nation that

can enjoy

um.

groundless: for the fovereign who makes a prifoner in war, has no other right over him than that of detaining his perfon until the conclufion of the war, or until he be ranfomed (§§ 148, &c.); but he acquires no right to the prifoner's property, unless he can feize on it. It is impoffible to produce any natural reafon why the captor fhould have a right to difpofe of his prifoner's property, unless the prifoner has it about him.

5213. When a nation, a people, a state, has been entirely fubdued, it Whether a is afked whether a revolution can entitle them to the right of has been poftliminium. In order justly to anfwer this question, there entirely muft again be a diftinction of cafes. If that conquered ftate has fubdued not yet acquiefced in her new fubjection, has not voluntarily fubthe right of mitted, and has only ceafed to refift from inability,-if her victor poftimini has not laid afide the fword of conqueft and taken up the fceptre of peace and equity,-fuch a people are not really fubdued: they are only defeated and oppreffed; and, on being delivered by the arms of an ally, they doubtlefs 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 fubfequent conqueror, not being an ally to the ftate of which we fpeak, intends to keep it under his own jurifdiction as the reward of his victory, he puts himself in the place of the former conqueror, and becomes the enemy of the ftate which the other had oppreffed: that state may lawfully refift him, and avail herself of a favourable opportunity to recover her liberty. If the had been unjustly oppreffed, he who refcues her from the yoke of the oppreffor ought generoufly to reinstate her in the poffeffion of all her rights (§ 203).

The queftion changes with regard to a flate which has voluntarily fubmitted to the conqueror. If the people, no longer treated as enemies but as actual fubjects, have fubmitted to a lawful government, they are thenceforward dependent on a new fovereign; or, being incorporated with the victorious nation, they become a part of it, and fhare its fate. Their former state is abfo lutely destroyed; all its relations, all its alliances, are extinguished (Book II. § 203). Whoever then the new conqueror may be, that afterwards fubdues the ftate to which these people are united, they fhare the deftiny of that flate, as a part fhares the fate of the whole. This has been the practice of nations in all ages, I fay, even of juft and equitable nations,-efpecially with regard to an ancient conqueft. The most moderate conqueror confines his generofity in this particular to the restoration of the liberties of a people who have been but recently fubdued, and whom he does not confider as perfectly incorporated, or well cemented by inclination, with the ftate which he has conquered.

If the people in queftion fhake off the yoke and recover their liberty by their own exertions, they regain all their rights; they return to their former fituation; and foreign nations have no right to determine whether they have fhaken off the yoke of lawful authority, or burft the cliains of flavery. Thus, the

kingdom

kingdom of Portugal,-which had been feized on by Philip II. king of Spain, under pretence of an hereditary right, but in reality by force and the terror of his arms,-re-established the independency of her crown, and recovered her former rights, when she drove out the Spaniards, and placed the duke of Braganza on the throne.

§ 274. Right of

ftored at

Provinces, towns, and lands, which the enemy restores by the treaty of peace, are certainly entitled to the right of poftliminium: for the fovereign, in whatever manner he recovers them, nium for is bound to restore them to their former condition, as foon as he what is reregains poffeffion of them (§ 205). The enemy, in giving back the peace; a town at the peace, renounces the right he had acquired by arms. It is just the fame as if he had never taken it; and the tranfaction furnishes no reafon which can juftify the fovereign, in refusing to reinftate fuch town in the poffeffion of all her rights, and restore her to her former condition.

But whatever is ceded to the enemy by a treaty of peace, is 215. truly and completely alienated. It has no longer any claim to and for the right of poftliminium, unless the treaty of peace be broken

and cancelled.

things

ceded to

the enemy.

§ 216.

