Front Page Titles (by Subject) CHAPTER X: Question IX. By whom may prize or booty be acquired? - Commentary on the Law of Prize and Booty
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER X: Question IX. By whom may prize or booty be acquired? - Hugo Grotius, Commentary on the Law of Prize and Booty 
Commentary on the Law of Prize and Booty, ed. and with an Introduction by Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Question IX. By whom may prize or booty be acquired?
Article I. By whom may it be acquired in private wars?
Article II. By whom may it be acquired in public wars?
Corollary.To what extent is the acquisition of prize or booty permissible for those who are waging a public war at their own expense, to their own loss and [at the] risk [of damage to their personal interests],1through the efforts of their own agents, and in the absence of any agreement regarding recompense?
We have satisfactorily demonstrated,a so I believe, the truth of the proposition that enemy property can be rightfully seized and acquired.
There still remains one controversial point that is pertinent to our inquiry, namely: Who should become the owner of property seized in war? In considering this question, too, we shall adopt the natural order of discussion, dealing first with private wars and afterwards with public wars,b a method of approach which will contribute not a little toward clarifying the matter.
As regards the question in its entirety, moreover, it should be evident from the observations already madea that things seized in war and things seized on the basis of a judicial award fall into the same class. For war, if it is supported by public authority, differs from execution of a judicial sentenceb only in the fact that it must be carried out by armed force, owing to the power possessed by the opponent; or, if the conflict is waged because of a private need, the case clearly reverts to that early law which made each individual the judge of his own affairs. Accordingly, no one will properly become the owner of booty unless he has a rightful claim, that is to say, grounds for claiming something as his due. Therefore, the minds of men should be completely cleared of the false belief that an enemy possession becomes public property destined for the one who seizes it, in accordance with the practice established for τω̑ν ἀδεσπότων, or “ownerless property,” just as if every bond of human fellowship had been abolished between enemies. For, despite the many statements made by ancient authoritiesc which seem to favour this belief by comparing such a process of acquisition with the chase, despite the apparent confirmation of the same belief to be drawn from the pronouncements of the orators and philosophers whom we cited at the outsetd in order to establish the right to acquire spoils, and despite the fact that, even among the authorities on law, we find Pauluse evidently placing things seized in war under the head of goods which have no owner and which,[56′] furthermore, may be acquired by the first person to take possession—I repeat, regardless of all these indications to the contrary—it cannot be denied that there is a notable difference between those things which have never been subject to anyone’s ownership and those which have admittedly belonged to the enemy: a difference not unobserved even by our own jurists.a For if we concede so much more force to the demands of hatred than to those of nature, that we are led to abrogate between enemies the law that bids us refrain2 from seizing the property of others, then there is nothing to prevent us from abolishing also the principle of good faith in the observance of pacts and, indeed, the entire body of precepts known as the law of arms. But we accept the opinion of Socrates, who argues (in Book I of Plato’s Republic)b that any of these acts [repudiating justice between enemies] is unjust. Nor did Pindarc escape reproach from the philosophers for his assertion that,
I recall the words of Cicero,d also: “Moreover, there are certain duties to be observed even in regard to those persons by whom one has been injured. For limits are imposed upon vengeance and punishment.” Your words, too, come back to me, O second Romulus!3 For when you sent the tutor back to Falerii, you said:e “Between us and the Faliscans there is no fellowship founded upon man-made covenants; but the fellowship implanted by nature assuredly4 does exist and will continue to exist. There are laws of war just as there are laws of peace.” Nor does Senecaa praise Fabricius more highly on any other ground [than on that of justice toward enemies, in the passage where he describes Fabricius thus]: “tenaciously faithful to a noble ideal, and—a most difficult feat!—guiltless even in warfare; for he believed that there was such a thing as sinful conduct even against enemies.” War does away with political fellowship, but not with the fellowship of humanity. Thus even the Fourth Law remains operative, save in so far as it may be outweighed by the Second Law; and the force of the Second, as we have observed, is contained also in the Fifth and Sixth Laws. Hence it follows that one may not acquire enemy property save on account of a debt. That is to say, in addition to the fact of possession, cause also is required, a principle which we expounded in an earlier chapterb but which is not inappropriately repeated at this point.
Let us turn our attention now to the question, “By whom may prize or booty be acquired in private wars?”
