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chapter xiv 603 his personal rights, he should, in such case, make no distinctionbetween these rights and those of the state. The French law, which annexes to the crown all acquisitions made by the king, should be the law of all nations. It has been observed (§196) that we may be obliged, if not externally, yet in conscience, and by the laws of equity, to re-store to a third party the booty we have recovered out of the hands of an enemy who had taken it from him in an unjust war. The obligation is more certain and more extensive, with regard to a people whom our enemy had unjustly oppressed. For a people thus spoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued,— if they have not freely aided her in the war against us,—we certainly ought so to use our victory, as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend. The canton of Schweitz having wrested the country of Glaris from the house of Austria, restored the inhabitants to their former liberties ; and Glaris, admitted into the Helvetic confederacy, formed the sixth canton.* chapter xiv Of the Right of Postliminium. The right of postliminium is that, in virtue of which, personsandthings taken by the enemy are restored to their former state, now coming again into the power of the nation to which they belonged. The sovereign is bound to protect the persons and property of his subjects, and to defend them against the enemy. When, therefore, a subject , or any part of his property, has fallen into the enemy’s possession, should any fortunate event bring them again into the sovereign’s power, * Histoire de la Confédération Helvétique, par M. De Watteville. liv. iii. under the year 1351.§203. Whether we are to set at liberty a people whom the enemy had unjustly conquered.§204. Definition of the right of postliminium .§205. Foundation of this right. 604 book iii: of war it is undoubtedly his duty to restore them to their former condition,— to re-establish the persons in all their rights and obligations, to give back the effects to the owners,—in a word, to replace every thing on the same footing on which it stood previous to the enemy’s capture. The justice or injustice of the war makes no difference in this case,— not only, because, according to the voluntary law of nations, the war, as to its effects, is reputed just on both sides, but likewise because war, whether just or not, is a national concern; and if the subjects who fight or suffer in the national cause, should—after they have, either in their persons or their property, fallen into the enemy’s power—be, by some fortunate incident, restored to the hands of their own people,—there is no reason why they should not be restored to their former condition. It is the same as if they had never been taken. If the war be just on the part of their nation, they were unjustly captured by the enemy; and thus nothing is more natural than to restore them as soon as it becomes possible. If the war be unjust, they are under no greater obligation to suffer in atonement for its injustice, than the rest of the nation. Fortune brings down the evil on their heads, when they are taken: she delivers them from it, when they escape. Here again it is the same as if they never had been captured. Neither their own sovereign nor the enemy has any particular right over them. The enemy has lost by one accident what he had gained by another. Persons return, and things are recovered, by the right of postliminium, when, after having been taken by the enemy, they come again into the power of their own nation (§204). This right, therefore, takes effect as soon as such persons or things captured by the enemy fall into the hands of soldiers belonging to their own nation, or are brought back to the army, the camp, the territories of their sovereign, or the places under his command. Those who unite with us to carry on a war, are joint parties with us: we...

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Additional Information

ISBN
9781614878728
Related ISBN
9780865974517
MARC Record
OCLC
466082934
Pages
896
Launched on MUSE
2013-06-27
Language
English
Open Access
No
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