Front Page Titles (by Subject) CHAPTER VI: Of the Right to the Things taken in War. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER VI: Of the Right to the Things taken in War. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Of the Right to the Things taken in War.
I.What the Law of Nature is, concerning Things taken in War.I. 1. Besides the Impunity of some Acts allowed to be used against our Enemies, of which we have treated hitherto; there is also another Effect, which1 by the Law of Nations is proper to a solemn War. And indeed by the Law of Nature those Things may be acquired by a just War, which areaeither equivalent to that, which tho’ due to us, we cannot otherwise get, or which damnifies the Injurer, but within the Bounds of a just Punishment, as has been saidb elsewhere. By Virtue of his Right Abraham2offered unto GOD the Tenth of his Spoil he took from the five Kings, Gen. xiv. as the Author to the Hebrews expounds it, Heb. vii. 4. and thus did the3Grecians, Carthaginians and Romans make the same Offering to their Gods, as to Apollo, to Hercules, to4Jupiter Feretrius. The Patriarch Jacob leaving an especial Legacy to Joseph above his Brethren, I give to thee (says he) one Part above thy Brethren which I took out of the Hand of the Amorite, with my Sword and with my Bow, Gen. xlviii. 22. where5the Word, I took, seems to be taken prophetically for I shall surely take, and this attributed to Jacob, which was done after by his Posterity, who were called by his Name, as if the Ancestor and his Children were but one and the same Person. Which is much better than to wrest these Words, as the Jews do, to that plundering of the Sichemites, which had been done before by the Sons of Jacob; for that, as being done treacherously, Jacob a just and religious Man did ever condemn, as we may see, Gen. xxxiv. 30. and xlix. 6.
2. Now that this Right to the Spoils taken in a just War, was approved of by GOD, within the natural Bounds prescribed, (as I said) will appear, by other Places also of Scripture. GOD in his Law, Deut. xx. 14. concerning a City, which upon Refusal of Surrender was afterwards taken by the Sword, thus orders, Thou shalt take the Spoil of it to thy self, and shalt enjoy the Prey of thine Enemies, which the LORD hath given thee. Also the Reubenites and Gadites, and half the Tribe of Manasseh are said to have conquered the Ituraeans and their Neighbours, and to have taken much Spoil from them, 1 Chron. v. 20, 21, 22. This being added as a Reason, because in the War they called upon GOD, and he was propitious to them. It is also said of good King Asa, that having called upon GOD, he obtained the Victory over the Ethiopians6 that had unjustly warred against him, and carried away much Spoil, 2 Chron. xiv. 13. which is the more remarkable, because those Wars had been undertaken not by the special Command of GOD, but by Virtue of the common Right of all Mankind.<580>
3. Joshua also blessing the Reubenites, Gadites, and half the Tribe of Manasseh before mentioned, said, Divide the Spoil of your Enemies with your Brethren, Jos. xxii. 8. And when David sent to the Elders of Israel the Spoil taken from the Amalekites, he gave it this honourable Title, a Spoil taken from the Enemies of the Lord, 1 Sam. xxx. 26. For, as Seneca says,7 Military Persons think it most honorable to enrich Men with the Spoils of their Enemies. We have also divine Laws for dividing such Spoils, Num. xxxi. 27. And Philo8 reckons among the Curses of the Law, that their Fields should be reaped by their Enemies, whence must follow, Famine to their Friends, and Plenty to their Enemies.
II.What the Law of Nations is in this Case, of which Examples are given.II. 1. Moreover, by the Law of Nations, not only he that makes War for a just Cause, but every Man in a solemn War acquires the Property of what he takes from the Enemy, and that without Rule or Measure; so that both he and his Assigns are to be defended in Possession of them1 by all Nations; which, as to the external Effects of it, may be called the Right of Property. Thus said Cyrus in Xenophon,2It is an eternal Law with all Men, when a City is taken by Force, the Goods all belong to the Conqueror. And so Plato,3All that belonged to the Conquered, now belong to the Conqueror. And in other Places, among several, as it were, Kinds of4 natural Acquisitions, he places πολεμικὴν, that got by War, which he also calls ληιστικὴν by plundering, and χειρωτικὴν by superior Force. To which agrees Xenophon,5 in whom Socrates brings Euthydemus by divers Interrogatories to this Confession, that it was not always unjust to spoil, when against an Enemy.
2. And in Aristotle,6The Law, which is a Kind of general Agreement, has allowed, that the Goods and Effects of the Conquered should become the Conquerors. As also that of Antiphanes,7 ὅτι τοι̑ς πολεμίοις, &c. We ought to wish our Enemies abundance of Riches without Valour, for in that Case they belong, not to the present Possessors, but their Conquerors.8 And Plutarch observes in the Life of Alexander,<581> What did belong to the Vanquished, is and ought to be esteemed the Vanquishers. And in another Place,9The Goods of those overcome in War are the Reward of the Victors. Which are the Words of Xenophon, in his second Book of his Institution of Cyrus. And Philip in his Letter to the Athenians says,10All of us enjoy Cities, which were either left us by our Ancestors, or we became Masters of by the Right of War. Also Aeschines,11If you fight with us, and take our City by Arms, you justly possess the Rule over it by the Law of War.
3. Marcellus12 in Livy declares, that what he took from the Syracusans he did it by the Right of War. The Roman Embassadors told Philip,13 concerning the Cities of Thrace, and some others, if he had taken them by War, he might enjoy them by the Right of War, as the Reward of his Victory. And Masinissa14 pleads, the Land which his Father conquered from the Carthaginians he held by the Law of Nations. So15Mithridates in Justin, he had not called his Son out of Cappadocia, which as a Conqueror he possest by the Law of Nations. Cicero16 tells us, that Mitylene became the Romans by Right of War and Victory. He likewise says,17 that some Things may become a private Property, either by Seizure, where they are without an Owner, or by War, when one Party proves victorious over the other. And Dion Cassius,18What was the Conquered’s, becomes the Conquerors. And Clemens Alexandrinus19 informs us, that the Goods of Enemies are plundered and acquired by the Right of War.
4. What is taken from the Enemy, by the Law of Nations, immediately becomes the Captors,20 is the Opinion of Cajus the Lawyer. Theophilus the Greek Paraphrast on the Institutes, calls it ϕυσικὴν κτη̂σιν,21a natural Acquisition, as22Aristotle had called it, πολεμικὴν ϕύσει κτητικὴν; because the Right here acquired arises from the bare Fact, or taking Possession, without any other Title; as23Nerva the Son, by the Testimony of Paulus the Lawyer, declared the Property of Things begun from a natural Possession, and some Footsteps of it remain still in regard to those Animals that are taken, whether on the Earth, in the Sea, or in the Air; as also in regard to Things taken in War, all which are the Right of those who are the first Possessors of them.
5. It must be observed here that those Things are supposed to betaken from an Enemy, which are taken from the Subjects of an Enemy. So Dercyllides argues in Xenophon,24 since Pharnabazus was an Enemy to the Lacedemonians, and Mania a Subject to Pharnabazus, therefore the Goods of Mania were just Prize by the Law of Nations.<582>
III.When moveable Goods are said to be taken by the Right of Nations.III. 1. Moreover, by the Consent of Nations, Things are then said to be taken in War, when they are so detained, that the first Owner has lost all probable Hopes of recovering them, and cannot pursue them, as1Pomponius determines a like Question. This takes Place, in Regard to moveable Things, when they are carried home, that is, into Places whereof the Enemy is Master. For in the same Manner a Thing is lost it is recovered by Postliminy; but it2 returns to its antient Proprietor, as soon as it comes again into the Dominions of the Sovereign on whom he depends; which is explained elsewhere,3 by Places whereof he is Master. And Paulus4 the Lawyer affirms, that Man to be taken that is carried out of our Bounds. And Pomponius5 declares, that Man to be taken in War, whom the Enemy has taken from us, and carried into Places whereof they are Masters; for till then he is reputed our Subject.
2. And by this Law of Nations the Case is the same with Respect to Goods as Persons, whereby we may easily perceive, that when in other Places Things taken are said immediately to be the Captors,6 it ought to be understood upon Condition that they continue so long in their Possession; whence it seems, by Consequence, that at Sea, Ships, and other Things are then only said to be taken, when they are brought into the Enemy’s Harbours, or the Place where their whole Fleet rides, for then there is no Hope of Recovery. But by a new Law of Nations,a established among the States of Europe, they are accounted lost,7 if they continue twenty-four Hours in the Enemy’s Possession.<583>
IV.When Lands are said to be acquired.IV. 1. Buta Lands are not said to be taken as soon as they are seized on; for tho’ it be true, that that Part of the Country, (as1Celsus observes) which the Enemy with a strong Army has entered, is for that Time possessed by them; yet every Possession is not sufficient for the Effect which we are now treating of, but such a one as is durable only: Therefore the Romans were so far from thinking that Part of Land without the Gate to be entirely lost, whereon Hannibal encamped,2 that at that very Time they sold it as dear as before. That Land then is reputed lost, which is so secured with Fortifications, which without being forced cannot be repossest by the first Owner.
2. And this Derivation of the Word Territory given by Siculus Flaccus,3à terrendis Hostibus, from terrifying the Enemy, seems as probable as that of Varro;4à terendo, from treading upon; or that of5Frontinus, à terrâ, from the Earth; or that of Pomponius the Lawyer, à terrendi jure, from that Power to terrify which the Magistrates have. Thus Xenophon, in his Book concerning Tributes, says, that the Possession of Lands is held in Time of War by Fortifications, which he himself calls6 Τείκη, καὶ ἐρύματα, Walls and Retrenchments.
V.Things not our Enemy’s are not to be acquired by War.V. This is also plain, that before the Right of War can entitle us to any Thing taken, it is requisite that our Enemy had first the true Propriety of it; for what Things may be within the Enemy’s Towns, or other Places whereof he is Master, the Owners thereof being neither Subjects to our Enemy, nor animated with the same Spirit1 as he against us, cannot be acquired by the Right of War; as is<584> proved, among others, by the Saying of2Aeschines, that Amphipolis beinga City belonging to the Athenians, could not be appropriated by King Philip to himself, in a War which he made with the Amphipolitans. And indeed there is no Reason that3 authorises us to take the Goods of those who are not of our Enemy’s Party, under Pretence that they are found in his Country; and the Change of Master by Force, is too odious to admit any Extension.
VI.What of Things found in Enemies Ships.VI. Wherefore the common Saying,1 that Goods found in our Enemies Ships are reputed theirs, is not so to be understood, as if it were a constant and invariable Law of the Right of Nations, but a Maxim, the Sense of which amounts only to this, that it is commonly presumed, in such a Case, the Whole belongs to one and the same Master: A Presumption however, which, by evident Proofs to the contrary, may be taken off. And so it was formerly adjudged in Holland, in a full Assembly of the sovereign Court, during the War with the Hanse Towns, in the Year 1338, and from thence hath passed into a Law.
VII.Things taken from our Enemies are ours by the Law of Nations, tho’ they took them from others.VII. 1. But this is certain, if we only respect the Law of Nations, what we take from our Enemies, cannot be claimed by those from whom our Enemies before had taken them by Right of War; because the Law of Nations1 had first made our Enemies Proprietors of them by an outward Right, and then us. By which Right, among others, Jeptha defends himself against the Ammonites, (Judges xi. 23, 24, 27.) because the Land in Dispute was taken from the Ammonites; as also another Part of the Land from the Moabites, by the Amorites, by the Right of War; and from them by the same Right, by the Hebrews.2 So David challenges, and divides as his own, the Spoils which he had taken from the Amalekites, and they before from the Philistines. (1 Sam. xxx. 18. & seq.)
2. Titus Largius, (as Dionysius3Halicarnassensis relates it) thus gave his Opinion in the Roman Senate,4 when the Volscians laid Claim to some Lands which the Romans had won by the Right of War, because they had been formerly theirs, We Romans account the Possessions won by the Sword most just and honest; neither can we be persuaded by a foolish Easiness, to destroy the Monuments of our Valour,<585> by returning them to those that lost them. Nay, those very Lands we ought not only to communicate to those Citizens now alive, but to leave them to our Posterity, instead of parting with what we have, and treating ourselves like Enemies. This also is plain from the Answer the Romans gave the Aurunci,5We Romans think it just, that whatsoever a Man wins by his Valour from his Enemies, he may leave to his Children, as being his own by a very good Title. In another Place, the Romans answer the6Volsci thus, But we account those our best Estates which we conquer from our Enemy; since they are ours, not by our own Laws, but a Law derived rather from the Gods than Men, and allowed by the constant Practice of all Nations, both Greeks and Barbarians; we shall therefore yield up nothing cowardly of what we have purchased valiantly; for it would be a great Disgrace to us, if either through Fear or Folly we should quit what we have won by Bravery and Valour. So in the Answer of the Samnites,7We have gained this by War, which Law of Acquisition is the justest.
3. Livy, speaking of Land near Luna, divided by the Romans, says,8That Land had been taken from the Ligurians, and it had been the Hetrurians before it was the Ligurians. By this Right the Romans held Syria, as9Appion observes, not restoring it to Antiochus Pius, from whom Tigranes, an Enemy to the Romans, had taken it; and Justin, out of Trogus, brings in Pompey returning this Answer to the same Antiochus,10As he took not the Kingdom from him whilst he was in Possession of it, so neither would he, after he had yielded up his Right to Tigranes, restore to him a Kingdom which he could not keep. So those Parts of Gallia which the Cimbri had taken from the Gauls,11 the Romans afterwards taking,12 held as their own.