The right of poftli

And as things not mentioned in the treaty of peace remain in the condition in which they happen to be at the time when the treaty is concluded, and are, on both fides, tacitly ceded to the prefent minium poffeffor, it may be faid in general, that the right of poftlimi- does not nium no longer exifts after the conclufion of the peace. That exift after right entirely relates to the ftate of war.

a peace.

ways in

Nevertheless, and for this very reafon, there is an exception $217. to be made here in favour of prifoners of war. Their fove- Why alreign is bound to release them at the peace (§ 154). But if he force for cannot accomplish this,-if the fate of war compels him to ac- prifoneis. cept of hard and unjust conditions,-the enemy, who ought to fet the prisoners at liberty when the war is terminated and he has no longer any thing to fear from them (§§ 150, 153), continues the state of war with refpect to them, if he still detains them in captivity, and especially if he reduces them to flavery (§ 152). They have therefore a right to effect their escape from him if they have an opportunity, and to return to their own country, equally as in war time; fince, with regard to them, the war still continues. And in that cafe, the fovereign, from his obligation to protect them, is bound to reflore them to their former condition (205).

free even

Further, thofe prifoners who are, without any lawful reafon, § 218. detained after the conclufion of peace, become immediately free, when, once escaped from captivity, they have even reached a by efcaping neutral country: for enemies are not to be purfued and feized into a newon neutral ground (§ 132); and whoever detains an innocent tral counprifoner after the peace, continues to be his enemy. This rule "y. fhould and actually does obtain among nations who do not admit and authorise the practice of enflaving prifoners of war.

$219. How the

It is fufficiently evident from the premiffes, that prisoners are to be confidered as citizens who may one day return to their rights and obligations country: and, when they do return, it is the duty of the foveof prifoners reign to re-establish them in their former condition. Hence it clearly follows, that the rights of every one of thofe prifoners, together with his obligations (or the rights of others over him), ftill fublift undiminished,-only the exertion of them is, for the most part, fufpended during the time of his captivity.

fubfift.

$220. Teftament

foner of

The prifoner of war therefore retains a right to difpofe of his of a pri- property, particularly in cafe of death: and as there is nothing in the ftate of captivity which can in this latter respect deprive him of the exercife of his right, the teftament of a prifoner of war ought to be valid in his own country, unless rendered void by fome inherent defect.

war.

$221.

With nations which have established the indiffolubility of the Marriage. marriage ties, or have ordained that they should continue for life unlefs diffolved by the judgment of a court, thofe ties still subfift, notwithstanding the captivity of one of the parties, who, on his return home, is, by poftliminium, again entitled to all his matrimonial rights.

minium,

of cuftom.

We do not here enter into a detail of what the civil laws of § 222. Regulati particular nations have ordained with refpect to the right of ons refpect-poftliminium: we content ourselves with obferving that fuch loing political regulations are obligatory on the fubjects of the ftate alone, eftablished and do not affect foreigners. Neither do we here examine what by treaty has been fettled on that head by treaties: thofe particular com pacts establish merely a conventional right, which relates only to the contracting parties. Customs confirmed by long and conftant ufe are obligatory on thofe nations who have given a tacit confent to them; and they are to be refpected, when not contrary to the law of nature: but thofe which involve an infringement of that facred law are faulty and invalid; and, instead of conforming to fuch cuftoms, every nation is bound to use her endeavours to effect their abolition. Among the Romans the right of poftliminium was in force, even in times of profound peace, with refpect to nations with which Rome had neither connections of friendship, rights of hospitality, nor alliance*. This was because those nations were, as we have already ob ferved, confidered in fome measure as enemies. The preva lence of milder manners has almost every-where abolished that remnant of barbarism.

* Digest. lib. xlix. de Capt. et Postlim, leg, ✨. § z.

CHA P. XV.

Of the Right of private Perfons in War.

223.

cannot

the fove

HE right of making war, as we have fhewn in the first chapter of this book, folely belongs to the fovereign Subjects power, which not only decides whether it be proper to undertake commit the war, and to declare it, but likewife directs all its operations, hoftilities as circumstances of the utmost importance to the fafety of the without ftate. Subjects, therefore, cannot, of themselves, take any fteps reign's in this affair; nor are they allowed to commit any act of hoftility order. without orders from their fovereign. Be it understood, however, that, under the head of "hoftilities," we do not here mean to include felf-defence. A fubject may repel the violence of a fellowcitizen when the magiftrate's affiftance is not at hand; and with much greater reafon may he defend himself against the unexpected attacks of foreigners.

