The Law of War and Peace (1625)
by Hugo Grotius
I. The origin of the word postliminy.
1. Just as in regard to those things which are captured from the enemy, so also in regard to the right of postliminy (postliminium) no very sound view has been advanced by those who in more recent times have laid claim to a knowledge of the law. The subject was treated with greater painstaking by the ancient Romans, but often rather confusedly, so that the reader could not distinguish what they ascribed to the law off nations and what to the Roman civil law.
2. With regard to the word postliminium we must reject the view of Servius [Servius Sulpicius], who thinks that the latter part is a lengthening of the word without significance; we must rather follow Scaevola, who taught that the word was a compound of post, which indicates a return, and limen. For limen (threshold) and limes (boundary) differ in ending and manner of declension, although for the rest they are identical in origin – for they come from the ancient word limo, which signified transversum (across) and in original idea, just as materia and materies, pavus and pavo, contagio and contages, cucumis and cucumer; although in later usage it developed that limen referred rather to private, limes to public things. So the ancient word which meant ‘to eject from a country’ was eliminare, and the Romans called exile eliminium.
II. Where postliminy may occur.
1. Postliminy, therefore, is a right which arises from a return to the threshold, that is, to the public boundaries. Thus Pomponius says that he who has begun to be within our fortified lines has returned by postliminy; Paul defines such a return when the captive has entered our frontier.
On similar grounds the agreement of nations has brought the matter to this point, that postliminy occurs also if a man, or a thing of the sort in regard to which it has been decided that postliminy is possible, has come to our friends, as Pomponius says in the passage cited; or, as Paul explains by offering an example, to a king who is our ally or friend. In these passages we are to understand as friends or allies not merely those with whom we are at peace,’ but those who take the same side in a war. Those who come to such friends, as Paul says, begin to be protected in the name of the state. It makes no difference in fact whether a man or thing has come to them or to his own people.
2. Among those who are friends, it is true, but not on the same side, prisoners of war do not change their status unless by a special arrangement. Thus in the second treaty drawn up between the Romans and the Carthaginians it was agreed that if any prisoners taken by the Carthaginians from peoples who were friends of Rome should reach ports subject to the Romans their freedom could be asserted, and that the friends of Carthage should enjoy an equal right. In consequence those Romans who were captured in the second Punic War and had come to Greece by way of sale did not have the right of postliminy there, because in that war the Greeks had supported neither side, and hence it was necessary for the captives to be ransomed in order to be set free. In Homer, too, in more than one passage we see that those captured in war were sold in places that were at peace, as Lycaon, Iliad, XXI, and Eurymedusa, Odyssey, VII.
III. By postliminy some things return and some things are recovered.
The ancient Roman mode of speech had it that free men also were recovered by postliminy.
Aelius Gallus, in the Terms Which Apply to the Law, Book I, says that by postliminy there is recovered (for we must adopt this reading) the freeman who has gone from one state into another, and returns to the same state, according to the law established in regard to postliminy. The same is true of the slave who has gone from us into the power of the enemy, and afterwards returns to us and into the power of his former master, according to the law of postliminy. The same reasoning is applied to a horse, to a mule, and to a ship in recovery by postliminy (for so I think that with a slight change we may retain these three words which that incomparable student of the Roman law, Jacques Cujas, thinks should be deleted) as to a slave; and the same kinds of things, which return from the enemy to us by postliminy, may return from us to the enemy.
The later Roman jurists, however, with greater clarity have distinguished two forms of postliminy, according as we ourselves return, or something is recovered by us.
IV. The right of postliminy exists in peace and in war. What is to be done if it has not been mentioned in time of peace?
1. We must, further, maintain the view of Tryphoninus, who says that the right of postliminy is effective both in war and in peace; the meaning is slightly different from that with which Pomponius had said the same thing.
In peace postliminy, unless it is otherwise agreed, exists for those who have not been conquered by armed force, but caught by their ill-fortune,’ as those who are found in the land of the enemy when war has suddenly broken out. For other captives, however, there is not postliminy in time of peace, unless this was provided for in the terms of peace (according to the excellent emendation of the passage of Tryphoninus by the learned Peter Faber, of which Cujas approves); for the reason which is added and the contrasted clause clearly decide this.
