Front Page Titles (by Subject) CHAPTER IX: Of the Right of Postliminy. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER IX: Of the Right of Postliminy. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Of the Right of Postliminy.
I.The Original of the Word Postliminium.I. 1. As the Lawyers of latter Ages have writ almost nothing reasonably of Things taken from Enemies, so neither have they of the Right of Postliminy. This Subject has been treated of by the old Roman Lawyers somewhat more accu-<612>rately, but often times too confusedly; so that the Reader could not well distinguish, what they attributed to the civil Law, and what to the Law of Nations.
2. The Opinion of Servius Sulpicius of the Word Postliminium, is to be rejected, who takes the latter Part of it to be only an Extension of no Signification; but that of Scaevola to be approved, who compounds1 it of Post,2 that may signify a Return, and Limen, which signifies Frontiers; for Limen, and Limes, differ only in Termination and manner of declining, for they are both derived from the old Word Limus, that signifies oblique, or across, and in the primitive Notion are the same; as Materia and Materies, Pavus and Pavo,3Contagio and Contages, Cucumis, and Cucumer; tho’ afterwards, Limen was particularly applied to the Entrance of private Dwellings, and Limes to that of the Lands of the State. So the Antients called banishing of a Person Eliminare, and Banishment they termed4Eliminium, thrusting out of their Bounds, or Limits.
II.Where this Right takes Place.II. 1. Therefore the Right of Postliminy is that which ariseth from a1 return to2 the Frontiers, that is, the Territories of the State. Pomponius3 says, that a Man has this Right of Return, the Moment he enters into any Place, that the State is Master of. Paulus,4 when he is entered our Bounds, or Territories. But from a Parity of Reason, the general Consent of Nations has extended the Thing further, so that this Postliminium (or Right of Return) should take Place, even as soon as a Person (or any Thing capable of this Right) should come safe to our Friends, as Pomponius5 has it in the aforesaid Place; or as Paulus6 explains it by way of Ex-<613>ample, to a King in Alliance or Friendship with us; (where Friends,7 or Allies, are not to be taken simply for those with whom we are at Peace, but those who join with us in the same War) unto whom they who shall arrive, are to be safe, as Paulus speaks, upon the publick Account; for it is all one, whether Person, or Thing, escape to these, or to his own Countrymen.
2. But among those who are Friends, but not engaged in the same Party, Persons taken in War, change not their Condition (of Captivity) unless by a special Article and Agreement, as it was stipulated8 between the Romans and Carthaginians, in their second Treaty, that if any of the Friends of the Romans, being taken by the Carthaginians, should escape into any Ports subject to the Romans, they should obtain their Liberty, the like Provision being made for the Friends of the Carthaginians.9 Therefore the Romans, who being taken in the second Punick War, and sold as Slaves, were come from Master to Master into Greece, could not be admitted to this Right of Postliminy, because the Greeks were Neuters in that War; there was therefore a Necessity of their being ransomed, before they could be set at Liberty. We also read in Homer of several Persons taken in War, sold into such Countries as were at Peace, as Lycaon, Iliad, (Lib. XXI.) and Eurymedusa, Odyss. Lib. VII.
III.That some Things return, and some are recovered by this Right of Postliminy.III. According to the antient Language of the Romans, even free Men were said to be recovered by Right of Postliminy. Gallus Aelius, in his first Book of the Significations of Law Terms, saith, That a free Man who went from one City to another, and afterwards returned to that City, was first said to be recovered by the Right of Postliminy. Also a Slave taken Prisoner, by the Enemy, if he afterwards returns to us, returns to the Obedience of his old Master by Right of Postliminy. A Horse, a Mule, and a Ship, have the like privilege of Postliminy, in postliminii receptu, (thus I judge those three Words with little Alteration may be retained, which Jacobus Cujacius, a Man incomparable for his Study of the Roman Law, would have left out) as a Slave: What kinds of Things do return to us by this Right of Postliminy, the same may return from us to our Enemies. But the modern Roman Lawyers have with more Exactness distinguished two Kinds of Postliminy,1viz. when we either return, or recover something.
IV.This Right of Postliminy is of Force in Peace andIV. 1. The Opinion also of Tryphoninus1 is allowable, who says this Right of Postliminy takes place in War, or Peace; in a Sense some what different than Pomponius2 expressed it. This Right of Postliminy in Peace (unless it be otherwise stipulated) belongsa to those who were not overcome in War by force of Arms, but were by their own Misfortune surprized, as found in the Enemies Country, when the War suddenly broke out. But there is no Benefit of Postliminy to the other Prisoners in Time of Peace,3 unless it were comprised in the Treaty of Peace: As the most learned4Peter Faber judicially corrects that Place of Tryphoninus, not disap-<614>proved by Cujacius; the Solidity of which Correction appears, as well by the Reason that follows immediately after, as by the Opposition to what goes before. The Peace was made, and the Prisoners released (saith5Zonaras) for so it had been agreed upon. So Pomponius,6If the Prisoner, concerning whom, it was comprehended in the Articles of Peace, that he might return, should chuse of himself to remain with the Enemy, he shall not afterwards challenge this Right of Postliminy. And Paulus,7If a Prisoner taken in War, after the making of Peace shall fly Home, and upon the War’s breaking out again be retaken, he by this Postliminy returns to him, who in the former War had taken him, unless it be expressed in the Articles of Peace, that the Prisoner should be released.
2. Tryphoninus8 alledges this Reason out of Servius, that the Romans thus behaved themselves to their Prisoners, because they would have them place all their Hopes of returning in their own Valour, rather than in Peace. For as Livy saith,9Rome in the most antient Times had no Compassion on those that fell into the Enemies Hands. But this Reason being peculiar to the Romans, could not constitute a Rule of the Law of Nations; it might yet be one Motive why they themselves did admit that Custom introduced by other Nations. But this seems to be a better founded Reason, because Kings, and States, who enter into War, desire to have it believed, that their Cause was just in doing it, and theirs unjust who engaged against them: Which whilst both Parties desire to have equally believed, it would not be safe, for others not interested that would live in Peace,10 to engage in the Controversy. Therefore the Nations that are at Peace can do nothing better, than quietly11 to take that to be just, that was done in that War, and so the Prisoners mutually taken in Arms, should be esteemed lawful Captives.
3. But the same cannot be alledged against those who have been unhappily surprized by the sudden breaking out of a War, for no Design of injuring can be laid to their Charge: Yet it has not been thought unjust to detain them during the War, in order to weaken the Enemies Power; but upon the End of the War, nothing can be offered why they should not be discharged. Therefore it was established by a tacit Consent of Nations,12 that such Prisoners, upon the Conclusion of a Peace,<615> should be released,13 as being accounted innocent by both Parties. But that as to other Captives, every one might use the Right which he would be thought to have over them, unless the Articles of Agreement have otherwise provided. Therefore for the same Reason,14 neither Slaves, nor Things taken in War, are restored in Peace, unless expressed in the Articles. Because the Conqueror pretends to have a just Title to them, which to contradict, were to lay a Foundation for a new War; whence it is plain, that that alledged in Quintilian for the Thebans, is rather ingenious than true; that Prisoners, if they can escape into their own Country, are to be esteemed free, because what is gotten15 by Force, is not to be kept but by the same Force; we have hitherto treated of the Acquisition of the Right of Postliminy in Time of Peace.
4. In Time of War they return by the Right of Postliminy, who16 were free before they were taken Prisoners, but Slaves and other Things are said to be recovered.
V.When a free Man, during the War, may return by this Right of Postliminy.V. He that was free, returns so by this Right (of Postliminy,) if here turns with this Design, to follow the Fortunes of his own People to whom he returns, as Tryphoninus1 has it. For a Slave, in order to become free, ought (if I may so speak) to acquire himself, which he cannot do without willing it. But whether he be retaken from the Enemy by force of Arms, or by Craft made his Escape, it is all the same Thing, as Florentinus2 observes. And so it is likewise, if he be freely3 delivered up by the Enemy. But what4 shall we say of a Prisoner, who having been sold by the Enemy, is arrived amongst his own People, by passing, as it often happens, from Master to Master? This Controversy is discussed by5Seneca in the Olynthian, whom Parrhasius bought. For when a Decree was passed by the Athenians, whereby the Olynthians were ordered to be free; he makes this Query, whether by it was meant, that they should become free, or adjudged to be free;6 of which the last is the best founded.
VI.What Right he may recover, and what not.VI. 1. But one that is free, after he is returned to his own Country, does not only become Master of himself, but also of all Things, that he had in any Nation at Peace, whether corporeal, or incorporeal; because as neutral States had reputed the Fact for a real Right, in regard to the taking of the Prisoner, they ought to do<616> the same in regard to his release; otherwise they would not act in an equal manner towards both Parties; wherefore he that by Right of Arms is possessed of the Body of a Prisoner, has not an absolute but conditional Right to all Things that belong to him, for it may cease against his Will, viz. if the Captive should return into his own Country; for so he loses his Right to those Goods of his, as he does to his Person, of which they were an Accessory.
2. What if he had alienated those Goods, shall he who derives his Title from him that was Owner of the Prisoner by Right of War, be secured by the Right of Nations, or else shall those Things (alienated) be recovered? I mean those that are in a neutral Country. And here, in my Opinion, we ought to distinguish between those Things that may be recovered by Postliminy, and those not capable of that Right; which Distinction we shall explain below, so that the former seem to be alienated only so far as they could be alienated, that is, conditionally, but the other,1 simply and absolutely. By Alienation here, I mean such as includes Donation and2 Acceptilation.
