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1512 u c h a p t e r x v i u Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy. I. 1. How far Things taken in a just War may be the Captors, I have declared a above, from which are to be deducted, what are recoverable by the Right of Postliminy; for these are to be esteemed as not taken. But Things taken in an unjust War, I have already b said, are to be restored , not only by the immediate Captors, but by others also, who shall happen to be possessed of them on any Account. For no Body can make over to another more Right than he has himself, say the 1 Roman Lawyers ; which Seneca briefly explains, 2 No Man can give what he has not to give. If the first Captor did not become lawful Proprietor of them, according to the Rules of true Justice, then he cannot possibly be so, who derives all the Title he can have from him. Therefore the Right of Property which the second or third Possessor may have, is what we call external , that is, he is entitled to Defence by all judiciary Power and Authority , as if he were the right Owner; yet if he makes Use of this Right against him from whom the Things were unjustly taken, he acts dishonestly. I. (1) Traditio nihil amplius transferre debet, vel potest, ad eum, qui accipit, quam est apud eum, qui tradit. Digest, Lib. XLI. Tit. I. De adquir. rer.domin. Leg.XX.princip. See also, Lib. IX. Tit. IV. De noxalibus actionib. Leg. XXVII. § 1. 2. Quoniam nemo potest, quod non habet, dare. De Benefic. Lib. V. Cap. XII. I. That internal Justice requires that what is taken away by an Enemy in an unjust War, be restored. a Chap. 13. of this Book. b Ch. 10. § 3, &c. moderation without postliminy 1513 2. For what some eminent Lawyers 3 have decided concerningaSlave, who being taken by Robbers, afterwards fell into the Hands of the Enemy , that he was to be considered as a Thing stolen, though he had been Slave to the Enemy, and returned by Right of Postliminy. Thesamemay be an-swered from the Law of Nature, concerning him, who being taken in an unjust War, and afterwards, by a just War, or some other Accident, comes into the Power of another. For by internal Right, there is no Difference between an unjust War and downright Robbery. And Gregorius Neo-Caesariensis, being consulted, made a correspondent Answer , when some of the Inhabitants of Pontus 4 had recovered some Goods taken away by the Barbarians. II. 1. Therefore Things so taken, ought to be restored to them from whom they were taken, which we see frequently done. 1 Livy, relating how the Volsci and Aequi were overcome by L. Lucretius Tricipitinus, says, That the Spoil was exposed for three Days in the Field of Mars, that every one might have that Time to come and acknowledge hisown, andfreely take it away. And the same Author in another Place, speaking of the Volsci, defeated by Posthumius the Dictator, says, 2 Part of the Spoil was restored to the Latins and Hernici, upon their owning of it, of anotherPart he made Portsale. And again, 3 Two Days were allowed to the Owners to come and claim their Goods. And the same Author, speaking of the Samnites ’s Victory over the Campanians, tells us, 4 It was a most joyful one to the Conquerors, for they had retaken 7400 Prisoners; a vast Booty for their Confederates; and the Ownerswere summoned byProclamation,toownand take their Goods by a certain Day. And a little further he gives us the like Account of the Romans. 5 The Samnites endeavouring to take Interamna, 3. The Law is cited above, Chap. IX. of this Book, § 16. Note 3. 4. 4 He is followed in this by Pet. Ant. De Petra, De Potestate Principis, Cap. III. Quaest. IV. Bruninguis, De Homagiis, Conclus. CCXLI. Grotius. II. (1) Et auget gloriam, &c. Lib. III. Cap. X. Num. 1. 2. Praedae pars, sua cognoscentibus, &c. (Lib. IV. Cap. XXIX Num. 4.) 3. Biduum ad recognoscendas res datum dominis. [Lib. V. Cap. XVI. Num. 7.where he relates the Defeat of the Tarquinians.] 4. Et quod laetissimum, &c. Livy, Lib. X. Cap. XX. Num. 15. 5. Altero exercitu Samnites, &c. Idem. ibid. Cap. XXXVI. Num. 16. & seq. II. Examples. [18.224.63.87] Project...

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