Wade v. Barnwell

2 S.C.L. 229

• Court: Court of Appeals of South Carolina
• Decided: July 1, 1799
• Status: Published

Opinion

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.