VIII.That Things taken from the Enemy are not always theirs that take them.VIII. But here is a more difficult Question, to whom do the Spoils taken from the Enemy in a publick and solemn War belong, whether to the People in general, or to private Persons, of and among1 the People? The modern Expositors of the Law here vary very much in their Opinions; for most of them findinga in the Roman Law,2 that the Things taken become the Captors; and in the Canon Law,3 that the Spoils are to be divided by publick Determination, do say, one after another, (as is usual) that tho’ principally, and by original Right, the Captor has the best Title to them, yet they are to be brought to the General, and he is to<586> distribute them among the Soldiers. Which Opinion, not less common than false, I shall take the more Care to confute, that we may see how unsafe it is in such Controversies to rely upon the Authority of those Doctors. There is no Doubt, but the Consent of Nations might have established the one or the other of these two Rules, either, that the Things taken should belong to the People that bear the Charge of the Wars, or to the first Captor;4 but the Question is, what Nations really intended to establish in this Case? And I affirm, that their Intention was, that the Goods of one Enemy, with Respect to another, should be considered as Things5 without a Proprietor; as we have before6 explained, from the Words of Nerva the Son.
IX.That naturally both Possession and Property may be acquired by another.IX. 1. The Things that are Nobody’s, indeed become the Captor’s; but they may be called Captors, who employ others to take them, as well as they who take them themselves. So they who are employed by others to catch Fish, Fowl, Deer, or Pearls; as Slaves, Children not emancipated, and sometimes Freemen, take them for those that employ them. Modestinus1 the Lawyer said well, Whatsoever is naturally gained, as Possession is, we may gain by any one whom we will appoint to do it for us. And also Paulus,2We acquire Possession by the Mind, and by the Body; the Mind, I mean our own, but the Body may be either our own or another’s. And in another Place,3Possession may be taken by an Attorney, Guardian, or Trustee; provided it be done with the Design of doing it for us, and in our Name. So among the Greeks, they that overcame in the4Olympick Games, gained the Prizes, not for themselves, but for them that sent them. The Reason is, because one Man may make Use of another, as his Instrument, if both are willing, as we have declared in another Place. (B. i. Chap. v. § 3.)
2. Wherefore the Difference put between Freemen5 and Slaves, in Respect to Acquisitions, regards only the Civil Law, and properly belongs to Civil Acquisitions, as appears from the afore-quoted Place of6Modestinus And yet the Emperor Severus7 brought these afterwards nearer to the Pattern of natural<587> ones; not only for the Good of the Publick, as he himself acknowledges, but also to follow the Rules of Right and Equity; therefore, setting aside the civil Right, that Saying holds true, that what a Man does himself, for himself, he may also do by another, and it is the same Thing8 to do it by another as by himself.
X.A Distinction of Actions done in War into publick and private.X. We must then here distinguish between the Acts which in a War are truly publick, and private Acts, that are done by the Occasion of a publick War.1 By these private Acts the Goods of an Enemy principally and directly belong to the private Persons, by the other to the People. Upon this Principle of the Right of Nations Scipio argues with2Masinissa, in Livy, Syphax has been vanquished and taken, by the Conduct of the Romans; therefore he, his Wife, Kingdom, Lands, Towns, and their Inhabitants, and, in a Word, whatsoever belonged to Syphax, is become lawful Prize to the People of Rome. And thus did Antiochus the Great plead, that Coelo-Syria did of Right belong to Seleucus, and not to Ptolemy, for that Seleucus maintained the War, to whom Ptolemy was but an Assistant, according to Polybius, in the fifth Book.
XI.The Land taken is the People’s, or his that maintains the War.XI. 1. Immoveable Goods are not usually taken, but by some publick Act, as by bringing in an Army, or by planting of Garrisons, therefore, as Pomponius decided,1Lands taken from the Enemy fall to the State, that is, as he explains it, Is not Part of the Booty,2 strictly taken. Thus Salomo, a Lieutenant-General, in Procopius,3That Prisoners, and all other Moveables, should be a Booty to the Soldiers, is not unreasonable, (so it be done by publick Grant, as we shall hereafter explain it) but that the Lands should belong to the Emperor, and the Roman Empire.
2. So among the4Hebrews and Lacedemonians,5 Land taken in War was divided by Lot: Thus the Romans either kept the Lands taken in War to let out, (a small Part of it sometimes being left out of Civility to the former Owners) or sold them, or assigned them to Colonies, or made them tributary; whereof you may find many Testimonies in Laws, Histories, and Treatises on Surveying.6Appian<588> in his first Book of the Civil War tells us, When the Romans had conquered Italy, they took away Part of their Lands. And in his7 second Book, Having subdued their Enemies, they did not take away all their Lands, but a Part. And Cicero8 observes that their Generals having conquered an Enemy, sometimes consecrated his Lands, but by the Decree of the People.
XII.Things moveable, either with or without Life, taken by a private Act, are the Captor’s.XII. 1. But Things moveable, whether with or without Life, are either taken in publick Service, or out of it. If they are not taken in publick Service,1 they are the private Captor’s. And hither we may refer that of Celsus,2Whatever among us was the Enemy’s, belongs not to the State, but to the prior Occupant. Whatever is among us, that is, is found with us in the Beginning of the War. For the same was observed of Persons, when they were in this Case considered as Goods taken. There is a remarkable Passage in Tryphoninus, to this Purpose,3But they who in Times of Peace came to dwell in another Country, upon the sudden breaking out of a War, unfortunately become the Slaves of those who are become their Enemies; where we may observe, that the Lawyer attributes this to Fate, because they fell into Bondage, without any Merit of their own. For it is common to ascribe such Things to Fate. So that of Naevius, The Metelli were made Consuls of Rome by Fate, that is, without any Merit of their own.
2. Thus it is, when Soldiers take any Thing from their Enemies when they are not upon Duty, or executing the Commands of their Captain, but doing what any other Person might do, or by a bare Permission, what is thus taken, is lawful Prize to the Captors, because they do not take them as Servants of the Publick. Such are the Spoils taken in a single Combat, and in Excursions, made freely, without Command, into an Enemy’s Country, at a Distance from the Army, (ten Miles, according to the Roman Law, as we shall see presently) which the Italians call Correria, and distinguish it from Bottino, Booty.
XIII.Unless the Civil Law otherwise ordain.XIII. And whereas we say, that by the Law of Nations, whatsoever is thus gained, becomes directly the Captor’s, it is to be so understood, that this was the1 Law of Nations, before any Thing was decreed in this Case by the Civil Law. For every State or People may otherwise determine of it among themselves, and prevent the Right of private Men, as we see done in many Places concerning wild Beasts and Fowl. So it may be ordained by Law, that whatsoever Goods of the Enemies are found among us, should be confiscated to the State.
XIV.What is taken by a publick Act is the Publick’s, or his that maintains the War.XIV. 1. But as to those Things that a Man takes in a military Expedition, the Case is very different. For here every Soldier represents the Body of the State, and executes the Business of the whole political Body: Wherefore (if the Civil Law does not otherwise provide) the State acquires both the Possession and Property of Things taken, which it may transfer to whom it pleases; and because this directly contradicts the common Opinion, I find myself obliged to enlarge upon it more than usual, and to prove it from the Examples of the most celebrated Nations.<589>
2. I shall begin with the Greeks, whose Custom Homer1 describes in several Places.
Achilles, in the same Poet, recounting the Cities which he had taken himself, says,
For here we must look upon Agamemnon, partly as Head of all Greece at that Time, and so representing the whole Body of the People, by which Right he divided the Spoil, but with the Advice of his Council; and partly as General, and so out of that which was publick, he claimed a greater Share than others to himself. Therefore Achilles thus addresses Agamemnon,
And in another Place Agamemnon, by the Advice of his Council,4 offers to Achilles, a Ship laden with Gold and Silver, and twenty Women, as his Share of the Spoil. When Troy was taken, as Virgil relates, Aeneid ii.5
So, long after,aAristides faithfully watched the Booty taken at the Battle of Marathon. And after the Battle at Plataeae, it was strictly forbidden, that any Man should take to himself any Part of the Spoil; andb afterwards it was distributed among the People, according to every one’s Deserts. The Athenians being subdued,cLysander brought the Spoil into the publick Domain. And the Spartans had publick Offices, called Λαϕυροπω̂λαι,6 appointed to make Portsale of all the Prizes taken in War.<590>
3. If we pass to Asia, Virgil7 tells us, that the Trojans used to divide the Spoil by Lot; as is usual where Things held in common are to be divided among many. Otherwise the General had the dividing the Spoil, by which Right Hector, upon Dolon’s Request,d promised to give him Achilles’s Horses; whereby we may perceive that this Right of gaining Property was not in the sole taking of the Thing. The Spoil taken in Asia was brought toeCyrus, being Conqueror, and so afterwards tofAlexander. If we look into Africa we there find the same Custom; so the Things taken atgAgrigentum, and at the Battle ofhCannae, and elsewhere, were sent to Carthage. Among the old Franks, as we find in the History of Gregorius Turonensis, whatsoever was taken in War8 was divided by Lot. Neither had the King any other Share than what the Lot gave him.
4. But by how much the Romans exceeded all other Nations in the military Art, so much the more do they deserve our Consideration of the Examples they furnish us with, in Regard to the Subject we are now upon. Dionysius Halicarnassensis, a most exact Observer of the Roman Customs, thus instructs in this Case,9 Τὰ ἐκ τω̂ν πολεμίων λάϕυρα, &c. Whatsoever their Valour has taken from the Enemy in War, the Law has decreed to be publick, so that not only the private Soldiers are not Proprietors thereof, but not even the General himself; the Quaestor causes the whole to be sold, and brings the Produce of it into the publick Treasury. These are the Words of those that accused Coriolanus, who, to render him odious, do not express themselves altogether exactly.
XV.Yet in such Things some Power was left to the Will of the General.XV. For it is true that the People are the Righta Owners of the Spoil.1 Yet it is as true, that the Power of disposing of it was, in the Times of the Republick, left2 to the General; yet so that he was to give an Account of it to the People. L. Aemilius says, in Livy,3 that Cities taken by the Sword, not those that surrendered, were pillaged; but this at the Will of the General, not of the Soldiers. Yet this Power, which Custom had bestowed on the Generals, they themselves have sometimes, to take away all Suspicion, referred to the Senate, as Camillus4 did; and they that have retained it, are found to have disposed it to several Uses, either for Religion, Reputation, or Ambition.
XVI.Who either brings ’em to the publick Treasury;XVI. 1. But they who desired to be, or be thought most upright,1 would not at all meddle with the Prey; but whether it were in Money, they ordered the<591> Quaestor of the People to receive it, or other Goods, the Quaestor was commanded to sell them publickly, and the Money arising from thence (called Manubiae,2 Spoils, as Favorinus observes, in Gellius) was, by the Quaestor, brought into the Treasury; but if the Expedition was such as deserved the Honours of a Triumph, it was first publickly shewed. And3Livy says of C. Valerius the Consul, There was but a little Spoil (because they had been often plundered, and had secured most of their Goods in Places of Safety); this being publickly sold, the Consul ordered the Quaestors to put the Money into the Treasury. Pompey did the same, of whom Velleius4 records, He gave the Money that he had taken from Tigranes, as his Custom was, to the Quaestor, and had it registered. And so M. Tully,5 in his Letter to Salust, writes of himself, Besides the Quaestors of the City, that is, the People of Rome, no Man has or shall touch the Prey that I have taken. And this was generally done in the antient and best Times of the Commonwealth, to which Plautus alluding, says thus,
And likewise of Prisoners,
2. But other Generals did without a Quaestor sell the Spoil, and put the Money into the Treasury, as we may gather from8 what follows in the Passage of Dionysius Halicarnassensis, whom we have cited a little above. So King Tarquin, when he had conquered the Sabins,a sent the Prey and Prisoners to Rome. So Romulius and Veturius the Consulsb sold the Spoil to supply the Treasury, the Army repining at it. But there is nothing more common, than to find in History an Account of the Riches that such or such a General, either by himself or the Quaestor, brought into the Treasury from the Triumphs over Italy, Africa, Asia, Gaul and Spain: So that it would be needless to heap together a great many Examples. But this is more remarkable, that the Spoil, or Part of it, was sometimes given to the Gods, sometimes to the Soldiers, and sometimes to others. To the Gods were given either the Spoils themselves, as those which Romuliusc hung up to Jupiter Feretrius, or turned into Money, asdTarquin the Proud built the Temple of Jupiter on the Tarpeian Hill, with the Money raised from the Spoils of the City Pometia.
XVII.Or divides them among the Soldiers, and how.XVII. 1. To give the Spoil to the Soldiers, the old Romans thought a Sign of Ambition. So Sextus the Son of Tarquin the Proud, when retired to Gabii, is said to have distributed the Prey among the Soldiers,1 to make himself the more powerful.2Appius Claudius in the Senate, declared such Largesses to be new, prodigal, and inconsiderate.