VII.All Rights in Regard to him are restored.VII. But as he that returns by Postliminy, recovers the Rights he was possessed of before, so those Rights which one had in Regard to him, are re-established, and deemed to have always subsisted, as if he had never been in the Enemy’s Power, as Tryphoninus1 says.
VIII.Why they that yield themselves are not capable of the Right of Postliminy.VIII. Paulus1 justly makes this Exception to this Rule, as it relates to Freemen, They have no Benefit of Postliminy, that being conquered by Arms, yield themselves up to their Enemies. Because all Agreements made with Enemies, by the Law of Nations, are to be punctually observed, as we shall shew hereafter; neither is Postliminy allowed against them. Therefore those Romans, in Gellius,2 taken by the Carthaginians, did own, that The Right of Postliminy did not belong to them, because they had engaged themselves by Oath. Whence it is well observed by Paulus,3 that during the Time of Truce there is no Postliminy allowed. But Modestinus4 <617> says, that if they that are delivered up to the Enemy, are engaged by no Covenant,5 or Promise, they may return by the Right of Postliminy.<618>
IX.How a People may obtain this Right of Postliminy.IX. 1. What we have said of particular Persons, the same may be likewise of Nations, that those that were free, may recover their Freedom, if the1 Assistance of their Allies happen to rescue them from the Power of the Enemy. But if the Body of the People that constitute the State, be dissolved, it is more reasonable to say,2 that they are not to be esteemed the3 same People; nor the Things formerly belonging to that State to be restored to them by the Law of Nations; because a People, like a Ship, by a Dissolution of the Parts, is entirely destroyed, because its whole Nature consists in that perpetual Conjunction. Therefore the City of Saguntum was not the same, when it was restored to the antient Inhabitants, eight Years after they had been driven out of it. Nor Thebes the same, after the Thebans had been sold by Alexander for Bondslaves. Hence it is plain, that what the Thessalians were indebted in to the Thebans before, was not restored to the Thebans by the Right of Postliminy, and that for these two Reasons. First, Because they were a new People that demanded this Debt; then, because Alexander, whilst he had the Lordship over them, had a Power to alienate that Right, and did really alienate it; besides that a Debt4 is not to be reckoned among Things capable of the Right of Postliminy.
2. What we have said of a State, is not very different from that of the old Roman Law, by which Marriages were dissoluble: Marriage was not reputed to be restored by Postliminy, but to be renewed5 by joint Consent of both Parties.
X.What Rights have they of the Civil Law, who return by Postliminy.X. 1. By what we have said, one may easily judge what Manner of Right, by the Law of Nations, Postliminy gives to Freemen. But by the Civil Law this very Right, as to what respects those Things that are done within the State, may be restrained by adding some Exceptions, or Conditions, and may be extended to other Profits and Advantages. Thus by the Roman Civil Law,1 Fugitives are excepted out of the Number of those intitled to this Right of Return, even the Sons of Families, over whom the Father, (one would think) should have retained his paternal Power, as a Privilege peculiar to the Romans. But it was thought proper to make this Regulation, because, as Paulus2 says, the Romans sacrificed their paternal Tenderness to the Observation of military Discipline. Agreeable to which,<619> says Cicero of Manlius,3 that he strictly maintained the Roman Discipline, to his own personal Sorrow, that he might effectually consult the Safety of the State, in which he esteemed his own included; and that he preferred the Preservation of the General’s Authority to the Motions of Nature, and the Affections of a Father.
2. This also somewhat lessens the Right of Postliminy, which was first enacted by the Athenian4 Laws, and after by the5Roman, viz. That he that was redeemed from the Enemy, should be Slave to him who had paid the Ransom, till he had reimbursed it. But this seems to have been made in favour of Freedom, lest all Hopes of recovering the Money being lost, many (of the Captives) should be left in the Power of the Enemy. And this very Slavery was much softened by the Roman Laws, and by the last Law of Justinian6 it was limited to five Years Service. Also, upon the Death of the Ransomed,7 the Right of recovering the Money entirely ceased. Likewise, by any Contract of Marriage between the Redeemer and the Redeemed,8 it was adjudged to be remitted; it was also9 lost by the Prostitution of a Woman ransomed. There were also many other Things enacted by the Roman Law, in favour of those that would redeem Captives, and for the Punishment of their Kinsmen that would not redeem them.
3. This Right of Postliminy was on the other Hand extended by the Civil Law; in that, not only those Things which are capable of being recovered by the Law of Nations, but also all Goods,10 and all Rights in general were preserved to a Prisoner that returned, as if he had never been in the Power of the Enemy; this was also the Athenian Law: For as we read in Dion Prusaeensis, fifteenth Oration, A certain Man pretending to be the Son of Callias, and that he had been taken Prisoner, in the Defeat at Acanthus, and had been a Slave in Thrace; when by the Right of Postliminy he returned to Athens, demanded the Inheritance of Callias from the present Possessors of it; and the only Thing he was obliged to do, was to prove that he was really the Son of Callias. The same Author also relates, that the Messenians,11 after a long Time of Slavery, recovered both their Liberty and Country. Nay further, when a Prisoner of War was returned,12 what had been taken from his Goods, either by Prescription, or a13 Disingagement of any Obligation of another, by Vertue of which he might have before demanded any Thing, was re-<620>stored to him by a rescissory Action: As well as the Rights that were otherwise deemed extinct by14 Non-Usage: For in the Edict of entirely restoring Ancestors, he is likewise included, who15 is in the Power of the Enemy; and this was established by the antient Roman Law.
4. The Cornelian Law afterwards made Provision for the Heirs of those that died in Captivity with the Enemy, and16 preserved all their Goods, just as if the Person taken Prisoner died at that very Time. If it were not then for these Civil Laws, the Captive’sa Goods17 would immediately be theirs that seized on them, because he that is taken by the Enemy,18 is reputed as not to be at all. But if a Captive did return, he should receive19 only those Things which, by the Law of Nations, challenge the Right of Postliminy. But that the Goods of a Prisoner, if he have no Heir, should come to the Publick,20 was a Law peculiar to the Romans. We have hitherto treated of Persons who return from Captivity. I will now speak of such Things as are recovered.
XI.How Slaves are recovered by Postliminy, how Fugitives, and those that are redeemed.XI. 1. Among these are chiefly Slaves of both Sexes, yea1 even those that have been often alienated,2 or have been discharged by the Enemy. Because (as Tryphoninus3 well observes) a Release from the Right of an Enemy ought not to prejudice a Citizen of ours, his former Master. But that the former Master may recover his Slave, it is necessary that he either actually possess him, or that he may easily possess him. Wherefore, tho’ in other Things it is sufficient, that they be brought just within our Territories, that will not be enough, in Regard to a Slave, unless also the antient Master know his being there. For he that is in the City of Rome (as it were) incognito, in Paulus’s Opinion, is not4 allowed to be yet reco-<621>vered. And as a Slave, in this Case, differs from Things inanimate, so does he likewise from a Freeman in this, that in Order to recover him by Right of Postliminy, it is not required that he should return, with an Intent to follow the Fortunes of the State. For that is only required of him, that is to recover his own Freedom, not of him that is to be recovered by another. And as Sabinus has it,5Every Man has a free Power to chuse what State he pleases to make himself a Member of, but not to dispose of the Right of Property which we have over him.
2. The Roman Law did not except fugitive Slaves from this Law of Nations; for even in these the Master may recover his old Right, as Paulus6 observes; lest, allowing the contrary, it may be prejudicial, not to him who is still to continue a Slave, but to the Master himself. The Emperors7 (Dioclesian and Maximinian) say in general, and without Restriction, of Slaves retaken in any military Expedition, what some extend without Reason to all Things retaken from the Enemy, that They ought to be deemed recovered, and not taken, and that the Soldier should be their Deliverer, and not their Master.
3. Those Slaves who are ransomed from the Enemy, by the Roman Law8 become his that redeemed them, but upon laying down their Ransom, they are deemed recovered by the Right of Postliminy. But it belongs to the Civilians to give a more exact Explication of all this. But some Things have been altered by the modern Laws: And, to invite captive Slaves to return, they propose present Liberty to the disabled, and to the Rest, after five Years; as you may see in the military Laws collected by9Rufus.
XII.Whether Subjects may be recovered by Postliminy.XII. That Question more nearly relates to us, whether a People subjected to a foreign Prince return to their antient State, which may be handled, by supposing that it is not their antient Sovereign, but some Ally, who has rescued them from the Enemy; the same, I think, may be answered,1 as before, of Slaves, unless it be otherwise agreed by the Treaty of Alliance.<622>
XIII.That Lands are recovered by Postliminy.XIII. 1. Among Things recoverable by Postliminy, the first to be considered are Lands; It is true (saith1Pomponius) the Enemy being beaten out of the Lands which they had seized on, the Right of them returns to their former Owners. But the Enemy must be understood to be driven out, when they cannot come thither any more openly as we have explained elsewhere, (Ch. iv. of this Book, § 4.) Thus the Lacedemonians restored the Island Aegina, recovered from the Athenians2 to the antient Lords. So3Justinian, and other Emperors, restored the Lands recovered from the Goths and Vandals, to the Heirs of the antient Possessors,4 not admitting those Prescriptions against them, which the Roman Laws had introduced.
