The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the rights of war over the goods of an enemy.
I. AS to the goods of an enemy, it is certain that the state of war permits us to carry them off, to ravage, to spoil, or even entirely to destroy them; for, as Cicero very well observes,1 It is not contrary to the law of nature to plunder a person, whom we may lawfully kill. And all those mischiefs, which the law of nations allows us to do to the enemy, by ravaging and wasting his lands and goods, are called spoil or plunder.
II. This right of spoil, or plunder, extends in general to all things belonging to the enemy; and the law of nations, properly so called, does not exempt even sacred things; that is, things consecrated either to the true God, or to false deities, and designed for the use of religion.
III. It is true the practices and customs of nations do not agree in this respect; some having permitted the plunder of things sacred and religious, and others having looked upon it as a profanation. But whatever the customs of different people may be, they can never constitute the primitive rule of right. In order therefore to be assured of the right of war in regard to this article, we must have recourse to the law of nature and nations.
IV. I observe then, that things sacred are not in themselves different from those we call profane. The former differ from the latter only by the religious use, to which they were intended. But this application or use does not invest the things with the quality of holy and sacred, as an intrinsic and indelible character.
V. The things thus consecrated still belong either to the state, or to the sovereign; and there is no reason why the prince, who has devoted them to religious purposes, may not afterwards apply them to the uses of life; for they, as well as all other public matters, are at his disposal.
VI. It is therefore a gross superstition to believe, that by the consecration, or destination of those things to the service of God, they change master, and belong no more to men, but are entirely withdrawn from human commerce, and the property of them is transferred to God. This is a dangerous superstition, owing to the ambition of the clergy.
VII. We must therefore consider sacred things as public goods, which belong to the state or sovereign. All the liberty, which the right of war gives over the goods belonging to the state, it also gives with respect to things called sacred. They may therefore be spoiled or wasted by the enemy, at least so far as is necessary and conducive to the design of the war; a limitation not at all peculiar to the plunder of sacred or religious things.
VIII. For, in general, it certainly is not lawful to plunder for plunder’s sake, but it is just and innocent only, when it bears some relation to the design of the war; that is, when an advantage directly accrues from it to ourselves, by appropriating those goods, or at least, when by ravaging and destroying them, we in some measure weaken the enemy. It would be a madness equally brutal and criminal to do evil to another without a prospect of procuring some good, either directly or indirectly, to ourselves. It very seldom happens for instance, that after the taking of towns, there is any necessity for ruining temples, statues, or other public or private structures; we should therefore generally spare all these, as well as the tombs and sepulchres.
IX. It may however be observed, with respect to things sacred, that they who believe they contain something divine and inviolable, are really in the wrong to meddle with them at all; but this is only because they would then act against their conscience. And here, by the way, we may take notice of a reason, given to clear the Pagans of the imputation of sacrilege, even when they pillaged the temples of the gods, whom they acknowledged as such; which is, they imagined, that, when a city was taken, the guardian deities of that place quitted, at the same time, their temples and altars; especially after those deities, with every thing else, that was sacred, had been invited out with certain ceremonies. This is excellently described by Cocceius, in his dissertation De Evocatione Sacrorum.
X. The learned Grotius furnishes us with wise reflections on this subject, to persuade generals to behave with moderation in regard to plunder, from the advantages, which may accrue to themselves from such a conduct. And first he says, “by these means we take from the enemy one of the most powerful weapons, despair. Besides, by sparing the enemy’s country, we give room to believe, that we are pretty confident of victory; and clemency is of itself proper to soften and engage the minds of men. All which may be proved by several illustrious examples.”
XI. Besides the power, which war gives to spoil and destroy the goods of an enemy, it likewise confers a right of acquiring, appropriating, and justly retaining the goods, we have taken from him, till the sum due to us is paid, including the expenses of the war, in which his refusal of payment engaged us; and whatever else we think necessary to secure to ourselves, by way of caution, from the enemy.
