number and of the most able jurists; such is the conclusion from many analogies of the Roman Law; such is the language of Treaties, which latter are about to be *considered under the head of Interna

[*697] tional Practice on this subject.

DLVII. But in order to arrive at this conclusion of law respecting the extinction of the debt paid by the state debtor to the executive authority de facto of the state, founded upon conquest, certain conditions are required by reason, justice, practice, and the analogies of positive, especially Roman, Law.

These conditions are as follows :(g)—

I. As a general rule, the public authority to which the debt is paid, and from which a receipt is taken, should be that to which the country is actually subject at the time of the payment; it must, as has been said, be the established authority of a Regent grafted upon the bare right of the Conqueror. There can be no doubt, therefore, as to the legality of the payment, if the legitimate sovereign has by a treaty, either before or after the payment, recognized the Government de facto to which the payment is made, or if the legitimate Sovereign has assented, either by a declaration expressed or implied upon the subject, or by treaty with some tnird Power, to any special act of the de facto Government.

II. If, however, the payment be made to a mere Conqueror, it may nevertheless be valid; but then a burden of proof lies upon the debtor to show

1. That the sum was actually paid; for an acquittance or a receipt, without actual payment, is no bar to the demand of the original creditor. 2. That it was due at the very time that it was paid.

3. That the payment had not been delayed by a mora(r) *on

[*698] the part of the debtor, which had thus operated to defeat the

claim of the original creditor.

4. That the payment had been compulsory,-the effect of a vis major upon the debtor,—not necessarily extorted by the use of physical force, but paid under an order, the disobedience to which was threatened with punishment.

The debtor, therefore, must either have been a subject of the Conqueror, or a resident within the country subject to his military power.

(g) Pfeiffer, pp. 161-4. Klüber, ss. 258, 259.

The

(r) J. Voet speaks very clearly upon this matter: "Illud circa mercedis præstationem prætermittendum non est, cogendos haud esse prædiorum conductores ad mercedem locatori iterato solvendam, si eam hostibus, eâ regione ad tempus potitis, bonâ fide ac sine collusione solvere compulsi sint, nec ante hostilem occupationem in morâ solvendi fuerint ex more regionis." Nor (he says) does the analogy of the Roman Law respecting the invalidity of payment made to a robber affect the principle, "cum prædo illic accipiatur pro malæ fidei possessore, qui privatus est, ac neque vi coegit ad solvendum, neque, si vi compulisset, ullo id fecisset jure; contrà, quàm est in hostibus, qui belli jure ex jure gentium muniti, et per hoc à prædonibus etiam publicis distincti sunt."-L. xix. t. ii. s. 28.

"Quod te mihi dare oporteat, si id postea perierit, quam per te factum erit, quo minus id mihi dares, tuum fore id detrimentum constat."-Dig. xii. t. i. s. 5, (De Reb. Cred.) "Debitoribus hostium, civibus suis, ut veniente die solutionis solvant sibi, imperare potest."-Wolff, c. vii. s. 840. "Le souverain peut donc confisquer les dettes de cette nature (that is, debts due from his subjects to the enemy,) si le terme du payement tombe au temps de la guerre.”—Vattel, 1. iii. c. v. s. 77.

dweller in a land not subject to this powercannot plead compulsion as a justification for paying the debt to a person whom he knew not to be his creditor.

5. That the constitutional law of the state recognized the payment to the conqueror as valid.

It is not a necessary condition, but it is a substantive defence against the original creditor, if the money paid has been applied to his benefit; thus, in the case of a state creditor, if the money has been applied to the benefit of the state, if there has been what civilians term a versio in

rem.

DLVIII. It is a corollary to this proposition, that any money expended for the benefit of the creditor to preserve property which would otherwise perish (res alias peritura) must be deducted from the principal debt. The original *owner is, on the same principle, bound to indem[*699] nify the intermediate owner for any improvements which have been made in the recovered property, according to the maxim of jurisprudence, "Petitor ex alienâ jacturâ lucrum facere non debet."(s)

DLIX. There is a means of adjusting all difficulties, and of healing all controversies which might otherwise arise at the return of peace, on the subject of transactions which have taken place more or less under the influence of the enemy during the war: this means is the public declaration of an amnesty, which generally does form part of the treaty which concludes the war, and which always ought to do so. It is of course understood that the state against whom the amnesty is to be urged has been a party to the treaty.