2. What I have said of Lands takes Place also, in my Opinion, in Regard to all Rights annexed to those Lands. For even Places taken by the Enemy, which had been sacred or religious, when freed from that Misfortune, return as it were by a Kind of Postliminy to their former State, as5Pomponius decides. Whereto agrees that of Cicero, in his Oration against Verres, concerning Diana6 of Segesta, She recovered her Worship and Habitation by the Valour of Publius Africanus. And Marcianus7 compares that Right to the Right of Postliminy, by which, a Place of the Shore being built upon, when the Building is fallen, makes again Part of the Shore. Upon this Principle it must be8 said, that the Profits of the Land recovered are to be restored; like to what Pomponius delivers of Lands that had been9 drowned. So it is provided by the Laws ofaSpain, that Counties, and other hereditary Jurisdictions, shall return by Postliminy; the greater absolutely, the less if within the Space of four Years they be claimed after their Recovery, unless it be a Castle, or Fort, lost by War, and recovered again in what Manner soever, the King then hath Right to keep the Possession of it.
XIV.What Difference was formerly observed in Relation to Moveables.XIV. 1. Concerning Moveables, the general Rule is directly contrary, that they do not return by Postliminy, but make Part of the Spoil; for Labeo1 opposes those two Ideas. Therefore, when such Things pass from the Enemy to others by Commerce, where soever they are found, they are allowed to be his who bought them; neither has the first Owner2 any Power to claim them, either amongst3 <623> a neutral People, or in his own Country. But from this Rule we find of old excepted, Things that were useful in War; which seems to have been generally allowed by all Nations, for this Reason, that the Hope of recovering them might render Men more willing to provide them: For the Laws and Views of most States at that Time, had Respect to warlike Affairs, and therefore they easily agreed in this. We have already mentioned, out of Gallus Aelius,4 what Things were esteemed useful in War; but they are more exactly set down, both by Cicero5 in his Topicks, and in Modestinus,6viz. Men of War and Merchant Ships, but not Gallies and Pleasure-Boats; Mules, but only those used to the Pack-Saddle; Horses and Mares, but only those that will endure the Bit. And these are Things7 which by the Roman Law may be validly bequeathed, and may come into the Division8 of an Inheritance.
2. Arms9 also, and Cloaths, are useful in War, but these returned not by Postliminy, because it was an odious Thing, and was even accounted criminal, for a Man to suffer his Arms or Cloaths to be taken from him, as may be every where found in Historians. And in this, Arms are observed to differ from10 Horses, because the Horse may possibly break loose without the Fault of the Rider. And this Difference of Moveables seems to have been used in the West, even under the Goths, to the Time of Boetius. For he expounding the Topicks of Cicero, seems to speak of this Right, as if it were in full Force to that Day.<624>
XV.What the Law now says of Moveables.XV. But in these later Times, if not before, this Difference seems to have been taken away.1 For those skilled in the Customs of Nations do commonly declare, that Moveables are not recovered by Postliminy,a and we see the same in many Places determined in Relation to Ships.
XVI.What Things are recovered that want not this Right of Postliminy.XVI.[[1 But those Things (tho’ taken by the Enemy) which were not yet brought into Places whereof he is Master, have no Occasion for Postliminy, because they have not yet changed their Owner by the Right of Nations. Also what Pirates and Robbers have taken from us, has no Need of Postliminy, (as2Ulpianus and Javolenus3 relate) because the Law of Nations has not authorised them to appropriate it to themselves, in Prejudice of the antient Owner; on which Account the Athenians pretended to receive the Island4Halonesus, which Pirates had taken from them, and Philip from the Pirates, as restored, not given, by Philip. Therefore, Things taken by them, where soever they are found, may be claimed; but, as we have concludeda in another Place, so much must be restored to the Person who got Possession upon his own Charge, as the right Owner would willingly have expended for the Recovery of them.]]
XVII.That the Civil Law changes some Things, as to their own Subjects.XVII. But it may be otherwise determined by the Civil Law. As1 by the Laws of Spain, Ships taken from Pirates, become theirs who take them from the Pirates. For it is not unjust that a private Thing should yield2 to a publick Advantage, especially when the Recovery may prove so difficult. But this Law cannot hinder Foreigners from challenging their own.
XVIII.How Postliminy was observed among those that were not Enemies.XVIII. 1. That is more admirable, which the Roman Laws do testify, viz. That this Right of Postliminy took Place, not only between Enemies, but even between Romans and all foreign Nations. But this (as I saida before) was the Reliques of that barbarous Age of the Nomades, wherein the Sentiments of that natural Society that is between all Men were stifled by wicked Customs. Therefore, among Nations which were not actually engaged in a publick War with one another, there was a Kind of War between private Men, authorised and, as it were, declared by Custom; and that such a Licence might not produce many Murders, they agreed to settle Laws of Captivity, which, consequently, introduced that of Postliminy, yet otherwise than with Robbers and Pirates, because those private Hostilities terminated in Conventions, accompanied with a Sort of Equity, which Robbers and Pirates usually despise.<625>
2. It seems of old to have been very much disputed, whether any of a confederate Nation, being our Slaves, if they should escape home, might be esteemed to return by Postliminy. For so1Cicero propounds this Question, in his first Book De Oratore. And Gallus Aelius2 thus gives us his Opinion, We observe the same Right of Postliminy, with a free People, with Allies, and with Kings, as with Enemies. On the contrary Proculus,3I doubt not, but that Allies, and a free People are as Strangers to us, there is no Postliminy between us and them.
3. In my Opinion we ought to distinguish between Treaties, that if any were made merely with design to put an End to, or to prevent open War, they could not for the Time to come prevent the taking of Prisoners, or the Right of Postliminy. But if any expressed, that they might on both Sides travel in Safety, from one State to another, upon the publick Faith, then the taking of Prisoners ceasing between these two Nations, the Right of Postliminy ceased also. And Pomponius4 seems to hint as much, when he says, If there be a Nation, with whom we have neither Friendship nor Hospitality, nor Alliance on account of Friendship, they indeed are not Enemies. But whatever of ours happens to come to them, is theirs. And a free Man of ours taken by them, becomes their Slave; and so from them to us; therefore in this Case also Postliminy is allowed. When he said an Alliance on the account of Friendship, he plainly shews that other Alliances may be made, in which may be neither Tie of Friendship nor Right of Hospitality. And Proculus fully declares, that he takes those to be People confederated, who have reciprocally promised Friendship, and safe Hospitality,5 when he adds, For what need is there of any Postliminy between us? When they also may retain even their own Liberty, and Property of their own Things with us, as freely as among themselves, and so we among them. Therefore that which follows in Gallus Aelius, There is no Postliminy with those Nations, that are under our Government, as Cujacius6 rightly reads it, must be supplied with this Addition, nor with those, with whom we have made an Alliance on account of Friendship.
XIX.When this Right may now be in force.XIX. 1. But in our Days, not only among Christians, but even most of the Mahometans, as this Right of Captivity out of Time of War, so also that of Post-<626>liminy is abolished, the Necessity of both ceasing because the Rights of that natural Relation, which is between all Mankind, have been re-established.
2. Yet that antient Right of Nations may still be in Force, if we should have to do with a State so barbarous, as to think it lawful without any manner of Reason, or Denunciation of War, to treat in a hostile Manner the Persons and Goods of all Strangers. And even while I am writing this, it is adjudged in the great Chamber of the Parliament of Paris (Nicolaus Verdunius being first President)1 that the Goods of the Subjects of France, taken by the Algerines, a Nest of Pyrates that live upon the Spoil of all Sea-faring People, by the Right of War had changed their Owner, and therefore when retaken by others than the antient Proprietors, became theirs that retook them. In the same Cause was this likewise adjudged, (which I said but now) that Ships are not in these Days reckoned among Things recoverable by Postliminy.
[1 ]As Cicero informs us, who recites both Etymologies: Sed quum ipsius Postliminii vis quaeritur, & verbum ipsum notatur: In quo Servius noster, ut opinor, nihil putat esse notandum, nisi post, & liminium illud, productionem esse verbi vult, ut in finitimo, legitimo, aeditimo, non plus inesse timum, quam in Meditullio, tullium. Scaevolaautem P. F. junctum putat esse verbum, ut sit in eo & post, & limen: Ut quae a nobis alienata sunt, quum ad hostem pervenerint, & ex suo tamquam limine exierint, dein quum redierint post ad idem limen, postliminio videantur rediisse. Topic. (Cap. VIII.) For this Reason Tertullian used the Word Postliminium in a metaphorical Sense, to express the return or Re-establishment, by which a Sinner is received into the Peace of the Church: Incesto fornicatori postliminium largitus pacis Ecclesiasticae &c. De Pudicitia, Cap. XV. Festus says in regard to Limen:Limus, obliquus id est, transversus: Unde &Limina. See also Servius, upon the twelfth Book of the Aeneid, (Ver. 120.) and Donatus upon the Eunuch of Terence, Act. III. Scen. V. (Ver. 53.) Isidorus says with respect to Limes & Limen:Limites adpellati, antiquo verbo transversi. Nam transversa omnia antiqui Lima dicebant: A quo & limina ostiorum, per quae foris & intus itur; & limites quod per eos foras in agros eatur. Orig. Ling. Lat. Lib. XV. Cap. XIV. And in the old Glossary, (published by Henry Stephens.) Limes is explained by Πλαγία ὁδός. Grotius.
