in a word, to replace every thing on the same footing on BOOK III. which it stood previous to the enemy's capture. CHAP. XIV. The justice or injustice of the war makes no difference in this case, not only because, according to the voluntary law of nations, the war, as to its effects, is reputed just on both sides, but likewise because war, whether just or not, is a national concern; and, if the subjects who fight or suffer in the national cause, should, after they have, either in their persons or their property, fallen into the enemy's power, be, by some fortunate incident, restored to the hands of their own people, there is no reason why they should not be restored to their former condition. It is the same as if they had never been taken. If the war be just on the part of their nation, they were unjustly captured by the enemy; and thus nothing is more natural than to restore them as soon as it becomes possible. If the war be unjust, they are under no greater obligation to suffer in atonement for its injustice than the rest of the nation. Fortune brings down the evil on their heads when they are taken: she delivers them from it when they escape. Here, again, it is the same as if they never had been captured. Neither their own sovereign, nor the enemy, has any particular right over [393] them. The enemy has lost by one accident what he had gained by another. it takes ef fect. Persons return, and things are recovered, by the right of § 206. How postliminium, when, after having been taken by the enemy, they come again into the power of their own nation (§ 204). This right, therefore, takes effect as soon as such persons or things captured by the enemy fall into the hands of soldiers belonging to their own nation, or are brought back to the army, the camp, the territories of their sovereign, or the places under his command. effect among as the allies. (175) Those who unite with us to carry on a war are joint par- § 207. Wheties with us: we are engaged in a common cause; our ther it takes right is one and the same; and they are considered making but one body with us. Therefore, when persons or things captured by the enemy are retaken by our allies or auxiliaries, or in any other manner fall into their hands, this, so far as relates to the effect of the right, is precisely the same thing as if they were come again into our own power; since, in the cause in which we are jointly embarked, our power and that of our allies is but one and the same. The right of postliminium therefore takes effect among those who carry on the war in conjunction with us; and the persons and things recovered by them from the enemy are to be restored to their former condition. (175) (175) As to the general rule in the absence of treaty, see Santa Cruz, 1 Rob. Rep. 49; ante, 385, n. (168). Id. But, in general, the precise rule is BOOK III. But, does this right take place in the territories of our CHAP. XIV. allies? Here a distinction arises. If those allies make a common cause with us,-if they are associates in the war,we are necessarily entitled to the right of postliminium in their territories as well as in our own: for, their state is united with ours, and, together with it, continues but one party in the war we carry on. But if, as in our times is frequently the practice, an ally only gives us a stated succour stipulated by treaty, and does not himself come to a rupture with our enemy, between whose state and his own, in their immediate relations, peace continues to be observed, -in this case, only the auxiliaries whom he sends to our assistance are partakers and associates in the war; and his dominions remain in a state of neutrality. $208. Of no Now, the right of postliminium does not take effect in validity in neutral countries: for, when a nation chooses to remain neutral naneuter in a war, she is bound to consider it as equally just tions. on both sides, so far as relates to its effects,—and, consequently, to look upon every capture made by either party as a lawful acquisition. To allow one of the parties, in prejudice to the other, to enjoy in her dominions the right [394] of claiming things taken by the latter, or the right of postliminium, would be declaring in favour of the former, and departing from the line of neutrality. § 209. What Naturally, every kind of property might be recovered by the right of postliminium; and there is no intrinsic reason why movables should be excepted in this case, provided they can be certainly recognised and identified. Accordingly, the ancients, on recovering such things from the enemy, frequently restored them to their former owners.* But the difficulty of recognising things of this nature, and the endless disputes which would arise from the prosecution of the owners' claims to them, have been deemed motives of sufficient weight for the general establishment of a contrary practice. To these considerations we may add, that, from the little hope entertained of recovering effects taken by the enemy and once carried to a place of safety, a reasonable presumption arises that the former owners have relinquished their property. It is therefore with reason that movables or booty are excepted from the right of postliminium, unless retaken from the enemy immediately after his capture of them; in which case, the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them. And, as the custom has once been admitted, and is now well established, there would be an injustice in violating it (Prelim. § 26). Among (176) As to movables and ships, ante, 384, n.