To be sure, any person who asks this question evidently presupposes the existence of a body of law governing prize and booty, and derived from private warfare, whereas a great many interpreters of canon or civil law and writers on the laws of warc appear to repudiate that supposition.A paradoxical contention But we have already remarked on several occasions that there is no reason why we should invariably accept the opinion of those who, content with the knowledge they have acquired concerning civil law, have neglected to acquaint themselves with the precepts based upon the fundamental truths of the law of nations.d
In this connexion it is worth while to note the determining principle introduced by Faber.a For he rejects the belief that the institutions of prize and booty have a place in private warfare, on the ground that no statement to this effect is written in the laws: an argument which is equivalent to denying that the contents of the Corpus of Roman laws pertain primarily to civil law, and thus leave unmentioned many matters which might better be decided by the common criterion of reason, rather than on the basis of any [civil] authority. In any case, it is easy to explain why no treatment of the question engaging our attention is found [in Roman law]. For the majesty and power of the Roman Empire were such that Rome was hardly ever troubled by a lack of judicial recourse (that is to say, by any continuous lack), which is an especially weighty factor in the development of private wars, as we have pointed out.b
Nevertheless, if we are seeking sound arguments on which to base our solution of the question, what is more certain than the fact that in warfare—whether public or private—everything necessary for the execution of one’s right is permissible?c It is indeed necessary, if we wish to obtain that which is our due, that we should acquire enemy property [rem hostilem]; and the acquisition of such property is nothing more nor less than that very practice which we call “acquisition of prize or booty,”d except that some objection may possibly be advanced against designating the person who attacks us privately as an enemy [hostem]5 and the property seized in such circumstances as “prize or booty.” Although I have no wish to engage in a stubborn dispute on this matter of definition, provided that the substance of our contention is accepted, nevertheless I regard it as extremely important for the clarification of the whole question, that different terms should not be employed in the discussion of a single right.
Now, if we examine with care the opinions formulated by the above-mentioned jurists,a we shall find that their statements seem almost identical with ours in substance, though the terminology differs. For their doctrine runs as follows: in private warfare, if no judge is available, and if our purpose is the recovery of our own property and the collection of the debt due us, we may seize the possessions of our adversaries, even after an interval of time has elapsed, up to the point where we shall have obtained value comparable to that debt. But if this is permissible with respect to all debts owed us, then surely it is permissible with respect to damages and costs incurred in the attainment of our rights; and the same inference applies even to the dangers and cessation of profit involved, or in other words, to extrinsic losses and all attendant factors. That is the opinion laid down by the theologians,b and based by them upon the following argument: the judge himself, if there were one available, would award the said items to the innocent party, since it is right that all of the losses mentioned should be charged against him who caused them.c Indeed, one may go so far as to say that such seizures are permissible even for the collection of what is owed on the basis of sinful conduct. For in judicial decisions, too, a thief is sentenced to pay the party who has been despoiled twice or four times the value of the goods stolen, and a robber must pay the victim three times the value. The injury done is also estimated and weighed; and the laws decree in favour of injured parties [as such], penalties similar to those decreed in favour of plaintiffs in a lawsuit. Thus when Boethiusd was asked upon whom punishment would properly be inflicted according to his judgement, if he were sitting as judge—whether upon the party who had committed the injurious act or upon the party who had suffered the injury—he replied that undoubtedly he would order satisfaction given to the victim at the expense of the perpetrator of the injury. That is to say (as a certain authore has rightly pointed out in his treatise on war, and as Aristotlef maintains) everything that has the character of an ill, including injury received, is embraced in the term “loss”; and therefore, the opposing factor of gain, which has the character of a good (for example, just vengeance) is naturally the proper due of the injured party. This point has already been discussed by us in another passage.a [57′]
Accordingly, we arrive at one and the same conclusion in regard to both public and private wars. But, if this is the universally accepted conclusion, wherein lies the distinction between the two kinds of warfare?
