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.†

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 Causâ 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.

T.

|| 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.

T.

* 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. I. 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. 1. 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.

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.

CHAPTER XVI.

Of the Right of Postliminy as applied to cities and states.*

IT

T has been very properly said by Grotius,† 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.

† De J. B. ac P. 1. 3. c. 9. § 9. n. 1.

T.