That order

The fovereign's order, which commands acts of hoftility and $224. gives a right to commit them, is either general or particular. The may be ge declaration of war, which enjoins the fubjects at large to attack neral or the enemy's fubjects, implies a general order. The generals, particular. officers, foldiers, privateerfmen, and partifans, being all commiffioned by the fovereign, make war by virtue of a particular order.

But, though an order from the fovereign be neceffary to au-6225thorise the fubjects to make war, that neceflity wholly refults the necef from the laws effential to every political fociety, and not from fity of fuck any obligation relative to the enemy. For, when one nation an order. takes up arms against another, fhe from that moment declares herself an enemy to all the individuals of the latter, and authotifes them to treat her as fuch. What right could fhe have in that cafe to complain of any acts of hoftility committed against her by private perfons without orders from their fuperiors? The rule, therefore, of which we here fpeak, relates rather to public law in general, than to the law of nations properly fo called, or to the principles of the reciprocal obligations of nations.

law of

this rule.

If we confine our view to the law of nations, confidered in § 226. felf, when once two nations are engaged in war, all the fub- Why the jects of the one may commit hoftilities against thofe of the other, nations and do them all the mischief authorised by the ftate of war. But should have fhould two nations thus encounter each other with the collective adopted weight of their whole force, the war would become much more bloody and destructive, and could hardly be terminated otherwife than by the utter extinction of one of the parties. The examples of ancient wars abundantly prove the truth of this affertion to any man who will for a moment recall to mind the firft wars waged by Rome against the popular republics by which

227. Precife meaning of

228.

fons may

will.

fhe was furrounded. It is therefore with good reason that the contrary practice has grown into a custom with the nations of Europe,-at leaft with those that keep up regular standing armies or bodies of militia. The troops alone carry on the war, while the reft of the nation remain in peace. And the neceffity of a special order to act is fo thoroughly established, that, even after a declaration of war between two nations, if the peasants of themselves commit any hoftilities, the enemy fhews them no mercy, but hangs them up as he would so many robbers or banditti. The crews of private fhips of war stand in the fame predicament: a commiffion from their fovereign or admiral can alone, in cafe they are captured, infure them fuch treatment as is given to prifoners taken in regular warfare.

In declarations of war, however, the ancient form is still retained, by which the fubjects in general are ordered, not only to break off all intercourfe with the enemy, but also to attack him. Custom interprets this general order. It authorises, indeed, and even obliges every fubject, of whatever rank, to fecure the perfons and things belonging to the enemy, when they fall into his hands; but it does not invite the subjects to undertake any offenfive expedition without a commiffion or particular

order.

There are occafions, however, when the subjects may reafonWhat pri- ably fuppofe the fovereign's will, and act in confequence of his vate per- tacit command. Thus, although the operations of war are by undertake, cuftom generally confined to the troops, if the inhabitants of a prefuming ftrong place, taken by the enemy, have not promifed or fworn on the fo- fubmiflion to him, and thould find a favourable opportunity of vereign's furprising the garrifon and recovering the place for their fovereign, they may confidently prefume that the prince will approve of this fpirited enterprife. And where is the man that fhall dare to cenfure it? It is true, indeed, that, if the townfmen mifcarry in the attempt, they will experience very fevere treatment from the enemy. But this does not prove the enterprise to be unjust, or contrary to the laws of war. The enemy makes ufe of his right, of the right of arms, which authorifes him to call in the aid of terror to a certain degree, in order that the subjects of the fovereign with whom he is at war may not be willing to venture on fuch bold undertakings, the fuccefs of which might prove fatal to him. During the laft war, the inhabitants of Genoa fuddenly took up arms of their own accord, and drove the Auftrians from the city: and the republic celebrates an annual commemoration of that event by which the recovered her liberty.

$229. Perfons fitting out private fhips to cruise against the enemy Privateers. acquire the property of whatever captures they make, as a com penfation for their disbursements, and for the rifques they run: but they acquire it by grant from the fovereign, who iffues out commiffions to them. The fovereign allows them either the

whole

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