But the Spoil given to the Soldiers is either divided, or left to be pillaged. It may be divided, either instead of Pay,3 or to reward Merit. Appius Claudius4 <592> was for giving it in lieu of Pay; if it could not be sold, and the Money brought into the Treasury.aPolybius describes exactly the Manner of this Distribution, namely, that one Part of the Army, the Half at the most, was sent out in the Day-Time,5 or in the Night, to fetch in the Spoil, who were ordered to bring all they found into the Camp, that it might be equally divided by the Tribunes, Shares being likewise allowed to them who staid in the Camp (which King David6 made a Law among the Hebrews, 1 Sam. xxx. 24, 25.) and also to those, who either by Sickness, or because they were sent elsewhere, were then absent.
2. Sometimes the Spoil was turned into Money, and that, in lieu of it,b was given to the Soldiers, which was often done in Triumphs. The Proportions I find thus, a single Share to a Foot Soldier; a double Share to a7 Centurion or Captain; a treble to a Trooper; sometimes a single8 one to a Foot Soldier, and double to a Trooper; at other Times a Centurion had double the Share of a Foot Soldier, and the Tribune, as also9 a Trooper, quadruple. There was also sometimes Regard had to their Merit, as Marcius, because he had behaved himself gallantly, was particularly rewarded by Posthumius, out of the Spoils taken at10Corioli.
3. Which Way soever the Spoil was divided,c the General11 was allowed to take to himself ἐξαίρετον, A choice Part, what he pleased; that is, what he thought was just and reasonable,12 which also was sometimes granted to others for their<593> Valour. Euripides, speaking of the Trojan Ladies, says,13
And of Andromache,14
Ascanius, in Virgil,15
Herodotus relates that noble Presents were given to Pausanias16 after the Battle of Plataeae, Women, Horses, Camels, &c. So King Tullius17 chose Ocrisia Corniculana for himself; and Fabricius,18 in his Oration to Pyrrhus, in Dionysius Halicarnassensis, speaks thus, Of the Spoils taken in War, I might have chosen what I pleased for myself. Isidore,19 treating of the Right of War, refers to it, The Distribution of the Spoil, according to the Quality and Services of Persons; to which he adds, The Portion of the General. Tarquin the Proud, according to Livy,20 would both enrich himself and gain the Affections of the People with the Spoil. Servilius,21 in his Oration for L. Paulus, said, he might have made himself rich by dividing the Spoil. And some think, that only the General’s Part was called Manubiae, as Asconius Pedianus22 for one.
4. But those Generals are more worthy of Commendation, who, quitting their own Right, have taken nothing of the Prey to themselves, as23Fabricius just mentioned, Preferring Glory even to Riches justly acquired, which he said he did in Imitation of Valerius Publicola, and a few others; whom M. Portius Cato24 imitated in his Spanish Victory, saying, that he would take nothing to himself of the Prey, but barely what he eat and drunk; yet adding, that he did not blame those Generals who made Use of the Advantages allowed them; but as for himself, he had rather rival the best of Men in Virtue, than the richest in Wealth. Next to these are those Generals to be commended, who take to themselves some of the Prey, but moderately, as Pompey is praised by Cato in Lucan,25 who,<594>
5. In dividing the Spoil, they sometimes considered those that were absent, as Fabius Ambustusd ordered, at the taking of Anxur; and sometimes for certain Reasons they were omitted that were present, as the Army commanded by26Minutius, when Cincinnatus was Dictator.
6. But what Right the Generals, called Imperatores, in the Time of the Commonwealth had, was transferred, after it had been seized on by those who governed absolutely under that Name, to the Lieutenants, (Magistri Militum) who, by their Order commanded the Armies. This appears by Justinian’s Code,27 where it is enacted, that the Commanders of the Army shall not be obliged to put into the List of military Affairs, for which they were accountable, the Donations of Moveables, either with or without Life, which they gave the Soldiers out of the Spoils of the Enemies, whether at the Time and Place of Pillage, or elsewhere.
7. But this Division proved often the Occasion of Slander, as if the Generals by that Means proposed to gain Favour to themselves; with which they charged Servilius, Coriolanus, and28Camillus, as if they had enriched their Friends and Clients out of the publick Stock. They, on the other Side, alledged, that they had done it for the publick Good,29That the Persons who took the Pains being rewarded for their Labour, might with more Courage undertake other Exploits; which are the Words of Dionysius Halicarnassensis on this Subject.
XVIII.Or suffers them to be plundered.XVIII. 1. I now come to Plundering, which was granted to the Soldiers, either when they went to ravage the Enemy’s Country, or after a Battle, or after the taking of a Town, so that upon a Signal given, they might run in immediately, which was rarely granted of old, and yet not without some Examples in those Times. For Tarquina gave the City Suessa Pometia to be plundered by his Soldiers. So did Q. Servilius,b the Dictator, the Camp of the Aequi. Camillus,1 the City of the Veii: Servilius, the Consul,2 the Camp of the Volsci. Also L. Valerius3 gave License to plunder in the Country of the Aequi. So did Q. Fabius,c having routed the Volsci, and taken the City Ecetra, and several others afterwards. Paulus,d the Consul, having conquered Perseus, gave the Spoil of that Prince’s Army to his Foot, and that of the Country round about to his Horse. And, by the Decree of the Senate, he gave the Plunder of the4 Cities of Epirus to his Soldiers.5Lucullus having vanquished Tigranes, a long while forbad his Soldiers plunder-<595>ing, but at last, being assured of the Victory, he gave them Leave to do it. Cicero,6 in his first Book of Invention, among the Methods of7 acquiring a Right of Propriety, puts the taking of the Enemies Effects, which have not been publickly sold.
2. They who do not like this Custom, say, that by this License to plunder,e the greedy Soldiers often hinder the truly Valiant of the just Reward of their Bravery; and that We frequently see the backwardest to fight the most forward to plunder; whilst the most courageous expect only the largest Share of Labour and Danger, which are the Words of Appius, in Livy.8 To which let us add that of Cyrus, in Xenophon,9 ἐν τῃ̑ ἁρπαγῃ̑ εν̂̔ οἰ̂δ’ ὅτε οἱ πονηρότατοι πλεονεκτήσειαν ἂν, In plundering I know the worst Soldiers get most. To this it is alledged, on the other Side, what a Man takes from the Enemy with his own Hand, is more dear10 and pleasing to him than much more bestowed upon him by the Order of another.
3. Sometimes also Plundering is granted, because it cannot well be hindered; as it was at the taking of Cortuosa, a Town of the Hetrurians, according to Livy.11The Tribunes ordered the Spoil to be sold, but the Command was too late for the Purpose, for the Soldiers had already seized on it, and it could not be taken away without Envy. We also read, that the Camp of the Gallo-Greeks12 was plundered by the Army of C. Helvius, against the Will of the General.
XIX.Or gives them to others.XIX. What I said, that sometimes others who were no Soldiers partook of the Spoil, or of the Money arising from the Sale of it; this happened commonly when some had contributed to the Maintenance of the War, and were to be1 reimbursed. And sometimes Plays were instituted out of the Money of the Spoil.<596>
XX.Or dividing them into Parts, disposeth of some one way, some another, and how.XX. 1. Neither is the Spoil diversly disposed of, only when the Wars are divers; but the same Prey, in the same War, is often appropriated to several Uses, distinguished either by its Parts or its Kinds. So Camillusa dedicated the Tenth of the Spoil to1Apollo Pythius, in Imitation of the Greeks, who first learnt it of the Hebrews; at which Time, under the Vow of tithing the Spoil, the Chief-Priests adjudged, that not only Moveables, but also Towns and Fields, were included. The same Camillus having vanquished the Falisci, delivered the greatest Part of the Spoil to the Quaestor, andb reserved a small Part for the Soldiers. So did also L. Manlius,2Either sell the Spoil which he brought into the publick Treasury, or divided it among the Soldiers, as equally as possible: Which are the Words of Livy.
2. The Kinds into which a Prey may be divided are these: Prisoners of War, Herds, Flocks, (called properly in Greek λεία, the Prey) Money, and other Moveables, both rich and ordinary.3Q. Fabius having overcome the Volsci, ordered the Prey and Spoils to be sold by the Quaestor; but the Silver he brought himself into the publick Treasury. And when he had subdued the Volsci and Aequi,c he gave the Prisoners, excepting those of Tusculum, to the Soldiers; and in the Lands of Ecetra, he left the Persons and Cattle to be plundered. When L. Cornelius took Antium,d he brought all the Gold, Silver, and Brass into the Treasury; sold the Prisoners, and the Prey, by the Quaestor, and left to the Soldiers the Provisions and Cloaths. Not unlike to this was that of Cincinnatus,e who having taken Corbio, a Town of the Aequi, sent the richest of the Spoil to Rome, the Rest he divided to the Soldiers by Companies. Camillus, upon taking Veii,f brought nothing into the Treasury, but the Money arising from the Sale of the Prisoners, and having conquered the Hetrurians, he sold the Prisoners, and out of that Money repaidg the Roman Ladies what they had contributed to the War, and laid up three golden Cups in the Capitol. And when Cossus was Dictator, all the Prey from the Volsci, except free Persons, was givenh to the Soldiers.
3. Fabricius having conquered the Lucans, the Bruttii, and the Samnites,4 enriched his Soldiers, restored to the Citizens what they had contributed to the War, and brought 400 Talents into the Treasury. Q. Fabius and Appius Claudius havingi taken Hanno’s Camp, sold the Prey, and divided it, rewarding those that had done signal Services. Scipio at the taking of Carthage,k gave his Soldiers the Plunder of the City, except the Gold, the Silver, and the Things consecrated to the Gods. Acilius having taken Lamia,l divided Part of the Spoil (among his Soldiers) and sold the Rest. Cn. Manlius having vanquished the Gallo-Greeks, and according to the Superstition of Rome, burnt their Arms, he ordered every one to bring in what he had taken; of which he sold a Part, that is, what was to come to the Publick; and divided the Rest amongst the Soldiers as equally as possible.
XXI.Sometimes the Publick cheated of the Spoil.XXI. 1. From what we have said, it appears, that no less among the Romans, than other Nations, the Spoil belonged to the People; but the Disposing of it was sometimes left to the Generals; yet so, (as I said before) they were to give an Account of it to the People; which we may learn among others, from the Example of1L. Scipio, who, according to Valerius Maximus, was condemned of wronging the Publick, as having received six Pounds of Gold, and 480 Pounds of Silver, more than he had brought into the Treasury; and of others whom I have mentioned before.
2. M. Cato, in his Oration concerning the Spoil, did (as Gellius observes) in strong and noble Terms complain of the Licence granted to their Generals, and<597> their Impunity for cheating the Publick. Of which Oration there remains this Fragment,2Those who rob a private Person are condemned to be laid in Irons for Life; but the Robbers of the Publick live in Magnificence, we see nothing but Gold and Purple in their Houses. And again,3That he admired how any Man durst set up in his House Statues taken in War, as if they were so much Furniture. Thus did Cicero4 exaggerate the Crime of Verres, in defrauding the Publick, because he had stoln a Statue, and that taken out of the Prey of the Enemy.
3. Neither were Generals only, but also private Soldiers, accused of this Crime of robbing the Publick, if they did not produce what they had taken. For they were all, as Polybius5 says, bound by an Oath, That they should carry off nothing of the Prey, but honestly keep their Faith, as they had sworn. To which we may refer the Form of the Oath in Gellius,6 by which the Soldier is obliged to take away nothing within the Army, or ten Miles round, that was of more Value than two Pence Halfpeny; or if he took it, to bring it to the Consul, or within three Days declare it publickly. Hence we may understand the Meaning of Modestinus,7He that hath stolen away the Spoil taken from the Enemy, is guilty of wronging the Publick. Which one Passage is enough to convince the modern Interpreters, that the Spoils taken from the Enemy do not peculiarly belong to the Captors; for it is plain there can be no robbing the State, but in Things publick, sacred, or religious. The Design of all this is to shew, (as I said before) that setting aside the Civil Law, and primarily, whatsoever is taken from the Enemy, in any military Expedition, belongs to the Prince or People who maintain the War.
XXII.That something may be changed of this common Right by any Law, or Act of the Will.XXII. 1. We added, Setting aside the Civil Law, and primarily, or directly: The first, because the Law, whether made by the People, as among the Romans, or by the King, as among the Hebrews and others, may dispose of Things not actually possest, to the Benefit of the State. And here, under the Notion of Law, we comprehend also Custom, if duly established. And the other, that we may know, that it is in the Power of the People to grant the Spoils to others, as well as other Things; and that not only after Acquisition, but also before it; so that the Capture following, the Donation and the taking Possession are united,1Brevi manu, as the Lawyers term it. Which Grant may be made, not only by Name, but also in general; as part of the Spoil was given in the Time of the Maccabees, to Widows, aged People, and poor Orphans; or to uncertain Persons, as the Gifts thrown2 among the People, which the Roman Consuls allowed to them that could catch them.
2. Neither is the transferring this Right, either by Law, or Grant, always a mere free Gift, but sometimes the Payment of a Debt, or Satisfaction for Loss received, or by Way of Reimbursement of Charges in the War, or Recompence for Services, as when Allies or Subjects serve without Pay, or for less than their Labours deserve. For in these Cases it is usual to grant either the Whole, or some Part of the Spoil, to others.
