of his own ftate, and by found policy to reconcile them, as far as poffible, with thofe of the conquered country. He may, in mitation of the kings of France, unite and incorporate it with his own dominions. Such was the practice of the Romans but they did this in different modes according to cafes and conjunctures. At a time when Rome ftood in need of an increafe of population, the destroyed the town of Alba, which the feared to have as a rival: but the received all its inhabitants within her walls, and thereby gained fo many new citizens. In after times the conquered cities were left ftanding, and the freedom of Rome was given to the vanquished inhabitants. Victory could not have proved fo advantageous to thofe people as their defeat.

The conqueror may likewife fimply put himself in the place of the fovereign whom he has difpoffeffed. Thus the Tartars have acted in China: the empire was fuffered to fubfift in its former condition, except that it fell under the dominion of a new race of fovereigns.

Laftly, the conqueror may rule his conqueft as a feparate ftate, and permit it to retain its own form of government. But this method is dangerous: it produces no real union of ftrength; it weakens the conquered country, without making any confiderable addition to the power of the victorious ftate.

queft be

It is asked to whom the conqueft belongs,-to the prince who § 202. has made it, or to the state? This question ought never to To whom have been heard of. Can the prince, in his character of fove the conreign, act for any other end than the good of the ftate? Whofe longs are the forces which he employs in his wars? Even if he made the conqueft at his own expenfe, out of his own revenue, or his private and patrimonial eftates, does he not make use of the perfonal exertions of his fubjects in achieving it? does he not shed their blood in the conteft? But fuppofing even that he were to employ foreign or mercenary troops, does he not expofe his nation to the enemy's refentment? does he not involve her in the war? And fhall he alone reap all the advantages of it? Is it not for the cause of the state, and of the nation, that he takes up arms? The nation therefore has a juft claim to all the rights to which fuch war gives birth.

If the fovereign embarks in a war, of which his own perfonal interefts are the fole ground,-as, for inftance, to affert his right of fucceffion to a foreign fovereignty, the question then affumes a new face. In this affair the ftate is wholly unconcerned: but then the nation fhould be at liberty either to refuse engaging in it, or to affift her prince, at her own option. If he is empowcred to employ the national force in fupport of his perfonal rights, he should, in such case, make no diftinction between these rights and thofe of the ftate. The French law, which annexes to the crown all acquifitions made by the king, fhould be the law of all nations.

§ 203.

Whether

It has been obferved (§ 196) that we may be obliged, if not. externally, yet in confcience, and by the laws of equity, to rer we are to

CC4

T

Store fet at liber

enemy had

ty a people ftore to a third party the booty we have recovered out of the whom the hands of an enemy who had taken it from him in an unjust war, unjuftly The obligation is more certain and more extenfive, with regard conquered. to a people whom our enemy had unjustly oppreffed. For a

people thus fpoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themfelves with the ftate by which they have been fubdued,—if they have not freely aided her in the war against us, we certainly ought fo to use our victory, as not merely to give them a new mafter, but to break their chains. To deliver an oppreffed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend. The canton of Schweitz having wrested the country of Glaris from the house of Austria, restored the inhabitants to their former liberties; and Glaris, admitted into the Helvetic confederacy, formed the fixth canton*.

§204.

Definition of the right

CHAP. XIV.

Of the Right of Pofiliminium.

nition THE right of poftliminium is that, in virtue of which, perfons and things taken by the enemy are reftored to their of poftlimi- former ftate, no coming again into the power of the nation nium. to which they belonged.

Founda

The fovereign is bound to protect the perfons and property of $205. his fubjects, and to defend them againft the enemy. When, tion of this therefore, a fubject, or any part of his property, has fallen into right. the enemy's poffeffion, fhould any fortunate event bring them again into the fovereign's power, it is undoubtedly his duty to restore them to their former condition,-to re-establifh the perfons in all their rights and obligations, to give back the effects to the owners, in a word, to replace every thing on the fame footing on which it ftood previous to the enemy's capture.

