Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter IX: Of the Right of Postliminium
Origin of the term, postliminiumWhere it takes effectCertain things recoverable therebyIn what cases the right of postliminium prevails in peace, as well as warWhat rights are recoverable, and what rights not recoverableWhen a people is not entitled to the right of postliminiumExtent of civil law in these casesDesertersRansomed prisonersSubjectsLands recovered by right of postliminiumDistinction formerly observed with respect to movable thingsModern practice.
I. THE PROFESSORS of law in former ages have given no more satisfactory account of the rights of postliminium, than they have done of those, respecting things taken from the enemy. The subject has been more accurately handled by the ancient Romans, but often still with a considerable degree of confusion, so that a reader cannot easily distinguish, what part they assign to the province of the law of nations, and what part to the civil law of Rome.
Amidst a great variety of opinions, upon the meaning of the word, postliminium, that of Scaevola seems the most natural, who derives it from the word post, signifying a return after captivity, and limen the boundary or entrance of the house, or from limes, a public boundary. Thus the ancients called exile or banishment, eliminium, that is, sending any one out of the boundaries of the country.
II. Postliminium therefore, according to its original signification, means the right, accruing to any one in consequence of his return home from captivity. Pomponius defines the right of postliminium to take place the moment any one enters a town or garrison, of which his sovereign is master; but according to Paulus he must have entered within the territories of his own country before he can be entitled to that right.
Upon this principle nations have, in general, gone so far, as to allow the right of postliminium to take place, where any person, or indeed any thing, coming within the privileges of postliminium, have arrived within the territory of a friendly or allied power.
By the term friends, or allies, used in this place, are not simply meant, those who are at peace with another power, but those who are engaged in the same war, and in a common cause with that power. So that all, who have come into the territories of such powers, are protected under the pledge of public faith. For it makes no difference with respect to persons or things, whether they are in the territories of those powers, or in their own.
In the territory of a friendly power, who is not engaged in the same cause with either of two belligerent parties, prisoners of war do not change their condition, unless it has been agreed to the contrary by express treaty; as in the second treaty between the Romans and Carthaginians, it was stipulated that if any prisoners, taken by the Carthaginians from powers friendly to the Romans, should come into ports subject to the Roman people, their liberty might be claimed: and that powers friendly to the Carthaginians should enjoy the same privilege. For this reason, the Roman prisoners taken in the second Punic war, when sent into Greece, had not the right of postliminium there, the Greeks being entirely neutral, consequently they could not be released, till they were ransomed.
Gallus Ælius, in the first book of his explanation of law-terms, defines a person restored to his original situation by the right of postliminium, to be one, who had gone from his own country, in a free condition, to another, and returned to his own in consequence of such right. By the right of postliminium a slave also who has fallen into the hands of an enemy, upon his release from thence, returns to the service of his former master.
As to the law of postliminium, horses, mules, and ships are considered in the same light as slaves. And whatever advantage this law gives any one in recovering persons or things from an enemy, the enemy in his turn has equal advantage from the same law.
IV. The right of postliminium may extend to those, who are seized and detained in an enemys country upon the breaking out of war. For though during the continuance of that war, there may be reason for detaining them, in order to weaken the enemys strength, yet, upon the conclusion of a peace, no such motive and pretence can be devised for their release being refused or delayed. It is a settled point therefore that upon peace being made, prisoners of the above description always obtain their liberty, their claim to it being universally acknowledged.
With respect to other kinds of prisoners, every one used what he wished to be thought his right, except where fixed rules were prescribed by treaty. And for the same reason, neither slaves, nor things taken in war are restored upon a peace, except express stipulations be made to that purpose. A conqueror too, in general, wishes to have it believed that he had a right to make such acquisition; and indeed the departure from such a rule might give rise to wars without end.
