2 a fixed sum in gold or silver was paid by the State which received a larger number than it restored.1 In 219 B.C., as Livy states, an agreement was entered into between the Roman and the Carthaginian generals that whichever received more prisoners than he returned should give two and a half pounds of silver for each man, "in permutandis captivis ... convenerat inter duces Romanum Poenumque, ut quae pars plus reciperet quam daret, argenti pondo bina et selibras in militem praestaret." And when in the following year a Roman camp surrendered to Hannibal, the Romans agreed to deliver up their arms and horses on condition that the ransom of every Roman should be three hundred denarii, of an ally two hundred, of a slave a hundred, and that on payment of the said ransom, they should be allowed to depart each with a single garment. Similarly after the great Carthaginian victory at Cannae, Hannibal permitted the Roman prisoners to ransom themselves, fixing the price at five hundred denarii for a horseman, three hundred for a foot-soldier, and a hundred for a slave.* prisoners. Roman prisoners dismissed on parole were compelled Promises by their government to fulfil their oaths and return to made by their captors conformably to their promise. Thus when Regulus was captured by the Carthaginians in the first Punic war, and was afterwards allowed to go to Rome to negotiate the exchange of prisoners, he returned faithfully after having advised the senate not to restore the Carthaginian captives. And, in this connection, Cicero lays down the principle that if, under stress of circumstances, individuals have made a promise to an enemy they are bound to keep their word,-" si quid 3 Liv. xxii. 52: "pacti, ut arma atque equos traderent, in capita Romana trecenis nummis quadrigatis, in socios ducenis, in servos centenis, et ut eo pretio persoluto cum singulis abirent vestimentis...." 4 Liv. xxii. 58: "itaque redimendi se captivis copiam facere. pretium fore in capita equiti quingenos quadrigatos nummos, trecenos pediti, servo centenos." Postliminium. singuli temporibus adducti hosti promiserunt, est in eo ipso fides conservanda."1 It is, again, related that after the battle of Cannae Hannibal sent ten prisoners to Rome to arrange about an exchange, if agreeable to the Roman people, and to suggest that, as regards those in excess, a pound of silver should be paid for each. Before they departed they took an oath to return to the Carthaginian camp, if the Romans refused to exchange prisoners. After their arrival in Rome and the delivery of Hannibal's message, the senate rejected the offer; and thus the lives of the captive Romans were placed in extreme peril. The parents, relatives, and friends of the ten messengers, says Gellius, embraced them, and assured them that they were now restored to their country. But eight of them held it was not a just restoration, since they had bound themselves by oath to return; and, accordingly, they went back. The other two, however, remained in Rome, asserting they were free and delivered from the obligation of their oaths, since, when they had left the enemy's camp, they had returned the same day on the pretext that they had forgotten something, but in reality to satisfy the terms of their engagement in that manner. This fraudulent evasion was deemed so base that they were despised and reproached by all, and afterwards branded by the censors; and their life became so unbearable that they killed themselves. In every promise, says Cicero, the essential meaning and not the mere words must be considered,-" semper autem in fide quid senseris, non quid dixeris cogitandum." 3 And the obligation imposed by the solemn promise is recognized by Roman jurisprudence in the application of the ius postliminii, the benefit of which was not extended to prisoners who returned to Rome contrary to their engagement with the enemy. The institution of postliminium involves notions of international law, as well as principles of Roman private 3 De offic. i. 13. 1 De offic. i. 13. 2 Aul. Gell. vii. 18. law, and applied to enemy captives as well as to Roman prisoners. The definition of Paulus given in the Digest would seem to suggest its derivation from the fetial a law. The ius postliminii implied the right by which persons or things captured in war by the enemy were restored to their former status or condition on their return to the country to which they originally belonged;1 and so, by a juridical fiction, a Roman prisoner of war could avoid the natural consequences of captivity. Failing such restoration, he would suffer the maxima deminutio capitis, the loss of citizenship and nationality, including ingenuitas, the privileges attaching to free birth, and all other rights; for example, if he were a paterfamilias, capture would ipso facto operate as destruction of his patria potestas ('paternal power '); if he had before executed a testament, falling into the hands of the adversary rendered it invalid. But once he set foot again on his native soil, or on that of a friend, he at once recovered his former rights and civic position. A will, however, that was made on enemy territory was considered null ab initio. If the wife of the prisoner was not a captive along with him, the marriage was dissolved, so that their consent was necessary subsequently to re-establish it; but later this provision was altered by the lex Iulia and the lex Papia Poppaea. 