The general effect of an amnesty is accurately stated by Cocceius in the following terms: "Post amnestiam nec debitor noster, cujus, cum in hostium potestate esset, debitum publicatum ab hoste vel remissum est, ampliùs conveniri potest; nec vice versâ creditor, cui hostis, cum in ejus potestate esset, nomen abstulit, id post amnestiam repetet, adeo ut, licet ipse debitor, qui ab hostium partibus est, compulerit eum, ut accepto tulerit, non tamen conveniri possit, quia creditor allegare injuriam acceptilationis propter amnestiam non potest. At, si creditor sit e gente pacatâ, non obstante ullà amnestiâ is debitum petit, quia pactio amnestiæ hostes tantum, inter quos contrahitur, eorumque subditos, non autem tertium populum, obligat." (t)

INTERNATIONAL PRACTICE AS TO THE POWER OF THE CONQUEROR AND THE SOVEREIGN DE FACTO, OVER INCORPOREAL THINGS.

DLX. HAVING considered the theory of International Jurisprudence, it remains to inquire(a) what has been the practice of states upon the

(s) Dig. v. t. iii. 31, de Hered Petitione.

(t) H. Cocceii, Diss. de Postliminio, sect. v. ¿? 10, 11. (a) Vide ante, p. 697; and Vol. I. p. 41.

subject which must be evidenced by the (I.) history of their public Acts and (II.) Treaties.(b)

DLXI. I. With respect to the former, it is to be observed, that they include acts between states, and acts between a state and the individuals of another state.

The historical event, (c) which has furnished the text for almost every commentator upon this subject, happened a very long while ago, and the record of it has been strangely and incidentally preserved.

We learn from the Oratorical Institutes of Quintilian, (d) that after the conquest of Thebes, Alexander the Great found documents in which the Thessalians acknowledged *themselves to have borrowed an [*701] hundred talents from the Thebans. The Thessalians had been allies of Alexander, and in return for their aid he gave them the documents which contained the acknowledgment of their debt. The Thebans nevertheless being subsequently reinstated in the possession of their state by Cassander, demanded payment of their debt from the Thessalians.

It was admitted on all hands that the hundred talents had been borrowed and not been repaid: the question of law depended upon the validity of the gift by Alexander.

The cause was heard before the great International Tribunal of Greece, the Amphictyonic Council. What the decision was we are not told; but it is inferred from Quintilian's silence that it was in favour of the Thessalians.(e) He says "Et prima quidem actio facilis ac favorabilis repetentium jure, quod vi sit ablatum, sed hinc aspera et vehemens quæstio exoritur de jure belli; dicentibus Thessalis, hoc regna, populos, fineș gentium atque urbium contineri." But, says the great preceptor of oratory, "inveniendum contra est quo distet hæc causa "à ceteris, quæ in potestatem victoris venirent."(f) And he observes, that various distinctions may be taken.

(b) Vide ante, Vol. I. pp. 43-58. Pfeiffer, p. 165, has some very good remarks on the value of historical evidence of International Practice.

(c) "Sit exempli gratiâ proposita controversia, quæ minimè communes cum aliis quæstiones habet."-Quintil. vide infra.

(d) V. 10. (ed. Burman, 1720, p. 431,): “Cum Thebas evertisset Alexander, invenit tabulas, quibus centum talenta mutua Thessalis dedisse Thebanos continebatur. Has, quia usus erat commilitio Thessalorum, donavit his ultro. Postea restituti a Cassandro Thebani reposcunt Thessalos. Apud Amphictyonas agitur. Centum talenta et credidisse eos constat et non recepisse. Lis omnis ex eo, quod Alexander ea Thessalis donasse dicitur, pendet."