Perhaps the said distinction turns partly upon the contention apparently supported by a considerable number of authorities,b that things taken in private warfare should be subjected to a strict accounting, whereas things acquired in public warfare need not be balanced against the principal debt and may remain in the possession of the person who seized them even when they exceed in value the loss that was suffered. The persons who argue thus, however, fail to realize that all spoil seized over and above the amount required to cover losses and the cost of prosecuting a case, may be retained [after a public war] in so far as they represent the punishment owed by the offending state to the offended state, but must not be retained in excess of that penalty; nor do they take into account the fact that whatever does remain in excess of the amount due for just punishment should be returned, as Sylvesterc quite correctly rules and as we ourselves have agreed. Now, I see no reason why one should not make that same concession [regarding retention of spoil by way of punishment] in the case of private wars, in accordance with the considerations pointed out just above and more fully discussed in earlier passages of the present work. Of course, spoils seized in private warfare (even when the war is just) are much more apt to exceed in value the debt, losses, and penalty involved than spoils seized in public warfare. For in the latter case (owing undoubtedly to the lengthy duration and vast scope of public wars) the amount taken from the enemy rarely balances even the expenses incurred. Consequently, those juristsa who more or less make a practice of τὸ ἅπαξ ἤ δὶς παραβαίνειν, “omitting to mention that which has occurred only once or twice,” have asserted that things taken in public wars are acquired without restriction, while they hold that in private warfare such acquisitions may not exceed the amount of compensation due to the private individuals concerned.
Up to the point indicated, then, the public and private laws governing prize and booty are in mutual agreement. Yet we cannot overlook the fact that there is a subtle difference between them. For a certain assertion made by usb with reference to public wars—namely, that for subjects waging war in good faith, things captured by either belligerent party fall properly under the head of acquisitions—is in my opinion not easily applicable to private warfare. Private individuals have adopted no common agreement to this effect, as states have done; and in this lack of a specific agreement lies the most satisfactory explanation of the opinion ascribed above to certain learned authorities, which rules that things seized in a private war do not become the property of those who seize them. In other words, the war does not in itself suffice to produce this effect, without the additional factor of a truly just cause.
There is another distinction which will become clear if we first reflect upon the question, “How do private individuals differ from a state?” For I do not believe that the answer to this question can be limited to numerical considerations, since a collection of individuals sufficient in number to set up a state but gathered together in a chance assemblage would have no more legal standing than one or two individuals. Besides, what numerical requisite can be specified for that sufficiently large group, which will preclude the possibility of any objection that a smaller number suffices? What, then, is the basic factor underlying the difference? Undoubtedly, that factor is civil power, which is established by common consent; and common consent (as we have already pointed out)a is the source of legal judgements.
Now, this difference in judicial attributes creates a distinction that concerns the acquisition of spoil. For states are inherently endowed with judicial authority,b whereas private individuals are not so endowed save in so far as public power is found to be defective. We have made a rather convenient division of these instances of defective power into two classes: cases in which the defect appears to be of brief duration, and cases in which it appears to be continuous.
When the defect is of brief duration, the laws must be restored to force as soon as possible. Accordingly, the assertions made by the authoritiesc above cited, to the effect that in private warfare vengeance is not permissible, seizure is not [properly] practised, and so on, are to be interpreted as referring to private wars derived from a momentary lack of judicial recourse, an interpretation supported by logic itself, by a careful examination of the passages in question and by the observations which we ourselves have made. Additional confirmation of this point is found in another statement laid down by those same authorities,d namely, that any person whose property has been snatched from him by stealth or violence may take by way of compensation the equivalent thereof, subject to the subsequent award of his superior. For even though the law of vengeance is properly applicable to the original despoiler,e nevertheless, a restriction must be imposed upon the second despoiler, [i.e. the avenger,] limiting the compensation he receives to the exact extent of the spoliation or injury inflicted by the other party. Thus it would seem that the right originally possessed by the avenger with respect to the property seized, was a right to hold it as security [ pignus], whereas later he acquired the right of ownership in virtue of a judicial decision. Here we have the origin of the very term pigneratio [seizure of pledges];6 and the same order of events is observed in connexion with reprisals.a But I hold that even in such cases, where a thing privately seized is publicly awarded in settlement of a debt,b an attempt should be made to combat the rejection of the terms “prize” or “booty,” since this very property which we acquire through a civil judgement (so the learned men of law tell us), would seem to be received not from the hands of a judge but from an adversary.
