[360] CHAPTER IX.

Of Postliminium.

I. 1 THOSE who in previous ages have treated of jus, as they have given no sound rules concerning captures from the enemy, so have they given no sound rules concerning postliminium. This subject was treated more accurately by the old Romans, but often too confusedly; so that the reader was not able to distinguish what belonged to the Laws of Nations, and what to the Civil or Roman Law.

2 With regard to the word postliminium, we must reject the opinion of Servius, who thinks that the latter part of the word is a lengthening of the former, without signification. We must follow Scævola, who taught that the word was compounded of post, implying a return, and limen. For limen, a threshold, and limes, a boundary, differ in their ending and declension, but otherwise are the same in their primitive notion and origin; for they come from the old word limo, which signifies transversum, across: like materia and materies; pavus and pavo; contagio and contages; cucumisand cucumer; although in later usage, it came to pass that limen, a threshold, was referred more to private things, limes, a boundary, to public. So the ancients used eliminare, meaning to expel from the bounds of the state, and exile they called eliminium.

II. 1 Postliminium, then, is the right which arises from returning 361in limen, that is within the boundaries of the state. Thus Pomponius says, he is returned by postliminium who has begun to be within our præsidia; Paulus, when he has entered our boundaries. But by parity of reason, the consent of nations led to the rule that postliminium should hold, if any man or any thing to which civil rules apply, comes to our friends or allies, as the same two jurists also say. And here our friends and allies are to be understood, not simply those with whom we are at peace, but those who are of our party in the war. Those who come to such are safe, as if they, man or thing, came to their own people.

2 Coming among those who are friendly, but not of the same party, prisoners of war do not change their condition, except by special compact. As in the second league made between the Romans and Carthaginians, it was agreed that those of the peoples, friends of Rome, who were taken prisoners by the Carthaginians, if they came into ports subject to the Romans, might claim their liberty; and that the friends of the Carthaginians should have a like right. Therefore those of the Romans in the second Punic war, who, being prisoners, came into Greece on commercial designs, had not there the right of postliminium, because the Greeks, in that war, had taken part with neither side: and therefore it was necessary for them to be ransomed, in order to regain their liberty. In Homer too we see prisoners of war sold in neutral places, as Lycaon, Iliad xx. Eurymedusa, Odyssee viii.

III. The old phraseology of the Romans spoke of free men also as received by postliminium, namely, if a man went to another city and then returned to his own. Also servants, horses, mules, ships which fell into the enemy’s hands, and were then retaken, were recovered by postliminium. The later jurists made two kinds of postliminium: that by which we ourselves return, and that by which we recover anything.

IV. 1 The right exists in war and in peace. In peace, it belongs to those who, when the war breaks out, are among the enemy. Other prisoners of war have not postliminium, except that be agreed upon. So Tryphoninus, emended; and Zonaras. Pomponius says, If a prisoner of war, being allowed by treaty to return, chooses to remain with the enemy, he loses postliminium. Paulus says, If a captive of war, after peace is made, escapes to his home, by postliminium he returns to the master to whom he was captive during the war, except there be a convention that captives are to be returned.

2 The reason why captives taken in war are thus allowed to remain in the enemy’s hands, is given by Tryphoninus; That they might place their hope of returning rather in valour than in peace, was the wish of the Romans: the city having little indulgence for captives, as Livy says. This reason being peculiar to the Romans, could not be the reason for the law of nations: but it might be among the reasons why the Romans took such a rule from other nations. But the truer reason is, that the belligerents are regarded as if their wars were just, 362and neutrals cannot safely interpose, and must therefore acquiesce; and so, must reckon actual captives as justly captives.

3 But with regard to those who were caught among the enemy when the war broke out, the same could not be said: for they could not be conceived to have done any wrong. Yet to diminish the strength of the enemy, they were retained while the war lasted. These then, by the consent of nations, were to be liberated, on the arrival of peace, as innocent; but other prisoners to be regulated by laws of war, except so far as regulated by compact. And for the same reason, slaves and other property are not restored at peace, except by compact; for they are supposed to be taken by right, and to deny this, would be to make wars grow out of wars. Whence it appears that what is alleged by Quintilian for the Thebans, is ingenious, but not true.

