The Law of War and Peace (1625)
by Hugo Grotius
On The Right of Acquiring Things Taken in War
I. What the law of nature is regarding the acquisition of things taken in war.
1.Besides the impunity among men in relation to certain actions, which we have discussed up to this point, there is also another effect characteristic of public war according to the law of nations.
According to the law of nature, by a lawful war we acquire things which are either equal to that which, although it was owed to us, we could not otherwise obtain,’ or we inflict upon the guilty a loss that does not exceed an equitable measure of punishment, as has been said elsewhere. By this law Abraham gave to God a tithe of the spoils which he had taken from the five kings, as the inspired writer of the Epistle to the Hebrews (7:4) explains the story which is found in Genesis 14. In like manner the Greeks also, the Carthaginians, and the Romans consecrated to their gods, such as Apollo, Hercules, and Jupiter Feretrius, a tenth of their booty.
Jacob, too, in leaving to Joseph a special legacy in preference to his brothers, said: ‘ I give thee a portion above thy brethren, which I took out of the hand of the Amorite with my sword and with my bow’ (Genesis 48:22). In this passage the words ‘I took’ apparently are to be understood, in the prophetic manner of speech, as ‘ I shall assuredly take,’ and there is attributed to Jacob that which his descendants called by his name were to do, as if the persons of the progenitor and his children were the same. It is in fact more correct to take the meaning thus than to refer these words, as the Jews do, to the pillaging of Shechem, which had already been accomplished by the sons of Jacob; for Jacob, as became his uprightness, always condemned this act as having been associated with treachery, as one may see in Genesis 34:30, and 49:6.
2. Moreover it is clear from other passages also that God approves of this right of spoil within the natural limits which I have mentioned. In His own law, when speaking of the city that has been stoned after the rejection of peace, God speaks thus: ‘Even all the spoil thereof thou shalt take for a prey unto thyself: and thou shalt eat the spoil of thine enemies, which Jehovah thy God hath given thee.’ The men of the tribe of Reuben, of Gad, and part of the tribe of Manasseh are said to have conquered the Ituraeans and their neighbors, and to have taken much spoil from them; and the reason is given, that they had called upon God in the war, and He had listened to them with favor. It is likewise recorded that the pious king Asa, after calling upon God, won both a victory and spoil from the Ethiopians, who were harassing him in an unjust war. The result is all the more noteworthy, because in these cases force was resorted to, not by a special warrant, but by a right common to all.
3. Joshua, again, when following with his blessing the very’ men of the tribes of Reuben, Gad, and a part of the tribe of Manasseh, whom I have mentioned, said: ‘Divide the spoil of your enemies with your brethren.’ And David, when he sent to the Jewish elders spoils won from the Amalekites, gave value to the gift in saying ‘Behold, a present for you of the spoil of the enemies of Jehovah.’
In fact, as Seneca said, for soldiers it is perfectly fair to enrich some one with spoils taken from the enemy. Divine laws also regarding the division of booty are to be found in Numbers, xxxi. 27. Philo says that it is among the curses of the law that the land should be harvested by the enemy, whence follows ‘famine for friends, but abundance for the foe.’
II. What the law of nations is; evidences are cited.
1. By the law of nations not merely he who wages war for a just cause, but in a public war also any one at all becomes owner,, without limit or restriction, of what he has taken from the enemy. That is true in this sense, at any rate, .that both the possessor of such booty, and those who hold their title from him, are to be’ protected in their possession by all nations; and such a condition one may call ownership so far as its external effects are concerned.
In Xenophon Cyrus says: ‘It is an eternal law among men. that, whenever a city of the enemy is taken, their property and money belong to the captors.’ Plato said: ‘All goods of the conquered become the property of the conqueror.’ Elsewhere, among; the quasi-natural modes of acquisition, he places that ‘by warfare,’ which he also calls ‘by pillage,’ ‘by combat,’ and ‘by strength of hand.’ In this matter Plato has the approval of Xenophon, whom I have mentioned. In Xenophon’s work Socrates, by means of questions, leads Euthydemus to the admission that it is not always unjust to plunder, as when plundering is done to the detriment of an enemy.
2. On the authority of Aristotle also we read: ‘The law is a sort of agreement, according to which things taken in war belong to those who take them.’ Of the same purport is the saying of Antiphanes [Antisthenes]: ‘One ought to pray that the enemy have possessions without courage; for in that case their possessions become the property, not of those who have them, but of those who seize them.’ In Plutarch’s Life of Alexander we read: ‘The possessions of the vanquished should be, and should be called, those of the victor.’
The same author elsewhere says: ‘The goods of those who are conquered in battles lie as prizes for those who conquer.’ The passage is taken from the second book of Xenophon, On the Training of Cyrus. King Philip in his Letter to the Athenians said: ‘All these cities we hold either because they were left to us by our ancestors or because we have obtained possession of them by war.’ Aeschines says: ‘If indeed, after making war upon us, you took the city by force of arms, you are in rightful possession of it, since you have it by the law of war.’
3. In Livy Marcellus says that what he took from the Syracusans he took by the law of war. The Roman envoys said to Philip with regard to the cities of Thrace and other cities that, if he had taken them in war, by the law of war he would hold them as the reward of victory; and Masinissa declared that he held by the law of nations the territory that his father had taken in war from the Carthaginians. Likewise, in Justin, Mithridates said: ‘He had not withdrawn his son from Cappadocia, of which, as victor, he had taken possession by the law of nations.’
Cicero states that Mitylene had come into the possession of the Roman people ‘by the law of war and the right of victory.’ He says also that some things began to be private property either by taking possession of that which was without an owner, or by war; that is, in the latter case things became the property of those who obtained them by victory. Dio Cassius affirms: ‘The possessions of the conquered fall to the victors.’ Even Clement of Alexandria says that the property of enemies may be carried off and acquired by the law of war.
4. ‘What is taken from the enemy, by the law of nations becomes at once the property of those who take it,’ says Gaius the jurist. Theophilus, in the Greek Institutes, calls this a ‘natural acquisition,’ in the sense in which Aristotle said ‘ acquisition by war is a method according to nature.’ The reason doubtless is that the bare fact, not the cause, is held in view, and in the fact the right has its origin.
