Front Page Titles (by Subject) CHAPTER XVI: Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XVI: Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy.
I.That internal Justice requires that what is taken away by an Enemy in an unjust War, be restored.I. 1. How far Things taken in a just War may be the Captors, I have declareda above, from which are to be deducted, what are recoverable by the Right of Postliminy; for these are to be esteemed as not taken. But Things taken in an unjust War, I have alreadyb said, are to be restored, not only by the immediate Captors, but by others also, who shall happen to be possessed of them on any Account. For no Body can make over to another more Right than he has himself, say the1Roman Lawyers; which Seneca briefly explains,2No Man can give what he has not to give. If the first Captor did not become lawful Proprietor of them, according to the Rules of true Justice, then he cannot possibly be so, who derives all the Title he can have from him. Therefore the Right of Property which the second or third Possessor may have, is what we call external, that is, he is entitled to Defence by all judiciary Power and Authority, as if he were the right Owner; yet if he makes Use of this Right against him from whom the Things were unjustly taken, he acts dishonestly.
2. For what some eminent Lawyers3 have decided concerning a Slave, who being taken by Robbers, afterwards fell into the Hands of the Enemy, that he was to be considered as a Thing stolen, though he had been Slave to the Enemy, and returned by Right of Postliminy. The same may be an-<677>swered from the Law of Nature, concerning him, who being taken in an unjust War, and afterwards, by a just War, or some other Accident, comes into the Power of another. For by internal Right, there is no Difference between an unjust War and downright Robbery. And Gregorius Neo-Caesariensis, being consulted, made a correspondent Answer, when some of the Inhabitants of Pontus4 had recovered some Goods taken away by the Barbarians.
II.Examples.II. 1. Therefore Things so taken, ought to be restored to them from whom they were taken, which we see frequently done.1Livy, relating how the Volsci and Aequi were overcome by L. Lucretius Tricipitinus, says, That the Spoil was exposed for three Days in the Field of Mars, that every one might have that Time to come and acknowledge his own, and freely take it away. And the same Author in another Place, speaking of the Volsci, defeated by Posthumius the Dictator, says,2Part of the Spoil was restored to the Latins and Hernici, upon their owning of it, of another Part he made Portsale. And again,3Two Days were allowed to the Owners to come and claim their Goods. And the same Author, speaking of the Samnites’s Victory over the Campanians, tells us,4It was a most joyful one to the Conquerors, for they had retaken 7400 Prisoners; a vast Booty for their Confederates; and the Owners were summoned by Proclamation, to own and take their Goods by a certain Day. And a little further he gives us the like Account of the Romans.5The Samnites endeavouring to take Interamna, a Colony of the Romans, but not able to hold it, they plundered the Country, and carrying off a great Number of Men, Cattle, and other Things, they accidentally fell into the Hands of the Roman Consul, returning Conqueror from Luceria; nor did they lose only their Booty, but, being encumbered with their heavy Baggage, were themselves routed and slain. The Consul, by Proclamation, summoning the Owners to come to Interamna, to fetch their Goods, leaving his Army there, went to Rome, on the Account of chusing Officers. The same Author also, in another Place, speaking of the Booty which Cornelius Scipio had taken at Ilipa, a City of Portugal, says thus,6It was all exposed to View before the City, and Leave given to the Owners to take their own, the Rest was delivered to the Quaestor to be sold, and the Money arising from thence distributed to the Soldiers.7After the Battle of T. Gracchus at Beneventum, the whole Prey, except the Prisoners, and what Cattle were not owned within thirty Days, were given to the Soldiers: As we read in the same Livy.