4 By postliminium in war, those who wore free men before their capture, return; slaves and things are recovered.

V. A free man returns by postliminium, if be comes to his own party with this intent: inasmuch as, in order that a slave [or a captive] may become free he must, so to speak, acquire himself, which cannot be done without his will. But whether he be recovered from the enemy by warlike force, or make his escape, makes no difference, as is noted by Florentinus. The same follows if he be spontaneously given up by the enemy.

But what is the result if he be sold by the enemy in the usual way of traffic, and so come to his own people? This controversy is treated by Quintilian, with reference to the Olynthian, whom Parrhasius had bought. For a decree having been made by the Athenians that the Olynthians should be free, he enquires whether this means that they should become free, or should be adjudged to be free: of which the latter is the more true opinion.

VI. 1 Moreover a free man, after he has returned to his own people, acquires, not only himself, but all the property which he had in a neutral State, both corporeal and incorporeal. For the neutral State, as they took the fact for law in the case of captivity, must do the same in the case of liberation, to show themselves impartial to both parties. Therefore the right, which he who possessed him by the law of war, had over his property, was not altogether without conditions: it was liable to cease without his consent, if he who had been captive made his way to his own people. He therefore loses the property, as he loses the man to whom it was an accessary.

2 But what if he had alienated this property? Will he who derives his title from him who, at the time, was owner, by the right of war, be safe by the law of nations; or may the property be recovered from him? I speak of the property which he had in a neutral state. Here, it seems, we must make a distinction between things which are of such a nature that they return by postliminium, and things not of that nature: which difference we shall soon explain. The former class of things are, it would seem, alienated with their cause, the per363son, and under condition: the latter are simply alienated. By alienated, I mean given away, or acknowledged as received.

VII. And as the person who returns by postliminium recovers his rights, so also rights against him are restored, and are held the same as if he had never been in the power of the enemy, as Tryphoninus says.

VIII. To this rule concerning free men, Paulus rightly annexed this exception. Those who surrender themselves, lose postliminium, namely, because conventions made with an enemy are valid by the law of nations, and against these, postliminium does not hold. So the Romans captured by the Carthaginians, say, in Gellius, that they have no right to postliminium, since they were captives by right. Whence during a truce, there is no postliminium, as Paulus rightly notes; but those who are surrendered to the enemy without any compact, return by postliminium, as Modestinus gave his opinion.

IX. 1 What we have said of individuals, I conceive holds also for a people; so that they who have been free, recover their liberty, if it happen that the force of their friends extricate them from the power of their enemies. But if the multitude which had constituted the state or city be dissolved, I conceive it to be more true that it is not to be reckoned the same people, and that their condition is not restored by postliminium, by the law of nations: for a people, like a ship, by the dissolution of its parts, perishes outright; since its whole nature consists in the continuity of its composition. And therefore that which had been the city of Saguntum was no longer the same city, when the same place was restored to the old inhabitants eight years later: nor was Thebes the same city when the Thebans had been sold as slaves by Alexander. Hence it appears that what the Thessalians owed the Thebans was not restored to the Thebans by postliminium, and that, for two reasons: because it was a new people; and because Alexander could and did alienate this right; and because a credit is not of the number of the things which return by postliminium.

2 What we have said of a city, is not dissimilar from the old Roman law, according to which, marriages being dissolvable, the marriage state was not considered to be restored by postliminium, but required to be renewed by a new agreement.

X. 1 Such is the Law of Nations, as to postliminium for free men: the Civil Law modifies and extends this. So deserters had not this privilege; nor sons under the Quirital patria potestas: for, as Paulus says, the discipline of the camp outweighed the love of children: as Cicero says of Manlius, that he preferred discipline and loyalty to paternal affection.