[2. ]From whence came the Name of a Goddess, called Postvorta.Grotius.
[3. ]Compago and Compages, a Joint, which was formerly Compagen, as the Genitive Case shews, and the Verb derived from it, (Campagino, to join) as also sanguis, was formerly sanguen, Blood.Grotius.
[4. ]And Colliminium, a Word which may be found in Solinus, (Cap. XV. or XXV. according to some Editions) instead of Collimitium, which is commonly used. Grotius.
[1 ]That is to say a Right, in Virtue whereof, the Things, and Persons, taken by the Enemy, return to their first State: The Person recovering their Rights, and the Things returning to their former Masters.
[2. ]Dictum est autem Postliminium, &c. Institut. Lib. I. Tit. XII. Quibus modis jus patriae potestatis solvitur, § 5.
[3. ]Tunc autem reversus intelligitur, si aut ad amicos nostros perveniat, aut intra praesidia nostra esse coepit. Digest, Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. V. § 1.
[4. ]Postliminio rediisse videtur, quum in fines nostres intraverit: Sicuti amittitur, ubi fines nostros excessit. Digest, Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. XIX. § 3.
[5. ]See Note 3. upon this Section.
[6. ]Sed & si in civitatem sociam amicamve, aut ad regem socium vel amicum, venerit, statim postliminio rediisse videtur: Quia ibi primum nomine publico tutus esse incipiat. Ibid. Leg. XIX. § 3.
[7. ]The King of Morocco and Fez understood so, according to Thuanus, Hist. Lib. CXXX. upon the Year 1603. Grotius.
[8. ]Polybius, Lib. III. Cap. XXIV. p. 248. Edit. Amstel.
[9. ]Val. Max. B. V. Cap. II. 6. Diod. Sic. Excerp. Legat. Note 3. So the Rhodians freely restored to the Athenians, what Athenian Citizens they had bought in Philip’s War. Polybius, Excerpt. Legat. III. Grotius.
[1 ]Quum duae species postliminii sint, ut aut nos revertamur, aut aliquid recipiamus, &c. Digest, Lib. XLIX. Tit. XV. De Capt. & Postlimin. &c. Leg. XIV. Princ.
[1 ]In bello Postliminium est, &c. Ibid. Leg. XII. Princ.
[2. ]See below, § 18. of this Chapter, Note 4. where the Law is cited.
[a ]See Paruta, De Bell. Cypr. l. 1.
[3. ]See Josephus, Antiq. Hist. XIII. 2. Polybius tells us, that in the Treaty of Peace which the Romans made with Philip King of Macedon, in that with the Aetolians, in which however there was some Exception, and in that with Antiochus, it was agreed that all Prisoners on either Side should be restored, Excerpt. Legat. IX. 28, 35. Livy has the same Examples, and adds that of the Peace with Nabis. There are some also in Zosimus. The Peace of Probus with the Vandals and Burgundians runs thus, That all the Prey which they had taken, and all the Prisoners, should be restored, B. I. He also relates a like Peace made by Julian with the Germans in general, also with the Quadi, that were in Germany, B. III. (Cap. VII. where there is no such Thing.) Ammianus Marcellinus, of Suomarius, King of the Almains, or Germans; he begged Peace on his Knees, and he obtained it with the Forgiveness of what was passed, upon this Condition, that he should restore our Prisoners. Again of the Sarmatians, being ordered to get dwelling Places, they without Fear delivered up our Prisoners. He again says the same of another Part of the Sarmatians. And many such in Zonaras, among the Rest, in the Affairs of Michael Son of Theophilus, speaking of the Bulgarian Prince, he says, He set the Prisoners at Liberty.Nicetas, B. II. says, that Liberty was given to all the Prisoners, except to the Corinthian and Theban Men and Women. Sometimes it is agreed, that the Prisoners should be restored that properly belonged to the State, as it is in Thucydides V. Grotius.
[4. ]It is not necessary to recur to the Correction of Peter Faber, which our Author adopts. The illustrious Mr. Bynkershoek has shewn in a very clear manner, that when the Civilian says (in the Passage referred to in Note 1.) In pace postliminium est his, qui bello capti erant, de quibus nihil in pactis erat comprehensum; he means those, he speaks of afterwards, who were made Prisoners, only from being unfortunately upon the Lands of the Enemy in the beginning of an unforeseen War. See that great Lawyer’s Observations, Lib. I. Cap. XX. and the Law cited above in this Book, Chap. VI. § 12. Num. 1.
[5. ]As in Note 3. The Passage is in Vol. III. of Zonaras.
[6. ]Si captivus, &c. Digest, Lib. XLIX. Tit. XV. De Capt. & Postl. &c. Leg. XX. Princ.
[7. ]Paulus : Immo si in bello captas, &c. Ibid. Leg. XXVIII. See the Observations of Mr. Bynkershoek upon this Law, Lib. III. Cap. VI. and the Jurisprudentia Papinianea of Anthony Faure, Tit. XI. Princip. VIII. Illat. XXV. p. 635.
[8. ]See the Law quoted in Note 1. upon this Paragraph.
[9. ]The Passage will be cited below, Chap. XXI. § 24.
[10. ]Not only that: They have renounced the Right of examining the Justice of the Cause, and have tacitly engaged, by only remaining Neuter, to suppose the Acts of Hostility, and the Acquisitions thereby made to be just on both Sides. See what I have said upon Chap. IV. of this Book, § 4. Note 1. There is no Occasion for supposing any Thing else.
[11. ]See Priscus, Excerpt. de Legat. XXVIII. And Bezar, of the War of the Genoese against the Venetians, B. II. Grotius.
[12. ]But our Author has said above, Chap. VII. § 1. that even those, who have fallen in this manner into the Enemy’s Hand by pure Misfortune, are however Slaves by Right of War: Because they, who have taken them, are not obliged to enquire whether they are culpable, and it suffices that they are of the Enemy’s Party. Besides, young Children cannot be supposed guilty of any Fault, who however, according to our Author, may be made Prisoners and Slaves in the same manner, as if they were at Years of Discretion. So that the Reason alledged, of a pretended Consent of Nations, is far from being solid: And the more, as it does not appear, that after the Conclusion of a Peace, the Parties believed they had less Right, either over the young Children they had taken, or the unfortunate Prisoners in question, and who were not included in the Treaty, than over those who had been taken in Arms. This then is no more than a civil Law of the Roman People; by which, in Consideration of the unhappy Fate of such, as were become Slaves to the Enemy, without having exercised, or having it in their Power to exercise, any Act of Hostility, they were granted the Right of Postliminy, even after the Peace; whereas it was refused to the others. And if the Masters of these Slaves, after the making of Peace, could not reclaim this kind of Prisoners from the antient Enemy of the State, (for it does not appear, that the Case was the same with neutral States) it was because as the State knew, or might know, the Custom of the Romans, it was supposed, for itself and People, to renounce its Right, from the Time it had not stipulated by the Treaty, that such Slaves for the future, as well as others that belonged to it, should be restored. In regard to the latter see what I have said before, Chap. VII. of this Book, § 6. Note 9.
[13. ]That is to say if they happened to escape, and return into their own Country.
[14. ]Totilas declared to Pelagius the Deacon who was sent to him from the Romans, that he should not mention the restoring the Sicilian Slaves, alledging that it was unjust that the Goths should deliver their Fellow Soldiers to their old Masters. The Passage is in Goth. Lib. III. Chap. XVI. Grotius.
[15. ]Dicamus imprimis in eo quod, &c. Institut. Orat. Lib. V. Cap. X. p. 432. Edit. Burman.
[16. ]The Emperor Julian, in his Oration against the Followers of the Cynick Philosophy misunderstood, maintains, that to speak philosophically, a Man cannot really be said to be another Man’s Slave, from that other’s having only given Money to the Seller for his renouncing his Right to him. For adds he, at that Rate Prisoners of War, when redeemed, should also be stiled the Slaves of those who redeem them; whereas the Laws give them their Liberty, the Moment they return into their Country, and they are ransomed, not in order to their being Slaves, but that they may enjoy their Liberty. Orat. VI. p. 195, 196. Edit. Spanheim. Grotius.
[1 ]Non enim postliminio revertebatur, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XII. § 9. See also Leg. V. § 3.
[2. ]See the Law cited above, Chap. VII. of this Book, § 6. Num. 7. Note 8. Our Author alledges here in a little Note the Example of the Huns, who took away, and set at Liberty, some Prisoners, whom the Sclavonians had taken, as Procopius relates, Gotthic. Lib. III. Cap. XIII. The Huns are put for the Herulians; for that Historian says this of the latter, who having taken up Arms for the Romans met a Troop of Sclavonians upon their March, who had taken some Prisoners from the Romans along the Danube.
[3. ]Quum non redemtum ab hostibus filium, &c. Cod. Lib. VIII. Tit. LI. De Postliminio reversis, &c. Leg. V.
[4. ]As the Youth Childubius in the same Book of Procopius, He alledged that from the Time he returned into his own Country, he should by Law be free for the future; and Leunclavius observes, that formerly there was no Postliminy among the Turks for Prisoners.Grotius.
[5. ]Ut scias, inquit, servos fuisse, &c. Lib. V. Controv. XXXIV. p. 390.