2. Polybius writes of L. Aemilius, when he had conquered the Gauls,8He restored the Spoils to those that came for them.9Plutarch and Appian relate, that Scipio did the same, when at the taking of Carthage, he found there many Things consecrated to the Gods, which the Carthaginians had brought thither from the Cities of Sicily, and elsewhere, (viz. restored them to their first Owners). And so does Cicero, in his Oration against Verres, concerning the Jurisdiction of Sicily,10The Carthaginians had formerly taken the City of Himera, that had been one of the stateliest and richest of Sicily; Scipio looking upon it as an Act worthy of the Roman People, when the War was ended by the taking of Carthage, took Care that their proper Goods should be restored to all the Sicilians. And the same Author does largely speak of the same Act of Scipio, in his Oration against Verres, concerning Statues.<678> Thus the Rhodians restored four Ships to the Athenians, which they had recovered from the Macedonians, that had formerly taken them from the Athenians. So Phaneas the Aetolian (as Livy11 says) thought it equitable, that all that had belonged to the Aetolians before the War, should be restored to them. Neither did T. Quinctius deny it, if the Demand had been only of Cities taken in War; and if the Aetolians had not broke the Conditions of the Alliance. Nay, even those Goods which had been consecrated at Ephesus, and which the Kings had afterwards made their own, the Romans12 restored to their former State.
III.Whether any Thing may be deducted.III. 1. But if such Things should come to one in Way of Trade, may he not charge him, from whom they had been taken, with as much as they cost him? He may, as we have alreadya said, in Equity, so far as the Recovery of the Possession of those desperate Things,1 might probably cost him, from whom they were taken. If then those Charges may be demanded of him,2 why may not also our Pains and Hazard be valued, as if a Person should recover another Man’s Goods out of the Sea, by Diving? Apposite to this is the Story of Abraham’s returning Conqueror of the five Kings to Sodom: Moses says, He brought back all those Things, (viz. that they had taken away), as related before, Gen. xiv. 16.
2. Neither can the Offer made by the King of Sodom, Ver. 20, 21, 22, 23, 24. to restore to him the Prisoners, and to keep the Rest himself, as the Reward of his Pains and Hazard, be otherwise applied. But Abraham3 being a Man not only of a pious<679> Mind, but also of a heroick Spirit, would take nothing to himself; but of the Booty, (for, as we said before, that is what is meant4 ) as being his due, he gave the tenth unto GOD; he deducted the necessary Expences of that Expedition, and some Part he desired to be given to his Confederates.
IV.The People, or Part of them, to be restored, if unjustly possessed.IV. As Things (taken in an unjust War) are to be restored to their proper Owner,1 so a People, or Part of them, are to be returned to their lawful Sovereigns, or even to themselves, if they were free before this unjust Conquest. Thus was Sutrium retaken, and restored to its Allies in the Time of Camillus, as Livy informs us. The Lacedemonians restored the Aeginetae and Melii2 to their Cities. And the Cities of Greece, which had been oppressed by the Macedonians, were set at Liberty by Flaminius; who, in the Conference with3Antiochus’s Embassadors, told them, it is equitable that all the Cities of Asia, which were of Greek Original, should be restored to their Liberty, which Seleucus, the Great-Grandfather of Antiochus, had taken by Force, and afterwards being lost, had been reconquered by this Antiochus: For, says he, those Colonies were not sent into Aeolia and Ionia to be subjected to the Kings of Asia, but to preserve a Nation so antient as that of Greece, and to propagate it throughout the World.
V.In what Time the Obligation of Restitution ceaseth.V. It has been sometimes disputed, how long a Time is allowed, before this internal Obligation to Restitution may cease? But this Question, if it be between Subjects1 of the same State, is best decided by their own Laws, provided those Laws give a true Right, that sets the Conscience at Rest, and not an external Right only; which may be collected by a prudent Searching into the Words and Meaning of those Laws. But if it be between Strangers each to other, it can be decided only by just Presumptions of a tacit Dereliction; of which we have spoken enough ina another Place to our Purpose.
VI.What is to be done in a dubious Case.VI. But if the Justice of the War be very doubtful, it will be best to follow the Advice of Aratus the1Sicyonian; who in part persuaded the new Possessors2 to accept of Money in lieu of them; and in part advised the first Owners rather to accept of the Value of their Lands, than run the Hazard of recovering them.<680>
[a ]Chap. 13. of this Book.
[b ]Ch. 10. § 3, &c.
[1 ]Traditio nihil amplius transferre debet, vel potest, ad eum, qui accipit, quam est apud eum, qui tradit. Digest, Lib. XLI. Tit. I. De adquir. rer. domin. Leg. XX. princip. See also, Lib. IX. Tit. IV. De noxalibus actionib. Leg. XXVII. § 1.
[2. ]Quoniam nemo potest, quod non habet, dare. De Benefic. Lib. V. Cap. XII.