With precisely similar meaning Nerva the Son, as the jurist Paul relates, used to say that the ownership of things arose from natural possession, and that a trace of this remains in relation to those things which are taken on land, in the sea, or in the air; likewise in respect to the things taken in war, all of which become at once the property of those who were the first to take possession of them.
5. Furthermore, what is taken from the subjects of an enemy is also considered as taken from the enemy. Thus Dercyllides argues in Xenophon, that since Pharnabazus was an enemy of the Lacedaemonians, and Mania was a subject of Pharnabazus, the property of Mania stood in such a relation that it could rightfully be seized, according to the law of war.
III. When a thing capable of being moved may be held to have been captured, according to the law of nations.
1. In this inquiry in regard to war, however, the nations have agreed that he is to be understood as having captured a thing who retains it in such a way that the original possessor has lost probable expectation of regaining it, or so that the thing has escaped pursuit, as Pomponius says in a similar inquiry. In the case of things that are movable, this principle is so extended that such things are said to have been captured when they have been brought within the borders, that is to say, the defenses, of the enemy.
A thing in fact is lost in the same manner by which it returns, by postliminy; it returns when it begins to be within the borders of the state, and that is elsewhere explained as within the defenses. Paul says clearly, with regard to a man, that he is lost when he has gone outside of our frontiers; and Pomponius explains that a captive in war is he whom the enemy have taken from among our men and brought within their own defenses. Such a man, before he is brought within the defenses of the enemy, remains a citizen.
2. Now as regards this aspect of the law of nations, the same reasoning was applied to a man and to a thing. Whence it is easy to understand that the statement elsewhere made, that captured things immediately become the property of those who capture them, should be understood as implying the condition that possession continue up to this point.
Hence it seems to follow that on the sea ships and other things may be considered as captured only when they have been brought into dockyards or harbors, or to the place where a whole fleet is stationed; for then recovery begins to appear hopeless. But in the more recent law of nations we see the doctrine introduced among European peoples that such things may be considered as captured when they have been for twenty-four hours in the power of the enemy.
IV. When territory may be held to have been captured, according to the law of nations.
1. Nevertheless territory is not considered as captured at the moment it is occupied. While it is true that that part of a territory which an army has invaded in great force is temporarily possessed by it, as Celsus has noted, still such possession is not sufficient for that effect which we are discussing, for which secure possession is required. The Romans were so far from considering as lost the land outside the gate which Hannibal was occupying with his camp, that at that very time it sold at a price no lower than before. Therefore only that territory will be regarded as captured which is so surrounded by permanent fortifications that the other party will have no access to it openly unless these have first been taken.
2. The origin of the word ‘territory’ as given by Siculus Flaccus from ‘terrifying the enemy’ (terrendis hostibus) seems not less probable than that of Varro from the word for ploughing (terendo), or of Frontinus from the word for land (terra), or of Pomponius the jurist from ‘the right of terrifying’ (terrendi iure), which is enjoyed by the magistrates. So Xenophon, in his book On Taxes, says that the possession of territory in time of war is retained by means of fortifications, which he calls ‘walls and entrenchments.’
V. Property which does not belong to the enemy is not acquired by war.
This also is clear: In order that something may become ours by the law of war, it must belong to the enemy. Those things which are in the enemy’s possession, to be sure, in their towns, for example, or within their fortifications, but of which the owners are neither subjects of the enemy nor hostilely inclined, cannot be acquired by war. It has been shown, among other things, in a passage of Aeschines previously cited, that Amphipolis, which was a city of the Athenians, could not have become the property of Philip as a result of Philip’s war against the citizens of Amphipolis. For this would be unreasonable, and the right of changing ownership by means of force is too offensive to merit wider application.
VI. What of goods found in ships of the enemy?
Consequently the current statement that goods, which are found in ships of the enemy, are to be considered as belonging to the enemy,’ should not be accepted as if it were a fixed provision of the law of nations, but as indicating a certain presumption. This presumption, however, may be overthrown by valid proofs to the contrary.
In our native country of Holland formerly, in the year 1438, when war was raging with the Hanseatic towns, a decision to that effect was reached at a full session of the Senate, as I have found, and from that decision the provision passed into a law.
VII. Things which our enemies have taken from others by war become ours according to the law of nations; this is attested by evidence.
1. The principle, however, is beyond dispute – if we have reference to the law of nations – that what has been taken by us, from the enemy cannot be claimed by those who had possessed it, before it came into the possession of our enemy, and had lost it in war. The reason is that the law of nations, through external ownership, first made our enemy the owner, and then us.
By this right, among others, Jephtha defends himself against the Ammonites, because that territory, which the Ammonites claimed, had by the law of war passed from the Ammonites; just so another part also had passed from the Moabites to the Amorites, and from the Amorites to the Jews. Likewise David regarded as his own, and distributed, what he himself had taken from the Amalekites, and the Amalekites had taken from the Philistines.
2. According to Dionysius of Halicarnassus, when the Volscians demanded their former possessions, Titus Largius in the Roman Senate expressed his opinion thus:
We Romans consider as our fairest and most lawful possessions those which we have taken and hold by the law of war; and we would not foolishly suffer valor to be forgotten by surrendering these possessions to those who have lost them. Such possessions we think are not only to be shared in by our citizens who are living, but are also to be left for posterity. If we allow ourselves to be deprived of what we now have, we shall injure ourselves in the same manner in which we injured the enemy.
Similar was the answer given by the Romans to the Aurunci ‘We Romans think that with perfect right one may hand down, as his own, to his descendants, whatever he has acquired by courageously wresting it from the enemy.’ Elsewhere, in reply to the Volscians, the Romans speak as follows:
But we consider as our best possessions those which we have taken by conquest in war. We were not the first to establish this right, nor do we think that it is a law of men rather than of the gods; but we know that all, both Greeks and barbarians, make use of it, and we would not yield to you anything in cowardice, nor abandon what we have won in war. For it would be the utmost disgrace if any one through cowardice and folly should be deprived of what had been won by courage and bravery.
