her; and if any one should act to the contrary, the prize should be restored to the former owner, as though it had never been taken, and the captor himself should be detained, and his own vessel seized and confiscated. The remainder of the edict merely confirms that of the ninth of August above mentioned. Whether those edicts were extorted from the states-general, by fear or by any other cause, I do not know; but lest they should hereafter militate against rational principles, we must declare that we rather believe them to have been temporary than perpetual laws.
Of the Right of Postliminy as applied to cities and states.*
IT has been very properly said by Grotius,t that “ the right
of postliminy is applicable to a whole people, as well as to an individual, and that a political body, which was free before, recovers its freedom when its allies, by force of arms, deliver it from the yoke of the enemy.” Hotoman is of the same opinion, but there is some doubt whether this principle has been always and every where observed in the United Netherlands. In the case of Groningen, there is no doubt that it was attended to, as that city and province was admitted into the confederation, after we had reconquered it from the Spaniards, though it is to this day doubtful, whether they had ever before formally signed the articles of Utrecht, and they had certainly renounced them while under the Spanish dominion. Those articles had, however, been signed by the district of Ommelanden, which constitutes much the largest part of that province.
The inhabitants of the district of Drenthe were, on the 11th of April 1580, admitted into the confederation of Utrecht, but their country was afterwards invaded and occupied by the Spaniards. After the enemy had withdrawn and evacuated their territory, it seems clear, that they had recovered all their former rights, by virtue of the law of postliminy. Nevertheless, although they several times petitioned the states-general, to be readmitted into the union, no order has yet been taken upon any of their petitions; and once, in the year 1650, when, after having received a summons, which, it is said, the presi
We have taken the liberty to abridge several parts of this chapter, which, in the original, contains a variety of details, altogether uninteresting to us, and which do not at all elucidate the author's principles. T
† De J. B. ac P. 1. 3. c. 9. 8 9. n. 1.
dent of the states-general had signed by mistake, their deputies attended at a meeting of the states, they were refused admittance. This certainly appears to be an act of injustice, particularly as neither the states-general nor the provincial states* have ever given any reason for their refusal to admit them, in which they persist to this day. It may, perhaps, be alleged, that the Drenthers did not renounce their allegiance to the king of Spain, as the other confederates did on the 26th of July 1581; consequently, that they remained under the dominion of the Spaniards, and are to be treated as a conquered country. But I would not exclude them on that account, as I am not clear that they forfeited the privileges of the Dutch union, merely because they did not renounce the king of Spain, nor do I find that this has ever been objected to them. Therefore, I see no reason why the Drenthers should not enjoy the benefit of the law of postliminy.t
The inhabitants of those parts of Brabant, which were under the dominion of the king of Spain, but were afterwards taken by the United Dutch, also petitioned the states-general, in 1648, to be admitted into the confederation of Utrecht; but they were not even permitted to manage their own internal government. Some of the provincial states, however, gave power to their delegates to decide upon that business, but nothing was done in it. The Brabanters again petitioned on the 22d of March 1651, but to no purpose. Their case does not appear to come properly within the principle of the law of postliminy, for none of their cities, except Breda, had ever been admitted into the confederation of Utrecht. But as to the inhabitants of Breda, I entertain the same opinion which I have already expressed with regard to those of the district of Drenthe.
The case of Guelderland, Utrecht, and Over-Yssel, three out of the seven united provinces, comes much more properly within the law of postliminy. In the year 1672, they were taken by the French, * and afterwards recovered by us. While they were in the power of the enemy, they certainly were not entitled to their former rights as confederates, and on that account their delegates were very properly ordered not to attend any longer at the meetings of the states-general; but when those provinces again came into our possession, they were with equal propriety, considered as being restored to their former rights, by virtue of the law of postliminy. Indeed, the states-general decreed, on the 20th of April 1674, that those provinces should be restored to their former municipal and confederate rights, as they enjoyed them before their capture, except, however, that they deprived Guelderland of one vote in the assembly of the states, and several other conditions were, in fact, imposed upon them before they were readmittted into the union; for, they were informed, that they should swear anew to the articles of confederation, as if they were admitted for the first time. But if, by the operation of the law of postliminy, every thing is to be restored as if the captivity had not taken place, as it is every where understood, and is conformable to the usage of nations, every thing ought to have been restored to those provinces, which they possessed before their capture. They were, in my opinion, fully entitled to the benefit of the law of postliminy, and if so, why was a part of their rights retained? If, on the contrary, they were not, why was any thing granted to them?
It has been objected, I know, that the decrees of the statesgeneral, on the subject of postliminy, speak of our subjects only, and that no mention is made in them of our allies and confederates; but that was not the question at the time when those decrees were made. Nay, even if the point were to be decided by those decrees, those should certainly be considered as subjects of this state or republic, who constitute so large a part of it. Others are more properly of opinion, that on the subject of postliminy, there ought to be no difference between
ourselves and our allies and confederates. Hence the decree of the states-general, of the 23d of October 1676, which I have mentioned above, * grants the benefit of that law, not only to those things which have been taken on board of our vessels, and afterwards recaptured, but also to those which are taken by the enemy, on board of the vessels of allies and of neutrals, and afterwards recaptured by us. I have also herein before shewn, that such was formerly the doctrine adopted by the states-general, and that they blamed the French for having followed a different principle.
While the kingdom of Portugal was in the possession of the Spaniards, with whom we were at war, the states-general conquered a considerable part of the colony of Brazil, and several others of the Portuguese dominions in different parts of the world. After Portugal had recovered her independence, a truce of ten years was signed between that country and the states-general, in 1640. But our government would not permit that the Portuguese should claim by virtue of the law of postliminy, any part of the dominions which once had belonged to them, and which we had taken from the Spaniards. In 1657, the truce being expired, but before any notice given of the renewal of hostilities, the Portuguese retook some of those places, and on the states-general complaining of it, they refused to restore them, but offered to pay a sum of money by way of compensation, which our government not being disposed to accept, they declared war against Portugal, on the 22d of October 1657. At last this controversy was settled by the treaty of peace which was made on the 6th of August 1661.
The Portuguese were undoubtedly in the right, to claim the dominions which the states-general had taken from them, be
* C. 5.— Above, p. 119.
Shortly after the restoration of the house of Braganza to the throne of Portugal, the states-general made a treaty of alliance with that kingdom against Spain, notwithstanding which the two allies remained at war with each other, and although they united their forces against the common enemy, their mutual hostilities were only suspended by a truce of ten years, which was not very religiously observed. Cerisier, Hist. Gen. des Prov. Un vol. vi. p. 148.-Raynal, Hist. Philos. & Polit. 1. 9.