If, however, the lack of judicial recourse is of an enduring nature (as it would be, for example, in a locality subject to no one’s jurisdiction), the case clearly comes under that law of nature which existed everywhere prior to the establishment of courts of justice, so that one belligerent, acting for himself in the capacity of judge, acquires forthwith the goods seized as a pledge from the other belligerent. Nor will the former incur, at some later date when recourse to a judge becomes possible, any obligation to make restitution. The reason for this immunity is the same as that repeatedly adduced by the Scholasticsc in connexion with a similar thesis. For the Scholastics say that a case which is complete in itself and not bound up with any additional act, is not reopened even though its underlying cause may later cease to exist. Moreover, if the need should arise, even in a case of this kind, for a subsequent judgement based upon civil law rather than upon the law of nations, nevertheless, that judgement ought to be interpreted not as bestowing the right of ownership but merely as a declarationd that the said right has been acquired. It is evident that this procedure was introduced partly in order to search out the frauds perpetrated by dishonest persons, and partly with a view to ensuring a greater degree of security for rightful captors by means of a proclamation imposing silence upon all persons [who might wish to question the right of those captors]. There are many other causes,[58′] however, that may result in the adoption of the same procedure. For we often hear of a summons addressed by the true owners of property to all persons of any kind who may possibly wish to enter into a controversy regarding that property,a the purpose of the summons being the increased future security of the owners.
It is a fact, then, that seizure of spoil is not impermissible in private warfare. For it would indeed be difficult to prove that the celebrated war waged by Abraham against King Chedorlaomer and his allies was not a private war;b yet Abraham certainly did not hesitate to take away spoil from that conflict. The same may be said of Gaius Julius Caesar,c who as a youth pursued with a private fleet the pirates by whom he had previously been captured, and apportioned their goods as prize. It is equally indisputable that a similar course of action was followed in Octavius’ war against Antony. The view taken by Socinus Neposd clearly bears out our own statements; and his opinion appears to have been adopted by Ayala,e the Spaniard, primarily on the ground that, when a war of this kind is just, the rights and consequences attaching to war [in general] should be recognized for the particular case in point.
Thus the fact of acquisition is established. But we have yet to consider the question, “By whom are such acquisitions made in private warfare?”
New explanationNow, since any principal agent must be regarded as acting chiefly in his own behalf, I hold that he who is the principal author of a private war becomes the owner of the goods taken in that war in so far as he has been attempting to obtain his rights; and I intend that this statement shall furthermore be interpreted to mean that, even if the enemy also owes debts to other parties, the aforesaid principal agent will nevertheless hold a privileged position in regard to the spoil.f For, in the first place, all of the losses and expenses involved are the concern of the party who undertook the war, since he is of course obligated under the law of nations to his allies and subjects for the sum of the expenditures and costs [on his side]; and it is certain that everything reckoned under the head of costs of execution is deducted before all else from whatever is collected out of the property of a debtor,a a principle established by the very force of necessity, since otherwise (that is to say, unless such costs are met) one person cannot even prosecute another. Furthermore, if the initiator of a war has possessed, prior to the execution of his undertaking, any claim as a creditor of the party despoiled, I do not doubt but that preference should be given him in this matter, too, in accordance with the established precedent relative to the particular creditor who has been more vigilant than the rest.b For he who has in good faith collected his due from a debtor obligated to a number of creditors, is not bound, even by the judgement of his conscience, to make restitution.
Afterwards, however, if any goods remain in the possession of the adversary, [i.e. the debtor,] the other creditors to whom he is obligated shall be granted access to this remaining portion. Finally, whatever is left after their claims have been settled shall be preserved for the despoiled combatant himself and restored to him at the close of the war, when the danger has disappeared.c For the authorities on law agree that this is the prevailing practice even in the case of reprisals; and the same practice is always followed in connexion with the seizure of debtors’ goods on the basis of a judicial decree.
But if the spoil is acquired by the party who undertakes a private war, then it is not acquired by the individuals who seize it; that is to say, it is not acquired by them in a primary and direct sense, or in other words, in the natural course of events and independently of any additional act. Nor can any objection be made to this inference on the ground that the initiator of the war does not himself seize possession in his own person; for he does take possession through other individuals, who are either subjects or assistants. In so far as subjects are concerned, this point has already been explained. For, [to take an analogous case,] acquisition is effected in every sense of the term through children and through slaves, just as if they were parts of one’s own body, as the juristsa readily agree. The question of how acquisition is effected through assistants, however—that is to say, through persons who are sui iuris —appears to be more difficult of solution. But this problem, too, will be solved with sufficient ease if it is understood that we define as “assistants,” or “allies in war,” those persons who attach themselves to the principal agent but who do not assume for themselves an equal status as principals; for if they did assume that status, they would enjoy the same right as the afore-said principal party. We are speaking, then, of persons who have received their orders from the initiator of the war; and therefore, we may say that, just as we gain possession even through a free agent who has received his orders from us, so also we acquire ownership through that same act of possession.b
New explanationThe foregoing statement merits special consideration. For if it is rejected, we shall be acquiring, not ownership over the property in question, but merely a right of personal action, which is a very different matter. To be sure, in the dissertations of the juristsc the following assertions have become exceedingly familiar: that by my agency I place another person in possession, since the person in whose name possession is held is himself the possessor; and again, that agents lend their services solely in order that others may gain possession.