[6. ]Because the Olynthians were Allies of the Athenians, as is said a little before: Quid enim si Atheniensem a Philippo emisses? Atqui sciebas Olynthios nobis conjunctos esse foedere. Our Author insinuates therefore, that it was the worse for the People either of the same Country; or of the States in Alliance with them, if they bought any Slave who was free by Right of Postliminy; because in buying him, they ought to have supposed, it might possibly happen that the Slave might have that Right, and therefore that they could only acquire him under that tacit Condition, as is said in the following Paragraph, in regard to the Goods of a Prisoner returned, which had been alienated.
[1 ]The Distinction between Things recoverable and not recoverable, by the Right of Postliminy, relates merely to Civil Right, and takes Place only in Regard to the Subjects of the State itself, who would reclaim what has been retaken from the Enemy. See below, § 13. Note 3, 4. So that the Difference here put by our Author, in Regard to Things alienated in a neutral State, has no Foundation. The Prisoner of War returned home has an equal Right to recover them all.
[2. ]That is, when a Person discharges another of a Debt, by declaring he has received what was not actually paid. See the Institutes, Lib. III. Tit. XXX. § 1.
[1 ]Caetera, quae in jure sunt, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. Leg. XII. § 6. See also § 15. and Leg. V. So when a Son returned from Captivity, the Rights of paternal Power, suspended in Regard to him, resumed all their Force. Ipse quoque filius, Neposve si ab hostibus captus fuerit, similiter dicimus, propter jus postliminii, jus quoque potestatis Parentis in suspenso esse. Institut. Lib. I. Tit. XII. Quibus modis jus Potestatis Patriae solvitur, § 5.
[1 ]Postliminio carent, qui armis victi hostibus se dederunt. Digest. Lib. XLIX. Tit. XV. De Captiv. & Postlim. &c. Leg. XVII. This can be looked on only as a particular Law of the Roman People, instituted solely to animate the Citizens to fight to the last Extremity. For as the State had no Part in their Engagement, so was it not held to make it good, and might, if it thought fit, grant them, during the War, the Right of Postliminy, in the same Manner as to those, who, having been made Prisoners by superior Force, and without surrendering, were, however, become the Enemy’s Slaves, by either an express or tacit Convention. See what I have said above, Chap. VII. of this Book, § 6. Note 9.
[2. ]Tum octo ex iis, &c. Noct. Attic. Lib. VII. Cap. XVIII.
[3. ]Induciae sunt, quum in breve & in praesens tempus convenit, neinvicem selacessant: Quo tempore non est postliminium. Digest. ubi supra, Leg. XIX. § 1. See below, Chap. XXI. § 6. It is plain, that this Decision is a Consequence of the Nature itself of a Truce, which will be treated of below in its Place.
[4. ]Eos qui ab hostibus capiuntur, vel hostibus deduntur, jure postliminii reverti, antiquitus placuit. Digest. ibid. Leg. IV. Our Author, in his Florum sparsio ad jus Justinianeum, p. 221. Edit. Amstel. says that we must read here, Ab hostibus deduntur, and he explains the Words before, ab hostibus capiuntur, as de hostibus, &c. On that Foot the Sense of the Law would be, that the Prisoners retaken from the Enemy, and those which we recover, by their being restored voluntarily, enjoy the Right of Postliminy. So that then there would be nothing in it relating to the Subject. Our Author, without Doubt, supplies the Particle ab, according to the Reading in the vulgar Editions, Ab hostibus deducuntur. But the Authority of the Florence Edition, with the Example that immediately follows, gives Room to believe that our Author’s first Thought was the best. See above, B. II. Chap. XXI. § 4. Num. 8. where he explains the Case of this Law himself. However, we must then confess, that in the Beginning of the Law, it treats of Persons restored in a certain Manner: Otherwise there would have been no Difficulty in the Case proposed, if it had been the general and received Maxim of antient Times, (antiquitus placuit) that every Person delivered up to the Enemy, returned by Right of Postliminy. See the following Note.
[5. ]That is to say, if they have not engaged to put themselves into the Power of the Enemy, and if the State which delivers them up, has not deprived itself, by a real Agreement, of the Right it had to recover or receive them; in a Word, when it has delivered them simply and purely of its own Accord, or has been reduced to do so by the Superiority of the Enemy’s Forces. This is probably what our Author means. For if, according to him, the Engagement of a Prisoner of War, contracted without the Participation of the State, is of sufficient Force to oblige the State to refuse him the Right of Postliminy, the Prisoner much more ought to be excluded from it, when the State itself is bound by its Promise. And if there be no such Engagement, the Action of delivering up does not, of itself, imply any Obligation towards the Enemy, or Intention to deprive the Person delivered up, of the Right of Postliminy. It is the Enemy’s Business to keep him, who has been given up into their Hands, or to lay him under the Restriction of some Promise. See what our Author says above, B. II. Chap. XXI. § 4. Num. 6. The Civilian Modestinus, whose Words I have recited in the preceding Note, speaks there, in my Opinion, of those whom the State has delivered up purely and simply, being compelled to it by the Misfortune of War; and this may be inferred from his joining them with the Prisoners of War, taken in some Battle, or military Expedition. For it is without Necessity, that Francis Baudouin, (Jurisprud. Mucian. p. 48.) and Mr. Thomasius, (Diss. de sponsione Roman. Numantina, § 75.) after him conjecture, that instead of Vel hostibus deduntur, it should be read in a quite contrary Sense, nechostibus deduntur. The Difficulty arose from another Manner of delivering up, treated of in the End of this Law, which, according to the particular Custom of the Romans, excluded those from the Right of Postliminy, who had been delivered up, so that a Rehabilitation was necessary, in Order to their becoming Citizens again, tho’ the Enemy had not been willing to receive them. I have spoke of this above, B. II. Chap. XXI. § 4. N. V. 13, 14, 16. and the Thing is fully confirmed by what follows. I say then, that in this Part of the Law we are now considering, as well as in the last Law of the Title De Legationib. the Question solely relates to Persons delivered up, in Order to discharge the State of some Crime, or shameful Engagement, which, tho’ committedor contracted without its Order or Participation, seemed to fly back upon it, principally because the Authors were Persons otherwise invested with its Authority. The Romans, either out of Horror for the Crime, or a great Sensibility for the Dishonour, with which they were at least, as much touched to the Quick; judged proper, at the same Time they delivered up such People, not to consider them any longer as Citizens, whether those to whom they delivered them up, received them or not. And this was executed with great Ceremony, by the Chief of the Heralds at Arms, (Feciales) who caused the Person delivered up to be stript naked, and bound; as appears by the History itself of Hostilius Mancinus, who is there spoken of. See Velleius Paterculus, Lib. II. Cap. I. Dionysius Halicarnassensis, Antiq. Rom. Lib. II. The Form used by the Herald, shews the Aversion the Romans professed, both for the Persons delivered up in this Manner, and the Occasion which obliged them to do so, Quandoquidem hice homines, injussu populi Romani Quiritium, foedus ictum iri spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem quo Populus Romanus scelere impio sit solutus hosce homines vobis dedo.Livy, Lib. IX. Cap. X. Num. 9. They apprehended, that without this, the most just Wars might become unjust; as the same Roman Historian makes another General of the Army, Spurius Postumius, say, on an Occasion of the same Nature with this of Mancinus. Dedamur per Fetiales, nudi vinctique. Exsolvamus religione populum, si qua obligavimus; ne quid divini humanive obstet, quominus justum piumve de integro ineatur bellum. Cap. VIII. Num. 6. Mancinus, in Order to be received in the Camp of the Romans, after the Refusal of the Numantines, to whom he had been delivered up, had Occasion to call in the Aid of Religion; the Augurs being consulted, declared in his Favour, without which he would not have been admitted. Deditus nec receptus, augurio in castra deductus.Aurelius Victor. De Viris Illustr. Cap. LIX. It is not then to be wondered at, that when the Enemy, or allied State, refused to take those delivered up to them, that Refusal did not hinder their being considered as deprived of all the Rights of a Citizen, from the Moment the Herald at Arms had pronounced the Sentence for abandoning them. Henninges, who has espoused this Opinion, in his Notes upon our Author, (Lib. II. Cap. XV. § 16. p. 751.) with Reason alledges in this Place, what Postumius says, the Moment the Ceremony was over, that he was become a Citizen of the Samnites, who, however, had not then accepted him, nor would receive him afterwards. Haec dicenti Fetiali, Postumius genu femur, quanta maxima vi, perculit, & clara voce ait, se Samnitem civem esse, &c. Livy, ubi supra, Cap. X. Num. 10. So that Mucius had Reason to compare those unfortunate Persons, to such as were banished the State by a Decree, prohibiting all Persons to give them Fire and Water; and in Consequence, excluding them from the Right of Postliminy, as did the Tribune of the People, who, as Cicero relates, hindered Mancinus from entering the Senate. Quia memoria sic essit proditum, quem——Pater patratus dedisset, ei nullem esse postliminium. De Orat. Lib. I. Cap. XL. If that Orator seems elsewhere to decide in Favour of Brutus, (Topic. Cap. VIII. and Orat. pro Caecin. Cap. XXXIV.) that only proves, either that he has changed his Mind, as he does sometimes, or that he believed, notwithstanding the Decision of Mucius, followed by the Senate, the Case ought to have been adjudged in a different Manner. He says, in one of these Passages, that the Opinion in favour of Mancinus might be defended, and not that it may be well demonstrated. The Passage has been cited above, B. II. Chap. XXI. § 4. Note 13. So that it is not necessary to have Recourse to the Reconciliations laid down by Francis Baudouin, Jurisprud. Muc. p. 46. M. Thomasius, Diss. de Spons. Numant. § 67. and Mr. Jens, de Fetialib. Pop. Rom. Cap. VI. p. 71, 72. In a Word, Mancinus, and every other Person, who being delivered up, had been refused, was not indeed the Slave of those to whom he was designed to be delivered up, but he did not therefore continue a Roman Citizen; he was free, but a Stranger, as Anthony Faure very well observes, Jurispru. Papin. Tit. XI. Princ. VIII. Illat. I. All that I have now advanced is founded upon the Genius and Sentiments of the Roman People. So that it is of no Use to prove, as Mr. Thomasius doth, (ubi supra, § 14. & seq.) that the Treaty concluded with the Numantines, without the Participation of the Roman People, was not really shameful, and that the Fault itself was not to be ascribed to Mancinus, but to Tiberius Gracchus. It suffices that the Roman People believed the contrary, and that they followed the Principles of their Ambition, rather than those of natural Equity, according to which, I confess, they ought to have laid down other Maxims. It is as easy to destroy, by the Reasons here alledged, the Endeavours of the late Mr. Cocceius, (Dissert. De Postlimin. in Pace) to reconcile here, as well as every where else, the Rules of the Roman Law with those of the Law of Nature and Nations, both of which he misunderstands.
