§ 284. Cases of postliminium occur only when a conquered territory comes either during or at the end of the war again into the possession of the legitimate Sovereign. No case of postliminium arises when a territory, ceded to the enemy by the treaty of peace or conquered and annexed without cession at the end of a war which was terminated through simple cessation of hostilities,[525] later on reverts to its former owner State, or when the whole of the territory of a State which was conquered and subjugated regains its liberty and becomes again the territory of an independent State. Such territory has actually been under the sovereignty of the conqueror; the period between the conquest and the revival of the previous condition of things was not one of mere military occupation during war, but one of interregnum during time of peace, and therefore the revival of the former condition of things is not a case of postliminium. An illustrative instance of this is furnished by the case of the domains of the Electorate of Hesse-Cassel.[526] This hitherto independent State was subjugated in 1806 by Napoleon and became in 1807 part of the Kingdom of Westphalia constituted by Napoleon for his brother Jerome, who governed it up to the end of 1813, when, with the downfall of Napoleon, the Kingdom of Westphalia fell to pieces and the former Elector of Hesse-Cassel was reinstated. Jerome had during his reign sold many of the domains of Hesse-Cassel. The Elector, however, on his return, did not recognise these contracts, but deprived the owners of their property without indemnification, maintaining that a case of postliminium had arisen, and that Jerome had no right to sell the domains. The Courts of the Electorate pronounced against the Elector, denying that a case of postliminium had arisen, since Jerome, although a usurper, had been King of Westphalia during an interregnum, and since the sale of the domains was therefore no wrongful act. But the Elector, who was absolute in the Electorate, did not comply with the verdict of his own courts, and the Vienna Congress, which was approached in the matter by the unfortunate proprietors of the domains, refused its intervention, although Prussia strongly took their part. It is generally recognised by all writers on International Law that this case was not one of postliminium, and the attitude of the Elector cannot therefore be defended by appeal to International Law.
[526] See Phillimore, III. §§ 568-574, and the literature there quoted.
PART III NEUTRALITY
CHAPTER I ON NEUTRALITY IN GENERAL
I DEVELOPMENT OF THE INSTITUTION OF NEUTRALITY
Hall, §§ 208-214—Lawrence, § 223—Westlake, II. pp. 169-177—Phillimore, III. §§ 161-226—Twiss, II. §§ 208-212—Taylor, §§ 596-613—Walker, History, pp. 195-203, and Science, pp. 374-385—Geffcken in Holtzendorff, IV. pp. 614-634—Ullmann, § 190—Bonfils, Nos. 1494-1521—Despagnet, No. 687—Rivier, II. pp. 370-375—Nys, III. pp. 558-567—Calvo, IV. §§ 2494-2591—Fiore, III. Nos. 1503-1535—Martens, II. § 130—Dupuis, Nos. 302-307—Mérignhac, pp. 339-342—Boeck, Nos. 8-153—Kleen, I. pp. 1-70—Cauchy, Le droit maritime international (1862), vol. II. pp. 325-430—Gessner, pp. 1-69—Bergbohm, Die bewaffnete Neutralität 1780-1783 (1884)—Fauchille, La diplomatie française et la ligue des neutres 1780 (1893)—Schweizer, Geschichte der schweizerischen Neutralitaet (1895), I. pp. 10-72.
Neutrality not practised in Ancient Times.
§ 285. Since in antiquity there was no notion of an International Law,[527] it is not to be expected that neutrality as a legal institution should have existed among the nations of old. Neutrality did not exist even in practice, for belligerents never recognised an attitude of impartiality on the part of other States. If war broke out between two nations, third parties had to choose between the belligerents and become allies or enemies of one or other. This does not mean that third parties had actually to take part in the fighting. Nothing of the kind was the case. But they had, if necessary, to render assistance; for example, to allow the passage of belligerent forces through their country, to supply provisions and the like to the party they favoured, and to deny all such assistance to the enemy. Several instances are known of efforts[528] on the part of third parties to take up an attitude of impartiality, but belligerents never recognised such impartiality.