(e) Erodius says: "Placuit Thessalos petitione liberari. Ita enim arbitror Amphictyones judicâsse postquam id a Quintiliano est prætermissum."-Rerum Judicatarum Pandectæ, l. ii. tit. ii. c. i., cited by Pfeiffer, p. 172, note u.

(f) Dicamus in primis, in eo, quod in judicium deduci potest, nihil valere jus belli; nec armis erepta, nisi armis posse retineri. Itaque, ubi illa valeant, non esse judicem: ubi judex sit, illa nihil valere. Hoc inveniendum est, ut adhiberi possit argumentum. Ideo captivos, si in patriam suam redierint, liberos esse, quia bello parta non nisi eadem vi possideantur. Proprium est ut illud caussæ, quod Amphictyones judicant; ut alia apud centumviros, alia apud privatum judicem in iisdem quæstionibus ratio sit. Tum secundo gradu, non potuisse donari a victore jus, quia id demum sit ejus, quod ipse teneat, jus autem, quod sit incorporale, apprehendi manu non posse; et aliam esse conditionem heredis, aliam victoris, quia ad illum jus ad hunc res transeat."

First, it might have been contended that the jus belli in a Court of Law could not be pleaded.

*Secondly, that a right (jus) could not be the subject of gift [*702] by a Conqueror; that he could only dispose of what he was actually seised or possessed (quod ipse teneat.) Rights (jura) devolved, indeed, upon a civil heir, but only things themselves (res ipsæ,) upon a military Conqueror.(g)

Again, that the title to a national debt (jus publici crediti) could not be disposed of while one member of the community survived; and other less important arguments by way of rhetorical exercitation, are suggested. To all of which, it may be observed, Puffendorf(h) suggests answers.

DLXII. The great majority of jurists, however, reject the suggestions of Quintilian, and support the supposed decision of the Amphictyons; but it must not be therefore concluded that they contravene the principles which were laid down, when the International Theory was considered, respecting the conditions which are necessary to establish the legality of such a transfer of such Incorporeal Property.

The jurists argue that Alexander had become so entire and absolute a master of Thebes,-the heir as it were and universal successor to a defunct and extinguished state,—that he was possessed of every thing and right appertaining to that city: and on the other hand, those who contend against *the validity of the gift, do so on the ground that the absolute and entire dominion over the universal successorship to Thebes had not accrued to Alexander.(i)

[*703]

(g) Grotius, as has been already observed, is of opinion that possession of the person carries with it possession of his rights. He says, 1. iii. c. viii. s. iv: "Ergo et incorporalia jura, quæ universitatis fuerant, fient victoris quatenus velit. Sic Albâ victâ, quæ Albanorum jura fuerant sibi vindicârunt Romani. Unde sequitur omnino liberatos Thessalos obligatione centum talentorum, qnam summam cum ipsi Thebanis deberent, Alexander Magnus Thebarum dominus factus jure victoriæ ipsis donaverat; neque rerum quod pro Thebanis apud Quintilianum adfertur, id demum victoria esse quod ipse teneat; jus quod sit incorporale apprehendi manu non posse; aliam conditionem esse heredis, aliam victoris, quia ad illum jus, ad hunc res transeat. Nam qui dominus est personarum, idem et rerum est, et juris omnis quod personis competit. Qui possidetur non possidet sibi, nec in potestate habet qui non est suæ potestatis.”

(h) Jus. Nat. et Gent., 1. viii. c. vi. p. 24.

(i) "Alexander videri Thebanorum universalis successor potuit, quoniam eversæ Thebæ et itaque mortem passæ erant. Fuit Alexander princeps ac dominus non urbis modo, sed et civitatis, quam redegerat sub se universam."-Alb. Gentilis, de Jure Belli, 1. iii. c. v.

"Theba interierunt, adeoque et jura ei inhærentia; jure victoriæ omne jus civitatis Thebæ in victorem transiit; Thebani non amplius sui juris erant omne eorum jus in victorem transiit; dissolutâ civitate eundem populum non censeri, nec postliminio restitui potuit; sed ex novâ gratiâ victoris populus factus est."-Cocceii Grotius Illustratus, t. iii. pp. 202, 236, 237.

