IT CHAPTER XV. Of the Right of Postliminy on neutral territory. T has been questioned whether this right extends to persons or things, which, after being taken by an enemy, are carried by him into the territory of a neutral. It might be supposed that this question is settled by that passage from the Digest, in which Pomponius says, "that one of our people who has been taken by the enemy, is understood to be returned among us, if he arrives among our friends or upon our territory;"* and as the same law which, on the subject of postliminy, applies to persons, applies also to things, there does not appear to be any further room for controversy; for it seems, that under the general denomination of friends, Pomponius has meant to include neutrals, who are certainly entitled to that appellation. But Grotius construes it in a different manner; he thinks, and in my opinion justly, that by the word friends are not generally to be understood, all those who are at peace with us, but only those who are engaged with us in the same war. He gives the same interpretation to what is said by Paulus, that "those are considered as having returned to us by right of postliminy, not only who have actually entered our territory, but who have arrived within the dominions of a friend or ally; because there they begin to be under the safeguard of the public faith."+ If we take the words "OR an ally" conjunctively, (which we may, perhaps, do, in the same manner that we frequently construe a conjunctive into a disjunctive), Paulus's opinion will support the interpretation of Grotius; for an ally certainly comes within the description of the word friend. If, however, we take it in the disjunctive sense, it will be sufficient that it be a neutral or friendly, though not an allied nation. Of this opinion is Albericus Gentilis;* but he is clearly in the wrong; because the reason which Paulus gives, that the person who was taken begins, when on a friend's territory, to be under the safeguard of the public faith, applies as well and rather more to an ally than to a mere friend. Of the same opinion with Grotius, and before him, was Antonio de Gama,† whom Gentilis on that account undertook to refute. Zouch, according to his custom, contents himself with relating the different opinions of others, and gives none himself, though he rather appears to incline to that of Gentilis. As to Grotius, he supports what he says merely by the authority of precedents, without adding a single argument of his own. "Among those," says he, "who are friends, but not allies, prisoners of war do not change their condition, unless it be so specially agreed by treaty," and by way of example, he immediately quotes the second treaty between the Carthaginians and Romans; but Zouch very properly observes, that it does not sufficiently appear whether what the two nations agreed upon together is to be considered as a declaration of the law of nations, or as an exception to it. In various treaties, among the most ancient as well as the most modern, this is a question which it is often difficult to decide; and it is always dangerous to infer the law of nations merely from treaties, without also consulting reason. Grotius adds, in his notes, that it appears from Thuanus, that the king of Fez and Morocco was of the same opinion with him; but no one will be willing to be instructed by such masters in the law of nations. * De Advoc. Hisp. l. 1. c. 1. De Jure Fec. p. 2. § 8. Q. 2. § It was stipulated by that treaty, that if the prisoners made by the Carthaginians on some nation in friendship with the Romans, should come into the countries under the Roman dominion, they might be reclaimed, and should again become free; and that the friends of the Carthaginians should have the same right within the Punic dominions. Grot. ubi suprà. As to other writers, Huberus* is of the same opinion with Grotius, when he understands by the word returned, one who is come back into the territory of an ally. Hertius† agrees also with him, and considers the right of postliminy as not being founded on the law of nations, but on municipal law. He decides on the question so often discussed among nations, "whether a prisoner of war, or captured property, which is brought into a neutral country, are entitled to their liberty by the right of postliminy?" He maintains that they are not; "because," says he, "neutrals are bound to take the fact for the law,' and therefore cannot say that the capture was illegally made."+ But, indeed, if we chuse to consider this subject by the mere light of reason, this question appears to me so idle, that I wonder that it has exercised the minds of so many writers. He who returns among the allies of his sovereign, is entitled to the right of postliminy, because he is considered as having returned to his own country, for allies are considered as making but one state with ourselves. Certainly they are not to be considered as separate nations in respect to the war in which they unite their forces and mutual assistance. Therefore, by the word friends, which Pomponius|| makes use of, I would understand those who are such in the highest degree, that is to say, who are in alliance with us against the same enemy; and by Paulus's expression, ¶ "a friend or ally," * De Jure Civitatis, 1. 3. § 4. c. 5. n. 11. † Adnot. ad Puffend. De Jure N. and G. 1. 8. c. 6. n. 25. Such is also the opinion of all the modern writers, and particularly of Vattel. Le droit de postliminie n'a point lieu chez les peuples neutres; car quiconque veut demeurer neutre dans une guerre est obligé de la considérer quant à ses effets, comme également juste de part & d'autre, & par conséquent de regarder comme bien acquis tout ce qui est pris par l'un ou l'autre parti. The right of postliminy does not take place among neutral nations; for whoever will remain neutral in a war, is obliged to look upon it, as to its effects, as being equally just on both sides, and consequently to consider as a lawful acquisition whatever is captured by either party. Law of Nat. I. 3. c. 14. § 208. § Unam constituunt Civitatem. See the Henrick and Maria, 4 Rob. 49. Amer. edit. || Above, p. 113.- Ibid. T. . 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 principally 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 possession 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 dif ference 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 different 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. T. 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 carried 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 or detain prisoners of war, in order to confine them, is a continuation of hostilities.” Law of Nat. 1. 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. |