Front Page Titles (by Subject) CHAPTER X: Of the Obligation that arises from Property. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER X: Of the Obligation that arises from Property. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
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. 2.
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Of the Obligation that arises from Property.
I.The Obligation to return what is another’s to the Owner, from whence, and what Manner of Obligation it is. We are obliged to restore the Things we have by us, and to do what we can that the Owner may have them again.I. 1. Having declared what Right we have over Things or Persons, as much as serves to our Purpose, let us now see what Obligation to us does from thence arise. Now this Obligation arises either from1 Things now in Being (un-<273>der the Name of Things, I shall comprehend the Right we have over Persons too, so far as we can receive any Benefit from it) or from Things not in Being.
2. From Things now in Being this Obligation naturally arises,2 that he who has in his Hands what belongs to me, should endeavour all he can, to have it come into my Possession; all he can, I say, for he is not obliged to an3 Impossibility, nor to restore it at his own Charge; but he is obliged to signify it, that I may recover my own if I please. For as there was an Equality to be observed in that State, where all Things were common, that one as well as another might have the Liberty of using what was common; so as soon as ever Property was introduced, there was a Sort of mutual Engagement,4 tacitly agreed on among the Proprietors, that if one Man should get another Man’s Goods, he should be obliged to restore them to the Owner; for if the Power of Property reached no farther than to have a Thing restored upon demand, Property would have been too weakly secured, and the keeping of it too expensive.
3. Neither is it here considered, whether a Man has fairly or fraudulently come by a Thing; for an Obligation5 which arises from a Crime, is different from that which arises from the Thing itself. TheaLacedemonians had cleared themselves indeed of the Crime of breaking the Articles, by condemning Phaebidas, who, contrary to their Treaty with the Thebans, had seized the Fort of Cadmea; but they were6 charged with, and as much guilty of In justice in keeping the Place, notwithstanding all this, still in their Hands. And this, as it was a very singular Injustice, so was it punished by a very singular Providence of GOD, as7Xenophon has remarked. Thus Cicero8 blames M. Crassus, and Q. Hortensius, for holding<274> Part of an Estate by Vertue of a forged Will, tho’ the Will was made and drawn up without any Fault of theirs.
4. But because this Obligation, as by an universal Contract, binds all Men, and creates a certain Right to the Owner of the Thing; hence it is, that all particular Contracts, as being made afterwards, do from thence receive an Exception. And this gives us some Light into that Passage ofbTryphoninus, A Rogue deposites what he had stole from me, in Seius ’s Hands, who knew nothing of the Fellow’s Villany; now should Seius restore it to the Thief, or to me? If we respect the Giver and the Receiver only, it is but just to restore the Thing entrusted, to the Person who delivered it. But if we regard the Equity of the whole Affair, and the Quality of all the Persons interested in it, the Thing ought to be restored to me, from whom it was taken by a detectable Action. And then he very judiciously adds, And I agree that it is Justice to give every Man his own, yet in such a Manner as not to keep from any other Person what he has a juster Title to. Now he must needs have the juster Title, who claims by a Right as antient as Property itself, as we have just now shewn; whence it also follows, (which is in the same Tryphoninus) that he who ignorantly takes that from another in Trust, which he afterwards perceives is his own, is not obliged to restore it. And the Case which the same Author puts just before,9 concerning Things deposited by him, whose Goods are confiscated, is better determined by this Principle, than what he there mentions about the Usefulness of Punishments.
5. For it is nothing to the Essence of Property, whether it arises from the Law of Nations, or from the Civil Law; for it is always accompanied with its natural Effects, whereof this is one, that every Man who is possessed of another’s Goods, is bound to restore them to the right Owner. And this is whatcMartian means, when he says, that by the Right of Nations a Man may bring his Action at Law,10 and recover his Goods from the unjust Possessors of them. Hence comes that indUlpian, that he who finds what belongs to another, is in so particular a Manner obliged to restore it, that he ought not so much as to demand ἕυρετρον, any Thing for finding it. All the Profits of another’s Goods are likewise to be returned, with a Deduction only of reasonable Charges.