XII. By the law of nations, not only he, who makes war for a just reason, but also every man, in a just war, acquires a property in what he takes from the enemy, and that without rule or measure, at least as to the external effects, with which the right of property is accompanied; that is to say, neutral nations ought to regard the two parties at war, as lawful proprietors of what they can take from each other by force of arms; the state of neutrality not permitting them to espouse either side, or to treat either of the contending powers as an usurper, pursuant to the principles already established.
XIII. This is generally true, as well with respect to moveables, as immoveables, so long as they are in the possession of him, who has acquired them by the right of war. But if from the hands of the conqueror they have passed into the power of a third, there is no reason, if they are immoveables, why the ancient owner should not try to recover them from that third, who holds them of the enemy, by what title soever; for he has as good a right against the new possessor, as against the enemy himself.
XIV. I said, if they are immoveables; for with respect to moveable effects, as they may easily be transferred by commerce into the hands of the subjects of a neutral state, often without their knowing that they were taken in war, the tranquillity of nations, the good of commerce, and even the state of neutrality require, that they should ever be reputed lawful prize, and the property of the person, of whom we hold them. But the case is otherwise with respect to immoveables, they are such in their own nature; and those to whom a state, which has taken them from an enemy, would resign them, cannot be ignorant of the manner, in which it possesses them.
XV. Here a question arises, when is it that things are said to be taken by the right of war, and justly deemed to belong to him, who is in possession of them? Grotius answers as a civilian, that a man is deemed to have taken moveable things by the right of war so soon, as they are secured from the pursuit of the enemy; or when he has made himself master of them in such a manner, that the first owner has lost all probable hopes of recovering them. Thus says he, at sea ships and other things are not said to be taken, till they are brought into some port or harbour belonging to us, or to some part of the sea, where our fleet rides; for it is only then, that the enemy begins to despair of recovering his property.
XVI. But, in my opinion, this manner of answering the question is altogether arbitrary. I see no reason why the prizes, taken from the enemy, should not become our property so soon, as they are taken. For when two nations are at war, both of them have all the requisites for the acquisition of property, at the very moment, they take a prize. They have an intention to acquire a title of just property, namely the right of war; and they are actually in possession of the thing. But if the principle, which Grotius supposes, were to be allowed, and the prizes taken from the enemy were not deemed a lawful acquisition, till they are transported to a place of safety, it would follow, that the booty, which a small number of soldiers has taken in war, may be retaken from them by a stronger body of troops of the same party, as still belonging to the enemy, if this stronger body of troops has attacked the other before they had conveyed their booty to a place of safety.
XVII. The latter circumstance is therefore altogether indifferent with respect to the present question. The greater or less difficulty the enemy may find, in recovering what has been taken from him, does not hinder the capture from actually belonging to the conqueror. Every enemy, as such, and so long as he continues such, retains the will to recover what the other has taken from him; and his present inability only reduces him to the necessity of waiting for a more favourable opportunity, which he still seeks and desires. Hence, with respect to him, the thing ought no more to be deemed taken, when in a place of safety, than when he is still in a condition of pursuing it. All, that can be said, is, that in the latter case, the possession of the conqueror is not so secure as in the former. The truth is, this distinction has been invented only to establish the rules of the right of postliminy, or the manner, in which the subjects of the state, from whom something has been taking in war, reenter upon their rights; rather than to determine the time of the acquisition of things, taken by one enemy from another.
XVIII. This seems to be the determination of the law of nature in regard to this point. Grotius observes also, that, by the customs established in his time, it is sufficient, that the prize has been twenty four hours in the enemy’s possession, to account it lost. Thuanus, in the year 1595, gives us an example, that this custom was observed also by land. The town of Liere in Brabant having been taken and retaken the same day, the plunder was returned to the inhabitants, because it had not been twenty four hours in the hands of the enemy. But this rule was afterwards changed, with respect to the United Provinces; and in general we may observe, that every sovereign has a right to establish such rules, in regard to this point, as he thinks proper, and to make what agreement he pleases with other powers. There have been several made at different times, between the Dutch and Spaniards, the Portuguese and the northern states.