[1 ]See Pufendorf, B. VIII. Chap. VI. § 23. Of the Law of Nature and Nations.
[2. ]See above, B. II. Chap. IX. § 6.
[3. ]They may always be considered of the same Nation, but they have no longer that Tie which formed a Body of People, or a State. So that the Objections here raised against our Author, fall to the Ground of themselves.
[4. ]That is to say, the Debts paid to him whom the Person was Prisoner to, or those of which he had discharged the Creditor; for the Case is not the same, with Regard to other Debts.
[5. ]Non ut pater filium, ita uxorem maritus, jure postliminii, recipit, sed consensu redintegratur matrimonium. Digest, Lib. XLIX. Tit. XV. De Captiv. & Postlim. Leg. XIV. § 1. See also Leg. VIII. But it is not the same amongst Christians. Pope Leo says, that if the married Person, who remained in the Country, has married again, during the Captivity of the other, and the other returns, let the Marriage, contracted in the latter’s Absence, be annulled. Ut sicut in mancipiis, vel agris, aut etiam in domibus, ac possessionibus, in captivitatem ductis, postliminium reversis de captivitate servatur; ita etiam & conjugia, si aliis juncti fuerint, reformentur. Epistol. ad Nicet. Aquileiens. Episc. See Hincmar, Opusc. de divortio Lotharii & Tethbergae, ad Interrog. XIII. and the Answer of Pope Stephen, Cap. XIX. in the second Tome of the Gallican Councils.Grotius.
[1 ]Transfugae nullum postliminium est: Num qui malo consilio & proditoris animo, patriam reliquit, hostium numero habendus est. Digest, Lib. XLIX. Tit. XV. De Captiv. & Postlim. &c. Leg. XIX. § 4. Some say here, that our Author has improperly stated this Exception, as peculiar to the Roman Laws, and add, that the same Thing took Place amongst all other Nations. That may be. But they alledge neither Example nor Proof. For the Passage of Livy, Lib. XXVII. Cap. XVII. Num. 10. which Gronovius cites, is not very conclusive, it only proves the Diffidence and Horror they had for Deserters.
[2. ]Filius quoque familias transfuga non potest liminio reverti, neque vivo patre: Quia pater sic illum amisit, quemadmodum patria, & quia disciplina castrorum antiquiorfuit parentibus Romanis, quam caritas liberorum. Digest. Ibid. § 7.
[3. ]That Consul, as is known, caused his own Son to be put to Death, for having given Battle contrary to his Orders, tho’ he gained the Victory: And the Orator says, that he confirmed the Law of military Discipline by a Sentence, which he could not pass without plunging himself into the greatest Affliction. Quod vero securi filium percusserit, privavisse se etiam videtur multis voluptatibus, quum ipsi naturae patrioque amori praetulerit jus Majestatis atque imperii—Sin ut dolore suo sanciret militaris imperii disciplinam, exercitumque in gravissimo bello an imadversionis metu contineret; saluti prospexit civium, quâ intelligebat contineri suam. De Finib. Bon. & Mal. Lib. I. Cap. VII. & X.
[4. ]Demosthenes, Orat. in Nicostrat. (p. 724. B. Edit. Basil. 1572.) The same Thing is decreed in the Edict of Charles the Bald, passed at Pistes, Cap. XXXIV. Grotius.
[5. ]This Sort of Prisoners, ransomed by a Citizen of the State, continued, as a Kind of Pledge, in his Service who had paid their Ransom, till they had reimbursed him, or he had forgiven them the Debt. Ab hostibus redemti, &c. Code, Lib. VIII. Tit. LI. De Postliminio reversis, &c. Leg. II. See the Title of the Digest. Leg. XV. Leg. XX. § 2. and Cujas, Recit. in Cod. Vol. IX. Opp. p. 1372, 1373. Anthony Faure, Jurispr. Papin. Tit. III. Princ. IV. Illat. III. p. 118. James Godefroy, in Cod.Theodos. Lib. V. Tit. V.
[6. ]It is in an Ordinance of Honorius and Theodosius, adopted by him. Ne quando enim damni consideratio &c. Cod. Lib. VIII. Tit. LI. De Postliminio reversis & redemtis ab hostibus, Leg XX. seu ult.
[7. ]Si patre redemto & ante luitionem defuncto, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XV. We see in this Passage of Ulpian, that he does not absolutely decide, but with a perhaps; and that after having said, that the Son may, by paying the Ransom owed by his Father, be considered as his proper Heir. The Civilian even finds a Subtlety in the last Thought, undoubtedly with Regard to the Principles of the Roman Law, upon various Matters which relate to the present Case. This the subtil Anthony Faure treats at large in the Place of his Jurispr. Papin. p.119. & seq. cited above, Note 5.
[8. ]Si is, qui te ab hostibus, &c. Cod. Lib. VIII. Tit. LI. De Postliminio reversis, &c. Leg. XIII. See the Jurisprudentia Papinianea of Anthony Faure, Tit. XI. Princ. VIII. Illat. XXII. p. m. 634.
[9. ]Foedissimae mulieris nequitiâ permovemur. Quum igitur Filiam tuam, abhostibus captam, ac prostitutam ab ea, quae eam redemerat, &c. Ibid. Leg. VII.
[10. ]See the Law cited above, § 7. Note 1.
[11. ]This Example is not applicable in this Place, but to the Case treated by our Author, in Paragraph 9.
[12. ]Quae vero per usucapionem vel liberationem, &c. Cod. ubi supra, Leg. XVIII.
[13. ]This is called in the Roman Law by one Word Liberatio. The Reader may see the Interpreters upon the Digest. Lib. XLVI. Tit. II. & seqq. but especially the Treatise of the President Barnaby Brisson, De Solutionibus & Liberationibus.
[14. ]As an usufructuary Right, which is lost by Non-Usage for a certain Time.
[15. ]Si cujus quid de bonis, &c. Digest. Lib. IV. Tit. VI. Ex quibus caussis majores viginti quinque annis in integrum restituantur, Leg. I. § 1. After bonis should be added diminutum erit. See Mr. Noodt, upon this Title, p. 189, 191, 192.
[16. ]In omnibus partibus juris, is qui reversus non est ab hostibus, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XVII. Bona eorum, qui in hostium, &c. Ibid. Leg. XXII. Princ. See the Jurisprudentia Papinianea of Antony Faure, Tit. XI. Princip. IX.
[a ]See Lex Wisigoth. l. 5. tit. 4. c. 15.
[17. ]See above, B. II. Chap. IX. § 1. Num. 3.
[18. ]According to the Rule of the Civil Law. Quod attinet ad jus civile servi pronullis habentur. Digest. Lib. L. Tit. XVII. De diversis Reg. Juris, Leg. XXXII. And this was conformable to the received Custom; according to which, every Prisoner of War was deemed to be the Enemy’s Slave who had taken him. From whence it arose also, that those, of whom no Mention was made in the Treaty of Peace, and who remained Slaves without Resource, were considered as having no longer any Right, and as incapable of transferring any, with Regard to the Things which had belonged to them in the Country. It was to elude this Principle, that the Fiction of the Right of Postliminy and the Cornelian Law was invented, in Regard to Prisoners who returned, or died, during the Course of the War. In which, if there was any Thing contrary to the Right, established by Custom, in Relation to Prisoners of War, the Enemy however had no Cause to complain, because it was sufficiently declared, that this Custom would not be observed, and that the Enemy without being opposed, might dispense with following it, by making, on his Side, the same Supposition. Hence the Prisoners were not deemed to be actually engaged to be Slaves, during the Course of the War, in Regard to the Right, which the State had to receive and consider them as free Persons.
[19. ]Our Author in this Place confounds the Effects of the Right of Postliminy in Relation to Strangers, with those it might have in Regard to Citizens of the same State. For it belongs to the Sovereign to dispose of the latter, as he thinks proper, and he has no Occasion to have Recourse for that End to any Fiction. He may therefore extend them further than the Law of Nations, or the Custom of States does, which are not concerned in this Point.