II.Where we have not the Things by us, or they are not in Being, we are obliged to restore what we have gained from them; this illustrated by several Examples.II. 1. Of Things not still remaining, or in Being, Mankind have thought fit, that if you have gained by what is mine; whilst I am forced to go without it, you are bound to refund as much as you have gained by it,1 because you have so much the more for what you had of mine, and I so much the less for want of my own;a whereas the very Design of Property was to preserve an Equality, that is,<275> that every Man might enjoy his own. It is against Nature, saysbCicero, for a Man to make an Advantage of another’s Loss. And in another Place, Nature cannot bear that we should raise our Fortunes; and our Wealth,2upon the Spoils and Ruin of other People.
2. There is so much Equity in this Maxim, that the Lawyers have made Use of it to decide many Cases on which the antient Laws had not prescribed any Thing;3 and they have always appealed to this Principle, as to a Rule whose Justice is of the greatest Certainty and Evidence. A Contract made by a Slave, who is employed as a Factor,c shall oblige his Master, unless he has before given publick Notice, that no Body should trust him. But if such publick Notice be given, and the Slave has any separate4 Interest in that Contract, or if it turns to his Master’s Advantage, such Notice shall be deemed a Fraud. For I think, says Proculus, that any Man who would gain by another’s Prejudice, acts fraudulently, where the Word Fraudulently implies, whatever is done contrary to natural Right and Equity. He, who by the Mother’s Order gives in5 Bail for the Son’s6 Defendant, can have no Action7 of Commission against the Defendant, because indeed he did not properly act for him, but only engaged himself on the Account of the Mother. But however,8 according to Papinian’s Judgment, an Action (an9 indirect one, if I am not mistaken) for Business done, shall lie against the Defendant, because it is with the Security’s Money that he is discharged.
So the Wife who gives her Husband Money, which she may by Law demand again, has a personal Action of Recovery against him, or a real indirect Action upon the Thing that was purchased10 with that Money: Because, says Ulpian, it cannot be denied, but that the Husband is the richer for it; and the Question is, what Goods he possesses which belong to his Wife.
So again, if you have spent11 any Money which my Slave has stolen from me, thinking it to be his own, I have a personal Action of Recovery against you, as having acquired the Possession of my Goods without a just Title. Minors are not, according to the Roman Laws, obliged to pay what they borrow; but yet if the Minor be the richer for it,12 an indirect Action shall lie against him.
Thus, if another Man’s Goods are pawned, and the Creditor sells them, the Debtor is discharged from the Creditor, to the Value of the Money received for<276> them; because, says Tryphoninus,13 be the Obligation what it will, since the Money raised was upon the Occasion of the Debt, and by Means of the Debtor, it is more equitable that it should advantage the Debtor, than be to the Profit of the Creditor; but the Debtor shall at the same Time be obliged to indemnify the Buyer, that he may not gain by another’s Loss. And if the14 Creditor has taken more Rents from the Possessor than the Interest of the Debt amounts to, he must allow them as received in Part of Payment of Principal.
So if you have dealt with my Debtor, not as he is indebted to me, but thinking him to be so to some other Person, and borrow15 my Money of him, you are obliged to pay me; not because I lent you any Money, (for this could not be done but by mutual Consent) but because my Money is in your Hands, it is but just and reasonable that you should restore it me.
3. Our modern Interpreters of Law and Right, do very judiciously extend these Decisions to other like Cases: As for Instance, when the Effects of a Person, who is cast by Default, but who might put in an Exception, are offered to sale, they say, he ought to be admitted to recover the Money his Goods were sold for; and when one lends a Father Money for the Maintenance of his Son, if the Father becomes insolvent, he may have an Action against the Son, provided that this Son is possessed of any Thing that was his Mother’s.
These two Rules being perfectly understood, there will be no Difficulty in answering such Questions as are often proposed, both by Lawyers and Casuists, in this Affair.