V. and VI. A prisoner of war, upon his release, and return to his own country, is entitled to all his privileges THERE, and indeed to everything either corporeal, or incorporeal, which he might have before possessed in a NEUTRAL STATE, at the time of his captivity. For if such a state, in order to preserve her neutrality, considered his captivity as a matter of right on the part of the enemy, so also, in order to shew her impartiality, she cannot lawfully abridge his right to any thing he may reclaim upon his release. The controul therefore, which the person, to whom the prisoner belonged by the right of war, had over his effects, was not absolutely unconditional: for he might lose it, even against his will, whenever the prisoner came again under the protection, or within the territories, of his own sovereign. Along with the prisoner therefore he would lose everything, which was considered as an appendage to his person.
In cases where effects taken in war have been alienated, a question arises, whether the law of nations confirms the title, and secures the possession of the person, who has derived or purchased them from him, who was master of them by the rights of war, by having the prisoner in his custody at the time of alienation, or whether such things are recoverable; supposing the things to be in a neutral territory.
A distinction seems proper to be made between things recoverable by postliminium, and things excepted from that right: so that every alienation of the former must be qualified and conditional, but that of the latter may be absolute. By things alienated may be understood even those, of which a gift has been made, or to which the owner has relinquished every claim.
VIII. The case of those however, who have been conquered by the arms of an enemy, and have surrendered themselves, forms an exception to this rule; because engagements of that kind must be valid, and honourably adhered to according to the law of postliminium. So that during the time of a truce, the right of postliminium cannot be claimed.
IX. What has been said of individuals applies to nations: so that a free people, who have been subjugated, upon being delivered from the yoke of the enemy by the power of their allies, will recover their former condition.
But if the whole population that constituted a state has been dispersed, the people can no longer be considered as the same: nor does the law of nations in such a case enforce the right of postliminium for the restoration of all effects formerly belonging to that people. For as the identity of a ship, or any other material object, can only be ascertained by the permanent union of its original parts: so a nation can no longer be regarded as the same, when every peculiar characteristic belonging to it is effaced.
The state of Saguntum therefore was no longer judged to be the same, when it was restored to its ancient possessors, at the expiration of eight years: nor could Thebes any longer be deemed the original city, as its inhabitants had been sold by Alexander for slaves. From hence it is evident, that the Thebans could not, by the right of postliminium, recover the sum of money, which the Thessalians had owed them: and that for two reasons: because, in the first place, they were a new people; and, secondly, because Alexander at the time that he was absolute master of the city had a right, if he thought proper, to relinquish the claim to that debt, which he had actually done. Besides, a debt is not in the number of things recoverable by the right of postliminium.
The rules, respecting a state, are not much unlike those laid down by the ancient Roman law, which made marriage a dissoluble tie, so that it could not be restored by the right of postiliminium: but a new consent, and a new contract were necessary.
XI. and XII. It is a point of much importance to the subject, and it was before declared in the affirmative, that nations, which have been under a foreign yoke, recover their former condition, even though their deliverance has not been effected by their former sovereign, but by some ally. It is a settled rule, where there is no express treaty to the contrary. At the same time it is but reasonable that such ally be indemnified for the expences incurred in accomplishing that deliverance.
XIII. Among things within the right of postliminium, lands in particular attract our attention. For, as Pomponius observes, upon the expulsion of an enemy lands naturally revert to their former masters. And in this sense expulsion is understood to take place from the time that his free and open access to a territory is entirely cut off.
Thus the Lacedaemonians, after taking Aegina from the Athenians, restored it to its ancient owners. Justinian and other emperors restored to the heirs of the ancient possessors of the lands, which had been recovered from the Goths and Vandals, still reserving against those owners all prescriptive rights, which the Roman laws had introduced.
The privileges belonging to lands attach to every right also connected with the soil. For religious or consecrated places, that had been taken by an enemy, when recovered returned, as Pomponius has said, to their former condition.
Upon the same principle it was provided by a law in Spain, that provinces, and all other hereditary jurisdictions, particularly supreme jurisdictions, should return to the original possessors by the right of postliminium; and those of an inferior kind, if reclaimed within the space of four years. Except that citadels lost by war always belonged to the crown, in whatever manner they were recovered.