There is a similar thought in the reply of the Samnites: ‘Since we have acquired these things in war, which is a perfectly fair law of acquisition.’
3. After relating that the land near Luna was divided by the Romans, Livy speaks of it thus: ‘This land had been taken from the Ligurians; it had belonged to the Etruscans before the Ligurians.’ By such a right Appian notes that the Romans retained Syria, and did not restore it to Antiochus Pius, from whom Tigranes, an enemy of the Romans, had taken it. Justin, quoting from Trogus, represents Pompey as replying thus to the same Antiochus: ‘Since Pompey had not taken the kingdom from Antiochus when Antiochus held it, inasmuch as Antiochus had yielded it to Tigranes, Pompey would not give to him what he did not know how to defend.’ Likewise the Romans held as their own those parts of Gaul’ which the Cimbri had wrested from the Gauls.
VIII. The opinion, which holds that things taken from the enema become the property of the individuals who capture them, is refuted.
It is a more serious question, Who acquires the goods of the enemy in a public and formal war: the people itself or the individual who are of it or within it?
On this point the more recent interpreters of the law hold very diverse opinions. The majority of them, having read in the Roman law that captured things become the property of those who take them, but in the collection of canons that booty is divided according to the will of the people, have declared – one following the other; as is usually the case – that in the first place and by the law itself things captured belong to the individuals who lay hands on them, but that they are to be assigned to the commander for distribution among the soldiers. Since this view is as widely current as it is false, we must refute it with so much the greater pains, that it may serve as an example of how little trust, in controversies of this sort, is to be placed in such authorities.
However, it is not to be doubted that by agreement of the nations either practice may be established; that is, that the ownership of captured goods may fall to the people which wages the war, or to any one who lays hands upon them. But we are inquiring what their will has been; and we say that the nations have decided that, the property of enemies should stand to enemies in the same relation as ownerless property, as we have already indicated from the saying of Nerva the Son.
IX. By the law of nature both possession and ownership may be acquired through another.
1. Things which are ownerless, to be sure, become the property of those who take them, but they become just as much the property of those who obtain possession of them through others as of those who take them for themselves. Consequently not only slaves and children, but also free men, who in fishing, fowling, hunting, or gathering pearls, have given their assistance to others, at once acquire what they have taken for those persons whom they serve. Modestinus the jurist was right in saying: ‘What is acquired naturally, as a possession, we acquire through any person at all, if we wish to possess it.’
In his collected Sententiae Paul says: ‘We acquire possession by means of the will and of the body; by our own will, that is, but by either our own body or that of another.’ The same writer thus comments on the Edict: ‘ We acquire possession through an agent, a guardian, or an executor ‘; and he explains that this happens when they act with the intention of rendering us such service. Thus among the Greeks, those who competed in the Olympic games acquired prizes for those by whom they were sent. The reason is that naturally one man by his own volition becomes the instrument of another’s will, as we have also said elsewhere.
2. Therefore the distinction in regard to acquisitions, which is handed down as between free and unfree persons, belongs to the civil law, and properly applies only to acquisitions under the civil law, as appears from the passage cited from Modestinus. Nevertheless the Emperor Severus afterward made such acquisitions approach more closely to the type of natural acquisitions, not in the interest of utility only, as he himself claims, but in that of jurisprudence also. If, then, we disregard the civil law, the principle holds good that one may do through another what he can do himself, and that the effect is the same whether any one acts for himself or through another.
X. The distinction between hostile acts as public or private.
In our investigation, therefore, we must distinguish between acts of war that are truly of a public character, and private acts which are committed on the occasion of a public war. By private acts a thing is sought primarily and directly for private persons; by public acts, for the people.
It was, then, in accordance with the law of nations that Scipio, as Livy relates, treated thus with Masinissa: ‘ Syphax has been beaten and captured under the auspices of the Roman people. In consequence he himself, his wife, his kingdom, land, towns, the men who inhabit them, in short whatever belonged to Syphax, are the spoil of the Roman people.’ In the same manner Antiochus the Great argued that Coele Syria had been acquired by Seleucus and not by Ptolemy, on the ground that the war was the war of Seleucus, to whom assistance had been rendered by Ptolemy. The account is ‘in Polybius, Book V.
XI. Territory is acquired for a people, or for him whose war it is.
1. Landed property is not usually taken except by a public act, upon the entry of an army and the establishment of garrisons. Thus, in the opinion of Pomponius, ‘Land that has been taken from the enemy is public property,’ that is, as he explains in the same passage, ‘it is not classed as booty,’ if we take the word booty in its strict sense. In Procopius,’ Solomon the praetorian prefect said: ‘It is not unreasonable that captives and other things should go to the soldiers as booty ‘on the understanding that this is done by public’ consent, as we shall explain below – ‘ but that the land itself should, belong to the Emperor and the Roman state.’
2. Thus among the Jews and the Lacedaemonians land taken by force was divided by lot. So the Romans either kept captured territory in order to lease it, in some cases leaving a small portion to the original possessor as a mark of honor; or they sold it in parcels, or assigned it to colonists, or made it subject to taxes. For such disposition of conquered territory there is abundant evidence in the laws and histories, and in the treatises of the land-surveyors.
In the first book of his Civil Wars Appian writes: ‘In conquering Italy by war, the Romans confiscated a part of the land.’ In the second book he says further: ‘Whenever they conquered an enemy, they did not take away all his land, but seized a part of it.’ Cicero, in his speech For [On] his House addressed to the pontiffs, notes that territory taken from the enemy was in some cases consecrated by the victorious commander, but at the command of the people.
XII. Movables, or things capable of motion, when captured by a private, act, become the property of the individuals who take them.
1. But things which are movable, or are themselves capable of motion, if captured are taken either in the public service or outside of it. If they are taken outside of the public service, they become the property of the individuals who take them. To this principle should be referred the statement of Celsus: ‘Goods of the enemy which are in our midst are not public property but belong to those who have seized them.’ By the words ‘which are in our midst’ we are to understand ‘which are found in our midst after war has begun.’
