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“When movable property has passed into the hands of the enemy, unless its recovery be immediate, and under those rare circumstances as repel the presumption of its abandonment and render it susceptible of a complete identification, the right of postliminium, as we have seen, does not attach to it; a fortiori, does it cease to be affected by any such right, after having passed into the complete possession of the enemy, it has been by him in good faith transferred to a neutral."1
Although it is very clearly established by the law of nations, that the right of postliminium, as to movables, is so far extinguished when they have arrived to the complete possession of the enemy, as to enable him to confer, by alienation, an indefeasi. ble title upon a neutral, yet the question in this connection, of what constitutes such complete possession has been the subject of no little discussion. While some writers have stated it to be sufficient if the property have been twenty-four hours in the enemy's possession, others have declared it to be requisite that it should be carried infra præsidia, that is, within the camps, towns, ports or fleets of the enemy; and still others have drawn various arbitrary lines. It has become in later days a well settled principle, that a possession of a more absolute and decided character is requisite to confer such a title as to extinguish the right of postliminium.
“I apprehend,” says Lord Stowell, in a case in. volving the question, “ that by the general practice of the law of nations, a sentence of condemnation is,
" 2 Wooddes, 441, 8 34.
at present, deemed generally necessary—and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation, as one
of the title-deeds of the ship, if he buys a prize A sentence of vessel. I believe there is no instance, in which a necessary to man having purchased a prize-vessel of a belligerent, change proper has thought himself quite secure in making that the vendee of purchase, merely because that ship had been in the
enemy's possession twenty-four hours, or carried infra præsidia."
The rule which requires a sentence of condemnation is undoubtedly the established rule in England. It is there held, that until such condemnation, the property is not changed in favor of the vendee or recaptor, so as to bar the original owner.”
As long ago as in the reign of Charles II., a solemn judgment was rendered on this point, and restitution of a ship was decreed, after she had been fourteen weeks in the enemy's possession, because she had not been condemned. This early judgment of the Court of Admiralty is cited with approval by Lord Mansfield in a case before him in which the point arose.
The English courts of common law have since enforced the rule, and even to the extent of holding, that after four years' possession, and the performance of several voyages, the title to the property is not changed without a sentence of condemnation,
A sentence of condemnation has been universally held to intend: first, a sentence by a court of competent jurisdiction, and second, a sentence of such court either in the country of the enemy or an ally, and not in a neutral country.
i The Flad Oyen, 1 Rob., 134. ? 3 Rob., 236. 8 Goss vs. Withers, 2 Burr., 583.
* Assievedo vs. Cambridge, 10 Mod., 79 ; vide The Constani Mary, 3 Rob., 97, 237.
The right of postliminium terminates by the Termination of
right of postdeclaration of peace, between the country of the liminium. enemy and that from which the prize was taken. Therefore, it has been held, that a ship which has been sold to a neutral, after an illegal condemnation by a prize court, and which would not have been considered as a valid transfer of a legal title in time of war,—by the intervention of peace, was to be deemed a legitimate possession in the neutral's hands, and cured of all defects of title. “Otherwise,” observed Lord Stowell, “it could not be said that the intervention of peace would have the effect of quieting the possessions of the enemy, because if the neutral possessor was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him; and as to a renewal of war, though that may change the relations of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before.”
Where a transfer has been made in good faith by a hostile captor to a neutral, at the time of the assignment, the title of the assignee will not be affected by his subsequently becoming an enemy.
The rules which have been stated are those which, by the general law of nations, govern the right of
The Sophie, 6 Rob., 142. ? The Purissima Conception, 6 Rob., 45.
postliminium, and are considered of binding force where the interests of neutrals are concerned. In cases, however, affecting only the citizens or subjects of the nation, some peculiar modifications of the general principle have been introduced by special statute provisions, both in England and in the United States.
By acts of Parliament' it is provided that the right of postliminium, as between British subjects, shall continue even to the end of the war; and, therefore, the ships or goods of the subjects of that country, taken at sea by an enemy, and afterward retaken at any indefinite period of time, and whether before or after a sentence of condemnation, are to be restored to the original proprietors. An exception, however, is made as to ships which the enemy have set forth as vessels of war; these are not subject to restoration to the original owners, but belong wholly to the recaptors. But if the property recaptured was, at the time of the original capture, employed in an illegal trade, this works a divesting of the original right, and the former owner will
not be admitted to restitution from the recaptors. The right of The United States government, by act of Conpostliminium by the laws gress, expressly continues the jus postliminiz, until
a divesting of the title to captured property by a sentence of condemnation. It also directs a restitution of recaptured property to the foreign and friendly owner on the payment of reasonable salvage. But the provisions of the law are declared
of the United States.
'13 Geo. II., c. iv.; 17 Geo.II., c. xxxiv. ; 19 Geo. II., C. xxxiv.; 43 Geo. III., c. clx.; 2 Burr., 1198; 1 Black. Rep., 27.
• The Walsingham Packet, 2 Rob., 77.
not to apply where the property has been condemned as prize by a competent court, before recapture, nor when the foreign government would not restore the goods or vessels of citizens of the United States, under the like circumstances. This last provision of the statute law of the United States is understood to be the rule in England. In a case involving the right of postliminium between the subjects of Great Britain and her allies," Lord Stowell says: “The actual rule I understand to be this: that the maritime law of England having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act toward British property on a less liberal principle. In such a case, it adopts their rule, and treats them according to their own measure of justice.”
The obligation of recaptors to restore the property General right to the original owner, is, as a general rule, connected restitution by with the right on their part to be paid a compensa
recaptors. tion or reward given for saving or recovering the property: and this is denominated salvage; and to distinguish it from the ordinary salvage known to the commercial law, it is called military salvage. The extent of this compensation is usually fixed Rate of com.
pensation. by legislative enactments, and the rates vary with varying circumstances, and in some cases the amount is within the uncontrolled discretion of the court.
1 The Santa Cruz, 1 Rob., 49; vide also The San Francisco, 1 Edwards, 279.
, The Dickenson, Hay and Mariott, 48; The Betsy, ib., 81; The Two Friends, 1 Rob., 279.