‘He made peace, releasing the prisoners, for so it had been agreed,’ says Zonaras. Pomponius says: ‘If a prisoner, for whose return in time of peace a guarantee had been given, remains with the enemy of his own accord, for him there is subsequently no postliminy.’ Paul states the matter thus: ‘If a prisoner of war has fled to his home after peace has been made, by postliminy he returns to him who captured him in the late war, provided that it has not been agreed in the terms of peace that prisoners should be restored.’
2. As indicating the reason why the view just stated came to be held with reference to those who have been captured by valor in war, Tryphoninus quotes the following from Servius, ‘that the Romans preferred that their citizens should place their hope of return in military prowess rather than in terms of peace,’ for from antiquity they were in truth, as Livy says, a state by no means merciful to prisoners. But this reason characteristic of the Romans could not have established the law of nations, though it might have been among the causes that led the Romans to embrace that law which had been developed by other nations.
The truer explanation is this, that kings and peoples who undertake war wish that their reasons for so doing should be believed to be just, and that, on the other hand, those who bear arms against them are doing wrong. Now since each party wished this to be believed, and it was not safe for those who desired to preserve peace to intervene, peoples at peace were unable to do better than to accept the outcome as right,’ and also to consider prisoners thus taken in the act of defending themselves as captured for a just reason.
3. But the same thing could not be said with regard to those who were caught [in hostile territory] after war had broken out; for in them no desire to injure could be imagined. Nevertheless it seemed not unfair that while the war lasted they should be detained, in order to lessen the strength of the enemy; but when the ending’ of the war had been arranged no reason could be offered for not releasing them. Consequently this was agreed upon, that with peace such prisoners should always obtain their liberty on the ground, that they were innocent, by admission of the parties; but that over the others each should assert what he wished to be considered’ his right, except in so far as agreements should prescribe definite stipulations.
For the same reason neither slaves nor things taken in war are restored with peace, unless this has been stipulated in agreements, since the victor wishes it to be believed that he had the right; to seek these things. To controvert this principle would in truth be to make wars spring up from wars.
In the light of these considerations it is clear that the argument in Quintilian on behalf of the Thebans was ingeniously presented, but not in accordance with the truth, that is, that prisoners are free if they have returned to their own country, because things won in war may only be held by the same use of force. We have said enough with regard to peace.
4. In war men who were free before being captured return by postliminy; but slaves and certain other things are recovered.
V. When a free man may return by postliminy while war is in progress.
A free man returns by postliminy only when he has come to his own people with the purpose of sharing their fortunes, as the principle was stated by Tryphoninus. The reason undoubtedly is that for a slave to become free he must, so to speak, acquire himself, which is not done unless he wishes it. But it makes no difference whether a man has been recovered from the enemy by force of arms, or has escaped by a ruse, as Florentinus has pointed out. It will even be sufficient if he has been voluntarily handed over by the enemy.
What happens if Soil a man comes to his own people after being sold in trade by the enemy, as the custom is? This question is discussed by Seneca, in the case of the Olynthian who was purchased by Parrhasius. Since a decree had been issued by the Athenians whereby it was ordered that the Olynthians should be free, he inquires whether it was provided in the decree that they should be made free or should be considered free; the latter of the two interpretations is more correct.
VI. What rights a free man returning by postliminy may recover, and what he may not recover.
1. A free man, moreover, after he has returned to his own people, not only acquires himself for himself, but also all the possessions, whether corporeal or incorporeal, which he had when the peoples were at peace. Peoples at peace accept the fact as indicating a right in the case of the man who has been set free just the same as in the case of the prisoner, in order that they may show themselves fair to both sides. Therefore the proprietorship, which he who possessed the prisoner by the law of war had over the prisoner’s possessions, was not free from all limitation; it could in fact cease against his will, if the prisoner should reach his own country. Consequently, the possessor of the prisoner loses these things just as he loses the man to whom they belonged.
