III. From hence it will be easy to understand what is meant by a mixed government, composed partly of civil, and partly of absolute power;—it is a government, where subjection is united with some degree of personal liberty.
We sometimes read of nations, that have been so far subdued, as to be deprived of the use of all warlike arms, being allowed to retain no instruments of iron, but the implements of husbandry; and of others, that have been compelled to change their national customs and language.
IV. States as well as individuals may lose their property by the laws of war: and even a voluntary surrender is in reality nothing more than giving up what might have been taken by force. For as Livy says, where all things submit to the power of arms, the conqueror may impose whatever terms, and exact whatever fines he pleases. Thus the Roman people by the victories of Pompey acquired all the territories, which Mithridates had gained by conquest.
The incorporeal rights too, belonging to one state, may pass to another by the rights of conquest. Upon the taking of Alba, the Romans retained all the rights belonging to that city. From hence it follows, that the Thessalians were released from the obligation of paying a sum of money, which they owed to the Thebans; Alexander, upon the taking of Thebes, having, as a conqueror, forgiven the debt. Nor is the argument used by Quintilian in favour of the Thebans, at all convincing: he maintains that nothing but what is of a tangible nature can pass by right of conquest, a class of things to which incorporeal rights can never be reduced: and that there is a material difference between inheritance and victory, the former of which may convey incorporeal rights, but the latter can give nothing except things of a solid and visible substance.
But on the other hand it may be justly said, that whoever is master of the persons, is master also of all the rights and things, which are vested in those persons, who are in that case considered as having nothing of their own. Indeed if any one should leave to a conquered people their rights, as a state, still there are some things belonging to that state, which he might appropriate to himself. For it is in his own power to determine, to what extent his generosity, or the exertion of his right shall go. Caesar imitated the conduct of Alexander, in forgiving the Dyrrachians a debt, which they owed to some one of the opposite party. But the kind of war, in which Caesar was engaged does not fall within the rules of the law of nations.
[CHAPTER IX.]
Of the Right of Postliminium.
Origin of the term, postliminium—Where it takes effect—Certain things recoverable thereby—In what cases the right of postliminium prevails in peace, as well as war—What rights are recoverable, and what rights not recoverable—When a people is not entitled to the right of postliminium—Extent of civil law in these cases—Deserters—Ransomed prisoners—Subjects—Lands recovered by right of postliminium—Distinction formerly observed with respect to movable things—Modern practice.
I. The professors of law in former ages have given no more satisfactory account of the rights of postliminium, than they have done of those, respecting things taken from the enemy. The subject has been more accurately handled by the ancient Romans, but often still with a considerable degree of confusion, so that a reader cannot easily distinguish, what part they assign to the province of the law of nations, and what part to the civil law of Rome.