XXIII.Some of the Spoil may be given to our Allies.XXIII. And our Lawyers observe, that silent Custom has so prevailed almost every where, that our Allies, or Subjects, who serve without Pay, and at their own Cost and Hazard, should enjoy what they take.1 The Reason, as to our Allies, is plain, because by the Law of Nature one Confederate is obliged to repair<598> the Losses of another, suffered on Account of the common or publick Affair. Besides, few will take Pains for nothing; Therefore, (Seneca2 observes) we pay Physicians, because we call them away from their own Affairs to serve us. Quintilian3 says the same, in Regard to Advocates, because they spend their Time and Study to defend other Mens Estates, and neglect all other Means of improving their own. As Tacitus also remarks, They neglect their own Affairs, to mind those of other Men. It is therefore to be presumed, (unless some other Cause appears, as pure Kindness, or some previous Contract) that the Hope4 of gaining the Enemies Spoils, as a Reward to their Pains and Hazard, made them undertake it.
XXIV.Sometimes also Subjects; illustrated by Examples.XXIV. 1. The Thing is not so plain as to Subjects, because they owe their Service to the State; but since not all, but some only, hazard themselves; therefore it is but just, that a Retribution be made by the whole Body, to those, who more than the Rest, undergo the Fatigues and Charges of the War, but much more the Damages attending it; in Return of which, the Hopes of the whole Prey, or of an uncertain Part, is readily granted to them, and not without Reason. Thus thought the Poet.
2. As to our Allies, we have an Example in the Roman League, whereby the Latins1 were admitted to an equal Share2 of the Spoils taken from the Enemy in the Wars that should be made under the Conduct of the Roman People. So in the Wars wherein the Aetolians were assisted by the Romans, it was agreed, that the Towns and Lands should be the Aetolians,3 but the Romans have the Prisoners and Moveables. After the Victory over King Ptolemy,aDemetrius gave Part of the Prey to the Athenians. St. Ambrose,4 treating of Abraham’s Expedition, shews the Equity of this Custom, He thought it just, that they who assisted him in that Expedition, and were perhaps in Alliance with him, should partake of the Spoils, as a Reward of their Labour.
3. As to Subjects, we have an Example in the Hebrews, among whom half the Prey was given5 to them who went out to Battle, Num. xxxi. 27, 47. and 1 Sam.<599> xxx. 22. 2 Macc. viii. 28, 29. So the Soldiers of Alexander claimed the Spoil taken from private Men to themselves, but any that was very valuable, they presented to the King; whence we find them accused at Arbela,b who conspired to rob the Publick, by appropriating the Prey to themselves, and to bring none into the Treasury.
4. But what publick Things belonged to the Enemies, or their King, were exempted from this Licence. Thus the Macedonians having forced Darius’s Camp, near the River Pyramus, carried away an infinite Mass of Gold and Silver, and left nothing untouched,6 besides the Royal Pavilion; It being an antient Custom among them, (says Curtius) to receive the Conqueror in the Pavilion of the conquered King. Not unlike the Custom of the Hebrews, who set the Crown of the conquered King on the Head of the Conqueror, 2. Sam. xii. 30. assigning to him (as we find in thecTalmud) all the Royal Baggage taken in War. We read of Charles the Great, when he had conquered the Hungarians, he gave the private Spoils to the Soldiers, but what belonged to the vanquished King he brought into the Treasury. The Greeks7 called the publick Spoils Λάϕυρα, as we shewed before, the private Σκν̂λα; their Σκν̂λα were such as were taken in the Heat of Battle; and Λάϕυρα when the Battle was over. A Distinction likewise allowed by other Nations.
5. It is plain, by what I have said already, that the Romans, in the early Days of their State, did not allow so much to their Soldiers, but the civil Wars indulged them with more Liberty. Thus8Equulanum was given to be plundered by the Soldiers, by Sylla. And Caesar, after the Battle of Pharsalia, gave Pompey’s Camp to be pillaged by the Soldiers; and Lucan9 introduces him speaking thus,
So the Soldiers of Octavius and Anthonyd plundered the Camp of Brutus and Cassius. In another civil War the Soldiers of Vespasian being led against Cremona, tho’ it was now near Night, made haste to storm the City, fearing lest otherwise the Wealth of the Cremonese should fall to the Share of their Commanders, and Lieutenant-Generals; for they knew well, says Tacitus, that10The Plunder of a City taken by Storm belonged to the Soldiers, of one surrendered, to the Generals.
6. But upon the Decay of Discipline, the Soldiers had greater Licence of Plundering granted them, upon this Account, lest, before the Danger was over, the Soldiers should leave the Enemy, and fall to plunder,11 which has often caused the Victory to be lost. When Corbulo had taken Volandum, a Castle in Armenia, Tacitus12 tells us, The common People, who did not bear Arms, were publickly sold, the Rest of the Spoil fell to the Conquerors. In the same Author, Suetonius13 encouraged his Soldiers, in a Battle against the Britons, to continue the Slaughter of the Enemy, without any Regard to the Spoil, assuring them, that when<600> the Victory was fully gained, they should enjoy the whole. Such like Examples we frequently meet with, besides what we have above quoted14 out of Procopius.
7. There are some Things of so small a Value, that they do not deserve to be reserved for the Publick, these generally belong to the Captors, by the Consent of the People: Such, in the old Roman State, were a Spear, a Javelin, Wood Fodder, Casks, Leather Bags, Torches, and any Thing else below the Value of two Pence Halfpeny. For, as Gellius15 informs us, these Things were expressly excepted in the military Oath. Like to this is the Allowance to Seamen that serve even for Pay. The French call it Dépouille, or Pillage, and under it they include Apparel, Gold and Silver, within ten Crowns. In other Places, a certain Part is given to the Soldiers, as in Spain, one While16 the fifth, another Time the third, and sometimes half the Booty, falls to the King; and the seventh, sometimes the tenth, to the General; the Rest belongs to the Captors,17 except Ships of War, which are all the King’s.
8. Sometimes the Spoil is bestowed with Regard to the Labour, Hazard, and Charge; as in Italy, the third Part of a Ship taken belongs to the Proprietor of the victorious Ship, a third to those who had Merchandizes in the Ship, and the other to those that sought against the Enemy. Sometimes it happens, that they who at their own Charge and Danger go upon military Enterprises, do not carry away all the Prize, but some Part is owing to the State, or to him who derives his Right from the State. So in Spain, if any Ship be fitted out upon a private Charge, part of the Prize comes to the King, and part to the Admiral. So likewise by the Custom of France and Holland, the tenth Part belongs to the Admiral, the fifth Part of the Prize being first laid aside for the State. But now it is customary at Land, in the taking of Towns, and in Battles, that every one keep what he takes; but in Excursions, whatsoever is taken, is divided among them that take it, according to the Merit and Dignity of each Person.
XXV.What Use may be made of what has been here said.XXV. What has been said may serve to let us understand, that if in any Nation, not engaged in War, a Dispute arise concerning any Thing taken in War, the Things shall be adjudged to him, whom the Laws or Customs of the People on whose Side he is, and by whose Authority the Things were taken, shall favour. But if nothing can thereby be proved, then by the common Right of Nations, the Thing taken shall be adjudged to the People; if at least it were taken in the Act of War. For it is plain from what we have already said, that what Quintilian all edges for the Thebans,1 does not always prove true, that the Right of War has no Power on that which is reducible to a Trial of Law, and that what is got by Arms can only be kept by Arms.
XXVI.Whether Things taken out of the Dominions of either Party be lawful Prize.XXVI. 1. But whatsoever Things do not belong to the Enemy, tho’ found among the Enemies, shall not be the Captor’s. For this (as I saida before) is neither agreeable to the Law of Nature, nor was introduced by the Law of Nations. So the Romans, in Livy, tell Prusius,1If that Land had not been Antiochus’ s, it<601> could not by Conquest belong to the Romans themselves. But if the Enemy had any Right annexed to the Possession of the Things, as of Pledge, or2 Retention, or Servitude, that is no Hindrance that it should not be the Captors.
2. This is also disputed, whether Things or Persons taken without the Territories of either Party engaged in the War, belong to the Captors. If we only respect the Right of Nations, I think the Place here can be no Security, as we have said, we may lawfully kill an Enemy any where. But the Sovereign of that Place may, by his Laws, prohibit it; and, if they will not obey him, may demand Satisfaction, as for an Insult on his Authority: Just as, according to the Roman Lawyers,3 the Proprietor of a Ground may hinder any one from coming to hunt there, tho’, when one does so, the Beasts taken belong to the Hunter.
XXVII.How proper is this Right to a solemn War.XXVII. But this external Right of acquiring Things taken in War, is by the Law of Nations so peculiar to a1 solemn War, that it has no Force in other Wars. For in other Wars between Foreigners, a Thing is not acquired by Vertue of the War, but in Satisfaction of some Debt, which otherwise could not be recovered. But in civil Wars, whether they be great or small, there is no Change of Property but by the2 Sentence of a Judge.<602>
[1 ]See what we say upon the last Paragraph of this Chapter.
[a ]B. 2. ch. 7. §2.
[b ]Ibid. ch. 20.
[2. ]“We should add,” (says Mr. Le Clerc in his Comment upon this Passage) “that the Effects of others become ours, when having raised an Army at our own Expence, we carry off such Effects from those, who had taken them, whilst the Persons, to whom they had belonged, remained in quiet. For it was not of the Spoils only of the Kings, that came from beyond the Euphrates, that Abraham offered the Tenth, but of the recovered Goods also of the People of Sodom, and other Neighbours; the remainder of which that Patriarch returned to their antient Proprietors, after having offered the Tenth.” This is what the learned and judicious Commentator says, and is agreeable to what our Author himself lays down below, § 7. where however he has forgot this Example. It appears also from the last Verse of the Chapter of Genesis, from which this History is taken, that the Patriarch kept out of the Booty recovered, besides the Provisions consumed by his People, the Part which was due to his Allies, Haner, Eschol, and Mamre, as our Author observes in a small Note, where he refers to what Josephus says on this History, Antiq. Jud. (Lib. I. Cap. XI.) and what he says himself below, Chap. XVI. § 3. For the rest, we must suppose here, that those, who do not attempt to recover their Effects, have both an Opportunity and the Means of doing it. See what we say below upon Chap. XVI. § 3. Note 2.
[3. ]See Selden’s Dissertation upon Tithes, Sect. III. translated into Latin by Mr. Le Clerk, and inserted at the End of his Commentary upon the Pentateuch.
[4. ]Our Author, as Gronovius observes, confounds here the Tenth, with what the Romans called Spolia opima, which were dedicated to Jupiter Feretrius.
[5. ]The Chaldee Paraphrase expounds it done by his Prayers to GOD, who by his special Favour preserved Sichem for Jacob and his Posterity. Grotius.
[6. ]Or rather over the Madianites; for they are meant by the Chusites. See Bo-chart’s Phaleg. Lib. IV. Cap. II.
[7. ]Et, quod est militaribus &c. De Benef. Lib. III. Cap. XXXIII.
[8. ]Lib. De Diris & Execrat. init. p. 930. A. Edit. Paris.
[1 ]See what we have said upon Chapter IV. of this Book, § 4. Note 1. It may be proper to relate here, what Mr. Carmichael, Professor at Glasgow, says in his Notes upon the Abridgment of Pufendorf, De Officio Hom. & Civ. Lib. II. Cap. XVI. p. 303 & seqq. He distinguishes between moveable and immoveable Things. The Acquisition of the first ought to be regarded as valid and lawful, because if the antient Proprietors could reclaim them from neutral People, where they are transported in consequence of Commerce, every State would see itself thereby exposed to enter into the War against its Will, as it would be obliged to examine, whether the Things reclaimed be good Prize, and consequently which Side has the best Cause. But as to Things immoveable, I do not find (adds this Author) that it is established by the common Consent of Nations, that the antient Owner ought to have less Right against the Third, who holds them of the Enemy, by what Title soever, than against the Enemy himself; unless that antient Owner has declared, in some manner or other, that he abandons his Right. All that can be said is, if the neutral People owe any real Servitude to the Lands, which an Enemy has taken from his Enemy, they may discharge it to the new Possessor, without the antient Proprietors having just Room to complain. I approve this Distinction in the main. But as I do not acknowledge that common Consent of States, upon which he founds the Law of Nations after our Author, it suffices for me to say, that moveable Things, being easily 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, and the State of Neutrality require, that they should always be reputed lawful Prize. But the Case is not the same in regard to Immoveables. They are immoveable in their Nature: And those, to whom a State, which has taken them from an Enemy, would resign them, can hardly be ignorant of the manner, in which it possesses them.
[2. ]He speaks both of Things and Men. De Institut. Cyri, Lib. VII. Cap. V. § 26. Edit. Oxon.
[3. ]De Legib. Lib. I. p. 626. B. Vol. II. Edit. H. Steph.
[4. ]Sophist. p. 219. D. E. Vol. I. and Ibid. p. 222. C.
[5. ]Memorab. Socrat. Lib. IV. Cap. II. § 15.
[6. ]De Republ. Lib. I. Cap. VI. p. 301. D.