2 Again, there was this restriction of the privilege, by Attic and Roman laws, that he who was ransomed must serve his ransomer, till he had remunerated him. This however was to encourage the practice of ransoming. And this servitude was afterwards mitigated, and, by Justinian, reduced to five years: and extinguished by the death 364of the person ransomed; as also remitted by marriage contracted between the ransomed and the ransomer; and lost by the prostitution of a woman so redeemed; and other laws of Rome there were on this subject. [See the text.]

3 Again, the privilege was extended by the Roman and Attic law, so that all rights were restored to the person. So a person, calling himself the son of Callias, who had been a slave in Thrace, having been taken in the defeat at Acanthus, returned to Athens, and claimed the inheritance of Callias from the possessors of it; and, in the trial, no enquiry was made, except whether he were the son of Callias. So the Messenians, after long servitude, recovered their liberty and their country. Even what had been lost by usucaption, or otherwise, might be recovered.

4 The Cornelian law provided for the heirs of those who died while in the enemies’ hands. If this had not been so, any one might have seized their property, for they were reckoned as nullified; and if they returned, had no right, except to postliminium jure gentium. The confiscation of the property of captives, if there is no heir, is a special Roman law.

So much of those persons who return: now of the things which are recovered.

XI. 1 Such are men and women slaves, even when repeatedly alienated, or manumitted by the enemy: for such manumission cannot prejudice the right of the citizen owner. But that a slave be recovered, he must be in a condition to be got at by his master; not only returned within the empire, but known of; it is not enough if he be hidden in Rome. And as a slave in this differs from inanimate things, in another point he differs from a free man; it is not necessary he should have come with a view of staying with us.

2 Runaway staves are not excepted from this rule. The owner recovers his former right to them. To punish them, would injure the master rather than the slave. The rule with regard to slaves recovered by the army, is that they are recovered, not captured: the soldier is their defender, not their owner.

3 Slaves ransomed from the enemy, become the property of the ransomer, or may be recovered by postliminium, on paying the price. But the details of this belong to the juristical commentators: and were afterwards changed.

XII. Another question belongs more to us; whether a people, who have been subjected to a foreign authority, return to their ancient condition: which may be treated, if not he to whose government they had belonged, but some of his allies, have delivered them from the enemy. I conceive we must here decide as we do concerning slaves, except there be some other convention in the alliance.

XIII. 1 Among things, land first occurs. This is recovered by postliminium, when the enemy are expelled: that is, when the enemy can no longer openly approach the land. So the Lacedæmonians, 365when they had taken Egina from the Athenians, restored it to its ancient owners. Justinian gave the lands taken from the Goths and Vandals to the heirs of the old possessors, not admitting contrary prescriptions.

2 What is true of lands, is true of all rights adhering to the soil. So places which had been consecrated as religious, if liberated, resume their former state: as Cicero argues against Verres, of the Diana of Segeste. Marcion compares the right of postliminium to that by which, when a house tumbles down, the soil is restored to the shore. And therefore the usufruct of recovered land is to be restored: as was ruled, if it had been inundated. So the Spanish law directs that counties, and hereditary jurisdictions, are restored by postliminium; the major ones, absolutely; the minor, if they are claimed within five years from their recovery; except that a fort, lost and regained, the king has the right of retaining.

XIV. 1 Concerning moveables, on the other hand, the contrary rule in general holds: that they do not return by postliminium, but become prize. Hence objects of traffic, wherever bought, become the property of him who buys them: and if found among neutrals, or brought home, cannot be claimed by the old owner. But from this rule, were excepted formerly munitions of war; the reason being, apparently, that men might be more active in recovering those. For many states have their laws made especially with a view to war. We have already stated what are munitions of war. [See also Cicero, &c.]

2 Arms and clothing have their use in war, but had not the privilege of postliminium; because they who lost them were little favoured, indeed were disgraced. And so a horse is different in this respect from arms; for the horse may be lost without fault of the rider. Boethius seems to imply that the distinction held up to his time, under the Goths.