XIX. Grotius applies these principles also to lands; they are not to be reputed lost so soon, as they are seized on; but for this effect they are to be secured with fortifications, that, without being forced, they cannot be repossessed by the first owner. But to this case we may also apply the reflections already made. A territory belongs to an enemy as soon, as he is master of it; and so long, as he continues in possession of it. The greater or less precaution to secure it, is nothing to the purpose.
XX. But be this as it may, it is to be observed, that, during the whole time of the war, the right we acquire over the things we have taken from the enemy, is of force only with respect to a third disinterested party; for the enemy himself may retake what he has lost, whenever he finds an opportunity, till by a treaty of peace he has renounced all his pretensions.
XXI. It is also certain, that in order to appropriate a thing by the right of war, it must belong to the enemy; for things belonging to people, who are neither his subjects, nor animated with the same spirit as he against us, cannot be taken by the right of war, even though they are found in the enemy’s country. But if neutral strangers furnish our enemy with any thing, and that with a design to put him into a condition of hurting us, they may be looked upon as taking part with our foe, and their effects may consequently be taken by the right of war.
XXII. It is however to be observed, that in dubious cases it is always to be presumed, that what we find in the enemy’s country, or in their ships, is deemed to belong to them; for besides that this presumption is very natural, were the contrary maxim to take place, it would lay a foundation for an infinite number of frauds. But this presumption however reasonable in itself, may be destroyed by contrary proofs.
XXIII. Neither do the ships of friends become lawful prizes, though some of the enemy’s effects are found in them, unless it is done by the consent of the owners; who by that step seem to violate the neutrality, or friendship, and give us a just right to treat them as an enemy.
XXIV. But in general we must observe, with respect to all these questions, that prudence and good policy require, that sovereigns should come to some agreement among themselves, in order to avoid the disputes, which may arise from those different cases.
XXV. Let us also take notice of a consequence of the principles here established; which is, that when we have taken things from the enemy, of which he had stripped another by the right of war, the former possessor cannot claim them.
XXVI. Another question is, whether things, taken in a public and solemn war, belong to the state, or to the individuals, who are members of it, or to those, who made the first seizure? I answer, that, as the right of war is lodged in the sovereign alone, and undertaken by his authority, every thing taken is originally and primarily acquired to him, whatever hands it first falls into.
XXVII. However, as the war is burdensome to the subjects, both equity and humanity require, that the sovereign should make them partake of the advantages, which may accrue from it. This may be done either by assigning to those, who may take the field, a certain pay from the public, or by sharing the booty among them. As to foreign troops, the prince is obliged to give them no more than their pay; what he allows them above that, is pure liberality.
XXVIII. Grotius, who examines this question at large, distinguishes between acts of hostility truly public, and private acts that are done upon the occasion of a public war. By the latter, according to him, private persons acquire to themselves principally, and directly, what they take from the enemy; whereas by the former, every thing taken belongs to the whole body of the people, or to the sovereign. But this decision has been justly criticised. As all public war is made by the authority of the people, or of their chief, it is from this source we must originally derive whatever right individuals may have to things taken in war. In this case there must always be an express or tacit consent of the sovereign.
XXIX It is also to be observed, that in treating this point Grotius has confounded different things. The question does not relate to the law of nations, properly so called; for in whatever manner that law is understood, and whatever it be founded on, it ought to relate to the affairs in dispute between two different states. Now whether the booty belongs to the sovereign who makes war, or to the generals, or to the soldiers, or to other persons, that is nothing to the enemy, nor to other states. If what is taken be a good prize, it is of small consequence to the enemy, in whose, hands it remains. With regard to neutral people, it is sufficient that such of them, as have purchased, or any other way acquired a movable thing takes in war, cannot be molested, or prosecuted upon that account. The truth is, the regulations and customs, relating to this subject are not of public right, and their conformity, in many countries, implies no more than a civil right, common to several nations separately.
XXX. As for what in particular relates to the acquisition of incorporeal things by the right of war, it is to be observed, that they do not become our property, except we are in possession of the subject, in which they inhere. Now the subjects, they inhere in, are either things or persons. We often annex, for instance, to certain lands, rivers, ports, and towns, particular rights, which always follow them, whatever possessors they come to; or rather those, who possess them, are thereby invested with certain rights over other things and persons.