A question might be raised, however, as to whether these precepts are derived from natural reason, or from the law of the Quirites and the Imperial Regulations of Severus,d especially since acceptance of the said precepts is apparently classified as a matter of expediency.a Nevertheless, in my opinion, they undoubtedly proceed from the law of nations.[59′] This conclusion is supported by the very weighty argument that the situation is different in the case of civil acquisitions, such as those effected through stipulationes [verbal contracts], which cannot be made in another person’s name.b Moreover, Modestinusc subtly calls attention to this difference, saying: “That which is acquired by a natural process —possession, for instance—may be acquired through the agency of any person, provided that we wish to obtain it.”
But there are also other questions which were subjects of dispute among the ancient writers on law,d for example: “To what extent is such possession acquired when we ourselves are ignorant of the transaction?” “To what extent will usucapion take place with knowledge as an added factor?” Severuse propounded a rule to cover these points, too, and based his ruling (as he himself explains) not upon [public] expediency alone but also upon jurisprudence. As we intimated at the outset,f possession is derived from a twofold source, mental and physical: it should have its origin in the mind of the agent, and therefore it is not acquired under the rules of nature by an infant of tender age, by an insane person, or by any person who does not will to acquire it;g but the body must serve the mind, if possession is to be taken by a natural process, although this service is not necessarily rendered by one’s own body. Paulus,h in his collection of accepted opinions, makes the following statement: “We acquire possession by means of the mind and the body: through our own minds, in every case, and through our own bodies or those of others.” But another person’s body will adapt itself to the service of our minds only if the mind of that other person assents; that is to say, his mind must have accepted our command.a This is the interpretation which should be given to the assertions that one can do through another that which one has power to do directly, and that he who has acted through another is regarded as occupying exactly the same position as if he had acted in his own person.b For Nature, who has bound men together in such close fellowship, undoubtedly permits the adoption of a procedure which is even necessary at times because of infirmity or absence, namely, the procedure whereby one man acts through another, although the latter may be a free individual. Accordingly, in order that another person may acquire possession for us, this one requirement must be met: that he shall be directing his efforts solely to our service. In fact, these are the very words used by Paulus.c
Furthermore, in cases where we have all the other attributes necessary to constitute ownership and where only possession is lacking, we acquire the status of owners simultaneously with that indirect acquisition of possession. This fact is stated in the laws,d and is confirmed by examples based upon the sale or donation of property [through an agent of the new owner].e Hence it follows that whenever possession alone is needed to produce ownership, one becomes an owner through the agency of others far more easily than would otherwise be possible. Thus in the Olympic Games, those persons who had sent the victors to the contest found their own names recorded in the inscriptions and became the owners of the prizes. So it is, too, that whatever is taken by fowlers, fishermen, hunters, and pearl-fishers straightway becomes our own, if the said persons have been hired or induced in any other way to devote their labours solely to our interest;f for this is a different matter from a sale based upon a future contingency, inasmuch as contracts do not in themselves suffice to transfer ownership.
The same inference follows even more certainly in the case of deeds of war, since things seized by means of such deeds are seized either on behalf of the captors or on behalf of the person who undertook the war. If the seizure is made for the initiator of the war, the captors lack that intent without which one cannot have possession.a On the other hand, if it is made on behalf of the captors themselves, the latter have no personal cause for action against the adversary, so that the result will be, not acquisition, but rapine or theft. For we have already concluded that seizure of spoil is not permissible without cause based upon a debt. Moreover, the story of Abraham,b handed down from that age in which the law of nature prevailed in all its purity, supplies a noteworthy argument in support of our inference, namely, the statement made by that holy man acknowledging as his own both the portion of the spoil given by him to his attendants and the portion he might choose to distribute among his allies; for Abraham declared that, with the exception of those portions, nothing would be acquired by him.
Conclusion IX, Article I, Part ITherefore, in so far as primary rights are concerned, in a private war, the spoils are acquired neither by subjects nor by allies, but by the principal author of the war himself, up to the point where his rightful claim has been satisfied.
