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On withdrawal of an invasion, old system is revived.

§ 222. When an invading army withdraws, the condition of things existing before the occupation is restored. By the Roman law this restitution, so far as the return of goods is concerned, is spoken of as postliminium, to be discussed in the next section. After the withdrawal of military government, at the close of the late civil war, it was held that the authority of the civil courts revived. When an invader withdraws from an invaded foreign country, that country is left to the reorganization of its own institutions.2

Jus postliminii is right of the owner of

recaptured

§ 223. The jus postliminii, or right of postliminy, as it sometimes is called, is the right of the owner of recaptured goods to be restored to their possession. If, for instance, my goods are seized by foragers of an property to invading army, and these foragers are promptly driven back and the goods taken from them by an session. armed force of my own country, I am entitled to have my goods restored to me. There are, however, several qualifications of this right :

be restored

to its pos

(1) It cannot be exercised in the territory of a neutral state,

lies, etc., must be organized, disciplined, and subjected to the command of the public authority. Fioré, Nouveau Droit International, v. ii. p. 277. "As to the status of franc-tireurs during the Franco-German war, 1870, Count Bismarck declared to the French government that only men who can be recognized within gunshot, as soldiers, shall be considered and treated as such;' and 'that all those who, not being on all occasions and at a proper distance recognizable as soldiers, may kill or wound any Prussians, shall be tried by court-martial.' Foreign Relations of the United States, 1870, p. 142." Field, ut supra.

"Inhabitants of a country invaded, who spontaneously unite in arming to oppose invasion, or who, under

military organization, and for political reasons, without motives of private gain, take part in hostilities. existing between belligerents, are not to be treated as criminals, unless after being required by the enemy to lay down their arms or to join the regular military forces within a reasonable time, they fail to do so. Field, § 787.

Bluntschli, § 570, treats as belligerents such volunteer bodies as those which Garibaldi led on his own authority in the Italian wars of 1859 and 1866. Lieber, in his Instructions, takes a stricter view.

Ex parte Milligan, 4 Wall. 2; see supra, §§ 37, 38.

2 Supra, § 137 et seq.

3 Vattel, b. 3, c. 14; 1 Kent's Com., 168; Hall, Int. Law, § 162.

since a neutral state necessarily regards all captures by belligerents as equally legal.'

(2) The recapture must be prompt. After twenty-four hours, goods seized in a land war vest in the captor, so far, at least, as to give title to those by whom the goods are recaptured.

Difficult questions arise as to the disposition of property seized by the invader in conformity with the law of nations. If the invader is authorized to make such seizure, he is authorized to pass title to the goods seized, and to such goods in the hands of bona fide purchasers from the invaders, postliminium does not apply.2-Real property is not affected by the limits imposed on the title to goods. When land is occupied by an invader, his title is not regarded as complete until ratified by the treaty of peace. When so ratified, if the land is alienated by the conqueror, the alienee, according to the prevalent opinion, takes title subject to the contingencies of a reconquest, in which case the title reverts to its former owner. In any view, a treaty of peace extinguishes the right of postliminy in parties who might by such right have recovered property during the pendency of war.1

Maritime

§ 224. By the statute law of England, when ships or goods captured at sea by an enemy are recaptured during the war, they are to be restored to the original owner, law reon paying salvage. The same right is reserved to

1 See McDonough v. Dannery, 3 Dallas, 188; Josefa Segunda, 5 Wheat. 388.

* Holtzendorff, ut sup., citing Eichelman, Ueber die Kriegsgefangenschaft, 1878.

That the jus postliminii does not subject intermediate importations liable to duty to the recovering sovereign, see U. S. v. Rice, 4 Wheat. 246; U. S. v. Hayward, 2 Gall. 485.

In the Roman law the jus postliminii was the right of a person returning from captivity, not only to recover his former status, but to have restored to him the goods taken from him by the

stores captured prop

enemy, but recaptured from the enemy. "Postliminium fingit eum, qui captus est, semper in civitate fuisse ; dictum est autem postliminium a limine et post, ut eum, qui ab hostibus captus in fines nostros postea pervenit, postliminio reversum recte dicimus." § 5, i. 1, 12, tit. D. 49, 15, c. 8, 51.

By an ordinance of the Continental Congress the jus postliminii was limited to "a recapture within twenty-four hours." The Resolution, 2 Dall. 4.

3 Vattel, b. 3, c. 7, § 132; 1 Kent's Com., 111.

4 Vattel, b. 3, c. 14, § 216; Schoone Sophie, 6 C. Rob. 139.

erty on paying salvage.

allies of England who act according to the same liberal principles.' The salvage is awarded as a matter of right to the recaptor.2 By the act of congress of June 30, 1864, ch. 174, § 29, salvage is allowed in all cases of restoration (which must be before condemnation) of vessels or other property recaptured by United States forces from captures by an enemy. But to such cases the law of postliminium, in its technical sense, does not apply. "If a prize be brought into a neutral port by the captors, it does not return to the former owner by the law of postliminy, because neutrals are bound to take notice of the military right which possession gives, and which is the only evidence of right acquired by military force as contradistinguished from civil rights and titles. . . . All captures are to be deemed lawful, and they have never been held within the cognizance of the prize tribunals of neutral nations."

