V. Whether things taken in an unjust War are to be resto∣red by him that took them.
Neither may we herein admit of that exception which by some is brought of such as are only Auxiliaries, if they be any ways guilty of the crime; To oblige any man to restitu∣tion without guilt, the bare crime sufficeth. Some also are of opinion that though the War be never so unjust, yet the things taken in it are not to be restored; because, both Parties, when the War began, were pr••sumed to agree to this, That their Goods should be theirs that could take them. But on the contrary, it cannot easily be granted that any man will rashly give away his Right; and the nature of War is much different from that of Con∣tracts. But to the end that Nations being once at peace, should rest so, and not involve themselves in endless War against their will; it was thought sufficient to introduce this ex∣ternal Right of Dominion,* 1.1 whereof we have already spoken, which notwithstanding may very well consist with that internal obligation to restitution. Nay, these very Authours seem to assert as much in their Discourses concerning the Right of taking Prisoners; wherefore the Samnites in Livy declare,* 1.2 That the spoil which they had taken from their Ene∣mies, and which by the Law of Armes seemed to be theirs, they had restored: Which, he saith, seemed to be theirs, because the very Samnites themselves had before acknowledged that War to have been unjust. Not much unlike is that power which the Law of Nations gives in a Contract made without fraud, wherein there is some inequality to compel the Con∣tractor to fulfil his Contract; yet nevertheless he that receives more in value than what he gives,* 1.3 is bound, though not by Law yet, in honesty and conscience, to even the ballance by reducing the Contract to an equality.