The word "postliminium" is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for jus postliminium supposes that the captive has never been absent.[358] The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invalidated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities.
When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the coöperation of an ally, the conditions of the alliance will determine the obligation of the original possessor.
Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize before recapture, the court shall award salvage according to the circumstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restoration; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circumstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty.[359] When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.[360]
While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by Prussia in an additional article to the treaty of peace of Dec 11, 1871.
[§ 114. Prisoners and their Treatment]
"A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field, or in the hospital, by individual surrender, or capitulation.... Citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government"[361] are liable to capture. Levies en masse are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen.[362]
It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable.
(a) The refusal of quarter to prisoners of war is not now allowed. Those who have violated the laws of war or the principles of humanity are liable to retaliation as a measure of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."[363]
(b) Employment. Prisoners may be "employed upon public works which have no direct relation to the operations carried on in the theatre of war."[364] Such labor must be in accord with the rank of the prisoner and not detrimental to health. Prisoners who are allowed to engage in private industries do so with the understanding that their pay may be devoted to the bettering of their condition, or if expedient may be reserved for them and be paid to them on their release. From this amount may be deducted the expense of the maintenance while in captivity.
(c) The exchange of prisoners of war is purely a voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values where those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc.