The illustrious Hugo Grotius Of the law of warre and peace with annotations, III parts, and memorials of the author's life and death.

LV. Restitution of things unjustly taken away. Objections answer'd.

THings gotten by unjust War are to be restored, as we have said above; and not onely by those that took them, but also by others to whom the things by any means are come. For, no man can transfer upon another more right than he had himself, say the Authors of * 1.1 the Roman Law; which Seneca briefly explains, No man can give what he hath 〈◊〉〈◊〉. He had not dominion internal, who was first Taker: wherefore, neither will he have it, who derives his title from him; the second then, or the third Pos∣sessor, hath received that dominion, which we call external; that is, this benefit, that every where he is by judi∣ciary authority and power to be main∣tained as the Owner: which yet, if he use against him, from whom the things were by injustice taken away, he will do dishonestly. Such things therefore are to be rendred to those from whom they were taken away: which, we see, hath been oft times done. Livy, when he had * 1.2 related how the Volsci and Aequi were conquer'd by L. Lucretius Tricipitinus, saith, the spoyl was expos'd in Campus Martius, that every one for the space of three daies might know and receive his

own. The same Historian, when he ha•…•… shewed, that the Volsci were overthrow•…•… by Posthumius the Dictator, Part of 〈◊〉〈◊〉 spoyl (saith he) was restored to the La∣tins and Hernicians, knowing their 〈◊〉〈◊〉 goods; part the Dictator sold sub has•…•…, Elswhere: Two daies were given the Owners to find out their Goods. Polybi•…•… * 1.3 saith of L. Aemilius, Conquerour of the Galls: He rendred the prey to those from whom 'twas taken. That Scipto did the * 1.4 same, Plutarch and Appian testifie, when, having taken Carthage, he had found ma∣ny Donatives there, which the Cartha∣ginians had brought thither out of Cities of Sicily and other places. This act of Sci∣pio's is expressed at large by Cicero. The * 1.5 Rhodians restored to the A•…•…henians for Ships of theirs, which they had recovered from the Macedonians. Goods also, i•…•… former times consecrated at Ephes•…•…, * 1.6 which the Kings had appropriated, the Romans reduced into their antient sla•…•… But, what if such a thing hath passed 〈◊〉〈◊〉 any one in the way of Commerce, 〈◊〉〈◊〉 he charge the first owner with the pri•…•… he paid for't? It seems he may, so far 〈◊〉〈◊〉 the recovery of his desperate possessi•…•… was valuable to him, who had lost the thing. And if such cost may be requir'd why may not also the estimation of la∣bour and hazard, just as if one by di•…•… had brought up something of anot•…•… man's lost in the Sea? Apposite to 〈◊〉〈◊〉

question, methinks, is the historie of Abraham, when being Conquerour of the five Kings, he return'd to Sodom, He * 1.7 brought back (saith Moses) all the goods, viz: which the Kings had taken: appo∣site is the condition which the King of Sodom offers to Abraham, Give me the * 1.8 persons, and take the goods to thy self, viz. for his pains and danger. But A∣braham, a man not onely of a pious, but a noble mind * 1.9, would take nothing for himself, save onely of the goods (for of them is this narration) as by his own right, he gave a tenth to God, he detract∣ed necessary charges, and was pleased some portion should be alotted to his partners in the action. Now, as Goods are to be rendred to the Owner, so also people † 1.10 and their parts, are to be re∣stored to those who had right of Govern∣ment; or to themselves, if they were in their own power before the unjust force. So, we learn out of Livy * 1.11, that Sutri∣um was regained and restored in the time of Camillus. The Aeginetes and Meli∣ans had their Towns restored to them by the Lacedemonians; the Grecian Cities, invaded by the Macedonians, were freed •…•…y, Flaminius. The same Flaminius also.

in a Conference with the Embassa∣dours of Antiochus, thought it fit, the Cities of Asia, which were of the Gre∣cian name (which Seleucus the Ancestor of Antiochus had taken by war, Antio∣chus had recover'd being lost) should be freed: For, said he, the Colonies 〈◊〉〈◊〉 not sent into Aeolis and Ionia, to be i•…•… servitude under the King; but to the end their Race might be increased, and the most antient Nation propag•…•…d through the world. There is also a que∣stion made of the space of time, wherein the internal obligation of restoring a thing may be extinguished. But this que∣stion, between Citizens of the same Em∣pire, is to be determined out of their Laws (if they grant an internal right, and do not consist onely in the external; which is to be gathered out of the words and purpose of the Laws by prudent in∣spection:) and, among them that are foreiners to each other, by sole conjecture of dereliction, of which elswhere. Lastly, * 1.12 if the right of War be very ambiguous, 'twill be best to follow the counsel of A∣ratus Steyonius * 1.13, who partly perswaded the new Possessors to accept of money rather, and yield the Possessions; par•…•… perswaded the former Owners to th•…•… it more commodious to have a just pr•…•… for it, than to recover what they h•…•… lost.

Notes

• * 1.1

  L. traditio D. de acq. dom. Lib. 5. de benef. cap. 12.
• * 1.2

  Liv. lib. 3.
• * 1.3

  Polyb. hist. l. 3.
• * 1.4

  Plut. Apoph. App. Pun. Adde Valer. Max. l. 1. c. 1. n. 6.
• * 1.5

  Verrina de signis.
• * 1.6

  Strabo, l. 13.
• * 1.7

  Gen. 14. 16.
• * 1.8

  Gen. 14. 21.
• * 1.9

  Benè hoc no∣tavit Jacchi∣des ad Daniel. 5. 17. Sulpiti∣us de Abraha∣mo: Reliqua his quibus e∣repta erant red∣didit. Ambros. lib. 1. de Pa∣triarchis: Ideo, quoniam sibi mircedem ab homine non quaesivit, à Deo accepit. Non multum hinc distant facta. Pittaci & Ti∣molcontis: Pittacus Mily∣•…•…enaeus 〈◊〉〈◊〉 re∣cuperat•…•… agria•…•…∣midia pars con∣•…•…su omnium offerretur, avertit animum ab eo in•…•…re, deforme sudi-•…•… virtutis gloriam magnitudine praedae minuere. Val. Max. l. 〈◊〉〈◊〉. c. 5. n. 1. De Timoleonte Plutarch. vid.
• † 1.10

  The Exiles of Sa∣•…•…um, after six years, were restored by the Romans. Antonius 〈◊〉〈◊〉 liberty those who were brought into servitude in the War of Cassius, and restor'd their Goods to the Owners.
• * 1.11

  Liv. l. 2. 〈◊〉〈◊〉. 1. 72. Xenoph. Hist. Gr. 3. Liv. lib. 34.
• * 1.12

  Ciecro Offi•…•…. 2.
• * 1.13

  Quod secie rex Ferdinandus memorante Mariana, l. 29. c. 14.