[7. ]This does not belong to Antiphanes, but Antisthenes, the Cynick Philosopher; and I find the Passage so expressed in Stobaeus, Florileg. Tit. LIV. De Imperat. under the Name of the latter. I have observed a like Error either of our Author, or his Copists, in his Commentary upon the second Commandment of the Decalogue, where Antiphanes is cited in the same manner for Antisthenes, in Reference to the Invisibility of GOD; a Passage, which is recited above, B. II. Chap. XX. § 45. Num. 2. in a Note, and ascribed to the true Author of it. For the rest, Stobaeus took this Saying from Plutarch, who gives it also to Antisthenes, De Fortun. Alexandr. Orat. II. p. 330. A. Vol. II. Edit. Wechel. From whence it appears, that there was no Reason to suspect the Error to be in Stobaeus, where the Names of the Authors cited, are sometimes confounded. Let me also observe, that this Apophthegm of the antient Philosopher is omitted in Stanley’s philosophical History, and even in the Latin Version of the late Mr. Olearius, who had taken upon him to supply what was wanting in the Original.
[8. ]It is one of Alexander’s Courtiers, who makes this Reflection upon that Conqueror’s Saying, when he took the Tent of Darius, that he would go and bathe also in the Bath of the conquered King, in order to cleanse himself from the Dust of the Battle: Sire, said the Courtier to him, say the Bath of Alexander, and not the Bath of Darius; for what belonged to the vanquished, &c. Vit. Alexandr. (p. 676. A. Vol. I. Edit. Wech.) Alexander says himself upon another Occasion, that he had forgot that the Goods of the vanquished were the Victor’s. [P. 684. A.] Grotius.
[9. ]Cyrop. Lib. II. (Cap. III. § 2. Edit. Oxon.) These Words which our Author gives us as taken by Plutarch from Xenophon, I do not find any where.
[10. ]Epist. ad Athenien. apudDemosthen. p. 64. B. Edit. Basil 1572.
[11. ]Orat. de male obita legat. (p. 251. B.) Diodorus Siculus says, That we ought not to give up what we acquire by the Right of War. Excerpt. Peiresk. (p. 406.) See a Passage of Agathias, cited below, Chap. VIII. § 1. Note 10. Grotius.
[12. ]The Passage has been already cited upon Chap. IV. of this Book, § 5. Note 3.
[13. ]Si Philippus bello cepisset, &c.Livy, Lib. XXXIX. Cap. XXIX. Num. 2.
[14. ]Ceperat cum [Agrum] ab Carthaginiensibus, &c.Livy, Lib. XL. Cap. XVII. Num. 2, 4.
[15. ]Non Cappadocia filium, &c. Lib. XXXVIII. Cap. V. Num. 6.
[16. ]Quid Mytilenae? quae certè vestrae,Quirites, belli lege ac victoriae jure, factae sunt. Orat. De Lege Agrar. contra Rull. Cap. XVI.
[17. ]Sunt autem privata, &c. De Offic. Lib. I. Cap. VII.
[18. ]This Passage is in Lib. XLI. towards the End.
[19. ]It is upon the Occasion of the Israelites carrying away the Vessels of Gold and Silver of the Egyptians, when they quitted Egypt. That Father says, they did so, either by way of Amends for what the Egyptians owed them, for the severe Labour they had forced them to undergo, or by Right of War, against a People, who had reduced them against their Will to a cruel Slavery. Stromat. Lib. I. Cap. XXIII. p. 416. Edit. Oxon. In which he only copies Philo the Jew, as appears by the Passage, which the learned Bishop of Oxford cites in his Notes, and our Author gives below at length upon Chap. VII. of this Book. § 6. Num. 8.
[20. ]Item quae ex hostibus capiuntur, Jure Gentium statim capientium fiunt. Digest, Lib. XLI. Tit. I. De adquirendo rerum dominio. Leg. V. § 7. See also the Institutes, Lib. II. Tit. I. De divisione rerum, § 17.
[21. ]Lib. II. Tit. I. § 17.
[22. ]Politic. Lib. I. Cap. VIII. p. 304. D. Vol. II. Edit. Paris.
[23. ]Dominiumque rerum ex naturali, &c. Digest, Lib. XLI. Tit. II. De adquir. vel amittenda possess. Leg. I. § 1.
[24. ]Hist. Graec. Lib. III. Cap. I. § 23.
[1 ]It is where he speaks of Things taken away by some Beast; for in his Opinion, they are deemed lost to the Person from whom they are taken, when the Beast is secured from his pursuit: Ita ex bonis quoque nostris capta a bestiis marinis & terrestribus, &c. Digest, Lib. XLI. Tit. I. De adquir. rerum domin. Leg. XLIV. See above, B. II. Chap. IV. § 5. Num. 2. But there is a Difference between this and the Case, to which our Author compares it, that will not permit us to form the same Judgment of it; because according to the Lawyer, it is presumed, that the Owner has abandoned his Goods, when he can pursue the Beast no longer that took them away; whereas between two Enemies there is no room for such a Presumption. Every Enemy, as such, and whilst he continues such, retains the Will to recover what the other has taken from him. His present Inability only reduces him to wait for a more favourable Opportunity, which he still seeks and desires. So that, in regard to him, the Thing ought no more to be deemed taken, when in a Place of Safety, than whilst he is still in a Condition to pursue it: All that can be said is, that in the latter Case the Possession of the Enemy is not so secure as in the former. The Truth is, this Distinction has been invented to establish the Rules of the Right of Postliminy, or the manner in which the Subjects of the State, from whom something has been taken, re-enter upon their Rights, rather than to determine the Time of the Acquisition of Things taken between Enemies. See Titii, Observ. in Compend. Lauterbach. Obs. 1446. and what we say below, upon Chap. IX. § 16.
[2. ]Postliminio rediisse videtur, quum, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. XIX. § 3. Si id, quod nostrum hostes ceperunt, ejus generis est, ut postliminio redire possit; simul atque ad nos redeundi caussâ, profugit ab hostibus, & intra fines imperii nostriesse coepit, postliminio rediise existimandum est. Ibid. Leg. XXX.
[3. ]In bello [Postliminii jus competit] quum hi, qui nobis hostes, sunt, aliquem ex nostris ceperunt, & intra praesidia sua perduxerunt.—Antequam in praesidia perducatur hostium, manet civis. Ibid. Leg. V. § 1.
[4. ]In the first of the two Laws cited above on this Paragraph, Note 2. See below, Chap. IX. § 5. and 16.
[5. ]In the Law cited above, Note 3.
[6. ]See the Law cited in Note 20, upon the foregoing Paragraph. Ziegler is for having the Word Statim of the Roman Lawyers taken literally. But Obrecht defends our Author’s Explanation; and founds his Opinion upon this Example, chosen from many others, which, says he, might have been alledged. We call a Thief taken in the Fact, (Fur manifestus, or ἐπ’ αὐτοϕόρῳ, deprehensus) not only him whom we seize the Moment he has stolen something, but even him whom we find carrying away the Thing stolen, before he arrives at Home, or where he designed to put it. See Institutes, Lib. IV. Tit. I. § 3. The following is a more express Example. When a Person is adjudged to pay a certain Sum immediately, that, say the Lawyers, is to be understood with some Modification; for it is not meant that the Person must go that Moment with the Money, to his House to whom it is to be paid. Quoddicimus — debereStatimsolvere, cum aliquo scilicet temperamento temporis intelligendum est: Nec enim cumsacco adire debet. Digest. Lib. XLVI. Tit. III. De solution. & liberat. &c. Leg. XC.
[a ]Consulat. Maris. c. 283. & 287. Constit. Gall. l. 20. tit. 13. art. 24.
[7. ]This is observed by Land also, as appears from Thuanus’s History, on the Year 1595, Lib. CXIII. where we find, that the Town of Liere in Brabant, having been taken and retaken the same Day, the Plunder taken from the Inhabitants was returned them, because it had not been twenty-four Hours in the Enemy’s Hands. This Custom is derived from the antient Laws of Germany, and was established in Imitation of the four and twenty Hours, which, not without Reason, was the limited Time, in Respect to the Permission of taking a Beast wounded by another. See Lex Longobard Lib. I. Tit. XXII. § 6. The same Thing is observed in England, and in the Kingdom of Castile, as Albericus Gentilis informs us, Hispanic. Advoc. I. 3. Grotius.
[a ]Com [[sic: Corn. a Lapide in Gen. c. 14. Molina, disp. 118.]]
[1 ]Rursum, si cum magna vi, &c. Digest. Lib. XLI. Tit. II. De adquir. vel amittenda possessione, Leg. XVIII.
[2. ]Hannibal was informed of this by a Prisoner, and thought it such a Piece of Assurance, that to brave the Romans in his Turn, he caused the Goldsmiths Shops round the Forum of Rome to be sold by Auction: Parva autem [res minuit spem Annibalis] quod per eos, &c.Livy, Lib. XXVI. Cap. XI. Num. 6. The Remark upon the preceding Paragraph, Note 1. is also applicable in this Place.
[3. ]The Sense of Flaccus is, that the People, who went out to settle in some Country, called the Extent of Land, which they had seized for their Use, after having terrified and expelled the Inhabitants, Territory: Praemensumque quod universis, &c. p.3. Edit. Goes.
[4. ]Varro says, Ab eo coloneis locus communis, qui prope oppidum, relinquitur, Territorium, quod maxime teritur. Lib. IV. p. 9. Edit. H. Steph. The Lawyer Pomponius derives it from the same Word as Siculus Flaccus, but for a different Reason; that is, says he, the Power of the Magistrates to awe the People. [Territorium est universitas agrorum intra fines cujusque civitatis: Quod ab eo dictum quidam aiunt, quod Magistratus ejus loci intra eos fines terrendi, id est, submovendi, jus habent. Digest. Lib. L. Tit. XVI. De verborum significat. Leg. CCXXXIX. § 8.] Grotius.
[5. ]Frontinus does not derive the Etymology of the Word Territory from Terra, but from Terrere, with Siculus Flaccus, and that in a Manner more conformable to the Sense and End of our Author. Territorium, says he, est quidquid hostes terrendi caussa constitutum est; or, as Mr. Vander Goes conjectures, Quo quid hostis, &c. De limitibus agrorum, p. 42. But it is a modern Civilian, the great Cujas, who says in a Note upon the Codex, Lib. X. Tit. XXXI. De Decurionib. &c. Leg. LIII. Territorium a terra malo deducere, quam a terrendo: And gives for his Reason, that Territorium is sometimes taken for a private Possession, and to the Laws he cites, a Passage from Siculus Flaccus himself may be added, p. 42. which Mr. Vander Goes notes in his Index. This Etymology, as it is the most simple, seems to me the best; tho’ the learned Gronovius approves that of Pomponius, in a Note upon this Passage of our Author, which the Reader may see. For the Rest, the Thing is not very material, and the Arguments deduced from the Etymology of Words are often very slender. But it is not improper to apprize my Reader, that I find here another Instance of what I have remarked in several other Places, that our Author sometimes quoted upon the Authority of others; for if he here ascribes to an antient Author the Conjecture of a modern Civilian, that undoubtedly proceeds from his having read in Dennis Godefroy’s Note upon the Law of the Digest, cited in the foregoing Note, the following Words, A terrendis hostibus [etymon deducit] Frontinus in libro de agrorum qualitat. a terra, Cujac. ad L. 53. C. de Decurion. he believed, through Mistake, that the Words a terra related to the Author first spoken of, and not to the latter. We have seen above, in B. II. Chap. XVIII. § 1. Note 2. a like Oversight into which he fell on Occasion of a Note of the same Dennis Godefroy.
[6. ]He speaks of two fortified Places that the Athenians had near their Silver-Mines, by the Means of which, with the Addition of a third Fort, which they might build upon an Eminence, it would not be difficult for them to preserve their Mines in Time of War. Lib. De Reditibus, Cap. IV. 43, 44. Edit. Oxon.
[1 ]That is to say, if neutral Strangers supply our Enemy with any Thing, and that with Design to put him into a Condition to distress us, they may then be considered as being of our Enemy’s Party, and, in Consequence, their Effects are liable to be taken by the Right of War. Now as this can scarce take Place but in Relation to moveable Things, as the late Mr. Cocceius observes, in his Dissertation, De jure belli in amicos, § 36. that Civilian might have spared himself the Trouble of criticising our Author, as not having distinguished in this Place between immoveable and moveable Things. The Distinction follows from the very Nature of the Thing which our Author lays down.
[2. ]Orat. de male obita Legat. p. 251. B.
[3. ]A Commentator upon our Author opposes him here with an Argument ad hominem. If, according to your Opinion, says he, it is lawful to kill the Strangers we find upon an Enemy’s Lands, there is much more Reason to hold it lawful to seize their Effects. And as he rightly foresaw, that he might be answered from what has been said above, (Chap. IV. of this Book, § 6.) that there is something to be feared from the Persons, but nothing from the Effects, of Strangers, who are not in the Enemy’s Country; he replies, that the Effects of Strangers serve to encourage the Enemy, and confirm him in his Designs. But some have answered, that Effects being only the Accessory of Persons, cannot be taken by the Right of War, unless when those they belong to, are, or may be, deemed our Enemies. So that the Use which the Enemy may make of the Effects of others in his Territories against us, authorises us to repute them good Prize, only when they have been sent thither on Purpose to succour him, or when the Proprietors, tho’ timely warned, have omitted to withdraw them. See Henninges and Obrecht.