The same practice was observed with regard to men also, at the time when, in respect to the principle stated, captive men were classed with captured property. On this point a passage of Tryphoninus is noteworthy: ‘But those who, in time of peace, have arrived among other peoples, if war suddenly breaks out, become the slaves of those among whom, now their enemies, it is their fate to be caught’; for we must here read ‘ fate,’ and not ‘ act ‘ or ‘ agreement ‘ as the texts have it. This result is ascribed by the jurist to fate because they fall into slavery through no desert of their own. attribute such things to fate is common. An example is the line of Naevius: ‘At Rome by fate the Metelli are made consuls,’ that is, without merit of their own.
2. From the same principle it follows that if soldiers capture anything when they are not in formation or engaged in executing an order, but when they are acting under a general right or by mere permission, this they at once acquire for themselves; for they do not make the capture in the capacity of servants. Such are the spoils which are torn from an enemy in single combat; such also are spoils seized by soldiers in free and unauthorized raids at a distance from the army – beyond ten miles the Romans used to say, as we shall see shortly. This sort of booty the Italians at the present day call ‘raid-spoil’ (correria), and distinguish from ‘sack’ (bottino).
XIII. Movables, or things capable of motion, when captured by a private act, do not become the property of individuals if the municipal law determines otherwise.
But our statement, that by the law of nations things movable or capable of motion are directly acquired by individuals, must be understood as applicable to the law of nations as unmodified by any municipal law covering the matter. Each people may in fact establish other rules valid over its citizens, and may thus forestall individual ownership; as we see is done in many places with regard to wild animals and birds. In like manner it may also be provided by a law that goods of enemies which are discovered in our midst should become public property.
XIV. Things captured by a public act become the property of the people or of him whose war it is.
1. With regard to those things, however, which are captured by an act of war, the situation is different. In this case individuals represent the person of the state, and act in its stead; hence through them, unless a statute otherwise decrees, the people obtains both possession and ownership, and transfers this to whomever it wishes. Because this view is in direct conflict with common opinion, I feel that I must cite proofs more fully than usual from the examples of outstanding peoples.
2. I shall begin with the Greeks, whose practice Homer describes in more than one passage:
- But the spoil which we took from the cities now has been divided.
In the same poet Achilles, speaking of the cities which he had stormed, says:
- From all of these much rich spoil did I ravish,
And all I brought and gave to Atreus’ son;
But he by the swift ships remained behind,
And, taking it, shared some with others, but kept much.
Here Agamemnon is to be regarded, on the one hand, as at that time ruler of all Greece, and so taking the place of the people, and by that right dividing the booty, with the approval of his council; and on the other as filling the post of general, hence obtaining a greater share than the rest from the common store. The same Achilles addresses Agamemnon himself as follows:
- Never have I with you of spoil an equal share,
When Grecian valor has o’erthrown a Trojan town.
Elsewhere Agamemnon offers to Achilles, by public agreement, a ship full of bronze and gold, and twenty women, to fall to his lot from the spoil. Upon the capture of Troy, as Virgil narrates:
- Phoenix and hard Ulysses chosen guards
Watched o’er the booty: hither from all sides
The spoil of Troy snatched from the blazing shrines,
With tables of the gods and mixing bowls
Heavy with gold, and captured raiment, high
In like manner at a later time Aristides guarded the booty from Marathon. After the battle at Plataea it was strictly forbidden that any one should remove anything from the spoil on his own authority; later the spoil was distributed on the basis of the deserts of the several peoples. When Athens afterward was conquered, the booty was transferred by Lysander to the public treasure. Among the Spartans the name of a public office is ‘sellers of booty.’
3. If we come to Asia, the Trojans, as Virgil teaches us, were accustomed ‘to draw lots for booty,’ as is usually done in dividing things held in common. At other times the decision to divide booty rests with the commander; and by this right Hector, upon the express stipulation of Dolon, promises him the horses of Achilles, so that you may perceive that the right of acquiring ownership was not in the mere act of seizure.
Spoil was brought to Cyrus, the conqueror of Asia; and likewise, at a later date, to Alexander. If we look to Africa, the same custom is found. Thus what was captured at Agrigentum, and in the battle of Cannae, and elsewhere, was sent to Carthage. Among the ancient Franks, as we see from the History by Gregory of Tours, things which had been captured were divided by lot; and the king himself had nothing else from the spoil than what the lot assigned to him.
4. But the Romans are more worthy of our consideration in respect to their examples in a degree commensurate with their superiority to the other nations in the art of war. Dionysius of Halicarnassus, a most careful observer of Roman customs, informs us on this point as follows: ‘The law ordains that whatever has been captured from the enemy in battle becomes public property, in such a way that not only no private person may become owner of it, but not even the commander of the army himself. The quaestor takes possession of the things captured and auctions them off, and deposits the money in the public treasury.’ These are the words of those who accuse Coriolanus, and they are to some extent framed to arouse ill-will towards him.
XV. Nevertheless in such things some right of decision is usually granted to commanders.
While it was true that the people were the owners of the spoil, it was not less true that, in the time of the free republic, the commanders were entrusted with the decision in regard to its disposal. In Livy, Lucius Aemilius says: ‘ Cities that have been captured, not surrendered, are sacked, and nevertheless the decision in regard to them belongs to the commander, not to the soldiers.’
This right of decision, which custom vested in the generals, they themselves at times referred to the Senate, as Camillus did, in order that they might be the more free from all suspicion. The commanders who retained the right are found to have made varied use of it, according as they were influenced by scrupulousness, regard for their reputation, and ambition.
XVI. Commanders may turn booty over to the public treasury.
1. Generals who wished to be, or wished to be believed to be, most scrupulous, did not touch the booty at all.” If there was money in the booty, they ordered that it should be taken over by the quaestor of the Roman people; if there were other things, they ordered that these be auctioned off by the quaestor; and Favorinus, in Gellius, thinks that the money procured by such means was called ‘proceeds of spoils ‘ (manubiae). Such money was placed by the quaestor in the treasury, after having been first publicly exhibited if the victory had warranted a triumph.