2. But what if the possessor of the prisoner has alienated the prisoner’s possessions? Will he, who has his title from the man that was at the time owner by the law of war, be protected by the law of nations, or will these things also be recovered? I am speaking of the things which were with a people that did not participate in the war.
It seems clear that we must distinguish between things which are of such a kind that they may return by postliminy, and those which are not of that kind. This distinction we shall shortly explain, so that the things of the former class will seem to have been alienated with a characteristic cause and under a condition, but the latter absolutely. By alienated things I understand also things which have been granted or acknowledged as received..
VII. Rights against a free man returning by postliminy also are restored.
Again, just as rights are restored to him who has returned by postliminy, so also rights are revived against him; and, as Tryphoninus says, such are held just as if he had never been in the power of the enemy.
VIII. Why those who surrender do not have the right of postliminy.
To this rule in regard to free men Paul justly adds the following exception: ‘Those who have been conquered in battle and have surrendered to the enemy do not possess the right of postliminy.’ This is doubtless for the reason that agreements with the enemy are valid by the law of nations, as we shall say elsewhere, and against such agreements no right of postliminy holds.
Thus in Gellius those Romans who had been captured by the Carthaginians say that ‘They did not have legal postliminy, since they were bound by their oath.’ Wherefore, as Paul has properly pointed out, there is no postliminy during the period of an armistice. But Modestinus delivered the opinion that those who are given up to the enemy, that is without any agreement, return by postliminy.
IX. When a people may have the right of postliminy.
1. What we have said in regard to individual persons holds true, I think, in the case of peoples also; those who were free may recover their liberty in case the power of their allies delivers them from the rule of the enemy. But if the population, which formed the state, has been dispersed, I think it more correct not to consider the people as the same, nor to restore their property by postliminy in accordance with the law of nations, for the reason that a people, like a ship, obviously perishes by the dissolution of its parts, since its whole nature consists in perpetual union.
That was, then, not the same state of Saguntum which previously existed, when this site was restored, eight years later, to the former inhabitants. It was, again, not the same Thebes, after the Thebans had been sold into slavery by Alexander. Hence it is apparent that what the Thessalians had owed the Thebans was not restored to the Thebans by postliminy, and that for two reasons: first, because it was a new people; and, secondly, because Alexander, at the time when he was their master, was able to alienate this right and did so. There is a further reason, that a debt is not in the number of the things which return by postliminy.
2. With what we have said regarding a state agrees closely the fact that according to the ancient Roman law, by which the dissolution of marriage was permitted, it was held that the marriage relation was not restored by postliminy,’ but renewed by a new agreement.
X. What are the provisions of the municipal law in the case of those who return by postliminy.
1. From the preceding discussion the nature of postliminy may be understood according to the law of nations, as regards free men. But by municipal law that same right, in so far as it affects what is done within a state, may both be restricted by the addition of exceptions and conditions and extended to other interests. Thus, by the Roman civil law, deserters are excluded from the number of those who return by postliminy, even the sons of households over whom apparently the authority of the father, which was peculiar to the Quirites, should have been exercised. But Paul says that this was acceptable, because Roman parents valued the discipline of the camp above their affection for their children. This is consistent with what Cicero says of Manlius, that through his personal grief he sanctioned the discipline of military authority, in order that he might have regard for the safety of his fellow citizens, with which he perceived that his own safety was bound up, and that he set the right of public authority above nature herself and the affection of a father.
The right of postliminy is also in a measure limited by this provision, which we read was first established by the Athenian laws, then by those of the Romans, that the person who should be ransomed from the enemy should serve the one who ransomed him until he paid back the price. But this very provision appears to have been introduced in the interest of liberty, in order that many might not be left in the hands of the enemy because the hope of reimbursement in the sums paid as ransom had been cut off. This kind of servitude is in fact mitigated in many ways by the same Roman laws; and finally by the law of Justinian it is terminated with five years’ service. On the death of the ransomed the right of recovering the money also is extinguished, just as it is held to be remitted by the contraction of marriage between the ransomer and the ransomed; and the right is lost by the prostitution of a ransomed woman. Many other provisions were established by the Roman law to favor those who pay ransom, and to punish the next of kin who do not redeem their relatives.
