Chapter 16

Moderation with Respect to Things Excluded from the Right of Postliminium by the Law of Nations

July 29, 2022

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.

Part 1

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

376 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 before72 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.

CHAPTER 17: Respecting Those Who are Neutral in War.

Nothing to be taken belonging to neutrals, but under circumstances of extreme necessity, and with an intention to pay the full price of it—Conduct of neutral powers towards belligerents.

I. It may appear superfluous to speak of neutral powers, against whom no rights of war can exist. But as war, under the plea of necessity, occasions many aggressions to be committed against them, especially when bordering upon the seat of its operations, it may be necessary briefly to repeat a former assertion, that nothing short of extreme exigency can give one power a right over what belongs to another no way involved in the war. The case too is equally clear that no emergency can justify any one in taking and applying to his own use what the owner stands in equal need of himself. But even where the emergency can be plainly proved, nothing can justify us in taking or applying the property of another to our use, beyond the IMMEDIATE DEMANDS OF THAT emergency. Where the CUSTODY of a thing, by securing it, is sufficient for the purpose, the USE and CONSUMPTION of it is absolutely unlawful. If the USE of it is necessary, it must not be ABUSED: and if the entire ABUSE of it be requisite, the full value should be paid.

II. Again, according to what was said in a preceding part of this book, it is the duty of those, who profess neutrality in a war to do nothing towards increasing the strength of a party maintaining an unjust cause, nor to impede the measures of a power engaged in a just and righteous cause. But in doubtful cases, they ought to shew themselves impartial to both sides, and to give no succour to besieged places, but should allow the troops of each to march through the country, and to purchase forage, and other supplies. The Corcyraeans, in Thucydides,378 say that if the Athenians intend to remain neuter, they ought either to prohibit the Corinthians from enlisting men in the territory of Attica, or to give THEM the same privilege. The Romans objected to the conduct of Philip king of Macedon, charging him with a double violation of treaties, both by injuring the allies of the Roman people, and assisting the enemy with supplies of men and money.