III.He who has honestly got what is another’s is not obliged to restore it, if it perish, or be lost.III. For in the first Place, it is plain from hence, that he who comes by a Thing honestly, (for he who comes by it otherwise is inditable, not only for the Thing it self, but punishable for his having it) is not obliged to make any Restitution, if1 the Thing be gone; because he neither enjoys the Substance, nor any Benefit by it.
IV.But he is obliged to restore the Fruits or Produce of it that remain or are in Being.IV. Secondly, That whoever has come honestly by a Thing, is obliged, however, to restore all the Produce of it that he has still remaining; the Produce, I mean, of the Thing; for as to the Produce of his own1 Labour and Industry, tho’ without that Thing there had never been that Produce, yet does it not any Ways belong to the Thing itself. The Reason of this Obligation arises from Property, for he who is the Owner of the Thing, is naturally the Owner of all its Produce.
V.Even those that are spent and wasted, unless it appears, that had he not had ’em by him he would have had no Occasion to have spent such Things. Suet. c. 16.V. Thirdly, Whoever has honestly got what is another’s, is obliged to give Satisfaction, not only for the Thing itself, but also for the Produce of it, tho’ that Produce1 be spent and gone, if it appear that he must otherwise have spent and<277> consumed as much of his own; because he is looked upon to be so much the richer for it. Thus is Caligula, in the Beginning of his Reign, highly commended,2 because to those to whom he restored their Crowns, he also restored the Revenues of them that were in Arrears.
VI.But not those which he neglected to take the Advantage of.VI. Fourthly, That he is not obliged to make good the Fruits, or Produce, which he neglected to take, because he has neither the Thing itself, nor any Thing else in its Room.
VII.That such a one is not obliged to make Restitution for what he has given away; this with a Distinction.VII. Fifthly, If such a Possessor shall give to another what was given him, he is not obliged to satisfy the Owner for it, unless it appear, that if he had not given that, he must have given as much some other Way; for then the sparing of his own Stock will be reckoned a Matter of Gain and Advantage to him.1
VIII.Nor if he only sells what he bought; this with a Distinction too.VIII. Sixthly, If he bought what he has sold, he is obliged to return no more than the Overplus of what he sold it for; but if what he sells1 was given him, he is obliged to restore what he gets for it, unless, perhaps, he has squandered away the Money, which otherwise he would not have been so lavish of.
IX.When he who fairly bought what is another’s, may claim all, or part of what it cost him.IX. 1. Seventhly, That another Man’s Goods, tho’ honestly paid for, are to be restored, nor can he demand a Reimbursement of his Charges:1 To which Rule I think it proper to add this Exception,2 unless where the Proprietor could not, in all Probability, have recovered the Possession of his own, without some Expence; as, suppose it was in the Hands of Thieves and Pyrates.3 For in this Case, what<278> the Owner would have gladly spent to have it again, may very fairly be deducted. Because the actual Possession, especially when not to be recovered without Difficulty, is capable of being rated at a certain Value, and the Proprietor, when reinstated in it, is judged to be on this Account proportionably the richer. And therefore, tho’ according to the ordinary Course of the Law, it signifies nothing to pretend to buy what is already our own,4 all such Bargains being entirely void; yet does Paulus affirm,5 that such a Purchase is binding, if it be first agreed upon, that we shall pay for the Possession of what another has of ours in his Hands. Nor do I think it at all material here, whether the Thing was bought6 with a Design to restore it to the Owner, in which Case some are of Opinion, there does an Action for Cost arise; but others deny it, since an Action for Business done results from the Civil Law, and has none of those Foundations7 upon which Nature builds an Obligation. Whereas our Inquiry here is after what is natural.