[20. ]Quod si nemo ex lege Cornelia haeres extiterit, bona publica fient. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XXII. § 1. See also Tit. XIV. De jure Fisci, Leg. XXXI.
[1 ]But by an Edict of Theoderick it was thus ordained, That Slaves, or Tenants taken by the Enemy, and returning home, be restored to their own Lords, if they were not bought before by some other. See also Cassiodore, Lib. III. Cap. XLIII. But by the Law of the Wisigoths, a Slave recovered by War is restored to his Lord, and the Captor receives the third Part of the just Value. But if he were sold by the Enemy, his Lord was to pay the full Price for which he was sold, together with what had been laid out to render him more capable of Service, B. V. Tit. IV. XXI. Grotius.
[2. ]So the Slaves to whom Mithridates had given their Liberty, were restored by Sylla to their antient Masters. Appianus Alexandrinus, Bell. Mithrid. (p. 355. Edit. Amstel. 211. H. Steph.) Grotius.
[3. ]Quia hostium jure manumissio obesse civi nostro servi domino, non potuit. Digest. Lib. XLIX. Tit. XV. De. Capt. & Postlim. &c. Leg. XII. This was because, during the Course of the War, the Acquisition of Things, taken from the Enemy, was not full and entire, no more than the Slavery of Prisoners; on Account of the Hopes People had, and the Right they retained, of recovering what they had lost. See what is said above, Chap. VII. of this Book, § 6. Note 9.
[4. ]Unless he serves some other Citizen. Paulus : Immo quum servus civis nostri, ab hostibus captus inde aufugit, & vel in urbe Roma ita est, ut neque in domini sui potestate sit, neque ulli serviat: nondum postliminio rediisse, existimandum est. Digest. ibid. Leg. XXX. sive ult. To consider the Thing in itself, I do not see upon what this Difference is founded; and the rather, because, according to the following Law, the Will of the Slave is not necessary in the Case. Anthony Faure, in his Jurispr. Papin. Tit. XI. Princ. VIII. Illat. XXVII. finds an Instance in it of the Spirit of Contradiction, with which the Civilian Paulus wrote his Notes upon Labeo’s Probable Rules. He explains the Thought of the former in this Manner. The Slave, says he, in the present Case, tho’ returned into the Dominions of the State, can neither of himself enjoy the Right of Postliminy, because he never was a Citizen; nor have that Right in favour of the Person of his former Master, so long as he keeps away from him, and does not put himself again into his Power. If there be not an Exception in this to the general Rule, as Mr. Bynckershoek (Observ. III. 6, and 12.) is for having all these Notes of Paulus to be considered, which others call Criticisms, and even treat sometimes as Cavils; it is at least a meer Subtlety of the Roman Law. The Person of the Slave is not here in Question, but only that of the Master: It is to the Master the Right of Postliminy belongs, the Slave is only the Matter, or passive Subject of it. It is not the Slave that recovers himself, as Persons do who were before free; it is the Master who recovers the Slave. In a Word, the Slave here is to be considered only as Goods recovered by the Right of Postliminy; and, if so, wherefore does it not suffice, that the Slave is in the Country, tho’ the Master know nothing of it; as it is allowed, that Things inanimate are deemed to be recovered by their antient Proprietors, the Instant they are within the Country again; whether the Owner of those Things be informed of it or no? Besides, according to the Principles of the Roman Law, a Master retains the Possession of his fugitive Slave, as long as he is not in the Service of some other, who possesses him as his own. (Digest. Lib. XLI. Tit. II. De adquir. vel amitt. Poss. Leg. XIII. Princ. Leg. XV. Leg. I. § 14.) wherefore then could he not recover this Possession by Right of Postliminy, even tho’ the returned Slave conceals himself from him? And the rather, because during the War, the Captivity of the Slave only suspends, in some Measure, the Rights of the Master.
[5. ]Certe apud hostes manumissus liberatur, &c. Digest. ibid. Leg. XII. § 9. See the Jurisprudentia Papinianea of Anthony Faure, Tit. XI. Princ. VIII. Illat. XIX. p. 631. & seq.
[6. ]Si vero servus transfugerit, &c. Digest. ibid. Leg. XIX.§ 5. See the same Anthony Faure, cited in the preceding Note. Ibid. Illat. III. p. 613.
[7. ]Ab hostibus capti & non commercio redemti, &c. Cod. Lib. VIII. Tit. LI. De Postliminio reversis, &c. Leg. XII.
[8. ]Even tho’ he who ransoms them knows to whom they belong. Si quis servum captum, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XII. § 7. Consult Anthony Faure here again, Jurispr. Papin. Tit. XI. Princ. VIII. Illat. II. p. 622. & seq.
[9. ]It is in Num. 64 of those Laws, the Latin Version of which, by John Leunclavius, is annexed to Vegetius, of Plantin’s Edition, with the Notes of Stewechius, printed in 1607. The learned Gronovius refers us in this Place to the Edition of Simon Schardius, published at Basil, in 1561, which is probably the first.
[1 ]That is to say, that the People delivered from the Dominion of the Enemy, should return to their lawful Sovereign; upon Condition, that the latter reimburse the Deliverer the Expences he has been at in his Expedition.
[1 ]Verum est, expulsis hostibus, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. XX. § 1.
[2. ]Strabo, Geogr. Lib. VIII. (p. 577. Edit. Amstel. 376. Paris.) This was, because they had been of the Lacedemonian Party. For the Rest, see what we have said above, Chap. VI. of this Book, § 7. Grotius.
[3. ]See Novel. XXXVI. of Justinian.
[4. ]And that by a Law of Honorius, who, tho’ Spain were left to the Vandals, yet, whilst the Vandals possessed it, he would not allow that a Prescription of thirty Years should prejudice the antient Lords, as in Procopius, Vandal. I. The same Exception is found in a Novel of Valentinian’s with Respect to some Landsin Africa, possessed by the Vandals. Tricennali temporum &c. Nov. De episcopali judicio. The second Council of Seville decides, that a Church ought to recover the Parishes it had before the War: And that it cannot be deprived of them by Right of Prescription: Just as by the Roman Laws, a Prisoner of War recovers his Possessions, when he returns from Captivity. Gratian, in Caus. XVI. Quaest. III. Can. XIII. See also the Decretals, Lib. II. Cap. XXVI. and Cujacius, on the Title, C. de Praescript 30 Annor.Grotius.
[5. ]Quod si ab hac calamitate, &c. Digest. Lib. XI. Tit. VII. De Religiosis, &c. Leg. XXXVI.
[6. ]Quae [Diana Segestana] Carthaginensium victoriâ, &c. Lib. IV. Cap. XXXV.
[7. ]In tantum ut & soli domini, &c. Digest. Lib. I. Tit. VIII. De divisione rerum, & qualitate, Leg. VI. princ.
[8. ]This is formally decided by the Civilian Paulus, in the Law which our Author cited in the Margin, where he says the same Thing of a Slave, of whom a Person has the Use without the Property. Siagerab hostibus, &c. Digest. Lib. VII. Tit. IV. Quibus modis ususfructus, vel usus, amittitur. Leg. XXVI.
[9. ]Sed quemadmodum si eodem impetu, &c. Ibid. Leg. XXIII. See Mr. Noodt’s fine Treatise, De Usufructu, Lib. II. Cap. XI.
[a ]Reg. Constit. l. 10. tit. 29. part. 2.
[1 ]He says, that whatever is Part of the Booty is not recoverable by the Right of Postliminy. Si, quod bello captum est, in praeda est, non postliminio redit. Digest, Lib. XLIX, Tit. XV. De Captivis & Postlim. &c. Leg. XXVIII. I have followed Mr. Bynkershoek’s Correction of this Law, with a very small Alteration, which seemed necessary: Si,quod, &c. for Si. quid, &c. Observat. Jur. Civ. Lib. III. Cap. VI. For the Rest, this general Rule concerning moveable Things, relates only to civil Right. The same Reasons which authorize the Right of Postliminy, in Regard to Immoveables, take Place in this Case, and with equal Force. Mr. Cocceius confesses it, in his Dissertation De Postliminio in Pace, Sect. II. § 5. and he says, that if the Roman Laws determined otherwise upon it, it was in order to an imate the Soldier stop lunder. Another Reason might have been added, of which I shall speak in the following Note.
[2. ]Slaves being of the Number of Effects, and of moveable Effects, it does not appear at first, why they were excepted out of this general Rule, as our Author has shewn above, § 11. Ziegler says, it was because Slaves might run away from their Masters, and afterwards pretend to have been taken. It is more likely, that it was, because it was easy to know to whom a Slave belonged; whereas, had it been necessary to restore inanimate moveable Things to their first Owners, that would have given Room for much Contest and Difficulty. Besides, those Things not being capable to return of themselves, from the Moment they were taken by the Enemy, the Owner ought to consider them as lost; and the more because it was scarce known into whose Hands they were fallen; whereas a Slave might have the Will, and find the Means to return.
[3. ]The Reason why the first Owner could not claim moveable Things, in a neutral Country, is founded on the Nature itself of that Sort of Things. It would be the same with Regard to Immoveables, if it were possible that they could be found on the Lands of a neutral People, taken by Right of War, and afterwards alienated in Favour of some Person of such neutral State. This is a Consequence of the State of Neutrality, which obliging the neutral People to consider, as lawfully acquired, what one of the Enemies has taken from the other, engages also to maintain the Title of those who hold of them any Thing of this Nature, unless it belonged before to a Prisoner of War, who by returning home, and thereby in a Manner recovering himself, has recovered all his Rights, even with Regard to neutral States. See above, § 6.
