Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XVI: 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 warDeductions madeSubjects and countries, if unjustly seized by an enemy, to be restored to their original sovereignThe time, when the obligation to restore them expires, definedWhat 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.1
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 before2 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.
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 of 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.
Note 1. The difficulty of recognising things of this nature, and the endless disputes, which would arise from the prosecution of the owners claims to them, have been deemed motives of sufficient weight for the establishment of a contrary practice. It is therefore with reason, that moveable or booty are excepted from the right of postliminium, unless retaken from the enemy immediately after his capture of them; in which case the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them.Vattel b. iii. ch. xiv. sect. 209. [back]