In the fourth book of Livy it is said of the consul Gaius Valerius: ‘There was considerable booty from the constant raids, because all the loot had been brought together in a safe place. The consul ordered the quaestors to sell this booty at auction, and deposit the proceeds in the treasury.’ The same thing was done by Pompey, with regard to whom the words of Velleius are: ‘The treasure of Tigranes, in accordance with Pompey’s usual practice, was placed in the hands of the quaestor and entered in the public accounts.’ Marcus Cicero pursued the same course, and in his letters to Sallust he writes thus of himself: ‘Of the spoil I have taken, no one except the city quaestors, that is, the Roman people, has touched or will touch a quarter of a penny.’ This was the practice especially in the ancient and better days, and Plautus has this in mind when he speaks thus:
- Now all this booty to the quaestor I shall take.
In like manner, of captives he says:
- Whom I bought from the quaestors, out of the spoil.
2. But others sold the booty themselves, without the aid of the quaestor, and deposited the proceeds in the treasury, as we may gather from Dionysius of Halicarnassus in the words which follow [in the passage just cited]. Thus we read that in early times, after the defeat of the Sabines, the spoil and the captives were sent to Rome by King Tarquin. Thus, again, it is related that the consuls Romulius and Veturius sold the booty because of the poverty of the treasury, although the army was annoyed thereat.
Since in fact we frequently find statements showing how much each of the generals deposited in the treasury either through himself or through his quaestor, from Italian, African, Asiatic, Gallic, and Spanish triumphs, there is no need to accumulate examples. Rather is this to be noted, that the booty, or part of it, was given at times to the gods, at times to the soldiers, and at times to others. To the gods either the articles themselves were given, such as the spoils which Romulus hung in the temple of Jupiter Feretrius, or the money derived from them, as when from the proceeds of the booty from Pometia [Tarquinius] Superbus built the temple of Jupiter on the Tarpeian mount.
XVII. Or commanders may divide the booty among the soldiers; in what way such a division may be made.
1. The early Romans regarded the granting of the spoil to the soldiers as a form of bribery. Thus Sextus, the son of Tarquinius Superbus, but an exile at Gabii, is said to have given booty to his soldiery with the object of securing power for himself in this way. In the Senate Appius Claudius attacked a largess of similar character as being new, prodigal, and ill-considered.
The booty granted to the soldiery is either divided or left for pillage. It may be divided on the basis of pay or of merit. Appius Claudius desired that the booty be divided on the basis of pay, in case he should be unable to secure the transfer of the money derived from its sale to the treasury. Polybius carefully explains the whole system of distribution. For full days, or for watch periods, a half of the army, or a smaller portion, was regularly sent to collect booty. Each man was ordered to bring into camp what he had found, that it might be equally divided by the tribunes; and a share was given both to those who had guarded the camp (a practice which, we read, was sanctioned also by King David among the Jews, and which from that source passed into law) and to those who had been absent on account of ill-health or assignment to details.
2. Sometimes the booty itself was not granted to the soldiers, but the money derived from it was given to them in place of the booty; this was often done on the occasion of a triumph.
This is the proportionate distribution that I find. A, single share was given to a foot-soldier, a double share to a centurion, and a threefold share to a cavalryman. Sometimes a single share was allotted to a foot-soldier, and a double share to a cavalryman. Again, a single share was given to a foot-soldier, a double share to a centurion, and a fourfold share to a tribune and a cavalryman.’ In many cases account was taken also of merit, as when Marcius was granted a share from the booty of Corioli by Postumius, because of his brave conduct.
3. Without regard to the way in which the division was made, the commander was allowed his selection; that is, he was permitted to take for himself, as first choice, as much as he chose, in other words, as much as he considered fair. This privilege was at times accorded to others also on account of their valor. Euripides in his Trojan Women, speaking of the women of Troy of high birth, says:
- Outstanding women, who had been given to the chiefs
Of the Grecian host
Of Andromache the same dramatist says:
- Pyrrhus received that noble woman for himself.
In Virgil, Ascanius says of a horse:
- Him, the shield, and the ruddy crest, from the lot
I shall exempt.
Herodotus relates that after the battle of Plataea, as choice things, women, horses, and camels, were given to Pausanias. In this way King Tullius received Ocrisia, the chief woman of Corniculum. In Dionysius of Halicarnassus, Fabricius s says in an address to Pyrrhus: ‘ Of these things seized in war it was lawful for me to take as much as I chose.’
With this in mind Isidore, in discussing military law, mentions ‘The disposition of the booty, the just division in proportion to the rank and services of individuals, and the portion of the prince.’ Tarquinius Superbus, as Livy has it, wished both to enrich himself and to win over the affections of the people with spoil. Servilius in his speech for Lucius Paulus says that he could have made himself wealthy by a division of the booty. There are some writers, among whom is Asconius Pedianus, who take the view that the term manubiae more correctly designates this share of the commander.
4. But those commanders have won greater renown who, giving up their right, took nothing for themselves from the booty. Such was the Fabricius whom I have mentioned, who ‘despised wealth, even when acquired justly, in comparison with fame ‘; and this he declared that he did after the example of Valerius Publicola and some others.
These commanders were imitated also by Marcus Porcius Cato in his victory over the Spaniards, when he declared that none of the spoils of war would come into his hands, with the exception of those things which he had consumed in food and drink; and yet he added that he did not blame the commanders who had made use of the privileges conceded to them, but that he preferred to rival the best in point of virtue rather than the richest in point of wealth. Very nearly the same praise was merited by those who took of the spoil in moderation, as Pompey, who is praised by Cato in Lucan:
- More than he withheld
Did he contribute.
5. Sometimes in making the distribution account was taken of the absent also, as Fabius Ambustus decided at the capture of Auxur. Sometimes, too, for some reason in such a distribution no account was taken of certain persons even though they were present; this .was the case with the army of Minucius, in the dictatorship of Cincinnatus.