2. On the other hand, the right of postliminy has been expanded by the civil law in this, that not only those things which are included in postliminy by the law of nations, but all things, and all rights, are treated just as if he who has returned had never been in the power of the enemy; and this was also the practice in Attic law. For, as we read in the fifteenth Oration of Dio of Prusa, a certain person declared that he was the son of Callias, that he had been taken prisoner in the defeat at Acanthus, and had been in slavery in Thrace after his return to Athens by postliminy, he claimed the inheritance of Callias from its possessors, and the only question investigated in the trial was whether he was really the son of Callias. The same writer records that, although the Messenians had been in slavery for a long time, they at length recovered both their liberty and their land.
Further, the things which were deducted from a property by usurpation or by liberation, or which seemed to have become extinct by non-use, are restored by an action for annulment; for in the edict concerning the complete reinstatement of persons of age there is included the man who is in the power of the enemy. This at any rate comes from the ancient Roman law.
3. The Cornelian Law even consulted the interest of the heirs of those who had died as prisoners among the enemy, by conserving their property just as if the captive who did not return was already dead at the time .when he was captured. If you should annul these civil laws, there is no doubt that as soon as any one had been captured by the enemy his property would have fallen to those who should seize it,’ because he who is in the enemy’s possession is held to be non-existent. If he who had been captured returned, he would recover nothing except those things which have postliminy by the law of nations. However, the assignment of the goods of prisoners to the treasury, if there should be no heir, is the effect of a special Roman law.
We have considered the persons who return; let us now consider the things which are recovered.
XI. How slaves are recovered by postliminy, even those who have run away; how those who have been ransomed are recovered.
1. Among recoverable possessions are, first, male and female slaves, even when having been often alienated, or after manumission by the enemy.’ The reason is that it is not possible for one of our citizens, who is the owner of a slave, to be affected by a manumission in accordance with the law of the enemy, as Tryphoninus well observes. But for the recovery of a slave, it is necessary that he be actually held by his former master, or that he should be easily obtainable. Therefore, although in the case of other things it is enough for them to have been brought within the frontier, in the case of a slave this will not suffice for the right of postliminy, unless the fact is also known; for it is the view of Paul that such a slave who is in Rome, but is hidden, is not yet recovered.
Just as a slave differs in the respect suggested from inanimate things, so in turn the slave differs from a free man in this, that for his recovery by postliminy it is not required that he should come with the intention of adopting our cause. This in fact is required in the case of the man who is going to recover himself, not in the case of him who is to be recovered by another; and, as Sabinus wrote, ‘Every one has a full freedom of choice with regard to his own state, but not in relation to the right of his master.’
2. The Roman law furthermore does not exempt runaway slaves from the operation of this law of nations. The master recovers his former right over these also, as Paul teaches us, the intent being that the exercise of a contrary right should not be so injurious to him, who always remains a slave, as fraught with damage for his master. In regard to the general treatment of slaves who are recovered by the valor of the soldiers, the emperors have stated a principle which some persons mistakenly apply to all possessions, that ‘We should regard those who have been recovered as not having been captured, and our soldiers ought to be their defenders, not their masters.’
3. By the Roman law slaves who have been ransomed from the enemy become forthwith the property of the person who ransoms them; but when the price has been paid back they are held to, have been recovered.
To explain these things in greater detail is the business of the. interpreters of the civil law. For some points were changed by later laws; and, to induce captured slaves to return, freedom was offered immediately to those who had broken a limb, and to others after the lapse of five years, as may be seen in the military laws collected by Rufus.
XII. Whether subjects may be recovered by postliminy.
We are more concerned with this question, whether peoples who were subject to a foreign rule also relapse into their former relation.