5 The benefits of postliminium were not extended to deserters, as their act rendered them guilty of treason; to those who yielded to the enemy out of cowardice; to such as were delivered by the fetial proceedings of deditio and refused to be received again from the 1 Dig. xlix. 15. 19, pr.: "Postliminium est ius amissae rei recipiendae ab extraneo et in statum pristinum restituendae inter nos ac liberos populos regesque moribus legibus constitutum."-Cf. Cod. viii. 50; Just. Inst. i. 12. 5. 3 2 Dig. xlix. 15. 5. 1. 5 Dig. xlix. 15. 19. 4: "Transfugae nullum postliminium est; nam qui malo consilio et proditoris animo patriam reliquit, hostium numero habendus est." 8 Just. Inst. ii. 12. 5. 4 Dig. xlix. 15. 8. enemy (as in the case of Spurius Postumius, who was delivered to the Samnites, and C. Hostilius Mancinus, who was surrendered to Numantia,-the latter, however, having been restored to citizenship by a special lex); to those who preferred to reside with the enemy; or to individuals who had been taken abroad by the civil modes of conveyance.2 Apart from Roman citizens, the doctrine applied also to slaves, immovables, and certain movables, as, for example, trained horses, pack-mules, transport vessels (though not fishing-boats, or pleasure boats).3 Everything else could become, on capture, the permanent booty of the enemy,-" si quid bello captum est, in praeda est, non postliminio redit." In this category were included arms, of which, it was held, Roman soldiers could not, without dishonour, be dispossessed," non idem in armis iuris est, quippe nec sine flagitio amittuntur: arma enim postliminio reverti negatur, quod turpiter amittantur." 5 If a captive slave was ransomed from the enemy by a Roman citizen, his former master could recover him by reimbursing the ransomer. If one citizen recaptured property subject to the ius postliminii which had belonged to another Roman citizen, the Roman captor was considered to be the agent of the State, which, therefore, restored it to the previous owner. Sometimes postliminium in pace is spoken of in the Digest to distinguish it from the regular postliminium, namely, in bello. It was applied to the case of countries with which Rome was not at war, and, generally, to autonomous, independent States bound to Rome by a treaty.8 Dig. xlix. 15. 4: an qui hostibus deditus reversus nec a nobis receptus civis Romanus sit, inter Brutum et scaevolam varie tractatum est; et consequens est, ut civitatem non adipiscatur." 2 Dig. xlix. 15. 19. 7. 3 Dig. xlix. 15. 2. 20, §1; Cic. Top. viii. 36. 4 Dig. xlix. 15. 28, pr.-Cf. Liv. v. 16. 5 Dig. xlix. 15. 2. 7 Dig. xlix. 15. 5. 2. 6 Dig. xlix. 15. 12. 7. 8 Dig. xlix. 15. 9, pr. CHAPTER XXV WAR: PERSONS PROTECTED-RIGHT OF SANCTUARY TROPHIES-ESPIONAGE-NEUTRALIZATION AND NEUTRALITY warfare. AMONG the more important mitigations in the conduct Mitigations of of warfare and belligerent relationships, we find the protection of certain individuals, besides ambassadors and other diplomatic envoys (who have already been considered 1); the universal recognition of the right of sanctuary; the mild treatment of suppliants; the granting of safe-conducts; the establishment and observance of truces and armistices; the liberty freely accorded, even after the fiercest combat and merciless slaughter, to bury the dead and perform all due obsequies; the neutralization of certain places and objects; the insistence on the neutrality of States not fundamentally concerned in the disputes between others. functionaries. Priests and all other persons officiating in religious Protection of ceremonies and the common festivals were considered religious inviolable. Such protection was afforded even in the very earliest times; and infringements of this obligation were punished by the vengeance of the gods, and similarly condemned by men. Agamemnon, having committed an outrage on Chryses, the priest of Apollo at Chryse, was obliged to restore the latter's daughter, Chryseis, and to offer up an expiatory sacrifice,—for Apollo sent down a pestilence on the Grecian camp in retribution for the king's offence. Thus Odysseus, 1 See vol. i. pp. 328 seq. |