XIV. On the contrary a general opinion prevails, that moveable property, which constitutes part of a lawful prize, is not recoverable by the right of postliminium. So that things acquired by purchase, wherever they are found, continue the property of the purchaser. Nor has the original owner a right to claim them, when found in a neutral state, or even carried into his own territory.
Things useful in war, as we find, were formerly an exception to this rule: an exception, which seems to have been favoured by the law of nations in order to induce men the more readily to provide them, in the hopes of recovering them, if lost. And this indulgence was the more easily granted, as most nations, at that period, in all their customs, seem to have had an eye to a state of warfare.Among the things, coming under this description, ships of war, and merchant-ships are reckoned, but neither gallies, nor pleasure-boats: mules also are enumerated; but only such as are used to carry baggage: horses and mares too; but only such as are broken in to obey the bridle. And these are things, the bequest of which the Roman law confirmed, and which might come into the division of an inheritance.
Arms and cloathing indeed are useful in war, but still they were not recoverable by the right of postliminium; because the laws were by no means inclined to favour those, who lost either in war: and such a loss was deemed a disgrace, as we find from many parts of history. And in this respect, a distinction was made between a soldiers arms and his horse: because the latter might easily break loose, and fall into an enemys hands without any fault of his rider. This distinction in moveable things seems to have prevailed in the western parts of Europe, under the Goths, even as far down as to the times of Boetius. For in explaining the Topics of Cicero, he speaks of this right, as a general custom of his day.
XV. But in later times, if not before, this distinction seems to have been abolished. For all intelligent writers speak of moveable effects as not recoverable by the right of postliminium, and it has evidently been decided so, in many places, with respect to ships.
XVI. The right of postliminium is quite unnecessary, before the things taken have been carried into some place of which the enemy is master, although they may be in his possession: for they have not yet changed their owner, by the law of nations. And, according to the opinions of Ulpian and Javolenus, the law of postliminium is no less superfluous, where goods have been taken by robbers and pirates, because the law of nations does not allow THEIR possession of the goods to convey any change, or right of property to THEM.
Upon this ground, the Athenians wished to consider Philip, as RESTORING, and not GIVING them Halonesus, of which they had been robbed by pirates, from whom he had taken it again. For things taken by pirates may be reclaimed, wherever they are found; except that NATURAL JUSTICE requires that the person, who has gained them out of their hands, at his own expence, should be indemnified, in proportion to what the owner himself would willingly have spent for their recovery.
XVII. But a different maxim may be established by the CIVIL LAW. Thus by the law of Spain, ships taken from pirates become the lawful prize of the captors: which may seem a hardship upon the original owners; but in some cases individual interest must be sacrificed to the public good: especially where the danger and difficulty of retaking the ships is so great.1 But such a law will not prevent foreigners from asserting their claims.
XVIII. It was rather a surprising maxim in the Roman law, which established the right of postliminium, not only between hostile powers, but between all foreign states, and, in some cases, between those, who were members of the Roman empire. But this was only a vestige of the rude and pastoral ages, before society was perfectly formed. So that even between nations, who were not engaged in public war with each other, a kind of licence resembling that of war prevailed.
In order to prevent such a licence from proceeding to all the calamities and slaughter of war, the laws of captivity were introduced: and, as a consequence of this, postliminium took place, which might be considered as a great step towards the formation of equal treaties, from the rules of which pirates and robbers were excluded, and which indeed they themselves despised.
XIX. In our times, the right of making prisoners, except in war, has been abolished not only among Christian states, but even among the greater part of Mahometans, those bands of society, which nature designed to establish amongst men, being in some measure restored.
But the ancient law of nations seems still in force against any rude or barbarous people, who, without any declaration or cause of war, consider all mankind as enemies. A decision has lately been made in the principal chamber of the parliament of Paris, declaring all effects belonging to the subjects of France, and taken by the Algerines, a people always engaged in predatory and maritime warfare with all other countries, if retaken, to belong to the captors.At the same time it was decided, that, in the present day, ships are not reckoned among things recoverable by the right of postliminium.