International law; Natural law; War (International law)
Thus the Lacedaemonians, after taking Aegina from the Athenians,
restored it to its ancient owners. Justinian and other emperors
restored to the heirs of the ancient possessors of the lands, which
had been recovered from the Goths and Vandals, still reserving against
those owners all prescriptive rights, which the Roman laws had
introduced.
The privileges belonging to lands attach to every right also connected
with the soil. For religious or consecrated places, that had been taken
by an enemy, when recovered returned, as Pomponius has said, to their
former condition.
Upon the same principle it was provided by a law in Spain, that
provinces, and all other hereditary jurisdictions, particularly supreme
jurisdictions, should return to the original possessors by the right of
postliminium; and those of an inferior kind, if reclaimed within the
space of four years. Except that citadels lost by war always belonged
to the crown, in whatever manner they were recovered.
XIV. On the contrary a general opinion prevails, that moveable
property, which constitutes part of a lawful prize, is not recoverable
by the right of postliminium. So that things acquired by purchase,
wherever they are found, continue the property of the purchaser. Nor
has the original owner a right to claim them, when found in a neutral
state, or even carried into his own territory.
Things useful in war, as we find, were formerly an exception to this
rule: an exception, which seems to have been favoured by the law of
nations in order to induce men the more readily to provide them, in
the hopes of recovering them, if lost. And this indulgence was the
more easily granted, as most nations, at that period, in all their
customs, seem to have had an eye to a state of warfare.--Among the
things, coming under this description, ships of war, and merchant-ships
are reckoned, but neither gallies, nor pleasure-boats: mules also are
enumerated; but only such as are used to carry baggage: horses and
mares too; but only such as are broken in to obey the bridle. And these
are things, the bequest of which the Roman law confirmed, and which
might come into the division of an inheritance.
Arms and cloathing indeed are useful in war, but still they were not
recoverable by the right of postliminium; because the laws were by no
means inclined to favour those, who lost either in war: and such a
loss was deemed a disgrace, as we find from many parts of history. And
in this respect, a distinction was made between a soldier's arms and
his horse: because the latter might easily break loose, and fall into
an enemy's hands without any fault of his rider. This distinction in
moveable things seems to have prevailed in the western parts of Europe,
under the Goths, even as far down as to the times of Boetius. For in
explaining the Topics of Cicero, he speaks of this right, as a general
custom of his day.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account