2. Not unlike this is what Ulpian writes,8 of Expences laid out upon a Funeral, that a prudent and equitable Judge does not observe there what is strictly performed, and what the Rigour of the Law would allow, but administers Justice with a greater Liberty, since the Nature of the Action9 will indulge him in it; and what he says in another Place, If a Man has done my Business, not so much with a View to serve me, as for his own Profit, and has been at some Charges about it, he shall have his Action10 against me, not for what he laid out, but for what Advantage I have made of it. Thus too, the Owners of such Goods11 as in a Storm are thrown over-board, to lighten the Ship, come in for a Share with them whose Effects were by that Means preserved: Because he who has saved what would otherwise have been lost, seems to be so much the richer for it,
X.If I buy what does not belong to him who sells it, I must not return it to him, but to the Owner.X. Eighthly, He who buys another Man’s Goods, cannot return them upon the Hands of the Seller, and demand his Money back, because as soon as ever those Goods came into his Power (as we have said already) there commenced in him, an Obligation to restore them to the Owner.1
XI.If I have got a Thing in my Hands, and do not know the Owner, I am not obliged to part with it to any Body.XI. Ninthly, Thus he who has got a Thing, and knows not the Owner of it, is not obliged by the Law of Nature to give it to the Poor,1 tho’ this would be a very commendable Action, and what is a Custom in many Places very wisely established. The Reason is, because by the Laws of Property, none but the Proprietor can claim a Right. And to the Party here concerned, the not appearing of any Owner is the same as if there really were none.
XII.If I take a Fee upon a dishonest Account, or for doing a Service that I am obliged to, I am not by the Law of Nature bound to restore it.XII. Lastly, That by the Law of Nature, whatever is taken either upon a dishonest Account,1 or for an honest Piece of Service, which, however, he was of himself obliged to do, is not to be restored, tho’ such a Restitution is what some<279> Laws have very justly enacted. The Reason is, because no Body is bound to part with any Thing, unless it belongs to some other; but here the Property is entirely transferred, by the voluntary Act of the former Owner.2 The Case indeed will be otherwise, if there be any Vice in the Manner of taking it; as for Instance, if we extorted it by Threats, or by Violence: For this is another Principle of Obligation, not to our Purposea now.
XIII.The Opinion, that the Property of Things which consist of Weight, Number, or Measure, may pass without the Consent of the Owner, refuted.XIII. Let us also add, that Medina is mistaken when he asserts, that the Property of other People’s Goods may pass to us without the Owner’s Consent, provided they are such Things as are usually valued by Weight, Number, and Measure. Because, tho’ Things of this Nature admit of an Equivalent; that is, may be returned by something of the same Kind; yet, even in this Case, Consent must be first had; or there must, by Vertue of some Law or Custom, be Room to believe that there has been such a Consent, as in what we borrow; or when a Thing is spent and consumed, and so can not be actually produced. But without such a Consent, either expressed or presumed, and excepting the Case of Impossibility, just mentioned, such Equivalents are not to be allowed of.1
[1 ]On all this consult Pufendorf, B. IV. Chap XIII. where he only explains, supplies, or corrects what our Author advances in this Chapter. I go still farther than he, in my Notes on the second Edition; where I resolve all the Questions here handled, by a Principle more simple, and, in my Opinion, much better grounded.
[2. ]Among the positive Commands of the Law given to the Hebrews, there is one that enjoins the restoring a Thing found to its Owner. It is in the seventy-fourth commanding Precept. This is founded as well upon a natural Equity, as upon a Passage in Deuteronomy xxii. 1. St. Chrysostom, 1 Cor. v. 8. Ταν̂τα δε καὶ οἱ τω̂ν ἔξωθεν, &c. Even human Laws allow us to seize on our own where ever we find it, without pursuing the Thief or Robber. St. Jerome upon Leviticus, Many People think there is no Harm in keeping what they have found, tho’ it belongs to some Body else, and cry, GOD gave it me, and to whom must I restore it? But let them understand, that it is a Crime very much like Theft, not to return what one has found. St. Austin, in his eighteenth Sermon upon the Apostle’s Words, If you have found any Thing, and not restored it, you have stole it. And a little afterwards, Whoever restores not what he has got of another Body’s, would, if he had an Opportunity, rob him too.Gratian has put both these Passages together, in Caus. XIV. Quest. V. Grotius.
