ON MODERATION WITH RESPECT TO THINGS EXCLUDED FROM THE RIGHT OF
POSTLIMINIUM BY THE LAW OF NATIONS.
Internal justice requires the restitution of things taken from others
by an enemy in unjust war--Deductions made--Subjects and countries,
if unjustly seized by an enemy, to be restored to their original
sovereign--The time, when the obligation to restore them expires,
defined--What is to be done in doubtful cases.
I. How far things taken in just war become the property of the captors
has been explained before. From which a deduction must be made of
things recoverable by the right postliminium, those being no captures
at all.
But things, taken in unjust war, are to be restored, not only by those,
who have taken them, but by others also into whose hands they may have
by any means fallen. For, as the Roman lawyers say, no one can convey
to another a greater right than he himself possesses. The original
captor had no just title to any property therein, neither can the
person, deriving his title through him, establish any better claim.--A
SECOND or THIRD possessor may have acquired a property therein, which
the law presumes he has a right to, till the contrary be shewn, and
for which an action may be maintained. Yet it is a right of which he
cannot honestly avail himself against the real owner, from whom it was
unjustly taken.
II. and III. Therefore such things are to be restored to those, from
whom they were taken, which we find in ancient times was often done.
Livy in relating the defeat of the Volscians and Aequi by a Roman
Consul, says that the booty was exposed in a public place, for the
space of three days, that every one, coming to recognise what belonged
to him, might take it away.[71]
But if any one has become possessed of such a thing by purchase, it
may be asked, if he can charge the person from whom it was originally
taken, with the price which he has paid for it? According to the
principles before[72] laid down, he certainly may charge as much to the
person losing it, as the repossession of a thing, which he despaired of
ever recovering, is worth.
The history of Abraham seems applicable to this subject, when he
returned from his victory over the five kings. Being a man of noble and
exalted piety, he would appropriate nothing to himself, but considering
the things retaken, as his own right, in recompence for his labour and
danger, he devoted a tenth part to God, after deducting the necessary
expences, and divided a certain portion among his companions.
IV. As THINGS are to be restored to their original owners, so SUBJECTS
are to be restored to their former lawful sovereigns.
V. The period also, when the obligation to restitution expires, is
often a subject of inquiry. But this is a question, when arising
between subjects of the same kingdom, which must be settled by the
municipal laws of that country: but when the contending parties are
the subjects of foreign powers, the matter can only be decided upon a
conjecture of the time sufficient to constitute a presumed dereliction
of property.
VI. But where the right of war is doubtful, it will be safest to follow
the conduct of Aratus of Sicyon, in advising the new possessors in some
measure to prefer taking a sum money in lieu of the possession, and
recommending the same maxim to the original owners, to prefer a sum of
money, if they could obtain it, equivalent to the recovery of their
right.