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.[65] 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, 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.