[1 ]Neither do the Ships of Friends become lawful Prize, on the Account of the Enemies Goods, unless it is done by the Consent of the Owners of the Ship, L. Cotem. D. De publicanis.Rodericus Zuarius, Lib. De usu Maris, Consil. II. Num. 6. And so I take the Laws of France should be understood, which made Prize of the Ships on Account of the Goods, and of the Goods on Account of the Ships; such as those of Francis I. made in the Year 1543. Cap. XLII. Henry III. in the Year 1584. in the Month of March, Cap. LXIX. the Law of Portugal, B. I. Tit. XVIII. otherwise the Goods only are made Prize. Meursius Danic. B. II. So in the War between the Venetians and Genoese, the Ships of the Grecians were searched, and the Enemies taken out, if any were there. Gregoras, B. IX. See also Crantzius, Saxon. II. and Alberick Gentilis, Advocat. Hispan. I. 20. Grotius.
[1 ]See Note 2. upon Paragraph I. of this Chapter.
[2. ]So Rezin, King of Syria, having taken the City Eloth, which had belonged to the Idumaeans, gave it to be inhabited, not by the Idumaeans but the Syrians, according to the Reading of the Masoreths. 2 Kings xvi. 6. Grotius.
[3. ]Lib. VI. Cap. XXXVI. p. 355. Edit. Oxon. 369. Sylburg.
[4. ]Plutarch relating in what Manner the Veii had commenced Hostilities against the Romans, under Pretext that the latter had refused to restore the City of Fidenae, to which they pretended to have a Right; observes, that this was both unjust and ridiculous, because the Veii had not defended Fidenae, and had suffered the Romans to make a Conquest of it. Vit. Romul. (p. 33. B. Vol. I. Edit. Wech.) Grotius.
[5. ]Dionysius Halicarnassensis, Antiq. Rom. Lib. VI. Cap. XXXII. (p. 352. Edit. Oxon. 366. Sylb.) This Example is not to the Purpose. The Romans having overcome the Volsci Ecetrani, and deprived them of their Lands, the Volsci Aurunci demanded their being restored to them.
[6. ]Dionysius Halicarnassensis, Lib. VIII. Cap. X. p. 470. Edit. Oxon. (488. Sylb.) The Volsci demanded only the Lands and Towns which the Romans themselves had taken from them. So that this is also an Example extra oleas.
[7. ]Excerpt. Legat. (Cap. II. p. 705.)
[8. ]Et Lunam coloniam eodem anno, &c.Livy, Lib. XLI. Cap. XVII. Num. 4, 5, 6.
[9. ]Bell. Mithridatic. (p. 404. Edit. Amstel. 244. Edit. H. Steph.) The same Historian says in another Place, that Pompey made this the Pretext for depriving a Prince of his Dominions, of whom the Roman People had no Reason to complain. Bell. Syriac. (p. 190, 191. Edit. Amstel. 119. H. Steph.) Antiochus himself acknowledges in Polybius, That Conquest is the best of Acquisitions. Excerpt. Legat. Cap. LXXII. Grotius.
[10. ]Igitur ut habenti regnum non ademerit, &c. Lib. XL. Cap. II. Num. 4.
[11. ]It was after Marius had defeated the Cimbri, that Apuleius, Tribune of the People, proposed the Distribution of those conquered Lands. Appian. Bell. Civil. p. 625. Edit. Amstel. (367. H. Steph.)
[12. ]The antient Franks did not restore to the Romans the Lands in Italy, surrendered to them by the Goths.Procopius, Gotthic. Lib. IV. See also what the King of Sweden says, in Relation to his Dispute with the Poles about Livonia.Thuanus, Lib. LXXVI. upon the Year 1582. Grotius.
[1 ]As Strangers in the Service of the State.
[a ]Bart. ad leg. 28. Dig. de Captiv. & Postlim. Alexand. & Jason ad leg. 1. Dig. de adquir. possess. Angel. ad Inst. de rerum divis. § 17. Panorm. ad Decret. de Jurejur. c. 29. Thom. Gramm. Decis. Neapol. 71. n. 17. Martin. Laud. de bello, quaest. 4.
[2. ]The Law is cited above, § 2. Note 20.
[3. ]The Canons on which this is founded, consist of two Passages; the one from Isidorus, whom we shall cite below after our Author, § 17. Note 13. the other from St. Ambrose, who will be also cited, § 23. Num. 2. Note 8.
[4. ]Our Author confounds here 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 regard the Affairs in Dispute between State and State. Now, whether the Booty belongs to the Sovereign who makes War, or the Generals of Armies, or the Troops, or other Persons, that take any Thing from the Enemy, it signifies nothing either to the Enemy or other States. What is taken is taken; and if it be good Prize, it is of very small Consequence to those who have lost it, in whose Hands it remains. As to neutral People, it suffices, that those of them who have bought, or any other Way acquired, a moveable Thing taken in War, cannot be molested, or prosecuted, upon that Account. See above, § 1. Note 1. The Truth is, the Regulations and Customs upon this Head are of publick Right. And their Conformity in many Countries implies no more than a civil Right common to several States separately, which our Author distinguishes elsewhere from his Law of Nations. See B. II. Chap. III. § 5. Num. 2. and Chap. VIII. § 26.
[5. ]Without supposing any general Consent of Nations in this Place, it suffices to say, that the State of Hostility gives a Right of taking the Things which belong to an Enemy, in the same Manner as if they had no Proprietor, and as if the first Occupant were entitled to them; because the Law which forbids the taking away the Effects of others, ceases between Enemies, merely on Account of their being Enemies.
[6. ]In Paragraph II. of this Chapter, Num. 3. Note 23.
[1 ]Quod naturaliter adquiritur, &c. Digest. Lib. XLI. Tit. I. De adquir. rerum domin. Leg. LIII.
[2. ]Possessionem adquirimus, &c. Recept. Sentent. Lib. V. Tit. II. De Usucap. §1.
[3. ]Per Procuratorem, Tutorem, &c. Digest. Lib. XLI. Tit. II. De adquir. vel amitt. possess. Leg. I. § 20.
[4. ]See Peter du Faure’s Agonisticon. Lib. I. Cap. III. p. 14, 15. and Cap. XXVI. p. 170. Ed. Ludg. 1595. The Example which the learned Gronovius alledges here, does not seem well applied. It is likely that Alexander, the Son of Amyntas, King of Macedon, entered himself as a Combatant in the Olympick Games, since Justin, who is quoted, gives this Circumstance as a Proof that Nature had adorned that Prince with every excellent Quality. Cui [Alexandro] tanta omnium virtutum, &c. Lib. VII. Cap. II. Num. 14. But the same Commentator adds another Example, very proper here, taken from the Romans, amongst whom a Person might obtain the Prize in the Games of the Circus, either by himself, or the Slaves he sent thither: Namque ad certamina in Circum per ludos & ipsi descendebunt, & servus suos quique mittebant, &c.Pliny, Hist. Natur. Lib. XXI. Cap. III.
[5. ]Because, according to the Roman Law, Acquisitions were not made for a Man by another, unless that other was under his Power as a Slave, real or supposed, or a Son not emancipated. Ex his itaque apparet, per liberos homines, &c. Institut. Lib. II. Cap. IX. Per quas personas, &c. §5.
[6. ]See Note 1. on this Paragraph. The Words there recited are preceded by the following, Ea, quae civiliter adquiruntur, per eos, qui in potestate nostra sunt, adquirimus, veluti stipulationem: Quod naturaliter, &c.
[7. ]He decreed, that the Possession of a Thing might be acquired by the Means of any free Person, even tho’ we did not know that he had taken Possession of it in our Name; so that the Moment we come to know it, the Time of Prescription commenced. Per liberam personam ignoranti quoque, &c. Code, Lib. VII. Tit. XXXII. De adquir. & retin. possess. Leg. I. See Cujas upon this Law, Vol. IX. Opp. p. 1049, 1050. and the Receptae Sententiae of Julius Paulus, Lib. V. Tit. II. § 2. with Mr. Schulting’s Note, Jurisprud. Ante-Just. p. 434. This had been established before Severus, by the Decisions of the Civilians. See Janus a Costa, upon the Institutes, Lib. II. Tit. IX. § 6. Our Author cited here one Title in the Codex for another.
[8. ]These are two Rules in the Canon Law quoted in the Margin by our Author, Potest quis per alium, quod potest facere per seipsum. Decretal. in VI. De Reg. Juris, Reg. LXVIII. Qui facit per alium, est perinde, ac si faciat per seipsum. Reg. LXXII.
[1 ]This Decision has been criticised not without Reason in my Opinion. Every publick War being made by the Authority of the People, or their supreme Magistrate, all the Right private Persons can have to Things taken from the Enemy, is originally derived from them: The Sovereign’s Consent, either express or tacit, is always necessary in this Case. See Ziegler upon this Place, and Pufendorf’s Law of Nature and Nations, Lib. VIII. Cap. VI. § 18.
[2. ]Syphax Populi Romani auspiciis, &c. Lib. XXX. Cap. XIV. Num. 9. Neither this Example, nor the following, have any Thing in them, that tends to establish the Distinction of our Author.
[1 ]Verum est, expulsis hostibus, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlimin. &c. Leg. XX.
[2. ]That is, for a Thing which belongs to him who has taken it.
[3. ]Vandal. II. See what follows there. Also (the Emperor) Severus gave the Lands conquered from the Enemies to the Captains and Soldiers of the Frontier Garrisons, as Lampridius observes. In the Helvetick League it was stipulated, that the Towns and Forts taken, should belong to the whole Body, as we find in many Places of Simlar, De Repub. Helvetiorum. Grotius.
[4. ]This is inferred from the Manner, in which the Land of Canaan was divided among the Israelites, according to the Order which GOD himself had given in the Book of Numbers xxvi. 55. xxxiii. 54. xxxvi. 2. Our Author observed here in a Note, that among the same Hebrews, the King had for his Share of the Lands taken in War, as much as a whole Tribe, and refers to the Title, De Rege, of the Talmud. See Selden, De jure Natur. & Gent. secund. Hebr. Lib. VI. Cap. XVI. p. 785.
[5. ]I am very much deceived, if our Author, trusting to his Memory, has not confounded the Lacedaemonians with the Athenians, in this Place. The Scholiast upon Aristophanes says, that it was the Custom with the Athenians, when they had taken an Enemy’s City, and expelled the antient Inhabitants, to distribute the Lands by Lot amongst the Victors. In Nub. ver. 203. See the late Baron Spanheim upon that Passage. Long before him, Thomas Gataker had cited this Passage, amongst many others, in his Historical and Theological Treatise upon the Nature and Use of Lots, writ in English, Chap. IV. p. 76. But neither the one nor the other mention the Lacedaemonians; tho’ the latter, who was a Man of very extensive Reading, made it his Business to collect all he could find upon that Head, in the Customs of the Greeks, Romans, and other Nations.
[6. ]Page 604. Edit. Amstel. (353. H. Steph.)
[7. ]Page 840. (516. Edit. H. Steph.)
[8. ]Consecrabantar agri, &c. Orat. de domo sua ad Pontifices, Cap. XLIX.
[1 ]Admitting the Sovereign’s express or tacit Consent.
[2. ]Et quae res hostiles apud nos sunt, &c. Digest. Lib. XLI. Tit. 1. De adquir. rerum Domin. Leg. LI.
[3. ]Verum in pace, qui pervenerunt ad alteros, si bellum subito exarsisset, eorum servi efficiuntur, apud quos jam hostes suo fato [as it must be read and not facto or pacto, as the Editions have it] deprehenduntur. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlimin. &c. Leg. XII. princ. The Grammarian Servius opposes Destiny to Merit, when he says, that Virgil takes Care, in relating the Adventures of the Trojans, to attribute every Thing to the Destinies, and nothing to the Faults of the Exiles. Acti Fatis, Si fatis, nulla Junonis invidia est: Si odio Junonis, quomodo acti fatis? Sed hoc ipsum Junonis odium fatale est: Laborat enimVirgiliusnil Trojanorum meritis, sed omnia fatis adscribere. In Aeneid. (ver. 32.) Grotius.
[1 ]See above, § 8. Note 4.
[1 ]Iliad. Lib. I. ver. 125.
[2. ]Lib. IX. ver. 330, & seq.
[3. ]Lib. I. ver. 163, 164.
[4. ]Lib. IX. ver. 279, & seq.
[a ]Plut. in ejus Vit.
[b ]Herod. l. 9.
[c ]Plut. in ejus Vit.
[6. ]See Xenophon, in his Treatise upon the Lacedemonian Government, Cap. XIII. Num. 11. Edit. Oxon. Our Author observed here, that whilst Agesilaus was in Asia, Spithridates, who had come over to his Party, having taken the Camp of Pharnabazus, converted the Booty to his own Use; but Erispides, the Lacedemonian, having caused strict Search to be made on that Account, obliged Spithridates to run away. This Plutarch relates in the Life of Agesilaus, p. 601. E.
[d ]Homer, Iliad 10.
[e ]Plin. l. 23. c. 3.
[f ]Plut. in ejus Vit. Curt. l. 4. Diod. l. 17. Strabo, l. 15.
[g ]Diod. l. 13.
[h ]Livy, l. 23.
[8. ]You have this in Turonensis, B. II. Chap. XXVII. Aymon, Lib. I. Cap. XII. and in the Epitome published by Freher, Cap. IX. This was also an antient Custom of other Nations. Servius, upon the third Aeneid. Sortitus non pertulit ullos. Because the Prisoners and Spoil were divided among the Conquerors by Lot. And upon praedae ducere sortem. See Johannes Magnus, of bestowing the Prey in common, and of clearing by Oath, among the Swedes and Goths, Lib. XI. Cap. II. Grotius.
