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.

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.

XV. But in later times, if not before, this distinction seems to have been abolished. For all intelligent writers speak of moveable effects as not recoverable by the right of postliminium, and it has evidently been decided so, in many places, with respect to ships.

XVI. The right of postliminium is quite unnecessary, before the things taken have been carried into some place of which the enemy is master, although they may be in his possession: for they have not yet changed their owner, by the law of nations. And, according to the

opinions of Ulpian and Javolenus, the law of postliminium is no less superfluous, where goods have been taken by robbers and pirates, because the law of nations does not allow THEIR possession of the goods to convey any change, or right of property to THEM.

Upon this ground, the Athenians wished to consider Philip, as RESTORING, and not GIVING them Halonesus, of which they had been robbed by pirates, from whom he had taken it again. For things taken by pirates may be reclaimed, wherever they are found; except that NATURAL JUSTICE requires that the person, who has gained them out of their hands, at his own expence, should be indemnified, in proportion to what the owner himself would willingly have spent for their recovery.

XVII. But a different maxim may be established by the CIVIL LAW. Thus by the law of Spain, ships taken. from pirates become the lawful prize of the captors: which may seem a hardship upon the original owners; but in some cases individual interest must be sacrificed to the public good: especially where the danger and difficulty of retaking the ships is so great.* But such a law will not prevent foreigners from asserting their claims.

XVIII. It was rather a surprising maxim in the Roman law, which established the right of postliminium, not only between hostile powers, but between all foreign states, and, in some cases, between those, who were members of the Roman empire. But this was only a vestige of the rude and pastoral ages, before society was perfectly formed. So that even between nations, who were not engaged in public war with each other, a kind of licence resembling that of war prevailed.

In order to prevent such a licence from proceeding to all the calamities and slaughter of war, the laws of captivity were introduced: and, as a consequence of this, postliminium took place, which might be considered as a great step towards the formation of equal treaties, from the rules of which pirates and robbers were excluded, and which indeed they themselves despised.

XIX. In our times, the right of making prisoners, except in war, has been abolished not only among Christian states, but even among the greater part of Mahometans,

*«The end of such a law is to animate soldiers and privateers to pursue robbers and pirates, by the hopes of possessing things taken even from the subjects of the state."-Barbeyrac.

those bands of society, which nature designed to establish amongst men, being in some measure restored.

But the ancient law of nations seems still in force against any rude or barbarous people, who, without any declaration or cause of war, consider all mankind as enemies. A decision has lately been made in the principal chamber of the parliament of Paris, declaring all effects belonging to the subjects of France, and taken by the Algerines, a people always engaged in predatory and maritime warfare with all other countries, if retaken, to belong to the captors.-At the same time it was decided, that, in the present day, ships are not reckoned among things recoverable by the right of postliminium.

CHAPTER XI.*

THE RIGHT OF KILLING ENEMIES, IN JUST WAR, TO BE TEMPERED WITH MODERATION AND HUMANITY.

In what cases strict justice allows the destruction of an enemy - Distinction between misfortune and guilt-Between principals and accessories in war-Distinction between unwarrantable and excusable grounds of promoting war-Sometimes right and laudable to forbear punishing an inveterate enemy-Every possible precaution requisite to spare the innocent-Especially children, women, and the aged, except they have committed atrocious acts-Clergymen, men of letters, husbandmen, merchants, prisoners — Conditional surrender not to be rejected-Unconditional surrender-Exceptions to the above rules, some of them considered, and refuted - Delinquents when numerous to be spared-Hostages to be spared- Unnecessary effusion of blood to be avoided.

I. AND II. CICERO, in the first book of his offices, has finely observed, that "some duties are to be observed even towards those, from whom you have received an injury. For even vengeance and punishment have their due bounds." And at the same time he extols those ancient periods in the Roman government, when the events of war were mild, and marked with no unnecessary cruelty.

The explanations given in the first chapter of this book will point out the cases, where the destruction of an enemy is one of the rights of lawful war, according to the principles of strict and internal justice, and where it is not For the death of an enemy may proceed either from an accidental calamity, or from the fixed purpose of his destruction.

So.

No one can be justly killed by design, except by way of legal punishment, or to defend our lives, and preserve our property, when it cannot be effected without his destruction. For although in sacrificing the life of man to the preservation of perishable possessions, there may be nothing repugnant to strict justice, it is by no means consonant to the law of charity.

But to justify a punishment of that kind, the person put to death must have committed a crime, and such a

* The tenth Chapter chiefly containing remarks that have been interspersed in other parts of the work, is omitted here.-TRANSLAtor.