International law; Natural law; War (International law)
But on the other hand it may be justly said, that whoever is master of
the persons, is master also of all the rights and things, which are
vested in those persons, who are in that case considered as having
nothing of their own. Indeed if any one should leave to a conquered
people their rights, as a state, still there are some things belonging
to that state, which he might appropriate to himself. For it is in his
own power to determine, to what extent his generosity, or the exertion
of his right shall go. Caesar imitated the conduct of Alexander, in
forgiving the Dyrrachians a debt, which they owed to some one of the
opposite party. But the kind of war, in which Caesar was engaged does
not fall within the rules of the law of nations.
CHAPTER IX.
OF THE RIGHT OF POSTLIMINIUM.
Origin of the term, postliminium--Where it takes effect--Certain
things recoverable thereby--In what cases the right of postliminium
prevails in peace, as well as war--What rights are recoverable,
and what rights not recoverable--When a people is not entitled
to the right of postliminium--Extent of civil law in these
cases--Deserters--Ransomed prisoners--Subjects--Lands recovered by
right of postliminium--Distinction formerly observed with respect
to movable things--Modern practice.
I. The professors of law in former ages have given no more satisfactory
account of the rights of postliminium, than they have done of those,
respecting things taken from the enemy. The subject has been more
accurately handled by the ancient Romans, but often still with a
considerable degree of confusion, so that a reader cannot easily
distinguish, what part they assign to the province of the law of
nations, and what part to the civil law of Rome.
Amidst a great variety of opinions, upon the meaning of the word,
postliminium, that of Scaevola seems the most natural, who derives it
from the word _post_, signifying a return after captivity, and _limen_
the boundary or entrance of the house, or from _limes_, a public
boundary. Thus the ancients called exile or banishment, _eliminium_,
that is, sending any one out of the boundaries of the country.
II. Postliminium therefore, according to its original signification,
means the right, accruing to any one in consequence of his return
home from captivity. Pomponius defines the right of postliminium to
take place the moment any one enters a town or garrison, of which his
sovereign is master; but according to Paulus he must have entered
within the territories of his own country before he can be entitled to
that right.
Upon this principle nations have, in general, gone so far, as to allow
the right of postliminium to take place, where any person, or indeed
any thing, coming within the privileges of postliminium, have arrived
within the territory of a friendly or allied power.
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