[9. ]Antiq. Roman. Lib. VII. Cap. LXIII. p. 450. Edit. Oxon. (467, 468. Sylburg.)
[a ]See Simler, De Rep. Helvetior.
[1 ]The learned Rhabod Herman Schelius, in his Tract De Praeda, which is amongst those that follow his Commentary upon Hyginus and Polybius, De Castris Romanorum, (p. 253. & seq. Edit. Amstel. 1660.) refutes Dionysius Halicarnassensis in this Place, without mentioning our Author, who long before him had made the same Criticism, and treated historically the Point of Antiquity in Question, better than any Body else, even since, has done.
[2. ]Polybius very much commends the Disinterestedness of Paulus Aemilius, who, when he had made himself Master of the whole Kingdom of Macedonia, by the Defeat of King Perseus, and had full Power to dispose of every Thing as he thought fit, coveted nothing in the least. Excerpt. Peiresc. De Virtut. & Vit. (p. 1454. Edit. Amstd. [[this reference added by Barbeyrac) Grotius.]]
[3. ]Aemilius primo resistere, &c. Lib. XXXVII Cap. XXXII. Num. 12.
[4. ]Nec duci [Camillo] qui ad Senatum, &c. Livy, Lib. V. Cap. XXII. Num. 1.
[1 ]Thus Lucius Mummius filled all Italy with the Statues and Pictures he had taken in the Plunder of Corinth, none of which were carried to his own House; as the anonymous Author of the Lives of illustrious Men, (supposed to be Aurelius Victor) informs us. Mummius Corinthum signis tabulisque spoliavit, quibus quum totam implevit Italiam, in domum suam nihil contulit. (Cap. LX. Num. 3.) Plutarch, in the Life of Paulus Aemilius, of whom we have spoken, (Note 2. upon the preceding Paragraph) says, that his Generosity and Greatness of Soul was highly extolled, because he would not so much as see the Gold and Silver that had been taken from King Perseus, but ordered it all to be paid to the Treasurers of the Republick, [the Quaestors.] (p. 270. Vol. 1. Edit. Wechel.) Grotius.
[2. ]Praeda dicitur corpora ipsa rerum, quae capta sunt: Manubiae vero adpellatae sunt Pecunia a Quaestore ex venditione praedae redacta. Noct. Attic. Lib. XIII. Cap. XXIV. Grotius.
[3. ]Praedae ex assiduis populationibus, &c. Lib. IV. Cap. LIII. Num. 10.
[4. ]Quae omnis [pecunia Tigranis] sicuti Pompejo moris erat, &c. Vellejus Paterculus, Lib. II. (Cap. XXXVII.) Pompey generally acted in that Manner, but not always. See the Passage of Lucan, cited in the next Paragraph. (Num. 7.) Grotius.
[5. ]De praeda mea, praeter Quaestores urbanos, &c. Lib. II. Epist. ad Famil. XVII. p. 113. Edit. Graev. maj.
[6. ]Bacchid. Act. IV. Scen. IX. ver. 152.
[7. ]Captiv. Act. I. Scen. II. ver. 1, 2.
[8. ]Where Decius says, in accusing Coriolanus, that he had neither delivered the Booty to the Quaestor, nor sold it himself, in Order that the Money might be laid up in the publick Treasury: Antiq. Roman. Lib. VII. Cap. LXIII.
[a ]Livy, l. 1.
[b ]Livy, l. 3.
[c ]Dion. Hal. l. 2.
[d ]Livy, l. 1.
[1 ]Apud milites vero, obeundo pericula, &c. Lib. I. Cap. LIV. Num. 4.
[2. ]Altera [sententia] Appii, &c. Idem. Lib. V. Cap. XX. Num. 5.
[3. ]Josephus tells us this was practised among the Hebrews, B. III. Antiq. Histor.Grotius.
[4. ]In the Words of Livy, which follow those quoted Note 2. upon this Paragraph, Si semel nefas ducerent, &c. Lib. V. Cap. XX. Num. 5.
[a ]Lib. 10.
[5. ]In dies aut vigilias, says our Author. This is not very conformable to his Original. It is not likely, that after the taking of a City the Soldiers should be sent out to plunder, during the whole Night. Polybius only says, that every Day were drawn out, sometimes a certain Number of Soldiers from the whole Army, in Proportion to the Bigness of the City, and sometimes only so many Standards or Companies. Lib. X. Cap. XVI. p. 821. Edit. Amstel. He informs us a little before, that when Scipio had taken New-Carthage in Spain, upon the Approach of Night, he caused the Troops to desist from plundering, and to carry all the Booty already taken into the midst of the publick Market-Place; where a good Guard was posted during the Night. So that this is very contrary to the Manner in which our Author expresses himself in this Place.
[6. ]See Selden, De Jure Nat. & Gent. Secund. Hebr. Lib. VI. Cap. XVI. p. 784, 785.
[b ]Livy, l. 45.
[7. ]Pediti in singulos, &c. Livy, Lib. XLV. Cap. XL. Num. 5.
[8. ]Tantaque praeda fuit, &c. Idem ibid. Cap. XXXIV. Num. 5.
[9. ]Appianus Alexandrinus says a Tribune and Colonel of Horse. Bell. Civil. Lib. II. (p. 803. Edit. Amst. 491. Edit. H. Steph.) Grotius.
[10. ]See Livy, (Lib. II. Cap. XXXIII.) and Plutarch, in the Life of Coriolanus, (p. 218. A. B. Vol. II. Edit. Wech.) Grotius.
[c ]See Leunclav. Hist. Turc.
[11. ]There are Authors, who pretend that this Portion of the General’s was most commonly called Manubiae. The Grammarian Asconius Pedianus is of that Number, who says, Manubiae autem sunt praeda Imperatoris, pro portione de hostibus capta. (In Cicero, Verr. Lib. I. Cap. LIX.) Grotius.
[12. ]So Nestor had a Woman for his Share
[13. ]Trad. ver. 32. & seq.
[14. ]Ibid. (ver. 274.)
[15. ](Aeneid. IX. ver. 270, 271.)
[16. ]He had the tenth Part of the whole Booty. Lib. IX. Cap. LXXX. King Agamemnon had Cassandra by this Right of Preciput, according to Euripides,
(Troad. ver. 249.) See Thucydides upon the Portion of the Booty given in particular to Demosthenes, General of the Athenians. Lib. III. (Cap. CXIV. Edit. Oxon.) Grotius.
[17. ]It was not Servius Tullius, but Tarquinius Superbus, for Ocrisia was the Mother of the former; as Gronovius observes upon this Place. He might have added that our Author’s Mistake arose from Ocrisia’s Husband’s being called Tullius. See Dionysius Halicarnassensis, Antiq. Rom. Lib. IV. Cap. I.
[18. ]Excerpt. p. 714. Edit. Oxon.
[19. ]Item praedae decisio, &c. (Origen. Lib. V. Cap. VII.)
[20. ]Eaque ipsa causa belli, &c. Lib. I. Cap. LVII. Num. 1.
[21. ]It is not of the General that Servilius speaks, but of Servius Galba, who complained, that Paulus Aemilius had not rewarded his Army by the Distribution of the Spoils, Quum te praeda partienda, &c. Livy, Lib. XLV. Cap. XXXVII. Num. 10.
[22. ]See Note 11. upon this Paragraph.
[23. ][[The footnote is wrongly numbered 24 in the text. This follows the Passage of Dionysius Halicarnassensis, cited above, Note 18. of this Paragraph. The Emperor Julian, as our Author observes in a short Note, proposed the Example of Fabricius to himself and his Soldiers, as appears by a Speech ascribed to him by Ammianus Marcellinus, Lib. XXIV. Cap. III. p. 429. Edit. Vales. Gron.]]
[24. ]Plutarch, in Vit. M. Caton. p. 342. A. Vol. I. Edit. Wech.
[25. ]Pharsal. Lib. IX. ver. 197, 198. See above, § 16. Note 4.
[d ]Livy l. 4.
[26. ]This was because it had been upon the Point of being defeated, through the Consul’s ill Conduct who commanded, and who, upon that Account became Lieutenant, from Commander in chief. Carebis, inquit, [Dictator L. Quintius Cincinnatus] praedae parte miles, ex eo hoste, cui prope praedae fuisti; & tu, L. Minutii, donec Consularem animum incipias habere, legatus his legionibus praeeris.Livy, Lib. III. Cap. XXIX. Num. 2.
[27. ]Simili etiam modo a gestorum absolvimus ordinatione, &c. Lib. VIII. Tit. LIV. De Donation. Leg. XXXVI. § 1.
[28. ]This Example is not well applied. The Accusation of Camillus had another Foundation. See Livy, whom our Author cites in the Margin, Lib. V. Cap. XX. XXII. XXIII. XXXII. and Plutarch, in Camill. p. 132, 133.
[29. ]Lib. VII. Cap. LXIV. Edit. Oxon. I read στραγειὰς, instead of στρατιὰς, in this Passage; according to the Conjecture of Sylburg, which the Authority of a good Manuscript in the Vatican, that Mr. Hudson had good Reason to follow, renders indisputable.
[a ]Dion. l. 4.
[b ]Livy, l. 4.
[1 ]This was in Consequence of a Resolution of the Senate; for Camillus was averse to granting that Permission, as Livy tells us, Lib. V. Cap. XX.
[2. ]That Consul did not suffer it to be plundered in the Manner now under Consideration, that is, that every one might keep what he should take; for Dionysius Halicarnassensis expressly says, that he caused the Booty to be divided. Antiq. Rom. Lib. VI. Cap. XXIX.
[3. ]This Example is dubious. It does not appear that the Army was permitted to plunder in the Manner our Author understands it. See Dionysius Halicarnassensis, Lib. IX. Cap. LV.
[c ]Dion. l. 10.
[d ]Livy, l. 45.
[4. ]Our Author forgot that he had himself cited this Example above, where he speaks of the Distribution of the Booty in certain Proportions, § 17. Note 8. For the Fact he relates here is in the same Chapter of Livy, Senatum praedam Epiri civitatum, quae ad Persea defecissent exercitui dedisse. Lib. XLV. Cap. XXXIV. Num. 1. The Example, which he adds here in a little Note, is more to the Purpose; it is that of the Plundering of Athens by Sylla’s Army, as Appianus Alexandrinus informs us, De Bell. Mithridat. p. 331. Edit. Amstel. (195. H. Steph.)
[5. ]See Appianus Alexandrinus, De Bell. Mithrid.Plutarch relates, that he gave the Plunder of Tigranocerta to his Soldiers; besides, out of the Spoils, 800 Drachmas given to each. Severus gave the Spoil of Ctesiphon to his Army: He also ordered the Tribunes and Captains, and the very Soldiers to keep to themselves what they got in the Streets, according to Aelius Spartianus. Mahomet II. promised both the Spoil of Constantinople, and the Slaves, to his Soldiers. Grotius.
[6. ]He gives the Omission of this Manner of acquiring Property, as an Example of an imperfect Enumeration, which an Orator would make in saying to a Person, “As you possess this Horse, you must either have bought, inherited, had him given you, bred him yourself, or stoln him. Now you neither bought, inherited, had him given you, &c. therefore you stole him.” He should have added, says Cicero, that this Horse might have been taken from the Enemy, and left out of the Number of Things to be sold for the Benefit of the Publick. Praeteritur quiddam in ejusmodi enumerationibus: Quoniam habes istum equum, aut emeris oportet, &c. De Invention. Lib. I. Cap. XLIX.
[7. ]Varro reckons six Ways by which one may become a lawful Master. 1. Entrance on a just Inheritance. 2. Selling before Witnesses. 3. Giving up Right. 4. Long Possession, or Prescription. 5. Selling for Slaves out of a Booty. 6. By a publick Auction of the Goods of any one. De re Rust. Lib. II. Cap. X. Grotius.
[e ]See a Passage of Procopius, which shall be cited on § 24. n. 11.
[8. ]Non avidas in direptiones manus otiosorum urbanorum praerepturas fortium bellatorum praemia esse: Quum ita ferme eveniat, ut qui segnior sit, praedetur, at fortissimus quisque labores periculique praecipuam petere partem soleat. Lib. V. Cap. XX. Num. 6. I recite the Passage after our Author, who corrects without saying any Thing, and as he understands it, the Editions published in his Time; whereas, in the most antient Editions, and the best Manuscripts, which J. Frederick Gronovius follows, there is, Ut segnior sit praedator, ut quisque laboris, &c. The Sense however is not very different; for those Words, read in this Manner, signify, that the Soldiers who endeavour to have the greatest Share in Fatigues and Dangers, are the last in running after Plunder; which sufficiently implies, that the least brave are, on the contrary, the most keen in Quest of Spoils. See the Note of that great Critick.
[9. ]De Instit. Cyr. Lib. VII. Cap. XI. § 4. Edit. Oxon.
[10. ]Gratius id fore, laetiusque, &c. Livy, Lib. V. Cap. XX. Num. 8.
[11. ]Publicari praedam Tribunis placebat, &c. Lib. VI. Cap. IV. Num. 11.
[12. ]Nec continere suos, &c. Idem. Lib. XXXVIII. Cap. XXIII. Num. 4.