[3. ]That is, if he knows not the Master, or does not find Means to let him know he has his Goods, or convey them to him; the Obligation is then suspended.
[4. ]There is no Necessity of supposing an Agreement in this Case. See my first Note on Pufendorf, B. IV. Chap. XIII. § 3.
[5. ]He who is in Possession of another Man’s Goods, is obliged to restore them, purely because they are another Man’s Goods. But he who has taken them, or retains them, knowing them to be such, renders himself, moreover, subject to Punishment.
[a ]Plut. in Pelop.
[6. ]So thinks Diodorus, Lib. XV. Plutarch, in his Life of Agesilaus, Τὴν πόλιν ἔπεισεν, &c. He persuaded the City to take upon them the Injustice, and so to detain Cadmea for themselves. You have such another Action of Bajazet, in Regard to Nicopolis, mentioned by Leunclavius, Lib. VI. Grotius.
[7. ]He says they were punished by the very Persons on whom they had practised this Perfidy. Hist. Graec. Lib. V. Cap. IV. § 1. Edit. Oxon.
[8. ]Certain Persons brought a forged Will, attributed to L. Minutius, a Man of a good Estate, from Greece to Rome. To make it pass more easily, they put down M. Crassus, and Q. Hortensius, Coheirs with themselves, two very considerable Persons, of the same Age; who suspecting the Forgery, but being conscious of no Fault committed by themselves, did not refuse the Advantage arising from the Crimes of others. But is this sufficient for clearing them from the Imputation of Guilt? I think not. De Offic. Lib. III. Cap. XVIII. Here our Author seems to me to suppose that M. Crassus and Q. Hortensius at first believed the Will to be genuine, and that having afterwards suspected it to be forged, they however took the Advantage of it, under Pretence they had no Hand in the Forgery. Thus the Example may make to the Purpose; as it shews it is not sufficient to have at first acquired the Possession of another Man’s Goods, bonâ fide, as these two Romans had done, by acting as Heirs to what they believed fell to them by Vertue of the Will; but that as they ought to have left it to the lawful Heirs, as soon as they perceived the Cheat; so every Possessor, bonâ fide, ought to restore what he has in his Hands, as soon as he knows the true Proprietor. So that our Author may thus be screened from the Criticism of Pufendorf, in the Chapter quoted, answering to this, § 4.
[b ]L. Bona fides. D. Deposit.
[9. ]See what I have said on Pufendorf, ibid.
[c ]L. rerum, D. de act. rer. amot.
[10. ]Condictio. This relates to the Subtilties of the Roman Bar: See the Dispute on this Law in Question, between Anthony Faure, De Errorib. Pragmatic. Decad. LXXVIII. Err. IV. and Reinh. Bachovius, Chiliad. Errorum, or Exercitation. p. 53, 54.
[d ]L. Falsus. D. de furtis.
[1 ]In my Notes on Pufendorf, B. IV. Chap. XIII. § 3. 6. &c. I have examined our Author’s Principles concerning this whole Matter; and shewn by Reasons, which tho’ new, I think sufficiently solid, that the Possessor, bonâ fide, has as such, and while he remains such, the same Right as the unknown Proprietor. Hence arise Decisions widely different from these of our Author, in Regard to the Obligations of such a Possessor. Mr. Thomasius, who in the main is of the same Opinion with Grotius and Pufendorf, owns in his Notes on Huber, De Jure Civit. p. 535. That, when the Question is whether a Possessor, bonâ fide, is enriched by the Possession of the Thing itself, or by the Enjoyment of the Profits arising from it, it is an Enquiry subject to infinite Difficulties, and which it is almost impossible to satisfy.
[a ]Cajet. ad Th. 2. 2. 62. Art. 6. L. Hem veniunt. D. de petit. Hered.
[b ]De Off. 3. L. Jure Naturae. D. reg. Juris, & ibi Inter.
