The Rights of War and Peace

by Hugo Grotius

With respect to other kinds of prisoners, every one used what he wished to be thought his right, except where fixed rules were prescribed by treaty. And for the same reason, neither slaves, nor things taken in war are restored upon a peace, except express stipulations be made to that purpose. A conqueror too, in general, wishes to have it believed that he had a right to make such acquisition; and indeed the departure from such a rule might give rise to wars without end.

V. and VI. A prisoner of war, upon his release, and return to his own country, is entitled to all his privileges THERE, and indeed to everything either corporeal, or incorporeal, which he might have before possessed in a NEUTRAL STATE, at the time of his captivity. For if such a state, in order to preserve her neutrality, considered his captivity as a matter of right on the part of the enemy, so also, in order to shew her impartiality, she cannot lawfully abridge his right to any thing he may reclaim upon his release. The controul therefore, which the person, to whom the prisoner belonged by the right of war, had over his effects, was not absolutely unconditional: for he might lose it, even against his will, whenever the prisoner came again under the protection, or within the territories, of his own sovereign. Along with the prisoner therefore he would lose everything, which was considered as an appendage to his person.

In cases where effects taken in war have been alienated, a question arises, whether the law of nations confirms the title, and secures the possession of the person, who has derived or purchased them from him, who was master of them by the rights of war, by having the prisoner in his custody at the time of alienation, or whether such things are recoverable; supposing the things to be in a neutral territory.

A distinction seems proper to be made between things recoverable by postliminium, and things excepted from that right: so that every alienation of the former must be qualified and conditional, but that of the latter may be absolute. By things alienated may be understood even those, of which a gift has been made, or to which the owner has relinquished every claim.

VII. Upon any one's returning to his former condition by the law of postliminium, all his rights are restored as fully, as if he had never been in the hands and power of the enemy.

VIII. The case of those however, who have been conquered by the arms of an enemy, and have surrendered themselves, forms an exception to this rule; because engagements of that kind must be valid, and honourably adhered to according to the law of postliminium. So that during the time of a truce, the right of postliminium cannot be claimed.

But where a surrender has been made without any express or positive convention the right of postliminium exists in all its force.

IX. What has been said of individuals applies to nations: so that a free people, who have been subjugated, upon being delivered from the yoke of the enemy by the power of their allies, will recover their former condition.

But if the whole population that constituted a state has been dispersed, the people can no longer be considered as the same: nor does the law of nations in such a case enforce the right of postliminium for the restoration of all effects formerly belonging to that people. For as the identity of a ship, or any other material object, can only be ascertained by the permanent union of its original parts: so a nation can no longer be regarded as the same, when every peculiar characteristic belonging to it is effaced.

The state of Saguntum therefore was no longer judged to be the same, when it was restored to its ancient possessors, at the expiration of eight years: nor could Thebes any longer be deemed the original city, as its inhabitants had been sold by Alexander for slaves. From hence it is evident, that the Thebans could not, by the right of postliminium, recover the sum of money, which the Thessalians had owed them: and that for two reasons: because, in the first place, they were a new people; and, secondly, because Alexander at the time that he was absolute master of the city had a right, if he thought proper, to relinquish the claim to that debt, which he had actually done. Besides, a debt is not in the number of things recoverable by the right of postliminium.