6. Furthermore this right, which the commanders had enjoyed under the old republic, after the fall of the republic appears from Justinian’s Code to have passed to the masters of the soldiers; for under the Code there are exempted from inclusion in the reports of military exploits the largesses of movable objects or those capable of locomotion. These the masters of the soldiers grant to their troops from the spoils of the enemy, whether in the actual conduct of wars or in places in which they are known to be stationed.
7. But this kind of division n olden times was often exposed to calumny, as though by this means leaders were seeking to win the goodwill of individuals. On such grounds charges were brought against Servilius, Coriolanus, and Camillus, that they had granted largesses to their friends and clients from the public funds. In reply they defended themselves on the ground of the public advantage, ‘that those, who had shared in the undertaking, after having gathered the fruit of their labors, might be the more ready to enter upon other campaigns ‘if we may cite the words of Dionysius of Halicarnassus on this matter.
XVIII. Or commanders may permit pillaging.
1. I now come to pillaging. This was conceded to the soldiers either in the devastation of a country, or after a battle, or after the storming of a town, with permission to scatter at a given signal It was a practice rather unusual in early times, yet it did not lad examples. Tarquin gave over Suessa to his soldiers for pillage Quintus Servilius, the dictator, the camp of the Aequians; Camillus, the city of Veii; the consul Servilius, the camp of the Volscians Also Lucius Valerius permitted pillaging in the land of the Aequians; Quintus Fabius, after the rout of the Volscians, and after the capture of Ecetra. Such pillaging was afterward permitted by others on many occasions.
Upon the defeat of Perseus, the consul Paulus granted the spoil of the beaten army to the infantry, and the booty of the surrounding country to the cavalry. The same consul, in accordance with a decree of the Senate, gave over the cities of Epirus to the soldiers to plunder. When Tigranes was conquered, Lucullus for a considerable time restrained his troops from collecting spoils, but later, when victory was assured, he yielded the right to plunder the enemy. Cicero, in his first book On Invention, among the ways of acquiring ownership, includes the capture of anything from the enemy, when a public sale of this booty has not taken place.
2. Those who condemn this practice say that hands greedy for pillage ‘ will snatch away the rewards of brave warriors, since it usually happens that the more slothful man takes to plunder,” while all the bravest ‘ are wont to seek the chief share of toil and peril ‘ – to quote the words of Appius in Livy. Not very different is the saying of Cyrus in Xenophon: ‘ I am well aware that in pillaging the worse element would get the greater amount.’
On the opposite side it is said that what each soldier had taken from the enemy with his own hand and had carried off home would prove to be more acceptable and afford greater pleasure than many times as much allotted to him by another’s decision.
3. Sometimes, too, pillaging was permitted because it could not be prevented. In the storming of Cortuosa, an Etruscan town, as Livy relates: ‘The tribunes decided to reserve the booty for the state, but the order was slower than the decision; for already the spoil was in the hands of the soldiers, and could not be taken away without causing ill-feeling.’ So also we read that the camp of the Galatians was plundered by the army of Gaius Helvius against the will of the commander.
XIX. Or commanders may grant the spoil to others.
The practice already mentioned, that in some cases the booty, or money derived from the sale of booty, might be assigned to others than the soldiers, usually had as its purpose to make an equivalent reimbursement to those who had contributed funds for the war.
You may also note that public spectacles were at times produced with the money derived from the booty.
XX. Or commanders, having divided the booty into portions, may employ now one method of distribution and now another; in what way.
1. Not only in different wars are different methods employed in the disposition of booty, but in the same war booty is often diverted to different uses, after it has been divided into portions or the different kinds have been distinguished.
Thus Camillus gave a tenth of the spoil to the Pythian Apollo,,following a Greek precedent, which had previously come from the Jews; at this time the pontiffs decided that the dedicated tenth ‘included not only movable things but also the city and its territory. When Camillus was again victor the greatest part of the spoil from the Faliscans was assigned to the quaestor; not so much was given to the soldiers. In like manner Lucius Manlius ‘ either sold the spoil, in so far as it had to be contributed to the public treasury, or divided it among the soldiers, taking care that it should be as fairly divided as possible’; the words are those of Livy.
2. The classes into which booty may be divided are these prisoners, herds, and flocks, which the Greeks when speaking with exactness call ‘pillageable property’; money, and other movables, costly or cheap.
Quintus Fabius, after defeating the Volscians, gave orders that the pillageable property and spoils be sold by the quaestor; he himself brought back the money. The same general, after the conquest of the Volscians and the Aequians, gave the captives, with the exception of the Tusculans, to the soldiers, and permitted them to carry off the population and the herds in the land belonging to Ecetra, When Antium was captured, Lucius Cornelius deposited in the treasury the gold, silver, and copper, sold the prisoners and booty through the agency of the quaestor, and allowed the troops to have articles of food and clothing. Similar to this was the policy of Cincinnatus who, after taking Corbio, a town of the Aequians, sent the more valuable objects in the booty to Rome, and divided the rest, among the centuries.
After the capture of Veii Camillus contributed nothing to the public treasury except the money from the sale of the captives; and when the Etruscans were beaten and the captives sold, from the money thus obtained he paid back to the women the gold they had contributed, and set up three libation saucers of gold in the Capitoline temple. When Cossus was dictator, all the booty from the Volscians, except the persons of freemen, was granted to the soldiers.
3. Fabricius, after conquering the Lucanians, Bruttians, and Samnites, enriched his troops, paid back the war taxes to the citizens, and contributed forty talents to the public treasury. Quintus Fulvius and Appius Claudius, when the camp of Hanno was captured, sold the booty and made a division, giving largesses to those whose services had been exceptional. On the taking of Carthage, Scipio gave what was in the city to the troops to plunder, excepting the gold and silver and the votive offerings. Acilius, on the capture of Lamia, in part divided and in part sold the spoil. When the Galatians had been beaten and the arms of the enemy burned in accordance with a Roman superstition, Gnaeus Manlius ordered all to bring together the rest of the spoil, and either sold it, in so far as it was to be brought to the public treasury, or divided it among; the soldiers, taking care that the division should be as fair as possible.