[2. ]Cassiodore, XI. 16. We now-a-Days confess that it is something very shocking, for one to be inriched by another’s Misfortune.
[3. ]But, not to extend it too far, it must be considered whether he who makes Profit at the Expence of another Man, had no Right to make such Profit. For if he had, it is evident it is so much the better for him, and so much the worse for the other.
[c ]L. Si quis mancipiis. D. de Instit. act.
[4. ]See Note 2. on Pufendorf, B. VI. Chap. II. § 8.
[5. ]He who of his own Head thus undertook the Defence of absent Persons, was obliged to give Security for the Payment of all Costs if he was cast. See Instit. Lib. IV. Tit. XI. De Satisdationibus, §5.
[6. ]See Digest. Lib. III. Tit. III. De Procuratoribus & Defensoribus.
[7. ]On Account of the Velleian senatus consultum, according to which a Woman could not enter into an Obligation for another, either mediately or immediately.
[8. ]See Cujas in Papinian. Quaest. Tom. IV. Opp. p. 209. &c. and Anthony Faure, Rational. Tom. IV. p. 326, 327.
[9. ]Actio utilis; an indirect Action. This is when the Case, for which an Action is granted in a Court of Judicature, not being included in the Sense of the Law, is deduced from it by a favourable Interpretation, suitable to the Rules of Equity, and consequently in an indirect Manner. Thus the Lawyers call the opposite Action direct, as arising from the Terms and strict Sense of the Law. See Institut. Lib. IV. Tit. III. De Lege Aquelia, § 16.
[10. ]He proposes a Case, where the Husband is insolvent, after a Divorce, so that the Wife, who would take Advantage of the Law, for revoking the Donation against the Prohibitions, cannot recover what she has given, but by taking Satisfaction one Way or other on the Thing bought with her Money. See Cujas on this Law, Recit. in Paul. Quaest. Tom. V. Opp. p. 1088, 1089. and Anthony Faure, Conject. Jur. Civil. Lib. V. Cap. IX. as also De Erroribus Pragmaticorum. Decad. LXXXI. Err. X. with the Criticism of Bachovius, in his Chilias Errorum, &c. on this Place.
[11. ]According to which it is to be said, that if you should take away and spend the Money which that Slave had stolen from me, not knowing it to be stolen, but supposing it Part of the Peculium of such a Slave; I am allowed a personal Action against you on that Score, as having taken Possession of my Goods without a just Title. The Question here turns on a Slave which the former Master had sold with his peculium, and from whom the new Master, making Use of his Right, had afterwards taken the stolen Money, which he, bonâ fide, believed to be Part of the peculium acquired with the Slave. See on this Law Cujas, in African. Tom. I. p. 1518. and Anthony Faure, Rational. Tom. V. p. 512.
[12. ]See what I have said in my Treatise of Play, B. II. Chap. IV. § 21.
[13. ]Dig. Lib. XX. Tit. V. De distractione pignorum, &c. Leg. XII. § 1.
[14. ]This Reason doth not fall on what immediately goes before, but on the first Part of the Period. For the Question is not here about a Creditor, who, for the Interest of Money lent, receives the Rent of an Estate which the Debtor possessed, bonâ fide, as his own; as the learned Gronovius explains it. The Lawyer is speaking of a Creditor, who having lost the Possession of the Estate engaged, which proves not to be the Property of the Debtor, demands it, and recovers it by Law, together with the Rents which the Possessor had received from it. So that our Author might have omitted this additional Reason, which is nothing to the principal Subject, for which he alledges the Decision in the preceding Note; or at least he ought not to have imitated the Inaccuracy of the Lawyer Tryphoninus, who has obscured the Sense, by placing his Thoughts in bad order. See Digest. Lib. XX. Tit. I. De Pignorib. & Hypothecis. Leg. XXI. § ult.
[15. ]That is, in Case the Creditor has given that Debtor Orders to lend it to a Third. See Digest. Lib. XII. Tit. I. De rebus creditis, &c. Leg. XXXII.