XV. But at a later period, if not sooner, this distinction was abolished; for those who speak of customs, always say that moveables have not postliminium; and we see this, in many places, practised as to ships.

XVI. Things which are not yet brought intra præsidia, though seized by the enemy, do not need postliminium, because they have not changed their master jure gentium. So, what things pirates and robbers take from us, do not need postliminium; for such persons, jure gentium, cannot change the ownership. And on this ground, when pirates had taken Halonesus from the Athenians, and Philip had taken it from pirates, the Athenians wished him not to give, but to restore it to them. Things taken by such persons may be claimed wherever they are found: except, as elsewhere said, that by natural law, we must pay the possessor who has acquired them at his own expense, as much as the owner would pay to recover them.

XVII. But other rules than this may be established by Civil Law: as by the Spanish law, ships become theirs who regain them 366from pirates; nor it is not unreasonable that private interests should yield to public utility; especially, the difficulty of recovery being so great. But such a law does not prevent strangers from trying to recover what is theirs.

XVIII. 1 It is more remarkable, that, as the Roman Laws testify, the right of postliminium had place, not only between enemies, but between the Romans and foreign nations. But, as we have elsewhere said, these traits were relicks of the nomade age of mankind in which barbarous manners had blunted the natural sense of the natural society which ought to bind men to men. And thus, even between nations which had not a public war between them, there was a kind of licence of private undeclared war; and in order that this licence might not go to the length of putting strangers to death, there was introduced a right of making prisoners between nations; from which it followed, that there was also occasion for postliminium, in a different way than with robbers and pirates; because that force, used in such cases, led to fair compacts; which are commonly held in no regard by robbers and pirates.

2 It appears formerly to have been a matter of controversy whether those members of a people, allied to us, who are slaves in our country, do, if they return borne, return by postliminium. For so Cicero proposes this question; and Gallus Ælius says, that with free and with allied people, and with kings, we have postliminium, as with enemies. On the other hand, Proculus says, that federate peoples are externi, and that there is not postliminium with them.

3 I conceive that a distinction must be taken between different leagues of alliance. If these were entered into merely for the purpose of settling or preventing a public war, these would not prevent either captivity or postliminium: but if the leagues contained a provision that those who came from one party to the other should be safe on the public security, then, captivity being removed, postliminium would cease also. So Pomponius: If we have, with any nation, neither friendship, hospitality, nor league of friendship, these are not enemies; but if anything of ours goes to them it becomes theirs; and a free man of ours, made captive there, is their slave; and so from them to us. In this case then, postliminium exists. By saying “a league of friendship,” he shews that there may be other leagues, which do not give the right of hospitality or friendship. So Proculus sufficiently implies that he means, by “federate peoples,” those who have promised friendship or safe hospitality, by saying, For what need is there of postliminium in such a case; since they retain their liberty and ownership in our territory equally as in their own; and we in theirs? Wherefore what follows in Gallus Ælius: With the nations which are under our authority, there is no postliminium, is to be understood with the addition, nor with those with whom we have a league of friendship.

XIX. 1 In our own time, not only among Christians, but also among most Mahometan nations, the right, both of making prisoners 367out of war-time, and the right of postliminium, have vanished; the necessity of both having disappeared, by the restoration of that relationship which nature intended to exist among men.

2 But that ancient Law of Nations may have place, if we have to do with a nation so barbarous, that it is accustomed, without cause or declaration, to treat all foreigners and their property in a hostile manner.

And at the very time that I am writing, a judgment to this effect is given in the High Court of Paris, under the presidency of Nicolas Verdun: that goods which had belonged to French citizens, and had been taken by the Algerines, who are accustomed to send sea-rovers, and to attack all nations, had changed their owner by the right of war: and consequently, being recovered by others, became the property of these who had recovered them. And in the same cause, this also was adjudged, that ships are not, at the present day, in the number of the things which are recovered by postliminium.