XXXI. The rights, which belong directly and immediately to persons, regard either other persons, or only certain things. Those, which are annexed to persons over other persons, are not obtained but with the consent of the persons themselves; who are supposed not to have given a power over them to any man promiscuously, but to some certain person. Thus, for instance, though a king happens to be made a prisoner of war, his enemies have not therefore acquired his kingdom with him.
XXXII. But with respect to personal rights over things, the bare seizure of the person of the enemy is not a sufficient title to the property of all his effects, unless we really take possession of those effects at the same time. This may be illustrated by the example given by Grotius and Puffendorf. Alexander the Great, having destroyed the city of Thebes, made a present to the Thessalonians of an instrument, in which the latter acknowledged that they owed the Thebans a hundred talents.
XXXIII. These are the rights, which war gives us over the effects of the enemy. But Grotius pretends, that the right, by which we acquire things taken in war, is so proper and peculiar to a solemn war, declared in form, that it has no force in others, as in civil wars, etc. and that in the latter, in particular, there is no change of property, but in virtue of the sentence of a judge.
XXXIV. We may observe however on this point, that in most civil wars no common judge is acknowledged. If the state is monarchical, the dispute turns either upon the succession to the crown or upon a considerable part of the state’s pretending, that the king has abused his power, in a manner, which authorizes the subject to take up arms against him.
XXXV. In the former case, the very nature of the cause, for which the war is undertaken, occasions the two parties of the state to form as it were two distinct bodies, till they come to agree upon a chief by some treaty. Hence with respect to the two parties, which were at war, it is on such a treaty, that the right depends, which persons may have to that, which has been taken on either side; and nothing hinders, but this right may be left on the same footing, and admitted to take place in the same manner, as in public wars between two states always distinct.
XXXVI. As to other nations, who were not concerned in the war, they have no more authority to examine the validity of the acquisitions, than they have to be judges of a war, made between two different states.
XXXVII. The other case, I mean an insurrection of a considerable part of the state against the reigning prince, can rarely happen, except when that prince has given room for it, either by tyranny, or by the violation of the fundamental laws of the kingdom. Thus the government is then dissolved, and the state is actually divided into two distinct and independent bodies; so that we are to form here the same judgment, as in the former case.
XXXVIII. For much stronger reasons does this take place in the civil wars of a republican state; in which the war, immediately of itself destroys the sovereignty, which subsists solely in the union of its members.
XXXIX. Grotius seems to have derived his ideas on this subject from the Roman laws; for these decreed, that prisoners taken in a civil war could not be reduced to slavery. This was, as Ulpian the civilian2 remarks, because they looked upon a civil war not properly as a war, but as a civil dessension; for adds he a real war is made between those, who are enemies, and animated with a hostile spirit, which prompts them to endeavour the ruin of each other’s state. Whereas in a civil war, however hurtful it often proves to the nation, the one party wants to save itself in one manner, and the other in another. Thus they are not enemies, and every person of the two parties remains always a citizen of the state so divided.
XL. But all this is a supposition, or fiction of right, which does not hinder what I have been saying from being true, and from taking place in general. And if among the Romans, a person could not appropriate to himself the prisoners taken in a civil war, as real slaves, this was in virtue of a particular law, received among them, and not on account of any defect of the conditions or formalities, which according to Grotius, are required by the law of nations, in a public or solemn war.
XLI. Lastly as to the wars of robbers and pirates, if they do not produce the effects abovementioned, nor give to those pirates a right of appropriating what they have taken, it is because they are robbers, and enemies to mankind, and consequently persons whose acts of violence are manifestly unjust, which authorizes all nations to treat them as enemies. Whereas, in other kinds of war, it is often difficult to judge on which side the right lies; so that the dispute continues, and ought to continue, undecided, with respect to those, who are unconcerned in the war.
1. de. de Off. lib. iii. cap. vi.
2. Lib. xxi. sect. 1. ff. de capt. & revers.