[1 ]Indeed, when the Question turns on a Thing bought, or acquired with any other burthensome Title, the Possessor, bonâ fide, will be so far from gaining, that he will lose by it; because the Profits he may have received will not commonly equal the Value of the Thing itself. But if he has received the Thing as a Present, and been in Possession of it some Time; he may be reckoned richer, in Regard of the Income, which he has enjoyed during that Time. So that this Distinction ought to be made, according to our Author’s Principles; but, pursuant to mine, it is as unnecessary as subject to perplexing Discussions.
[1 ]According to the Roman Law, the Decisions of which are grounded on Principles the same with those of our Author, a Possessor, bonâ fide, lawfully appropriates to himself both the Profits arising from his own Industry, and such as are purely natural. This is agreeable to what I have laid down in my Notes on the Chapter of Pufendorf, already quoted.
[1 ]He is not obliged to it; because, as Possessor, bonâ fide, he had, during that Time, the same Right as the real Proprietor; as the very End and Practice of Property require. See the Notes on Pufendorf, who on this Occasion adds the following Restriction: Unless the Possessor, bonâ fide, cannot indemnify himself by a Remedy against him of whom he holds the Thing.
[2. ]Caligula made this Restitution either out of Caprice, or vain Ostentation, or for some other Reason of the same Kind. For after he had reinstated Antiochus, the Person here mentioned by the Historian, in the Possession of that Part of Syria, called Comagena, which Tiberius had reduced into the Form of a Province, he took it away again from Antiochus. See Spanheim’s Orbis Romanus, p. 361. And the Acquisition was originally not more lawful than most of the Roman Conquests. So that the Question here is not concerning a Possessor, bonâ fide.
[1 ]But that which he has disposed of, equally belonged to him, when he gave it away.
[1 ]He is not obliged to restore either the Overplus in the first Case, or the full Price of what the Thing was sold for in the second; for the Reason already often alledged. Besides, our Author had in his Margin quoted a Law of the Digest, which decides that if the true Master of a Thing stolen, knowing the Thief has sold it, takes from him by Force the Money he received for it, he in his turn is guilty of Theft; because the Money produced by the Sale of a Thing is not the Thing it self, and therefore the Master of such a Thing cannot look on the Money as his own. Lib. XLVII. Tit. II. De Furtis, Leg. XLVIII. § 7. The Design of this Quotation is probably to shew that according to the Roman Lawyers, the Money, which the Possessor, bonâ fide, has got for another Man’s Goods, which he has sold, is not the Thing it self, and therefore he is not obliged to restore it. For Want of observing this, Pufendorf seems to censure our Author, in the Chapter so often quoted, § 11. Note 3. as if he intended to insinuate what is entirely contrary to his own Principles; as is evident from B. II. Chap. VII. § 2.
[1 ]Yes, if he can have his Remedy against the Seller; but not otherwise, if we were to judge of the Matter by the Law of Nature alone. See Note 1. on § 13. of the Chapter in Pufendorf, so often referred to.
[2. ]In Terence’s Self-Tormentor, Act. IV. Scen. IV. ver. 42, &c.
But for the Money I told you, your Daughter owes to Bacchis, that must be paid down upon the Nail. Neither will you, I presume, shift it off by saying, What is it to me? Did she lend me the Money? Was it done by my Orders? What had she to do to pawn my Daughter without my Consent? As for that, Chremes, the old Saying is true, You may have much Law on your Side, and but little Equity. Where also see Eugrafius. This Piece of Justice is approved too by the Rabbies, and by the Wisigoths, Lib. I. Tit. IX. Cap. IX. and Cap. XV. Alc. III. Praes. XXIX. Menoch. V. Praes. XXIX. Num. 26. Strach. Part. II. Num. 18. Grotius.
