OF THE RIGHT OF POSTLIMINIUM.
Origin of the term, postliminium--Where it takes effect--Certain
things recoverable thereby--In what cases the right of postliminium
prevails in peace, as well as war--What rights are recoverable,
and what rights not recoverable--When a people is not entitled
to the right of postliminium--Extent of civil law in these
cases--Deserters--Ransomed prisoners--Subjects--Lands recovered by
right of postliminium--Distinction formerly observed with respect
to movable things--Modern 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.
III. According to the language of the ancient Romans, even free men
might be restored by the right of postliminium.
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.
But modern lawyers have made a distinction between two kinds of
postliminium, by one of which, persons returned to their former
condition, and by the other, things are recovered.
IV. The right of postliminium may extend to those, who are seized and
detained in an enemy's 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 enemy's 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.
VII. Upon any one's returning to his former condition by the law of
postliminium, all his rights are restored as fully, as if he had never
been in the hands and power of the enemy.
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.
But where a surrender has been made without any express or positive
convention the right of postliminium exists in all its force.
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 postliminium: but a new consent,
and a new contract were necessary.
X. By the Roman civil law deserters were excluded from the right of
postliminium.
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 soldier's arms and
his horse: because the latter might easily break loose, and fall into
an enemy's 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.[65] 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.