"Lorsqu' Alexandre fit présent aux Thessaliens de la somme qu'ils devaient aux Thébains, il étoit maître absolu de la republique de Thébes, dont il détruisit la ville et fit vendre les habitants."-Vattel, 1. iii. c. xiv. s. 212.

"Quoniam Alexander non universalis et juris successor est, sicuti heres aut bonorum possessor sed particularis et rerum singularum, ut emtor aut donatarius, quia victores earum demum rerum domini sunt jure belli, quæ manu capi possunt."Hotman, Quæst. Illustr. Qu. 5, cited by Pfeiffer, p. 180.

"Alle Meinungsverschiedenheit beschränkt sich auf die Vertheilung des historischen Stoffes."-Pfeiffer p. 180.

SEPTEMBER, 1857.-31

DLXIII. The next classical example is that furnished, about a hundred years later, by the war of Antiochus, King of Syria, with the Romans. The Rhodians were the allies of the Romans, but the vicinity of their island to the Syrian coast caused a great commercial intercourse between them and Syria; and when the Rhodian was united to the Roman fleet, it might have been supposed that Antiochus would have resorted, as one means of defence, to the confiscation of the Rhodian property, consisting of houses and debts, within the Syrian dominions. But the peace of 189, B. c. provided that the status quo ante bellum should be replaced, and especially that the houses of the Rhodians should be restored, what was due to them paid, and what had been confiscated made good to them.(k) [*704] *scene of the civil war between Cæsar and Pompey. The citi

DLXIV. The Macedonian city Dyrrachium was frequently the

zens appear to have inclined to Cæsar. He had remitted to them the payment of a debt which they owed to Caius Flavius, the friend of Decius Brutus. Cicero was the friend both of Dyrrachium(7) and Brutus. He appears to have been appealed to on behalf of Flavius.(m) The course which he took is, however, uncertain; but it is certain that Brutus, a statesman, and well versed in public law, considered the refusal of Dyrrachium to discharge the debt contrary to law. The jurists who have commented on this transaction have agreed in this opinion, but upon various grounds; partly, because in a civil war there could be no occupatio, properly speaking;(n) partly, because it was a private and not a public debt,(o)—(but this distinction is one of the refinements of modern International Law, and, indeed, rather appertains to comity than strict law,) -partly, for both these reasons together. (p) Pfeiffer points out that the titulus imperii under which Alexander acted was wanting to Cæsar, especially regard being had to the fact that the Dyrrachian debt was due to a private individual.(q)

DLXV. The first example of modern times occurs in the fourteenth century. A Fleming lent a Frenchman a thousand crowns; the time of payment arrived, the money was not paid. The Fleming sued the Frenchman in a French Court of Justice. The Frenchman contrived to protract the litigation until war broke out between Flanders and France. The money was then paid by the debtor into the French Treasury. [*705] After the peace the Fleming again demanded his debt: the Frenchman defended himself by alleging the payment to the Royal Treasury. The Fleming replied that the payment had been fraudulently delayed until the breaking out of the war; he was cast in his suit;(r)

(k) Polybii, Histor. Excerptæ Legationes, c. xxxv.

(1) Epist ad Atticum, 1. iii. note 22; Ad familiares, 1. xiv. note 1.

m) Epist. ad Brutum, note 6.

(n) Grotius, 1. iii. c. viii. s. 4, 8 3: "Imitatus fuit factum Alexandri Cæsar, donato Dyrrachinis ære alieno, quod nescio cui adversarum partium debuerant. ed hic objici poterat bellum Cæsaris, non ex eo esse genere de quo jus hoc gentium constitutum est."

(0) H. Cocceii, 1. c., cited by Pfeiffer, p. 185. (p) Erodius, 1. c., c. ii., cited by Pfeiffer, ib. (r) By an arrêt in August, 1349.

(2) Pfeiffer, p. 185.