The broad and extreme rights of conquest which have often been asserted by writers were in reality qualified by the doctrine of postliminium. Under this doctrine, which is analogous to the jus postliminii of the Roman law, where territory occupied by the enemy comes again during the war into the power of the titular sovereign, the legal state of things existing prior to the hostile occupation is reestablished. The same doctrine is applied to property susceptible of appropriation, which, after being captured by the enemy, is recaptured before the moment at which it so becomes the property of the captor that third parties can receive from him a transfer of it.

As a general rule, the right of postliminium in the case of occupied territory goes no further than to revive the exercise of rights. from the moment at which it comes into operation, so that it does not, as a rule, invalidate acts of the invader which he was competent to perform, such as judicial or administrative acts not of a political complexion, and acts done by private persons under the sanction of municipal law. When an invader exceeds his legal power, as where, supposing himself to have effected a permanent conquest, he assumed to alienate the domains of the state or the landed property of the sovereignty, his acts are null and against a legitimate government. In the case of captured vessels it is usual to return the captured property to the owner on payment of salvage.

Hall, Int. Law (5th ed.) 486-495.

See, also, Phillimore, Int. Law (3d ed.) III. 841; Woolsey, Inc. Law, 6th ed., 234, 248-252.

"The jus postliminii, derived from the Roman law, and regulated in modern times by statute or treaty, or by the usage of civilized nations, has been rested by eminent jurists upon the duty of the sovereign to protect his citizens and subjects and their property against warlike or violent acts of the enemy. Vattel's Law of Nations, lib. 3, c. 14, § 204; Halleck's International Law, c. 35, §§ 1, 2. He is under no such obligation to protect them against unwise bargains, or against sales made for inadequate consideration, or by an agent or custodian in excess of his real authority. The jus postliminii attaches to property taken by the enemy with the strong hand against the will of its owner or custodian, and not to property obtained by the enemy by negotiation or purchase.”

Oakes v. United States (1899), 174 U. S. 778, 792-793.

XII. PACIFIC INTERCOURSE Of belligERENTS.

1. FLAGS OF TRUCE.

§ 1157.

For the purpose of communicating between enemy forces in position, or on the march, or in action, use is made of flags of truce. If the flag proceeds from the enemy's lines during a battle, the ranks which it leaves must halt and cease their fire. When the bearer displays his flag, he will be signaled by the opposing force, either to advance or to retire; if the former, the forces he approaches will cease firing; if the latter, he must instantly retire, since, if he should not, he may be fired upon.

Halleck, Int. Law (3d ed., by Baker), II. 333–334, citing Scott, Military
Dictionary, 304.

"111. The bearer of a flag of truce can not insist upon being admitted. He must always be admitted with great caution. Unnecessary frequency is carefully to be avoided.

"112. If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle.

"113. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever.

"114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. "So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of Rebellion,
Official Records, series 3, III. 159.

"ARTICLE XXXII. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into communication with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag bearer, and the interpreter who may accompany him.

"ARTICLE XXXIII. The Chief to whom a flag of truce is sent is not obliged to receive it in all circumstances.

"He can take all steps necessary to prevent the envoy taking advantage of his mission to obtain information.

*In case of abuse, he has the right to detain the envoy temporarily. “ARTICLE XXXIV. The envoy loses his rights of inviolability if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery."

Convention respecting the Laws and Customs of War on Land, The Hague,
July 29, 1899, 32 Stat. II. 1819.

A communication from the Spanish consul, at Charleston, to Mr. Tassara, Spanish minister at Washington, was delivered, sealed, by the Confederate authorities to the military authorities of the United States, under flag of truce. The latter, in conformity with military practice, opened the parcel, and it was sent in that condition to Mr. Seward, who transmitted it to Mr. Tassara. Mr. Tassara remonstrated against the opening of the parcel, but at the same time requested Mr. Seward to convey an official communication from him to the consul. Mr. Seward answered (1) that he would "direct the conveyance by flag of truce of any unsealed official communication; " (2) that, while he approved the military order requiring the conductor of a flag of truce to open all communications received by him, he held in such high respect Mr. Tassara and his Government that he would in any case forbear to read any official communications between officers of that Government which might come, sealed or unsealed, into his hands; (3) that, in view of Mr. Tassara's complaint and remonstrance, the military authorities of the United States conducting flags of truce would be instructed "neither to receive nor to convey any communications whatever issuing from or directed to any Spanish authority or agent, unless the same shall be unsealed."

Mr. Seward, Sec. of State, to Mr. Tassara, Dec. 17, 1864, MS. Notes to
Spanish Leg. VIII. 23.