This may be considered in the case that not he to whom the chief command belonged, but some one of his allies, had delivered the people from the enemy. In this case I think we must give the same answer as in the case of slaves, unless it has been otherwise agreed in the treaty of alliance.
XIII. Territory is recovered by postliminy.
1. Among things recoverable we have first to do with territory which falls under the right of postliminy. ‘ It is true,’ says Pomponius, ‘that when the enemy have been expelled from the territory which they have taken the ownership of it returns to the former proprietors.’
Furthermore, the enemy ought to be considered as expelled from the time when they are no longer able to approach openly, as we have explained elsewhere. Thus the Lacedaemonians restored to the early proprietors’ the island of Aegina, which had been wrested from the Athenians. Justinian and other emperors restored to the heirs of the old possessors the lands which had been recovered from the Goths and Vandals, and did not admit against the proprietors those prescriptive rights which the Roman laws had introduced.
2. The law regarding every right which is connected with the soil I consider to be the same as that regarding territory. Pomponius has written that consecrated and holy places, which have been captured by the enemy, if they have been freed from this misfortune, are restored to their original condition as though returned by a sort of postliminy. With this agrees what Cicero, in the passage on the statues in his speech Against Verres, says of the Diana of Segesta ‘Through the valor of Publius Africanus it recovered its veneration together with its seat of worship.’ With the right of postliminy Marcianus compares the right by which the ground occupied by a building is restored to the shore, upon the fall of the building.
Wherefore we shall be obliged to say that the usufruct of land that has been recovered is restored, following the precedent set by the response of Pomponius with regard to inundated land. By the law of Spain, provision has been made that the holdings of counts and other hereditary jurisdictions return by postliminy. The larger holdings return without limitation; the smaller, if they are claimed within four years after their recovery, with the exception that the king has the right of retaining a castle lost in war and recovered in any way at all.
XIV. The distinction that was formerly observed with regard to movable things.
1. With regard to movable things there is a general rule to the contrary, that they do not return by postliminy but belong with the spoil; thus Labeo contrasts such things. Therefore, also, what has been acquired in trade, wherever it is found, remains the property of him who bought it, and the former owner has not the right to reclaim it if it is found among those who are at peace, or. brought within the frontier.
In ancient times we see that things which were of use in war were excepted from this rule, which the nations seemed to have sanctioned, in order that the hope of recovery might render men more zealous in procuring them. In those times the institutions of very many states were organized for warfare; wherefore an agreement was easily reached in this matter.
Moreover those things are considered to be of use in war which we lately cited from Aelius Gallus, but which are more specifically; designated both in Cicero’s Topics and in Modestinus. They are warships and transports, but not yachts and fast boats acquired for pleasure; mules, but only such as are pack animals; horses and mares, which have been broken to the bit. And these are possessions which the Romans held were legally disposed of in wills, and entered into claims for the division of an inheritance.
2. Arms and clothing are indeed of use in war, but they do not: return by postliminy because those who lose arms or clothing in war are by no means deserving of favor; in fact such loss was accounted, a disgrace, as is abundantly clear in the historical writings. But in this respect, it is noted, arms differ from a horse, because a horse may dash away without fault of his rider. We see, further, that this distinction of movables was in force in the west, even under the Goths, down to the time of Boethius. For he, in explaining Cicero’s Topics, seems to speak of this right as one which retained its force to his own time.
XV. What is the current law with regard to movable things?
But in recent times, if not previously, the distinction noted seems to have been done away with. For those who are familiar with customs generally record that movable things do not return by postliminy; and we see in many places that this has been made a rule with regard to ships.’
XVI. What things may be recovered in such a way as not to need postliminy.
Things which, although seized by the enemy, have not yet been brought within his fortifications, have no need of postliminy, because by the law of nations they have not yet changed ownership. Also things which pirates or brigands have taken from us have no need of postliminy, as Ulpian and Javolenus decided; the reason is that the law of nations does not concede to pirates or brigands the power to change the right of ownership.
