
    Hezekiah Wade against John Barnwell.
    
      Charleston District,
    
    
      1799.
    
    "When a country is • taken possession of by an enemy, and is repossessed again by the former sovereign, the property which was taken by the enemy and regained by the former proprietor, is secured to the original owner or party repossessing again by the jus postlimi< niunic
    
    . CASE on a special verdict found at Beaufort.
    
    This verdict stated substantially, that sundry negroes therein named,, which formerly belonged to a Mr. Knox, a British subject in Georgia, had been confiscated during the revolutionary war, and sold; but that some time in the year 1778, when the British repossessed themselves of Georgia, and overrun that country, Knox, the original owner of the negroes, regained possession of them, and when at the close of the war, the British finally evacuated that state, took them off with him to Jamaica, where he kept them several years, and then sent them into South Carolina for sale, when the defendant John Barnwell, became the purchaser: whereupon Wade, who claimed under the sale by virtue of the confiscation act in Georgia, commenced his action of trover for recovery of them, as being his property. The verdict then submitted the question to the court, whether from the foregoing circumstances, the property of the negroes in question was in Wade, who claimed under the act of the state of Georgia, or in the defendant, Barmvell, who held under the original proprietor ?
    Mr. Holmes, for the plaintiff,
    insisted, that the property of an enemy found in the state of Georgia during the war, after the declaration of independence,- by the jus belli became liable to seizure and confiscation ; and chat the supreme authority of the state had by an act declared the same to be confiscated, and directed a sale for the use and benefit of the state, at which sale, Mr. Wade, or those under whom he claimed, were bona fide purchasers. A higher title ¡han this, he said, could not well be submitted to the consideration of a court of justice.
    
      
      Vattel, chap, fVoSebook°s «hap. 9.
    Mr. Desaussure, on the part of the defendant,
    argued, that the contest between Great Britain and America, was at first a dispute between two great parties of the same empire, contending for rights and privileges on one hand, and for the supreme and uncontrolled power and authority of the mother country on the other. That in such a contest, the right of property remained in a great measure undecided, till the dispute was ended and a treaty made, confirming the rights to each of the great parties so engaged ; and this ought to have been the true policy both of Great Britain and America. But admitting that the same rules which governed foreign nations at war, were applicable to this country after the declaration of independence, it is evident that on the retaking of Georgia by the British, all the property taken or acquired by the Americans from the other party, and retaken and repossessed again by the original owners, flagrante hello, reverted absolutely and uncondi-*n the original proprietors or owners, by the jus postliminium, a well known and acknowledged part of the law of nations, which is paramount to all municipal regulations. By this law, things taken by the enemy, and regained by the former owner, are restored to their original state and condition, as fully and completely, as if they had never been taken. Upon these principles, then, he contended, that upon the repossession of the state of Georgia by the British, in the year 1778, after the Americans had. been nearly all driven out of the country, Mr. Knox being then a British subject, and regaining possession of his ne-groes, acquired an absolute right to them, and his title was as fully confirmed to him as if they had never gone out of his possession. That the act of Georgia, and sale during the heat of the contest, and before the treaty of peace, did not alter that part of the law of nations, which gave Mr. Knox this right of repossessing himself of his property wherever he could find it within the limits of Georgia, after the British got possession of the country. It was a risk which the purchaser ran, and he must now take the. consequences of it, or apply to the legislature of Georgia for redress.
    
      q,,0 1)0ok 3 yjfel 9's5 3 chaP-l4-
   The judges after duty considering the circumstances of the case submitted to them by this special verdict, were unanimously of opinion, that the judgment should be rendered up for the defendant John Barnwell. The jus postliminium., upon which this case turns, and by virtue of which, things taken by an enemy are to be restored to their former state or owners, when a country comes again under the power of the nation to which it formerly belonged, is a very important branch of the law of nations, and is founded on the obligation which every sovereign or state is under, to protect the persons and goods of its subjects or citizens against an enemv; should any fortunate event bring it again under such sovereign power, he is bound to restore them to their former state, and to give back the effects to the owners to whom they originally belonged, and to settle every thing as they were before they fell into the enemies hands. Hence it is, therefore, that a private individual acquires a right to every thing which belonged to him before they were taken by an enemy, as soon as a country comes again under the power or dominion of the sovereign to whom he is a subject, or owes allegiance. This postliminary right is of very ancient origin, and seems to have been respected by all nations, from the days of the ancient Greeks and Romans, down to the present day. It would ill become a young people, therefore, just taking their rank and station among the nations of the world, to disregard so important a principle of the national law. And however we may be disposed to respect the acts and proceedings of our sister states, as municipal regulations, yet whenever they come in contact with, or in opposition to, the governing code of nations, we are bound to say they must give way.

Let judgment be entered for defendant.

Present, Giujike, Waties and Bay.  