The juftice or injuftice of the war makes no difference in this cafe, not only, becaufe, according to the voluntary law of nations, the war, as to its effects, is reputed just on both fides, but likewise because war, whether juft or not, is a national concern; and if the fubjects who fight or fuffer in the national caufe, fhould-after they have, either in their perfons or their property, fallen into the enemy's power-be, by fome fortunate incident, reftored to the hands of their own people,-there is no reafon why they should not be restored to their former condition. It is the fame as if they had never been taken. If the war be juft on the part of their nation, they were unjustly captured by the

Hiftoire de la Confédération Helvétique, par M. De Watteville. liv. iii. under the year 1351..

enemy i

enemy; and thus nothing is more natural than to restore them. as foon as it becomes poffible. If the war be unjust, they are under no greater obligation to fuffer in atonement for its injustice, than the reft of the nation. Fortune brings down the evil on their heads, when they are taken: fhe delivers them from it, when they efcape. Here again it is the fame as if they never had been captured. Neither their own fovereign nor the emy has any particular right over them. The enemy has loft by one accident what he had gained by another.

How it

takes ef

Perfons return, and things are recovered, by the right of post- § 206. liminium, when, after having been taken by the enemy, they come again into the power of their own nation (§ 204). This feet. right, therefore, takes effect as foon as fuch perfons or things captured by the enemy fall into the hands of foldiers belonging to their own nation, or are brought back tothe army, the camp, the territories of their fovereign, or the places under his command.

among the

Those who unite with us to carry on a war, are joint parties § 207. with us: we are engaged in a common caufe; our right is one and Whether it the fame; and they are confidered as making but one body with takes effect us. Therefore when perfons or things captured by the enemy are allies. retaken by our allies or auxiliaries, or in any other manner fall into their hands, this, fo far as relates to the effect of the right, is precisely the fame thing as if they were come again into our own power; fince, in the cause in which we are jointly embarked, our power and that of our allies is but one and the fame. The right of poftliminium therefore takes effect among those who carry on the war in conjunction with us; and the perfons and things recovered by them from the enemy, are to be restored to their former condition,

But

But does this right take place in the territories of our allies? Here a distinction arifes. If those allies make a common cause with us, if they are affociates in the war, we are neceffarily entitled to the right of poftliminium in their territories as well as in our own: for their ftate is united with ours, and, together with it, conftitutes but one party in the war we carry on. if, as in our times is frequently the practice, an ally only gives us a ftated fuccour ftipulated 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 obferved, in this cafe, only the auxiliaries whom he fends to our affistance are partakers and affociates in the war; and his dominions remain in a ftate of neutrality.

Now the right of poftliminium does not take effect in neutral countries for when a nation chooses to remain neuter in a war, fhe is bound to confider it as equally just on both fides, fo far as relates to its effects,-and, confequently, to look upon every capture made by either party, as a lawful acquifition. To allow one of the parties, in prejudice to the other, to enjoy in her dominions the right of claiming things taken by the latter, or the

§ 208.

of no validity in neutral nations.

§209. What things are recoverable

by this right.

$210.

who cannot

right of poftliminium, would be declaring in favour of the former, and departing from the line of neutrality.

Naturally, every kind of property might be recovered by the right of poftliminium; and there is no intrinfic reafon why move ables fhould be excepted in this cafe, provided they can be certainly recognised and identified. Accordingly, the ancients, on recovering fuch things from the enemy, frequently reftored them to their former owners. But the difficulty of recognising things of this nature, and the endless difputes which would arise from the profecution of the owners' claims to them, have been deemed motives of fufficient weight for the general establishment of a contrary practice. To thefe confiderations 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 reafonable prefumption arifes, that the former owners have relinquifhed their property. It is therefore with reason, that moveables or booty are excepted from the right of poftliminium, unlefs retaken from the enemy immediately after his capture of them; in which cafe, the proprietor neither finds a difficulty in recognising his effects, nor is prefumed to have relinquished them. And as the custom has once been admitted, and is now well established, there would be an injuftice in violating it (Prelim. § 26). Among the Romans, indeed, flaves were not treated like other movable property; they, by the right of postliminium, were reftored to their masters, even when the rest of the booty was detained. The reafon of this is evident: for, as it was at all times eafy to recognise a flave, and ascertain to whom he belonged, the owner, ftill entertaining hopes of recovering him, was not fuppofed to have relinquifhed his right.