-C. See several instances in Grotius, book iii. ch. xvi. § 2. the Romans, indeed, slaves were not treated like other вOOK III. movable property: they, by the right of postliminium, CHAP. XIV. were restored to their masters, even when the rest of the booty was detained. The reason of this is evident for, as it was at all times easy to recognise a slave, and ascertain to whom he belonged, the owner, still entertaining hopes of recovering him, was not supposed to have relinquished his right. sons who liminium. right when Prisoners of war, who have given their parole,-territories $ 210. Of and towns which have submitted to the enemy, and have those persworn or promised allegiance to him,-cannot of themselves. cannot rereturn to their former condition by the right of postlimi- turn by the nium: for, faith is to be kept even with enemies (§174). right of postBut if the sovereign retakes those towns, countries, or prisoners, who had surrendered to the enemy, he recovers (177). all his former rights over them, and is bound to re-establish $211. They them in their pristine condition (§ 205). In this case, they enjoy this enjoy the right of postliminium without any breach of their retaken. word, any violation of their plighted faith. The enemy loses by the chance of war a right which the chance of war had before given him. But, concerning prisoners of war, a distinction is to be made. If they were entirely free on their parole, the single circumstance of their coming again into the power of their own nation does not release them, -since, even if they had returned home, they would still have continued prisoners. The consent of the enemy who had captured them, or his total subjugation, can alone discharge them. But, if they have only promised not to effect their escape, a promise which prisoners frequently make [395] in order to avoid the inconveniences of a jail,-the only obligation incumbent on them is, that they shall not, of themselves, quit the enemy's country, or the place assigned for their residence. And if the troops of their party should gain possession of the place where they reside, the consequence is, that, by the right of war, they recover their liberty, are restored to their own nation, and reinstated in their former condition. (178) (177) In general, as regards countries or persons taken by a belligerent state, who were not the subjects of that state during any preceding part of the same war, a different rule prevails than that laid down by Vattel, sect. 211; for, the law of postliminium implies that the party claiming it returns to his previous character. And he who, during the whole war, has been the subject of the enemy alone, must be considered, when he falls into the hands of the rival state, not as returning to a previous character, but as acquiring a character absolutely new. Upon this principle BOOK III. ther this right ex When a town, reduced by the enemy's arms, is retaken by CHAP. XIV. those of her own sovereign, she is, as we have above seen, § 212. Whe- restored to her former condition, and reinstated in the possession of all her rights. It is asked whether she thus recovers such part of her property as had been alienated by the enemy while he kept her in subjection. In the first place, perty alien- we are to make a distinction between movable property not ated by recoverable by the right of postliminium (§ 202), and imthe enemy. movables. The former belongs to the enemy who gets it tends to their pro into his hands, and he may irrecoverably alienate it. As to The same decisions hold good with regard to the immovable property of individuals, prisoners or not, which has been alienated by the enemy while he was master of the country. Grotius proposes the question with respect to immovable property possessed in a neutral country by a prisoner of war.* [396] But, according to the principles we have laid down, this question is groundless: for, the sovereign who makes a prisoner in war, has no other right over him than that of detaining his person until the conclusion of the war, or until he be ransomed (§§ 148, &c.); but he acquires no right to the prisoner's property, unless he can seize on it. It is impossible to produce any natural reason why the captor should have a right * Lib. iii. cap. ix. § vi. to dispose of his prisoner's property, unless the prisoner has BOOK III. it about him. CHAP. XIV. When a nation, a people, a state, has been entirely sub- § 213.Whedued, it is asked whether a revolution can entitle them to the ther a naright of postliminium. In order justly to answer this ques- tion that has tion, there must again be a distinction of cases. If that been entirely subconquered state has not yet acquiesced in her new subjection, dued can enhas not voluntarily submitted, and has only ceased to resist joy the right from inability,-if her victor has not laid aside the sword of of postlimiconquest and taken up the sceptre of peace and equity,— nium. such a people are not really subdued: they are only defeated and oppressed; and, on being delivered by the arms of an ally, they doubtless return to their former situation (§ 207). Their ally cannot become their conqueror; he is their deliverer; and all the obligation of the party delivered is to reward him. If the subsequent conqueror, not being an ally to the state of which we speak, intends to keep it under his own jurisdiction as the reward of his victory, he puts himself in the place of the former conqueror, and becomes the enemy of the state which the other had oppressed: that state may lawfully resist him, and avail herself of a favourable opportunity to recover her liberty. If she had been unjustly oppressed, he who rescues her from the yoke of the oppressor ought generously to reinstate her in the possession of all her rights (§ 203). The question changes with regard to a state which has voluntarily submitted to the conqueror. If the people, no longer treated as enemies, but as actual subjects, have submitted to a lawful government, they are thenceforward dependent on a new sovereign; or, being incorporated with the victorious nation, they become a part of it, and share its fate. Their former state is absolutely destroyed; all its relations, all its alliances are extinguished (Book II. § 203). Whoever, then, the new conqueror may be, that afterwards subdues the state to which these people are united, they share the destiny of that state, as a part shares the fate of the whole. This has been the practice of nations in all ages, -I say, even of just and equitable nations, especially with regard to an ancient conquest. The most moderate conqueror confines his generosity in this particular to the restoration of the liberties of a people who have been but recently subdued, and whom he does not consider as perfectly incorporated, or well cemented by inclination, with the state which he has conquered. If the people in question shake off the yoke and recover their liberty by their own exertions, they regain all their rights; they return to their former situation; and foreign nations have no right to determine whether they have shaken off the yoke of lawful authority, or burst the chains of slavery. Thus, the kingdom of Portugal,-which had been seized on |