XXI. The committing of peculation in the distribution of booty.
1. From what we have said it appears that among the Romans, not less than among most other nations, booty was the property of the Roman people, but that some right of decision as to its distribution was granted to commanders; nevertheless, as we have previously stated, under the condition that they owed to the people an accounting for their actions. This, among other things, we learn from the case of Lucius Scipio, who was condemned in a trial for peculation, because, as Valerius Maximus states, he had received 480,000 sesterces in silver more than he transferred to the treasury; and also from the cases of others to which we have previously referred.
2. Marcus Cato, in the speech which he wrote on the subject of booty, according to Gellius, complained in passionate and noble language of the impunity and licence accorded to peculation. Of the speech there remains this fragment: ‘ Those who steal from private persons pass their days in bonds and fetters; those who steal from the state pass theirs in gold and purple.’
On another occasion the same speaker had said that ‘ he wondered that any one dared to place as furniture in his house statues that had been captured in war.’ Cicero also increases resentment at the peculation of Verres, by pointing out that he had carried off a statue which in fact had been taken from the spoil of the enemy.
3. Not commanders alone, but even soldiers, were held on the charge of misappropriation of booty if they had not brought it to the public treasury; for, as Polybius says, they were all bound by an oath ‘that no one would appropriate anything from the booty, but would carry out his pledge in scrupulous regard for his oath.’ To this we may perhaps refer the formula of the oath in Gellius, by which, within the lines of the army or within the range of about ten miles, the soldier was enjoined not to carry off anything which was of greater value than a silver sestertius; or in case he had taken anything of the sort, to bring it to the consul, or to confess the fact within the next three days. Hence we may understand what Modestinus meant by the statement: ‘He who has secreted booty captured from the enemy is guilty of peculation.’ This statement of itself should be sufficient to warn interpreters of the law against believing that things captured from the enemy are acquired by individuals, since it is clear that peculation can only occur in connection with property that is public, sacred, or religious.
All these considerations clearly lead to the view which we have expressed above, that, apart from the civil law, and primarily, what is captured in acts of war becomes the property of the people or of the king who wages the war.
XXII. Some change may be made with respect to this common right of booty by a legal enactment or by another’s act of will.
1. In the statement just made we said, ‘ apart from the civil law,’ and ‘ primarily,’ or directly. The former restriction is added because with regard to things that have not yet been actually acquired a law may ordain in the public interest, whether that legislative act is a law of the people, as among the Romans, or the law of a king, as among the Jews and elsewhere. Besides, under the name of law we wish to include also custom when rightly introduced.
The second qualification leads to this, that we may know that booty, just as other things, may be conceded by a people to others not only after acquisition, but also prior to acquisition, in such a way that, when the capture has ensued, the claims thereby arising are immediately united in title, as the jurists say. And this concession can be made not only to specific persons, but also to classes, as in the times of the Maccabees part of the spoil was given to widows, old men, and needy wards; or even to chance persons, after the fashion of the things thrown to the mob, which the Roman consuls made the property of those who caught them.
2. Furthermore, this transference of a right, which is brought about by a law or grant, is not always a mere gift. It sometimes represents the fulfilment of a contract; sometimes either a payment of what is owed, or a reimbursement for losses which some one has suffered, or compensation for a personal contribution to the war in money, or in service, as when allies and subjects serve either without any pay or for such pay as does not correspond with their service. It is for these reasons, as we see, that an assignment of the whole booty, or a part of it, has usually been made.
XXIII. Thus booty may be granted to allies.
Our jurists, in fact, note that almost everywhere the custom has been tacitly followed, that either allies or subjects, who wage war without pay, at their own expense and danger,’ appropriate what they capture. In the case of allies the reason is evident, for naturally one ally is bound to make good to another the losses which ensue from a joint or public enterprise.
There is also the further consideration that it is hardly customary for service to be rendered gratis. ‘ Thus physicians,’ says Seneca, ‘are paid the price of service, which they earn, because they are called from their own affairs and are at our disposal.’ Quintilian judges the same thing fair in the case of orators, because the very: giving of their service and time to the business of others deprives them of the opportunity of earning in other ways. This is what Tacitus called ‘ Neglecting the affairs of one’s house in order that one may apply himself to the business of others.’ Therefore it is credible that, unless some other cause should appear, as for instance pure kindness, or a preceding agreement, the hope of enriching oneself from the enemy was regarded as recompense for loss and service.’
XXIV. Booty is often granted to subjects; with illustration by means of various examples on land and sea.
1. In the case of subjects the right to booty does not follow with equal clearness, because subjects owe their service to their state. But this reason is offset by the fact that where not all subjects but only a part are in service the latter are entitled to compensation from the body of the state for having contributed more service and expense than the others, and they are much more entitled to compensation for losses. In place of this clearly defined compensation the expectation of the whole or a part of an uncertain booty is readily, and not without reason, conceded. And so the poet writes:
- Let the booty fall to those whose labors earned it.
2. With respect to allies, there is an example in the Roman treaty by which the Latins were admitted to an equal share of the booty in the wars which were waged under the auspices of the Roman people. So in the war which the Aetolians waged with the Romans as their helpers, the cities indeed, and the territory, fell to the Aetolians, but the captives and movable property to the Romans. After the victory over King Ptolemy, Demetrius gave a part of the booty to the Athenians. Ambrose, in discussing the story of Abraham, shows the fairness of this custom: ‘He wisely asserted that a part of the gain, ‘as recompense for their toil, should be allotted to those who had been with him, perhaps as allies to give him aid.’
3. With respect to subjects there is an example in the case of the Jewish people; half of the spoil fell to those who had been under arms. The soldier of Alexander made his own the booty which he had seized from private persons, excepting that he was accustomed to bring certain things of special value to the king; hence we see that those who were said to have conspired at Arbela were accused of claiming for themselves all the booty, so that they would bring nothing into the treasury.