[3. ]The Law is cited above, Chap. IX. of this Book, § 16. Note 3.
[4. ]4 He is followed in this by Pet. Ant. De Petra, De Potestate Principis, Cap. III. Quaest. IV. Bruninguis, De Homagiis, Conclus. CCXLI. Grotius.
[1 ]Et auget gloriam, &c. Lib. III. Cap. X. Num. 1.
[2. ]Praedae pars, sua cognoscentibus, &c. (Lib. IV. Cap. XXIX Num. 4.)
[3. ]Biduum ad recognoscendas res datum dominis. [Lib. V. Cap. XVI. Num. 7. where he relates the Defeat of the Tarquinians.]
[4. ]Et quod laetissimum, &c.Livy, Lib. X. Cap. XX. Num. 15.
[5. ]Altero exercitu Samnites, &c. Idem. ibid. Cap. XXXVI. Num. 16. & seq.
[6. ]Pugnatum haud procul Ilipa, &c. Idem. Lib. XXXV. Cap. I. Num. 11.
[7. ]Praeda omnis praeterquam, &c. Idem. Lib. XXIV. Cap. XVI. Num. 5.
[8. ]Lib. II. (Cap. XXXI.) Grotius.
[9. ]Also Diodorus Siculus, Excerpt. Peiresc. and Valerius Maximus, B. I. Chap. I. Num. 6. Also the Humanity of the last Scipio Africanus, was eminently famous; for when he had taken Carthage, he sent about to all the free Cities of Sicily, that they should, by their Embassadors, fetch back all the Ornaments of their Temples, which the Carthaginians had taken away, and to take Care that they were set up again in their former Places.Grotius.
[10. ]Etenim ut simul P. Africani, &c. Lib. II. Cap. XXXV.
[11. ]Phaneas & pro societate belli, &c.Livy, Lib. XXXIII. (Cap. XIII. Num. 9. & seq.) Pompey restored Paphlagonia to Attalus and Pylamenes.Eutropius, Breviar. Lib. VI. Cap. XI. By the Treaty of Alliance between the Pope, the Emperor Charles V. and the Republick of Venice, against Solyman it was agreed that each should recover what they had been dispossessed of, as we find in Paruta’s History, Lib. VIII. and, in Vertue of that Clause, the Island of Cephalenia, which had been taken by the Spaniards, was restored to the Venetians. There is also a Passage in Anna Comnena to the same Effect, in that Part of her History which treats of Godofroy, Lib. XI. Cap. VI. Grotius.
[12. ]Strabo, Geogr. Lib. XIV. p. 642. Edit. Paris.
[a ]B. ii. ch. 10. §9.
[1 ]But see what is said in the Place referred to in the Margin, Note 3. The Truth is, that it is proper to distinguish here, whether a Thing taken in an unjust War were honestly bought or not; that is to say, whether the Buyer did or did not know, that the Thing fell into the Seller’s Hands, or the Hands of those from whom he had it by such a Title. If the Buyer knew that it did, he possesses it dishonestly, and, in consequence, ought to make a simple and absolute Restitution. If he did not know it, and there was no Reason to suspect it, he has all the Rights of an honest Possessor, and consequently he is not bound to restore, what he believed, and had Reason to believe, was lawfully acquired, without receiving all he had given for it of his own; according to the Principles which I have laid down in the Chapter here referred to, and in that of Pufendorf, where the same Subject is treated. So that the Whole depends upon knowing, whether, in Case the Buyer was not ignorant that what he bought was taken in a War, he believed, or had Reason to suspect, that the War was unjust.
[2. ]Our Author here proceeds imperceptibly to the Application of the Question he treats of, to the Things which the Enemy, from whom they were taken, had himself acquired by Arms in an unjust War. And here it is certain, that tho’ in taking such Things from the Enemy, they are known to be the Property of another, that does not lessen our Right to demand a Reimbursement from the antient Proprietor of what it cost us to get Possession of his Effects; that is to say, not only of the Expences of the Expedition, but also the Pains taken, and Dangers incurred, to which we were not obliged to expose ourselves, for the Recovery of another’s Goods. But farther, if the Person to whom the Effects belonged, having Opportunity and Means to endeavour their Recovery, remained idle, he is deemed to abandon them, and, in Consequence, the other, who has taken them from the unjust Possessor, then acquires them fully and absolutely. See what I have said above, Chap. VI. of this Book, § 1. Note 2.