-

Prifoners of war, who have given their parole, territories and Of thofe towns, which have fubmitted to the enemy, and have fworn or return by promifed allegiance to him,-cannot of themfelves return to the right of their former condition by the right of poftliminium: for faith poftlimini- is to be kept even with enemies (174).

um.

211.

this right

when re

taken.

But if the fovereign retakes thofe towns, countries, or prifoners, who had furrendered to the enemy, he recovers all his forThey enjoy mer rights over them, and is bound to re-establish them in their priftine condition (§ 205). In this cafe they enjoy the right of poftliminium without any breach of their word, any violation of their plighted faith. The enemy lofes by the chance of war a right which the chance of war had before given him. But concerning prifoners of war, a diftinction is to be made. If they were entirely free on their parole, the fingle circumftance of their coming again into the power of their own nation does not release them, fince, even if they had returned home, they would ftill have continued prifoners. The confent of the enemy who had captured them, or his total fubjugation, can alone dif

See feveral inftances in Grotius, book iii, chap. 16, § 2.

charge

charge them. But if they have only promised not to effect their efcape, a promife which prifoners frequently make in order to avoid the inconveniences of a jail,-the only obligation incumbent on them, is, that they fhall not, of themfelves, quit the enemy's country, or the place affigned for their refidence. And if the troops of their party fhould gain poffeffion of the place where they refide, the confequence is, that, by the right of war, they recover their liberty, are reftored to their own nation, and reinftated in their former condition.

extends to

When a town, reduced by the enemy's arms, is retaken by $212. thofe of her own fovereign, fhe is, as we have above feen, re- Whether ftored to her former condition, and reinftated in the poffeffion of this right all her rights. It is asked whether the thus recovers fuch part of their proher property as had been alienated by the enemy while he kept perty alie her in fubjection. In the first place we are to make a diftinction nated by between movable property not recoverable by the right of poflliminium (202), and immovables. The former belongs to the enemy who gets it into his hands, and he may irrecoverably alie

As to immovables, let it be remembered that the acquifition of a town taken in war is not fully confummated, till confirmed by a treaty of peace, or by the entire fubmiffion or deftruction of the state to which it belonged (§ 197). Till then, the fovereign of that town has hopes of retaking it, or of recovering it by a peace. And from the moment it returns into his power, he reftores it to all its rights (§ 205), and confequently it recovers all its poffeflions, as far as in their nature they are recoverable. It therefore refumes its immovable poffeffions from the hands of thofe perfons who have been fo prematurely forward to purchase them. In buying them of one who had not an abfolute right to difpofe of them, the purchafers made a hazardous bargain; and if they prove lofers by the tranfaction, it is a confequence to which they deliberately expofed themselves. But if that town had been ceded to the enemy by a treaty of peace, or was completely fallen into his power by the fubmiffion of the whole ftate, fhe has no longer any claim to the right of poftliminium; and the alienation of any of her poffeffions by the conqueror is valid and irreverfible; nor can fhe lay claim to them, if, in the fequel, fome fortunate revolution fhould liberate her from the yoke of the conqueror. When Alexander made a prefent to the Theffalians of the fum due from them to the Thebans (fee § 77), he was fo abfolutely mafter of the republic of Thebes, that he destroyed the city, and fold the inhabitants.

The fame decifions hold good with regard to the immovable property of individuals, prifoners or not, which has been alienated by the enemy while he was master of the country. Grotius propofes the queftion with refpect to immovable property poffeffed in a neutral country by a prifoner of war *. But, according to the principles we have laid down, this question is

* Lib. iii, cap. 9, § 6.

ground

the enemy.