4. But in the case of Alexander’s army what had been the public property of the enemy, or royal property, was exempt from, this licence. In consequence we read that, when the Macedonians had broken into the camp of Darius at the river Pyramus, they carried off a huge amount of gold and silver, and left nothing untouched except the king’s tent,’ ‘in order that,’ says Curtius, ‘following the traditional custom, they might receive the victor in the tent of the vanquished king.’ Similar to this was the custom of the Jews, who placed the crown of the conquered ruler upon the victorious king and, as we read in the Digest of the ‘Talmud, allotted to him the royal furniture taken in the war.
In the same category is that which we read in the exploits of Charlemagne; when he had conquered the Hungarians, the riches of private individuals fell to the soldiers, the riches of the king to the public treasury. But among the Greeks the ‘booty’ was public property, as we have shown above, and the ‘spoils seized while fighting’ were the property of individuals. They call ‘ spoils seized while fighting’ (skula) what is taken from the enemy in the course of the battle, and ‘ booty’ (lafura) what is taken afterwards. This distinction is observed also by some other peoples.
5. However, from what we have said before it is quite clear that among the Romans, at least in the period of the early republic, not so much was granted to the soldiers. In the civil wars they began to receive somewhat greater indulgence. Thus you may read that Aeculanum was sacked by the soldiers of Sulla. After the battle, of Pharsalus Caesar turned the camp of Pompey’s forces over to his soldiers to plunder, according to Lucan, with these words:
- Your reward for bloodshed remains.
This it is my part to point out; for I shall not call a donation
What each to himself shall give.
The troops of Octavian and Anthony pillaged the camp of Brutus and Cassius. In another civil war, when the Flavians had: been led to Cremona, although night was at hand, they hastened to take the rich colony by assault. They feared that otherwise the,’ riches of Cremona would come into the possession of the prefect: and legates; for they knew that in fact, as Tacitus says, ‘ the spoil of a city that has been stormed belongs to the soldiers; that of one which has been surrendered, to the general.’
6. As discipline declined such looting was the more willingly conceded to the troops, that they might not neglect the enemy and burden their hands with spoil while there was still danger. Disregard of such precaution has made very many victories fruitless.
When Corbulo had stormed the fort Volandum in Armenia, ‘the mob unfit for war,’ as Tacitus relates, ‘was sold at auction, and the rest of the booty fell to the victors.’ According to the same writer, in a battle in Britain Suetonius urges his men to continue the slaughter without thinking of the booty, adding that when the victory should be won everything would fall to their lot. Similar accounts you may find among other authors generally. Add also what we have just cited from Procopius.’
7. There are, however, certain things of so slight value that they are not worth making public property. These things everywhere by consent of the people belong to those who take them. Such under the early Roman republic were spears, javelins, firewood, .fodder, water-skins, leathern money-bags, torches, and money smaller than a silver sestertius; for we read in Gellius that these exceptions were added to the military oath.
Very like this concession is that which is made to sailors even when they are paid for their service. The French call this spoliation or pillage, and therein include clothing, and gold and silver under ten crowns. Elsewhere a certain part of the booty is given to the soldiers, as in Spain, where now a fifth, now a third, and again a half remains with the king, and a seventh, or at times a tenth, with the commander of the army; the rest belongs to the individual captors, with the exception of ships of war, which fall wholly to the king.
8. It may happen also that the division of the booty is made after account has been taken of services, dangers, and expenses, as among the Italians, where a third of a captured ship falls to the master of the victorious vessel, an equal part to those whose goods were in the ship, and the same to those who engaged in the fighting.
Sometimes, again, this occurs, that those who conduct a war at their own risk and expense do not receive all the spoil, but owe a part to the public authority, or to him who derives his right from the public authority. Thus among the Spaniards, when in a war ships are fitted out at private expense, part of the spoil is due to the king, and part to the highest naval authority. According to the French practice the latter receives a tenth, and the same is customary among the Dutch, but with them a fifth part of the booty is first deducted by the state. On land, however, it is now the general custom that in the sack of towns, or in battle, each should have as his own what he has taken; but what is taken in raids should be the common property of those in the detachment, to be divided among themselves according to their rank.
XXV. The application of what has been said.
As a result of these considerations we are to know that, if within the jurisdiction of a nation that is not involved in war a dispute arises with respect to something that has been captured in war, the thing is to be adjudged to him whose case is supported by the laws or customs of the people on whose side capture has been effected; if this is impracticable, then by the common law of nations the thing is to be adjudged to the people itself, provided only that it has been taken in an act of war.
From what we have previously said, it is abundantly clear that what Quintilian adduces in favor of the Thebans is in general not true, that in a matter which can be brought into court the right of war does not hold good, and that what is taken by armed force can only be retained by armed force.
XXVI. Whether things which have been taken outside the territory of either belligerent may be acquired by the law of war.
1. Things which do not belong to the enemy, even if found among the enemy,’ do not become the property of the captors; for this, as we have said already, is not in accordance with the law of nature and has not been introduced by the law of nations. Thus the Romans say to Prusias: ‘ If this territory had not belonged to Antiochus, clearly it would not have been made territory of the Roman people.’ Nevertheless if in such things the enemy enjoys any right which is connected with possession, as a right of pledge, restraint, or servitude, there is nothing to prevent this right being acquired by the captors.
2. The question is also often raised whether things captured outside the territory of either belligerent may become the property of the captors; and this is debated with regard both to things and to persons.
If we take into account the law of nations only, I think that this subject need not be considered, since we have said that an enemy may be justly slain in any place. But he who holds authority in a place may by a law of his own prohibit any such action; and if such an act is committed contrary to his law he can demand satisfaction for it as for a crime. Similar to this is the ruling that a wild animal caught on the land of another belongs to the captors, but access to it may be prohibited by the owner of the land.
XXVII. In what way the right of which we have spoken is peculiar to a public war.
Now this external right of acquiring things taken in war is so peculiar to a war that is public according to the law of nations that in other wars it finds no place. For in other wars with foreigners property is not acquired by the violence of war but as compensation for a debt which cannot otherwise be obtained.
In wars between citizens, whether these be great or small, no change of ownership is made except by the authority of a judge.