[3. ]This is what the Rabbi Jacchiades remarks, in his Commentary upon Daniel, Chap. V. ver. 17. Sulpicius Severus says, that the Patriarch, after having given the tenth Part of the Booty to Melchisedek, restored the Rest to those from whom it had been taken. Eidemque (Melchisedek) decimas praedae dedit. Reliqua his quibus erepta erant, reddidit. (Hist. Sacra, Lib. I. Cap. VI. Num. 6.) St. Ambrose, speaking of the same Thing, says, that Abraham was rewarded by GOD, because he would receive no Recompence from Men. Ideoque quoniam sibi mercedem, ab homine non quaesivit, a DEO accepit. De Abrah. Patriarch. Lib. I. (Cap. III.) With this Action of Abraham may be compared something like it done by Pittacus, one of the seven Sages. He refused half of the Lands which the Mitylenians offered him, after they had recovered them under his Conduct. He believed, as Valerius Maximus says, that the Greatness of the Spoil, should he accept it, would lessen the Glory of his Exploits. Atque etiam quum recuperati agri—deforme judicans, virtutis gloriam magnitudine praedae minuere. Lib. VI. Cap. I. Num. 1. extern.Plutarch, speaking of Timoleon, [who accepted a magnificent House and a fine Estate] observes, that it is not dishonourable indeed to receive in the like Case, but that it is more glorious to refuse such Offers, and argues the highest Degree of an eminent Virtue, which can deny itself those Things which it is lawful to desire. In Vit. Timoleont. (in fin. p. 277. B. Vol. I. Edit. Wechel.) See what we have said above, B. II. Chap. XIV. § 6. and Chap. IV. of this Book, § 2. Grotius.
[4. ]Not that the whole Booty consisted in this, there were also, no Doubt, Things amongst it that belonged to the five Kings.
[1 ]The banished Saguntines were re-established by the Romans, after six Years Absence. [See Livy, Lib. XXVIII. Cap. XXXIX.] The Emperor Marcus Antoninus restored those to Liberty, who had been made Slaves during the War with Avidius Cassius; and caused also their Effects to be returned to the antient Proprietors. [Capitolinus, in Marc. Anton. Cap. XXV.] The King of Castile, and other Princes, restored Calatrava to the Knights of that Order, whom the Moors had deprived them of it, as Mariana relates, in his History of Spain, Lib. XI. (Cap. XXV.) See what has been said above, Chap. X. of this last Book, § 6. Grotius.
[2. ]It was Lysander who commanded their Army at that Time. Hist. Graec. Lib. II. Cap. II. Num. 5. Edit. Oxon.
[3. ]Si sibi Antiochus pulchrum esse, &c.Livy, Lib. XXXIV. Cap. LVIII. Num. 10. & seq.
[1 ]That is to say, when a Thing taken from one Subject of a State, in an unjust War, on the Side of the Enemy who takes the Booty, is fallen into the Hands of another Subject of the same State.
[a ]B. ii. ch. 4.
[1 ]Cum quibus caussas cognovit, &c.Cicero, De Offic. Lib. II. Cap. XXIII. King Ferdinand did the same in Spain, as Mariana relates, Lib. XXIX. Cap. XIV. Grotius.
[2. ]This is the Conduct an Arbitrator, rather than a Judge, should observe, who, in this Case, is indispensibly obliged to leave Things in the State they are, supposing there be no civil Law to direct his Judgment and Award. But, as the Laws themselves do not always regulate Things, so as to satisfy the Consciences of those who follow their Direction, the principal Question here is to know, what each ought then to do of their own free Will, and without Regard to any other Rules than those of natural Equity. Now when it is supposed, as our Author does, that the Justice of the War is very doubtful, there being no more Reason to regard the Acts of Hostility, as just or unjust, on one Side than the other, Reason requires that they be considered indifferently as just on both Sides, with Regard to the Effects of the Acquisition of Things taken. The Possessor then, as in all other doubtful Cases, has the best Right, and, consequently, those who hold any Thing from him, with a Title lawful in other Respects, may consider themselves as having lawfully acquired it.