Relying upon this principle the Athenians wished to receive Halonnesus as restored, not as given by Philip, because the pirates had taken it from them, and Philip had taken it from the pirates.’ So things which have been captured by freebooters may be claimed wherever they are found, excepting that, as we have elsewhere held, on the basis of the law of nature, he who has obtained possession of a thing at his own expense should be reimbursed in the sum which the owner himself would have been glad to pay for its recovery.
XVII. Charges introduced by municipal law as affecting those subject to it.
Nevertheless a different rule may be established by municipal law. Thus by the Law of Spain ships captured from pirates become the property of those who take them from the pirates. It is in fact not unjust that private interests should yield to the public advantage, especially when the difficulty of recovery is so great. But such a law will not hinder foreigners from claiming their property.
XVIII. How postliminy has been observed among those who were not enemies.
1. That is more surprising, to which the Roman laws bear witness, that the right of postliminy was effective not only among enemies, but also between the Romans and foreign peoples. But we have said elsewhere that such laws were relics of the nomadic age, in which the usages had dulled the natural social sense which exists among men. In consequence even among nations which were not waging a public war there was a certain licence of war among individuals, proclaimed as it were by the usages themselves. To prevent this licence from extending to the killing of men, it was acceptable that the rights of captivity should be introduced among them, and from this it resulted that there was also a place for postliminy, on a different basis than with brigands and pirates, because this use of force led to fair agreements which are usually held in contempt by brigands and pirates.
2. Formerly it seems to have been a disputed right whether those from an allied people, who are in servitude among us, return by postliminy, in case they have made their way home. Thus Cicero presents the problem, On the Orator, Book I. Aelius Gallus indeed speaks as follows: ‘ With peoples that are free, and with peoples in alliance, and with kings, we have postliminy just as with enemies.’ On the other hand Proculus declares: ‘ I have no doubt that allied and free peoples are foreign to us; there is no postliminy between us and them.’
3. I think that a distinction should be made between treaties, in order that, if there were any which were entered into for the sake of settling or avoiding a public war, these should not for the future stand in the way of captivity or of postliminy. If, on the contrary, there were treaties containing this provision, that whoever should come from one side to the other should be protected in the name of the state, then with the abolition of captivity postliminy also should cease. It seems to me that Pomponius indicates this, when he says:
If with any people we do not have relations of friendship or hospitality, nor a treaty made for the sake of friendship, they are not indeed enemies; but whatever of our belongings goes to them becomes theirs, and a free man of our people captured by them becomes also their slave. It is the same if anything comes to us from them; and so in this case also postliminy is recognized.
When Pomponius said a ‘treaty for the sake of friendship,’ he showed that there could be other treaties also, in which there is no right of hospitality or friendship. That by peoples in alliance with one another are to be understood those who have promised friendship or secure hospitality, is also made abundantly clear by Proculus, when he adds: ‘For what need then is there of postliminy between us and them, when they in our country retain both their liberty and the proprietorship of their own possessions as fully as among themselves, and we have the same privileges in their country? ‘ Therefore what follows in Aelius Gallus, that ‘There is no postliminy with the nations which are under our sway,’ as Cujas correctly reads it, must be supplied with the addition, ‘nor with those with whom we have a treaty establishing friendship.’
XIX. When the right of postliminy may be enforced at the present day.
1. In our times, however, not only among Christians but also among most Mohammedans, both the right of captivity apart from, war, and likewise that of postliminy, have disappeared, since the necessity for either was removed by the restoration of the force of the relationship which nature has wished to prevail among men.
2. Nevertheless that ancient law of nations could be applied if there should be an affair with a people so barbarous that without declaration or cause it should consider it lawful to treat in a hostile manner all foreigners and their possessions.
While I was writing these words, a judgement to that effect was rendered in the highest chamber at Paris, under the presidency of Nicholas of Verdun. The decision held that goods which had belonged to French citizens, and had been captured by the Algerians, a people accustomed in their maritime depredations to attack all others, had changed ownership by the law of war, and therefore, when recaptured by others, became the property of those who had recovered them. In the same suit this decision was recorded, to which we just now referred, that today ships are not among the things which are recovered by postliminy.