[397] CHAPTER XVI.

Restraints as to things which, by the Laws of Nations, have not the right of Postliminium.

I. 1 HOW far things, which are captured in a just war, become the property of the captor, we have stated above. Of these things, those are to be excepted, which are resumed by right of Postliminium; for these are held as not captured. But what is captured in an unjust war is to be restored, as we have said; and not only by the captors, but by others, into whose hands it has anyhow come. For no one can transfer to another more of right than he himself possesses; as the Roman Jurists say: which Seneca briefly explains, No one can give what he has not. The first captor had not internal ownership, [just ownership;] and therefore, that he cannot have, who had his title from him. Therefore the second or third possessor took an ownership which, for the sake of distinction, we will call external; that is, he took this advantage, that he is everywhere to be protected as owner, by the sentence and authority of the judge: but if he use this right against him who lost the property by an unjust act, he will not do rightly.

2 The answer which was given by illustrious jurists, respecting a slave who, captured by robbers, had afterwards made his way to the enemy, [and was then captured from them, and exposed for sale. Gronov.] namely, that it was true, that he had been stolen, and that his having been in the hands of the enemy, or having returned by postliminium, was no obstacle to that view; is the same answer which we must give respecting him who, being captured in an unjust war, afterwards by just war, or in any other way, comes into the possession of another: for in internal justice, an unjust war does not differ from a robbery. And to this effect responded Gregory of Neocesarea, being consulted in reference to the case, when certain men of Pontus had received into their possession property of the citizens captured by barbarians.

II. 1 Such property, then, is to be restored to them from whom it was taken: and we see that this has often been done. Livy, after mentioning that the Volsci and Equi were conquered by L. Lucretius 398Tricipitinus, says that the booty was exposed three days in the Campus Martius, that each person might know and take his own. And when he has related that the Volscians were defeated by Posthumius the dictator; he adds, The part which belonged to the Latins and Hernici was given them back on their recognizing it: a part was sold by auction; and elsewhere, Two days were given for owners to know and recover their property. And when he has related the victory of the Samnites [no, the Romans, J. B.] over the Campanians, he adds, the most joyful part of the victory was, that 7500 captives were recovered; and a great booty of the allies: and by a public notice, owners were summoned to take back their own property. And soon after he relates a similar act of the Romans, at Interamna, when they had conquered the Samnites. So at Ilipa in Lusitania. So T. Gracchus at Beneventum gave the owners of cattle thirty days to recognize their stock in the booty.

2 So Polybius says that L. Emilius, when be had conquered the Gauls, restored the spoil to those from whom it had been taken. So Scipio did, when, having taken Carthage, he found there many presents which had been made by the cities of Sicily and others, and carried thither. Cicero, in his oration against Verres, speaking of the Sicilian jurisdiction, says that Scipio when he had taken Carthage, restored to the Sicilian allies what had been taken by the Carthaginians at Himera, thinking it right that, by the Roman victory, they should recover their property. And he follows out this subject, this deed of Scipio’s, in his oration against Verres on the works of art. The Rhodians restored to the Athenians four ships of theirs, which had been taken by the Macedonians. So Phaneas the Etolian thought it just that there should be restored to the Etolians what they had had before the wars. And T. Quinctius did not deny that this would have been right, if the question had been of cities captured in war, and if the Etolians had not broken the truce. Even the treasures consecrated to the gods at Ephesus, which the kings had appropriated, the Romans restored to their ancient state.

III. 1 But if such an article of property should have come into any one’s possession by traffic, can he charge the person from whom it had been taken with the price which he has paid? It is agreeable to the principles which we have elsewhere laid down, that it may be charged, at such a rate as the recovery of the possession would be worth, considering that he may have despaired of such recovery. But if such expenses may be charged, why not also the estimated value of the labour and danger; just as if any one should, by diving, recover a treasure belonging to another, which had been lost in the sea? Apposite to this question seems to me the history of Abraham, when he had conquered the five kings and returned to Sodom: Moses says (Gen. xiv. 16), He brought back all the goods, namely, those which he had before spoken of as being taken by the four kings, Chedorlaomer, &c., and from the five kings of Sodom, &c. (v. 11).

399 2 And to the same practice we must refer the conditions which the king of Sodom proposes to Abraham, that he should give up the captives, and keep the goods for his labour and danger (v. 21). Abraham indeed, a man not only pious but magnanimous, refused to take anything for himself (v. 23): but from the property restored (for those are the goods spoken of) he gave a tenth to God, he deducted the expenses of the young men, and requested a portion to be given to his allies.

IV. As property is to be restored to its owner, so too are peoples and parts of peoples to be restored to those who had rightful autho­rity over them; or to themselves, if they had been their own masters, before the unjust violence. Thus Sutrium was recovered and restored to the allies, at the time of Camillus. The Eginetans and Melians were restored to their cities by the Lacedæmonians: the Greek cities which had been invaded by the Macedonians were restored to liberty by Flaminius. And the same general, in his conference with the ambassadors of Antiochus, urged that it was just that the cities in Asia which were of the Grecian race, and which Antiochus had recovered, should be made free; for that Greek colonies were not sent into Æolia and lonia to be slaves to the king, but to extend the race, and to diffuse over the earth the Greek nation.

V. A question is sometimes raised, concerning the length of time by which the internal obligation of restoring a thing may be extinguished. This question, between citizens of the same government, is to be determined by their own laws: (provided such laws recognize an internal [that is, an equitable] as well as an external [or strictly legal] right; which is to be collected from the words and design of the laws, by a careful consideration of them:) but between those who are foreigners to each other, it is to be determined by a probable judgment as to dereliction: on which subject we have elsewhere said as much as is necessary for our purpose.

VI. If the right of war be very ambiguous, it will be best to follow the counsel of Aratus of Sicyon; who in part persuaded the new possessors to accept money and give up the possessions; and partly induced the old owners to be paid for what they gave up, as more convenient than to attempt to recover it.