Articles

of war may

XIV. CONTRABAND.

226. There are two classes of goods as to which no question can arise in this connection. The first comprises contraband things that could not possibly be used for warlike be forfeited purposes, e. g., books in no way connected with war, articles of family dress, etc. The second comprises articles which could not be used for any but warlike purposes, e. g., cannon, torpedoes, and firearms so constructed as to be fitted only for military use. Between these two classes fall innumerable articles, whose character in this respect depends upon the concrete case. Iron, for instance, would not be ordinarily contraband; but if it be forwarded to a cannon foundry belonging to a belligerent to be made up into cannon, and if the whole transaction be for the purpose of thus applying the iron, then the iron in this particular case would be contraband. On the other hand, it may be said that from the nature of things powder is contraband of war; yet in a great country like the United States, where there are so many uses to which powder can be put beside that of the battlefield, it

The Santa Cruz, 1 C. Rob. 50.
The Two Friends, 1 C. Rob. 271.

Kent's Com., i. 109.

would be absurd to say that sales of powder in large masses from a powder mill are contraband, though it was probable at the time that some portion of the powder so sold would pass into belligerent hands. Coal, also, may be the subject of lively controversy in this relation. It is certainly no breach of neutrality to sell coal for use on a belligerent steamer visiting the port of sale casually under distress of weather. But it would plainly be a breach of neutrality to establish a coaling depot to supply all steamers of a belligerent which might desire to be thus aided. The fact is, that unless in the two extreme cases above noticed, each case, if not determined by treaty, must depend upon the particular facts. It should be added that personal service-locatio operis-may be contraband of war; and in this sense negro slaves of a belligerent were held in the late American civil war to be contraband, and liable to capture and liberation as such.2

1 Infra, § 251; see Whart. Crim. which are not likely to be used for the Law, 8th ed., §§ 1901 et seq.

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military aid of a belligerent are not contraband. See The Commercen, 1 Wheat. 382. Whether neutrals are precluded by the law of nations from furnishing articles contraband of war to a belligerent, see infra, §§ 238 et seq.

The United States, in treaties negotiated in the two administrations of Washington and Adams, classed munitions of war, horses, sulphur, and saltpetre, as contraband; while provisions, coin and metals, ships. and articles of naval construction, were excluded from the category. In response to the En

As to seizure of insurgent's goods, glish instructions of June, 1793, it was see infra, § 455.

As to seizure of cotton, see supra, § 216.

In The Jonge Margaretha, 1 C. Rob. 189, it was held by the English admiralty court that the scope of contraband prohibitions varies with the circumstances of the times. Thus, in 1747, butter, salt fish, and rice were held to be contraband; though the prevalent rule is now held to be that provisions

insisted that provisions can only be contraband when sent to a place actually invested. Mr. Randolph to Mr. Hammond, May 1, 1794; Am. State Papers, i. 450. It is true, that subsequently the supreme court held that provisions "destined for the army or navy of the enemy, at his ports of naval equipment," are contraband. The Commercen, 1 Wheat. 387; see Maissonnaire v. Keating, 2 Gall. 335. But while one

227. As to whether confiscation is to extend beyond specfic contraband goods, several distinctions have been taken. Ortolan holds that the entire cargo can be confiscated:—

belligerent may seize provisions on their way to the other belligerent's ships, the mere fact that a belligerent should conclude that certain provisions may fall into hostile hands will not justify him in confiscating such provisions as contraband.

According to Chief Justice Chase (The Peterhoff, 5 Wall. 58), contraband goods are divided into three classes: "Of these the first consists of articles manufactured, and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes."

"Merchandise of the first class destined to a belligerent country, or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege."

Artillery, harness, men's army bluchers, artillery boots, government regulation gray blankets, are of the first class. Id.

Contraband is liable to capture when destined to the hostile country or to the actual military or naval use of the enemy (according to the above rule), whether a violation of blockade be intended or not. Id.

ous or uncertain use, when in the enemy's country and in time of war."

"One class of writers contends for an absolute rule as to all articles of such descriptions; so that if upon the application of the general test, they are left ancipitis usus, they must be free, and no further inquiry can be made for the purpose of ascertaining the probable use in the particular case. Another class of writers contends, that as to such articles inquiry may be made into the circumstances, for the purpose of determining their probable use in the particular instance. The latter rule has been unquestionably the British doctrine, enforced by her orders in council and prize courts, recognized in her treaties, and sustained by her statesmen and text-writers. Reddie on Maritime Intern. Law, ii. 456; Phillimore's Intern. Law, iii. 245-284; Wildman's Intern. Law, ii. 210 et seq.; Manning's Law of Nations, 282 et seq.; Mosely on Contraband, passim. It may also be said, in the main, to have been the American doctrine." Kent's Commentaries, i. 140; Halleck, Intern. Law, 569-590; Woolsey, Intern. Law, §§ 180, 181.

"Of the continental writers, Hautefeuille contends for the absolute rule limiting contraband to such articles as are in their nature of first necessity for war, substantially exclusively military in their use, and so made up as to be capable of direct and immediate use in war. (Tit. 8, § 2, tom. ii. pp. 84, 101, 154, 412; tom. iii. p. 222.) Ortolan is of the same opinion, in principle; and

Dana, in his notes to Wheaton, gives contends that all modern treaties limit the following statement:

"The principal point in dispute is as to articles admitted to be of ambigu

the application of contraband to articles directly and solely applicable to war; yet he admits that certain articles not

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