International law; Natural law; War (International law)
With respect to other kinds of prisoners, every one used what he wished
to be thought his right, except where fixed rules were prescribed by
treaty. And for the same reason, neither slaves, nor things taken in
war are restored upon a peace, except express stipulations be made to
that purpose. A conqueror too, in general, wishes to have it believed
that he had a right to make such acquisition; and indeed the departure
from such a rule might give rise to wars without end.
V. and VI. A prisoner of war, upon his release, and return to his
own country, is entitled to all his privileges THERE, and indeed to
everything either corporeal, or incorporeal, which he might have before
possessed in a NEUTRAL STATE, at the time of his captivity. For if such
a state, in order to preserve her neutrality, considered his captivity
as a matter of right on the part of the enemy, so also, in order to
shew her impartiality, she cannot lawfully abridge his right to any
thing he may reclaim upon his release. The controul therefore, which
the person, to whom the prisoner belonged by the right of war, had
over his effects, was not absolutely unconditional: for he might lose
it, even against his will, whenever the prisoner came again under the
protection, or within the territories, of his own sovereign. Along with
the prisoner therefore he would lose everything, which was considered
as an appendage to his person.
In cases where effects taken in war have been alienated, a question
arises, whether the law of nations confirms the title, and secures the
possession of the person, who has derived or purchased them from him,
who was master of them by the rights of war, by having the prisoner
in his custody at the time of alienation, or whether such things are
recoverable; supposing the things to be in a neutral territory.
A distinction seems proper to be made between things recoverable by
postliminium, and things excepted from that right: so that every
alienation of the former must be qualified and conditional, but that
of the latter may be absolute. By things alienated may be understood
even those, of which a gift has been made, or to which the owner has
relinquished every claim.
VII. Upon any one's returning to his former condition by the law of
postliminium, all his rights are restored as fully, as if he had never
been in the hands and power of the enemy.
VIII. The case of those however, who have been conquered by the arms of
an enemy, and have surrendered themselves, forms an exception to this
rule; because engagements of that kind must be valid, and honourably
adhered to according to the law of postliminium. So that during the
time of a truce, the right of postliminium cannot be claimed.
But where a surrender has been made without any express or positive
convention the right of postliminium exists in all its force.
Public-domain text, read in full here on John Shaqi.
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