“declaration on his part having been incorporated in the "Treaties signed in 1713 at Utrecht, became thereby part "and parcel of the Public Law of Europe. Moreover, the "third article of the Treaty concluded in 1725, between "Spain and Austria, stipulates that the Crowns of France. "and Spain shall never be united either in the same person

"or in the same line.

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And, secondly, Philip the Fifth of Spain declared, on "the 8th of July, 1712, that no descendant of any family "which might at any time reign in France should be "capable of succeeding to the throne of Spain; and in 1713, "the same Sovereign issued a Cedula, in which he declared "that all the princes of the blood of France, and all their "lines, either then in existence, or which might thenceforward "exist, should remain excluded from the succession to the Spanish monarchy.

"It is indisputably demonstrable that, in consequence of "these public acts, no person being the offspring or the "descendant of the Duke of Montpensier, could, under any "circumstances, succeed to the throne of Spain; and there"fore the offspring or descendants of the marriage of the "Duke of Montpensier with the Infanta Luisa-Fernanda, "if that marriage should take place, would be for ever "excluded from the succession to the Spanish crown, in the " event of a failure of succession in the line of her present "Majesty the Queen Isabella; nor could any right or capacity which such offspring or descendants of the marriage of the Duke of Montpensier with the Infanta might "inherit from the Infanta prevail against the positive dis"qualification and exclusion which would attach to them as "descendants of the Duke of Orleans of 1712.

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"The British Government deems it to be its duty to "make this public and solemn declaration of the incapacity, disability, and exclusion, in regard to the succession to the "throne of Spain, which would attach to any issue or de"scendants of the marriage of the Infanta with the Duke of Montpensier, if, in utter disregard of the remonstrance and

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"protest of Great Britain, that marriage should be persisted "in; and thus, if at any future time any dispute should in consequence thereof arise as to the succession to the throne "of Spain, and if Great Britain should in such case deem it proper to take part in such dispute, in support of the principles which have been set forth in this note, it will not be "in the power of any of the parties concerned to allege that "the British Government did not give timely warning of "its sentiments and views.

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"The undersigned, &c."

In a message of the President of the N. A. United States in 1847, the doctrine in the text is strongly insisted upon : "A state of war" (it says) "abrogates Treaties previously "existing between the Belligerents, and a Treaty of Peace puts an end to all claims for indemnity for tortious acts "committed under the authority of one Government against "the citizens or subjects of another, unless they are provided "for in its stipulations " (y).

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(y) President's Message, Annual Register, 1847, p. 407.

CHAPTER III.

WHERE, HOW, AND UNDER WHAT LIMITATIONS THE DOCTRINE OF POSTLIMINIUM MAY BE APPLIED TO STATES AND THE SUBJECTS OF STATES ON THE RETURN OF PEACE.

DXXXIX. WHERE the Treaty of Peace is silent, containing no express or implied provision concerning rights or property which have undergone a de facto change during the vicissitudes of War, some rules of justice must be applied, when the War is over, to settle the condition of these rights or this property, whether they appertain to a nation or an individual subject.

These rules belong to the category of Postliminium (a), a name which has, ever since its introduction into the Roman Law, obtained universally in Public and International Jurisprudence.

It is true that, strictly speaking, the name itself appertains to a state of War; but the principle, which the doctrine conveys, is applicable to the state of things now under our consideration. For the doctrine of Postliminium applies to personal status, to property, and to obligations, and says, in its general language, that these, being de facto freed from the pressure of the enemy's force, shall return to the channels in which they flowed before they were by the pressure of

(a) Vide ante, vol. i. §§ celvii. cclxxxix.

Heffter, s. 187.

Dig. xlix. t. xv. De Captivis, et de Postliminio, et Redemptis ab

Hostibus.

Voet, t. iv. p. 642, upon Dig. xlix. t. xv.

that force diverted from them. The principle upon which the doctrine rests is, that rights duly acquired cannot be permanently taken away, either by the act of an individual or by the act of an enemy State, without the consent of the State, to which the original owner belongs.

It is true that the provisions in the Roman Law upon this subject are applied, almost exclusively, to the question of Private Rights; but, as has been often before observed in the course of this work, the principles of natural justice embodied in the Roman Law are applicable to States, as well as to individuals, in their intercourse with each other (b).

DXL. Having made these general observations as to the effect of the doctrine of Postliminium upon the property of the State after the conclusion of a War, and in the absence of any express stipulations in the Treaty of Peace, it becomes necessary to examine the subject a little further as to its practical application.

It is a subject which has undergone at different periods, both of modern and ancient history, much discussion, and elicited a variety of opinions. An examination of these opinions seems to demonstrate that there has been too often a want of clearness and discrimination upon two cardinal points.

1. As to the distinction which exists between the question considered as a matter of Public, and considered as a matter of International Law, or, in other words, between the subjects and the government of the same State, and between the government of one State and the subjects or the government. of another State.

2. As to the distinction which exists between (a) the effect of a simple conquest or the acts of a conqueror; and (B) the effect of an interregnum (c) or the acts of a de facto Sovereign.

(b) Vol. i. § xxxvi.

(c) Pfeiffer: In wiefern sind Regierungshandlungen eines Zwischenherr

It is necessary for the due unravelling of this question to keep these distinctions continually in mind.

It has been already observed in an earlier part of this work, that "Conquest, fortified by subsequent Treaty, gives "a valid international title to territory" (d).

The distinction between the effect of the doctrine of Postliminium upon moveable and immoveable property has been already the subject of remark; it is one indeed which has been pretty generally observed by all writers upon the subject.

DXLI. Conquest and occupation are distinct things, governed as to their legal effects in various respects by different principles and attended with different consequences. Nevertheless, there is an analogy between the two, and, in some respects, the rules of occupation are applicable to the case of conquest.

Conquest is often defined as occupatio bellica; and it so far partakes of the nature of occupation, that unless the conqueror has actual possession of the thing conquered he can exercise no right over it. "Vox ipsa capta," Cocceius observes," indicat rem ita in nostrâ custodiâ et potestate "esse ut eximi non potest" (e); and Grotius, speaking of the nature of acquisition by conquest, non causa aliqua "sed ipsum nudum factum spectatur, et ex eo jus na

"scitur" (f).

DXLII. It has been already seen that, in the case of immoveable property, even actual possession by the conqueror does not confer a right of alienation, which, after the conqueror has departed, will enure to oust the original owner, unless such a result has formed part of the stipulations of a Treaty or been ratified by some public act of the State.

schers für den rechtmässigen Regenten nach dessen Rückkehr verbindlich

1819.

(d) Vide antè, vol. i. § cclxxvi.

(e) Grotius Illustr. iii. p. 308, n. (m).

(f) L. iii. c. vi. s. 2, n. 4.