[3. ]But if the honest Possessor has been at no Charge, if he has only paid what the Thing was worth; how is he entitled to profit by what the Proprietor would have been obliged to give for the Recovery of his Goods? If the Proprietor is become more rich by the Bargain, so much the better for him; the Possessor is not thereby more poor. Thus we see how disadvantageous the Condition of an honest Possessor would be, in Comparison of that of the Proprietor. And I will venture to say, that the Maxim under Consideration, how generally soever it may be received by the Lawyers and Moralists, will appear most shocking to Reason, if well considered; and that it will be sufficient to make one suspect the common Principles are not supported by solid Foundations. Accordingly we find that the Customs of several Nations form Exceptions to the Maxim of the Roman Law in several Cases; as in Regard to Things bought in a Fair established by publick Authority: Things pawned in the Hands of the Lombards: Old Cloaths bought of a Broker, &c. For if it appears that such Things are another Man’s Property, the honest Possessor is not obliged to restore them to the true Master, but on receiving what they cost him. This our Author himself shews in his Introduction to the Law of Holland, written in Flemish, Lib. II. Part III. Num. 13. As doth also Zypaeus, Not. Jur. Belgic. Tit. De rei vindic. verbo Jure Dominus; as Huber observes, Praelect. in Pandect. Tit. De adquir. rerum Dominio, Num. 2. See likewise Voet. in Tit. De rei vindic. Num. 1.
[4. ]Digest. Lib. XVIII. Tit. I. De contrahendâ emptione, Leg. XVI.
[5. ]Ibid. Leg. XXXIV. § 4.
[6. ]Spec. Saxon. I. 37. Landrecht, Tit. XV. Grotius.
[7. ]It is grounded on a most evident Maxim of natural Equity; viz. That he that doth another Service ought not to sustain any Damage from it. Now this would be the Case, if we refused to reimburse the Expences which a Man has made for our Use, at a Time when we could not attend our own Affairs. The Good of Society, and the Interest of each Member of it, require also that if during a Person’s Absence, some Business of his is to be done, for which he has left no Orders, either general or particular, some Person should take Care of his Affairs. This the Roman Lawyers call a received Practice, (receptum) and add that, No one would undertake this, was he not to be allowed an Action for his Expences. Institut. Lib. III. Tit. XXVII. De obligatione, quasi ex contractu, § 1. So that unless he who has taken Care of the Affairs of a Person absent, did not plainly declare he designed to charge himself with them out of pure Liberality, and place the necessary Expences to his own Account, he is and ought to be supposed not to have given his Trouble for nothing.
[8. ]Digest. Lib. XI. Tit. VI. De religiosis, & sumptibus funerum, &c. Leg. XIV. § 13.
[9. ]This is said on Occasion of a Person, who being charged by the Will of the Deceased to bury him, acquits himself of his Commission, nothwithstanding the Prohibitions of the Heir; and thus cannot have an Action against him, as for doing Business. But even according to the Maxims of the Roman Law, He who is at the Expences of a Funeral, is supposed to contract with the Deceased, and not with his Heirs. Ibid. Leg. I. So that the Debt is attached to the Goods left by the Deceased.
[10. ]Digest. Lib. III. Tit. V. De negotiis gestis. Leg. VI. § 3.
[11. ]Digest. Lib. XIV. Tit. II. De lege Rhodiâ, &c. Leg. I.
[1 ]True; but, as he is not obliged to lose his Money, according to my Principles, it is sufficient that he gives the right Owner Notice, and as far as in him lies, furnishes him with Means for recovering his Goods.
[1 ]St. Chrysostom, in the Place just mentioned. (§ 1. Note 2.) Grotius.
[1 ]See what I have said at large on Pufendorf, B. III. Chap. VII. § 6. Note 2. of the second Edition.
[2. ]St. Austin, in his fifty-fourth Epistle, makes a very excellent Distinction in this Affair. Grotius.
[a ]See § 9. of the following Chapter, and Chap. XII. § 9, 10, 11.
[1 ]That is, if such Things fall into any one’s Hands, and he has not consumed or expended them, he is not less obliged to restore them in Specie to their right Owner, than other Sorts of Things which in their own Nature do not admit of an Equivalent.