[1 ]Thus the Consuls Menenius Agrippa, and Postumius Tubertus, having overthrown the Sabines, sold the Prisoners, and out of the Money raised in that Manner, reimbursed those who had contributed to the Support of the Army. Dionysius Halicarnassensis, Antiq. Rom. Lib. V. Cap. XLVII. p. 300. Edit. Oxon. (313. Sylb.) Which Passage our Author had in View in the marginal Citation, where he quoted only the Book.
[a ]Livy, l. 5.
[1 ]See above, § 1. Note 3.
[2. ]Consul (Cnaeus Manlius) armis hostium, &c. Livy, Lib. XXXVIII. Cap. XXIII. Num. 10.
[3. ]Dionysius Halicarnassensis, Antiq. Rom. Lib. VIII. Cap. LXXXII. p. 526. Edit. Oxon. (549. Edit. Sylb.) The Word λεία in this Passage, includes only Cattle; since the Prisoners are distinguished from it.
[c ]Dion. l. 10.
[f ]Livy, l. 5.
[g ]Id. l. 6.
[h ]Id. ibid.
[4. ]Which Dionysius Halicarnassensis makes Fabricius himself say, Excerpt. p. 714. Edit. Oxon. Our Author added here, in a Note, that Fabius Maximus, after having taken Tarentum, distributed the whole Booty to his Soldiers, and brought only the Money that arose from the Sale of Prisoners, to the publick Treasury. But Livy, Lib. XXVII. Cap. XVI. Num. 7. And Plutarch, Vit. Fab. p. 187. C. relate the Fact in a different Manner. I suspect that our Author has confounded what the first of those Historians says of Fabius, with what he relates a little lower of Scipio, the Conqueror of Asdrubal. Scipio, castris hostium potitus, quum praeter libera capita, omnem praedam militibus concessisset, &c. Cap. XIX. Num. 2.
[i ]Id. l. 25.
[k ]App. Pun.
[l ]Livy, l. 37.
[1 ]Scipio & A. Hostilius legatus, &c. Livy, Lib. XXXVIII. Cap. LV. Num. 6.
[2. ]Sed enim M. Cato, in oratione—Fures, inquit, privatorum furtorum in nervo atque in compedibus aetatem agunt; fures publici, in auro atque in purpura. Noct. Attic. Lib. XI. Cap. XVIII.
[3. ]Cato Censorius—Miror audere, &c. Apud Priscianum, Lib. VII. in fin. p. 275. Edit. Basil. 1568.
[4. ]It was a Statue of Mercury, which Scipio had found long before, amongst the Spoils of the City of Carthage, and had made a Present to the City of Tyndaris. Est peculatus [crimen] quod publicè Populi Romani signum, &c. In Verr. Lib. IV. Cap. XLI.
[5. ]Lib. X. Cap. XVI. p. 822. Edit. Amstel.
[6. ]Item in Libro ejusdemCincii, de Re Militari, &c. Noct. Attic. Lib. XVI. Cap. IV. See the Dissertation of Schelius, De Sacramentis militum, annexed to his Commentary, De Castris Romanorum, p. 184. & seqq.
[7. ]Is, qui praedam ab hostibus captam subripuit, peculatûs tenetur, & in quadruplum damnatur. Digest. Lib. XLVIII. Tit. XIII. Ad. Leg. Jul. peculatûs, &c. Leg. XIII.
[1 ]See Pufendorf, Law of Nature and Nations, B. IV. Cap. IX. § 9. Note 1.
[2. ]Missilia. See Pufendorf, where cited in the preceding Note, Note 9.
[1 ]Queen Amalasontha makes Use of this Reason, in her Letter to the Emperor Justinian, which Procopius relates, Gotthic. Lib. I. (Cap. III.) Grotius.
[2. ]He speaks also of those who teach the Sciences. Itaque his [Medico,&bonarum artium praeceptori] &c. De Benefic. Lib. VI. Cap. XV.
[3. ]Neque enim video, quae justior adquirendi ratio, &c. Instit. Orator. (Lib. XII. Cap. VII. p. 735. Edit. Obrecht.) Which Tacitus calls, Omitti curas familiares, utquis se alienis negotiis intendant. Annal. (Lib. XI. Cap. VII.)
[4. ]See Plutarch, in his Life of Marcellus.Grotius.
[1 ]Our Author does not express himself sufficiently upon the Clause of this Treaty. It took Place as well with Regard to the Wars made by the Latins, as those made by the Romans; for they mutually engaged to aid each other, in Case of being attacked, βοηθείτωσαν τε τοι̑ς πολεμουμένοις ἁπάση δυνάμει, λαϕύρων τε καὶ λείας τη̂ς ἐκ τω̂ν πολέμων κοινο̂ν [it must be read so, according to the Vatican Manuscript, instead of τον̂ πολέμου κοινὸν] τὸ ἴσον λαγχανέτωσαν μέρος ἀμϕότεροι. Dionysius Halicarnassensis, Lib. VI. Cap. XCV. p. 400. Edit. Oxon. (415. Sylburg.) Livy, who was cited in the Margin, but erroneously in all the Editions before mine, says indeed, that the Romans made a Treaty of Alliance with the Latins, Lib. II. Cap. XXXIII. Num. 4. but mentions no Article of that Treaty.
[2. ]Pliny tells us that the Roman People gave the Latins a third Part of the Spoils. Quibus [priscis Latinis] ex foedere tertias praedae Romanus populus praestabat. Hist. Natur. Lib. XXXIV. Cap. V. The Swiss Cantons, as Simler informs us, divide the Booty according to the Number of Troops they severally furnish. The Pope, the Emperor, and the Venetians made their Division in Proportion to what each of them had contributed towards the Expences of the War; as Paruta observes, Lib. VIII. Pompey the Great gave Armenia Minor to King Dejotarus, because he had aided the Romans in the Mithridatick War. Grotius.
[3. ]Et ita in foedere primo, &c. Livy, Lib. XXXIII. Cap. XIII. Num. 10. See also Polybius, Lib. XI. Cap. V.
[a ]Plut. Demet.
[4. ]Sane iis qui secum fuissent, &c. Lib. I. De Abraham. Cap. III. This Passage is cited in the Canon Law, Caus. XXIII. Quaest. V. Can. XXV.
[5. ]The Pisidians gave Part of the Booty to those who looked after their Houses, as Chalcocondylas relates, Lib. V. Grotius.
[b ]Plut. Apoph.
[6. ]Namque id solum [tabernaculum] intactum, &c. Lib. III. Cap. XI. Num. 23. See Diodorus Siculus, Lib. XVII. (Cap. XXXV.) And Plutarch, in Vit. Alexandr. (p. 676. A. Edit. Wechel.) There is something of the same Kind in Xenophon, Cyropaed. Lib. IV. (Cap. VI. § 6. Edit. Oxon.) and Expedit. Cyri, Lib. IV. (Cap. IV. § 13.) Grotius.
[c ]Tit. De Rege.
[7. ]The Grammarians understand by Σκν̂λα, the Spoils of the Dead, and by Λάϕυρα, the Plunder taken from the Living. See Suidas upon the first of these Words.
[8. ]The Historian whom our Author cites in the Margin, says only, that Sylla plundered that City. Appian Alexandrinus, De Bell. Civil. Lib. I. p. 643. Edit. Amstel. (380. H. Steph.)
[9. ]Pharsal. Lib. VII. ver. 736. & seqq.
[d ]App. Civil.
[10. ]Expugnatae Urbis, &c. Hist. Lib. III. Cap. XIX. Num. 4.
[11. ]Polybius uses this Argument, to prove the Wisdom of the Romans, individing the Spoils equally among the Soldiers, after an Expedition. Hist. Lib. X. Cap. XVI. XVII.
[12. ]Et imbelle vulgus, &c. Annal. Lib. XIII. Cap. XXXIX. Num. 7.
[13. ]Conferti tantum & pilis emissis, &c. Idem. Annal. Lib. XIV. Cap. XXXVI. Num. 4.
[14. ]See the Passage of Procopius quoted above, (§ 11. Num. 1.) That Historian farther observes, that the Soldiers of the same Salomon, in an Expedition against the Levatae, (a Kind of Moors) murmured upon his keeping the Booty from them; but that he represented to them, he only did so in order to distribute it according to each Man’s Merit, when the War was concluded. Vandalic. Lib. II. (Cap. XXI.) All the Spoils taken at Picenum were brought to Belisarius, who divided it in that Manner; giving for his Reason, that it was not just that whilst some were at great Pains to kill the Drones, others, who had no Share in the Labour, should eat the Honey. Gotthic. Lib. II. (Cap. VII.) Grotius.
[15. ]See the Passage above, § 21. Note 6.
[16. ]The Turks have the same Custom, according to Leunclavius, Lib. III. and Lib. V. Grotius.
[17. ]Amongst the Goths, the Engines of War were excepted, as Johannes Magnus informs us, Hist. Sued. Lib. XI. Cap. XI. Grotius.
[1 ]Dicamus in primis, &c. Instit. Orat. Lib. V. Cap. X. p. 432. Edit. Burman.
[a ]Ch. 4. § 7.
[1 ]Si autem Antiochi, &c. Livy, Lib. XLV. (Cap. XLIV. Num. 15.) So after the Defeat of Jugurtha, King Bocchus, his Son in Law, did not obtain the Lands he pretended to, because they were not Jugurtha’s, but belonged to the Children of Masinissa, as we find in Appianus Alexandrinus, Excerpt. Legat. XXVIII. There is something of a like Nature in Albertus Crantzius, Saxonic. Lib. XII. (Cap. VII.) Grotius.
[2. ]See Pufendorf, Law of Nature and Nations, B. V. Chap. XI. § 6. Note 3. (Retention).
[3. ]Plane qui alienum fundum, &c. Digest. Lib. XLI. Tit. I. De acquir. rerum Domin. Leg. III. See also Lib. VIII. Tit. III. De Servit. praedior. rustice. Leg. XVI.
[1 ]But see what I have said upon Chap. IV. § 4. Note 1.
[2. ]In most civil Wars no common Judge is admitted. If the State be monarchical, the Dispute turns either upon the Succession to the Kingdom, or upon a considerable Party of the State’s, pretending, that the King has abused his Power, in a Manner that authorizes the Subject to take up Arms against him. In the first Case, the Nature itself 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 an Head by some Treaty, made either by Consent, or in Consequence of the Superiority of one of the Parties. Upon this Treaty depends the Right Persons may have, or not have, to what has been taken on any Side; and nothing hinders that Right from being admitted to take Place in the same Manner, as in publick Wars between two States always distinct. Other Nations which have not been involved in the War, have no Authority here to examine into the Validity of the Acquisitions; and the two Parties, by reuniting, may as well discharge themselves from the Damages they have mutually occasioned each other. The other Case, I mean the Rising of a considerable Part of the State against the Prince upon the Throne, can hardly happen, unless when that Prince has given Room for it, either by Tyranny, or the Violation of the fundamental Laws of the Nation. Thus then the Government is dissolved, and the State also divided into two distinct and independent Bodies; so that we are to form the same Judgment here, as in the first Case. And much more does that take Place in the civil Wars of a republican State; in which the War immediately, of itself, dissolves the Sovereignty, that subsists solely in the Union of its Members. And if the Roman Laws decreed that the Prisoners taken in a civil War could not be made Slaves, that was, as the Civilian Ulpian says, according to the celebrated Mr. Noodt’s Explanation, (in his Comment. in Digest, Lib. I. Tit. V. p. 30, 31.) because a civil War was considered, not properly as a War, but as a civil Dissention. For, adds he, a real War is made between those who are Enemies, and animated with the Spirit of Enemies, which prompts them to endeavour the Ruin of each other’s State. Whereas, in a civil War, however pernicious it often proves to a State, both Parties are supposed to intend the Preservation of the State; the one is only for saving it in one Manner, and the other in another: So that they are not Enemies, and every Person of the two Parties continues always a Citizen of the State, so divided. These are the antient Lawyer’s Words, In civilibus dissentionibus, quamvis saepe per eas Respublica laedatur, non tamen in exitium Reipublicae contenditur; qui in alterutras partes discedent, vice hostum non sunt eorum, inter quos jura captivitatium, aut postliminiorum fuerunt, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlimin. Leg. XXI. § 1. Mr. Noodt adds to this two Passages from Cicero, Orat. pro Ligar. Cap. VI. & in Catilin. Orat. III. Cap. X. But that is a Supposition or Fiction of Right, which does not hinder all I have been saying from being true, and from taking Place in general. The State, of which the Preservation is intended, is not, in the Cases I have spoke of, a Body of Citizens, united under the same Government; it is an Assemblage of People, who having been in Subjection to the same Government, within a certain Extent of Country, are willing indeed to continue for the future in a common Dependence, but do not agree amongst themselves upon the Person, or Body of Men, in whose Hands the supreme Authority ought to be lodged. And as, after their Reunion, the Sovereign acknowledged by all, commonly suffers the antient Laws to subsist, either by an express or tacit Consent, which always takes Place, when there appears no express Will by which he abrogates those Laws, either in Whole or in Part: Hence it was that amongst the antient Romans, one could not appropriate to one’s self the Prisoners taken in a civil War, as real Slaves; and not upon Account of any Defect of Conditions or Formalities required, according to our Author, by the Law of Nations, in a publick or solemn War.