[4. ]See § 3. Note 1.
[5. ]Postliminio redeunt haec: Homo, navis, mulus clitellarius, equus, equa, quaefraena recipere solet. Topic. Cap. VIII. This Distinction is only in Favor of the Subjects of the State, who had lost things of this Nature that were retaken by People of the same Party. But they can no more be claimed in a neutral Country, than others not excepted.
[6. ]It is Marcellus, and not Modestinus : Navibus longis, atque onerariis, &c. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. II. Our Author, in giving us the Abstract of this Law, joins with Naves Actuariae, those called Lusoriae. And as there were some of the latter, which served to guard the Frontiers of the Empire upon the Danube, the Rhine, and other Rivers; a German, named John James Wissenbach, Professor at Franeker, in his Life-Time, criticises our Author in this Place, as denying the Right of Postliminy to all those small Vessels comprized under the general Name of Lusoriae Naves. But the Critick was not aware, that Grotius has distinguished the two Sorts with sufficient Clearness, in describing that of which he intends to speak in this Manner: Voluptatis caussâ paratae; which extends also to the Naves Actuariae, some of which were also of Use in War. See the Note of the learned Gronovius upon this Place, and James Godefroy, upon the Theodosian Code, Lib. VII. Tit. XVII. De Lusoriis Danubii, Vol. II. p. 401. & seq. The same Wissenbach, in the same Place (that is to say, Exercit. in Pandectas, Disp. XXXIX. Num. 23.) suspects also, that our Author has omitted Fishing-Boats or Vessels, in Favour of the Hollanders, who have great Numbers of them. But this Suspicion is ridiculous, since the Question does not relate to modern Usages. I should rather believe that the Omission proceeded from the Copists or Printers.
[7. ]Id quod apud hostes est, legari posse,Octavenusscripsit: & postliminii jure consistere. Digest Lib. XXX. De Legatis & Fideicommissis I. Leg. IX. See Cujas upon it, Recit. in Dig. 103. T. VII.
[8. ]It is plain that this is upon the Supposition of their being recovered. Papinianus, De re, quae apud hostes est,Marcellumreprehendit, &c. Digest. Lib. X. Tit. II. Familiae erciscundae, Leg. XXII. § 5. and Leg. XXIII. See the great Cujas here again, Recit. in Paul. p. 363. Vol. V. Opp.
[9. ]Non idem in armis juris est: Quippe nec sine flagitio amittuntur: Arma enim postliminio reverti negatur quod turpiter amittantur. Item vestis. Digest. Lib. XLIX. Tit. XV. De Capt. & Postlim. &c. Leg. II. § 2. and Leg. III.
[10. ]In the Law cited above, Note 5.
[1 ]The late Mr. Cocceius, in the Dissertation cited before, De Postlim. in Pace, & Amnestia, Sect. II. § 6. & seq. pretends the modern Usage is, on the contrary, that all moveable Things, of whatsoever Nature they be, are recovered by Right of Postliminy. But he alledges only some Examples from the Custom in Germany. And therefore the Argument which he founds upon what our Author says concerning Ships, as if it were an Exception to the general Rule, is of no Force, as the Universality of the Custom is not proved. See the different Regulations made in these Provinces, relating to the Recovery of Vessels, in the Commentary of the late Mr. Voet, upon the Digest, Tit. De Captivis & Postliminio, &c. § 4.
[a ]Decis. Genuens. 101.
[1 ]See what I have said above, Chap. VI. of this Book, § 3. Note 1. From whence it appears, that this Rule relates to the Civil Law, and not in the least to the Law of Nations, as our Author would have it, which the late Mr. Titius, (Observ. in Lauterbach. 1446. Num. 3.) endeavours invain to justify, as if he spoke only of what takes Place in Regard to Subjects of the same State, between whom there can scarce happen any Dispute about it, so long as the Things retaken from the Enemy are not in a Place of Safety. Consult again here the Commentary of Mr. Voet upon the Digest. Tit. De Captivis & Postlimin. &c. §3.
[2. ]See the Law cited above, Chap. III. of this Book, § 1. Note. 3. A Piratis, aut Latronibus, capti, liberi permanent, says Paulus, another Civilian, in the same Title, Leg. XIX. § 2.
[3. ]He speaks of a Slave, who having been carried off by Robbers, had passed by Traffick from Hand to Hand to the Germans, that is to say, to the Enemies of the Roman People, and afterwards had been taken from them, in a Defeat, and then sold. Notwithstanding all this, the Presumption would not run in Favour of the Buyer, according to this Lawyer, who follows the Opinion of three others upon this Point. Latrones tibi servum eripuerant, &c. Digest. Lib. XLIV. Tit. XV. De Captiv. & Postlim. &c. Leg. XXVII. Dennis Godefroy opposes this with the sixth Law of the same Title, wherein, however, there is nothing contrary to it. See the Jurisprud. Papinian. of Anthony Faure, Tit. XI. Princ. VIII. Illat. VI. p. m. 615, 616.
[4. ]Demosthenes, (aut alius sub ejus nomine) Orat. De Haloneso, p. 30. See the Letter of Philip himself, p. 63. A. B.
[a ]B. ii. ch. 10. § 9.
[1 ]The same is among the Venetians, as appears from the Letters of Fraxinius Canaeus, Tom. I.
[2. ]The End of such a Law is to animate Soldiers and Privateers to pursue Robbers and Pirates, from the Hopes of possessing Things taken even from the Subjects of the State. Groenewegen, in his Treatise De legibus abrogatis & inusitatis, &c. (in L. 24. and 27. D. De Captiv. & Postlim.) says, this is practised in Holland and the neighbouring Countries.
[a ]See B. ii. ch. 15. § 5.
[1 ]Similique in genere, &c. De Orator. Lib. I. Cap. XI.
[2. ]Cum populis liberis, &c. Apud Festum, voce Postliminium.
[3. ]Non dubito quin foederati & liberi nobis externi sint: Non inter nos atque eos postliminium esse. Digest, Lib. XLIX. De Capt. & Postlim. &c. Leg. VII. Princ. So the Florence Manuscript has it. The vulgar Editions add a Negative here: Nobis externinonsint. And Anthony Faure defends this reading in his Jurisprud. (Tit. XI. Princ. VIII. Illat. VII. p. 616, 617.) but by giving the Word Strangers (Externi) an improper Signification, which he does not justify by any Example. The learned Salmasius on the contrary, whose Opinion Gronovius approves was willing to reconcile the Readings, by striking out both the Negatives, and saying: Quum foederati & liberi nobis externi sint, inter nos atque eos, &c. But this is not to be defended, and directly contradicts the Words that follow, where the Civilian shews, that there is no Occasion for the Right of Postliminy between the Romans and those Allies or free People, because by Virtue of such Relation between them, the Citizens on both Sides retained their Liberty, and the Property of their Effects out of their own Country: Etenim quod inter nos atque eos postliminii opus est, quum & illi apud nos & libertatem suam, & dominium rerum suarum, aeque atque apud se, retineant, & eadem nobis apud eos contingant? Tho’ the Lawyer might have expressed himself more clearly, his Meaning is evident enough. The Right of Postliminy had Place originally, and generally between Stranger and Stranger. The allied and free People did not therefore cease to be Strangers; which is the Exception Pomponius observes; as Cujas very well explains him, Observat. Lib. XI. Cap. XXIII. This will appear still more, if we call to mind what we have said, B. I. Chap. III. § 21. Note. 25. upon the Condition of the People in question with regard to the Romans.
[4. ]In pace quoque Postliminium datum est: Nam si cum gente aliqua, &c. Digest. Ibid. Leg. V. § 2. The illustrious Mr. Bynkershoek, in his Dissertation, De dominio Maris, (Cap. I. p. 5) asserts, that what is said in this Place of a free Person, who becomes a Slave, by having been taken by the Subjects of any of the foreign Nations in question; ought to be understood only of those, who have been made Prisoners for some lawful Cause. But the Words of the antient Lawyer are too clear to admit that Restriction. The late Mr. Cocceius, (Diss. de Postlim. in Pace, Sect. II. § 29.) gives another the most forced Construction, to the whole Law: He is for having it relate only to People with whom War was made, and when a Clause of general Amnesty has not been inserted in the Treaty of Peace. But this was necessary to reconcile the Roman Law with the imaginary System of that Author, of a Right of War subsisting after a Peace between antient Enemies; of which we may speak else where, upon Chap. XX. § 15. of this last Book.
[5. ]See Note. 3.
[6. ]Quae Nationes in ditione nostra sunt, eum his Postliminium non est: Instead of: Quae Nationes in opinione nostra sunt eum his, &c. as it is in Festus’s Edition. See the Chapter of that great Lawyer’s Observations, cited in Note 3. Fulvius Ursinus had before corrected the Word opinione in the same manner.
[1 ]The late Mr. Cocceius in the Dissertation I have just cited, (Sect. II. § 8.) finds this Decision impertinent and unjust: Because there is no Right of War in Relation to Pirates. But our Author supposes them not to be considered as Pirates. And if the Custom be such, it may be justified by the Reason alledged above, § 17. Note 1.