A report having been received in Washington that President Balmaceda, of Chile, had threatened to shoot envoys of the Congressional party if they should be found within his jurisdiction, the American minister at Santiago was instructed by telegraph, May 14, 1891, that, if they should come within such jurisdiction, relying on an offer of mediation or on an invitation of the mediators (of whom the American minister was one), he would "insist that under any circumstances they should have ordinary treatment of flag of truce.”

For. Rel. 1891, 123.

A safe conduct was given by the Chilean Government, May 2, 1891, to representatives of the Congressional party to confer with the mediating diplomatic representatives. It seems that the report that the envoys would be shot grew out of a vague threat of the minister of the interior, made under excitement, after a bomb had been thrown

at some of the members of the cabinet. The minister of foreign affairs wrote an explanation and apology to the mediators, and President Balmaceda and his cabinet disavowed any intention of molesting the envoys and afforded them every facility to leave the country. It appears that before the negotiations the envoys were concealed in Santiago. (For. Rel. 1891, 123, 126, 130.)

In March, 1904, the Japanese Government sought permission from the Russian Government, as soon as navigation was opened, to send a neutral ship to Korsakov, Saghalien Island, to bring away two members of the Japanese consular staff and 600 Japanese subjects, who were detained there by ice, and who were believed to be suffering from scarcity of food. The Russian Government replied that, under the rules of war adopted by it on February 14, 1904, the departure of the Japanese from Korsakov would be permitted; that arrangements might be made for a neutral vessel to proceed there when navigation opened, about the 1st of May, and that facilities would be given for direct communication with all Japanese subjects in Siberia as soon as information concerning their whereabouts could be obtained. In accordance with this permission a neutral vessel, early in May, arrived at Vladivostok, and four days later left with 326 Japanese from Korsakov.

For. Rel. 1904, 432-433, 434-435, 436, 715, 718, 720.

See, also, as to other Japanese subjects permitted to leave Russia, For.
Rel. 1904, 436.

2. PASSPORTS AND SAFE CONDUCTS.

§ 1158.

A passport or safe conduct is a document granting persons or property a specified exemption for the time being from the operations of war. The term passport is applied to personal permission given to friends on ordinary occasions, both in peace and war, to go where they wish; while the term safe conduct is usually given to an authority to an enemy or an alien to go into places where they would otherwise be in danger or to carry on a trade forbidden by the laws of war. The word passport, however, is more generally applied to persons, and safe conduct to both persons and things.

See Halleck, Int. Law (3d ed., by Baker), II. 323–325.

General Scott, referring to approaching meeting of the new Federal Congress, after his capture of the City of Mexico, says: "I have seen and given safe conduct through this city to several of its members." He also gave Santa Anna's wife a passport to enable her to follow her husband.

Scott, Autobiography, II. 532, 537.

3. SAFEGUARDS.

§ 1159.

Safeguards are protections granted by a general or other officer for persons or property within the limits of his command against the operations of his own troops. Sometimes they are delivered to the parties whose persons or property are to be protected; at others, they are posted upon the property itself, as upon a church, museum, library, public office, or private dwelling. They are particularly useful in the assault of a place, or immediately after its capture, or after determination of a battle, to protect persons and property of friends from destruction by an excited soldiery. Violation of such instruments are usually punished with the utmost severity. A guard of men is sometimes called a safeguard when detached to enforce the safety of the persons and property of those protected. A safeguard, when used to denote a kind of passport or safe conduct, is to be construed according to the rules of interpretation applicable to such instruments.

Halleck. Int. Law (3d ed. by Baker), II. 325–326.

4. CAPITULATIONS

$ 1160.

"Capitulations are agreements entered into by a commanding officer for the surrender of his army, or by the governor of a town, or a fortress, or particular district of country to surrender it into the hands of the enemy. Capitulations usually contain stipulations with respect to the inhabitants of the place which is surrendered, the security of their religion, property, privileges and franchises, and also with respect to the troops or garrison, either allowing them to march out with their arms and baggage, with the honours of war, or requiring them to lay down their arms and surrender as prisoners of war."

Halleck, Int. Law (3d ed., by Baker), II. 319–320.

A capitulation entered into by a belligerent in regard to the surrender of one of its possessions binds its allies.

Case of The Resolution, Federal Court of Appeals, 1781, 2 Dall. 1, 15.

"In April, 1865, General Grant wrote to General Lee that he proposed to receive the surrender of the Army of Northern Virginia on the following terms, viz:

1. That rolls of all the officers and men were to be made in duplicate, one copy to be given to an officer of the selection of the former, the other to be retained by whomsoever the latter might appoint.