International law; Natural law; War (International law)
IX. What has been said of individuals applies to nations: so that a
free people, who have been subjugated, upon being delivered from the
yoke of the enemy by the power of their allies, will recover their
former condition.
But if the whole population that constituted a state has been
dispersed, the people can no longer be considered as the same: nor does
the law of nations in such a case enforce the right of postliminium
for the restoration of all effects formerly belonging to that people.
For as the identity of a ship, or any other material object, can
only be ascertained by the permanent union of its original parts: so
a nation can no longer be regarded as the same, when every peculiar
characteristic belonging to it is effaced.
The state of Saguntum therefore was no longer judged to be the same,
when it was restored to its ancient possessors, at the expiration of
eight years: nor could Thebes any longer be deemed the original city,
as its inhabitants had been sold by Alexander for slaves. From hence it
is evident, that the Thebans could not, by the right of postliminium,
recover the sum of money, which the Thessalians had owed them: and that
for two reasons: because, in the first place, they were a new people;
and, secondly, because Alexander at the time that he was absolute
master of the city had a right, if he thought proper, to relinquish the
claim to that debt, which he had actually done. Besides, a debt is not
in the number of things recoverable by the right of postliminium.
The rules, respecting a state, are not much unlike those laid down by
the ancient Roman law, which made marriage a dissoluble tie, so that it
could not be restored by the right of postliminium: but a new consent,
and a new contract were necessary.
X. By the Roman civil law deserters were excluded from the right of
postliminium.
XI. and XII. It is a point of much importance to the subject, and it
was before declared in the affirmative, that nations, which have been
under a foreign yoke, recover their former condition, even though their
deliverance has not been effected by their former sovereign, but by
some ally. It is a settled rule, where there is no express treaty to
the contrary. At the same time it is but reasonable that such ally be
indemnified for the expences incurred in accomplishing that deliverance.
XIII. Among things within the right of postliminium, lands in
particular attract our attention. For, as Pomponius observes, upon the
expulsion of an enemy lands naturally revert to their former masters.
And in this sense expulsion is understood to take place from the time
that his free and open access to a territory is entirely cut off.
Public-domain text, read in full here on John Shaqi.
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