New explanationOn the other hand, every individual is invested with power over his own property,c so that it is proper for any person to transfer a right of ownership already possessed by him, or even one that he is destined to possess in the future. For I may licitly transfer something that is not yet mine, with reference to that future contingency which will make it mine. Furthermore, the party to whom such property has been transferred may take possession in my name, as a deputy; and this very act of possession, supported by my assent, will acquire the force of a delivery of property, just as it does when one person delivers to another, either as a gift or as a purchase,7 something already freely loaned for the use of that other person.a Thus the said deputy will at first possess the property in my name; but later, he will come to possess it through me, for himself. It is in this way that we pay creditors through our own debtors; and when such a transaction takes place, two processes of acquisition are involved in actual fact, although one of them (as Ulpianb explained) is concealed by the rapidity with which the two acts merge into each other. This is the method to which we refer, in connexion with Roman law, as brevi manuc [immediate or fictitious delivery]. Therefore, just as it is permissible, after the spoil has become my property, that I should transfer that property to another as a gift or pay a debt with it or alienate it in any way whatsoever, so also it is permissible for me to give another person spoil that is to be acquired in my name. When this happens, the order of events is such that the spoil comes to me through the efforts of that other individual, but is not destined to remain in my possession[60′] for a single moment, since it will pass instantly to him as to one who has present possession and still earlier grounds for ownership.
For these reasons, we have said that the person undertaking the war becomes primarily and directly owner of the spoil, unless he has previously made an agreement to the contrary.Conclusion IX, Article I, Part II For either he himself becomes the owner, or else that person does so, to whom he assigned in advance the spoil that was to be acquired.
New explanationThe next division of our discussion relates to acquisition of spoil in public warfare. In this connexion, indeed, it behoves us to exercise all the more care for our own part, because the jurists of a comparatively recent date, following the interpreters of canon law, classify items derived from custom (and from a form of custom, too, that is by no means universal) under the head of the primary law of nations. Moreover, these jurists develop their argument in so distorted a fashion that, even after repeatedly reading (in the Roman Corpus of civil law) that captured goods become the property of the captors and (in canon law) that spoil is distributed according to the will of the state, they arrive, one after another, at the same conclusion,a namely: captured goods become first the property of the individuals who seize them, but must nevertheless be given over to the leader, who shall distribute them among the soldiers.
Certainly this view is founded upon no rational basis. For we have already explained that those individual captors have no [personal] case [against the enemy], and are therefore unable to make acquisitions in public warfare just as they are unable to do so in private warfare, since the same considerations hold good in both cases. In the first place, inasmuch as the losses and expenses sustained by subjects and allies are the concern of the state that undertakes the war (a point which we have made elsewhere and which will presently be more fully elucidated), the equivalent of these losses and expenses must be deducted from the spoil as a claim of fundamental importance. Furthermore, the state should be given preference over other claimants in regard to every right that it possesses against the enemy, both because the state has exercised vigilance, and because it is a universal rule, accepted not without reason, that the public treasury shall possess πρωτοπραξίαν, “the right to be first in exacting repayment,” above all in connexion with the crime of high treason. For the iniquitous conduct of a state that disturbs the peace and public order of another and innocent state may be likened to treason.
A paradoxical contentionOn the basis of the foregoing observations we shall formulate a new opinion, as follows: things captured in a public war become the property of the state undertaking the war, up to the point where the said state shall have received satisfaction. But why should I describe this opinion as “new”? In the writings of Isidore,a among other fragments handed down by him from a more learned age, we find a statement to the effect that these two items fall under military law:8 the disposition of spoils in accordance with the qualifications and exertions of the persons involved, and also the matter of the prince’s portion. If we pause to examine this statement, we shall see clearly that the right herein described is not τὸ τω̑ν συναλλαγμάτων διορθωτικόν, that is to say, not the right underlying transactions governed by a regard for quantitative equality,9 but τὸ διανεμητικόν,b [a distributive concept,] which underlies distribution governed by a proportional rather than by a quantitative principle, or in other words, by the principle of geometric equality.c We have describedd the latter of these two concepts as the work of distributive justice, and the former as the work of compensatory justice. Now, this distributive right, as it is called, has no existence founded upon the interrelationship of the individual parts to one another, nor does it flow from the parts to the whole; on the contrary, it flows from the whole to the parts, which differ in their worth and in their relation to the whole.e Consequently, the right in question has a bearing only upon those matters which are general, or public. From this explanation, we may infer that in the natural order spoil seized in public warfare is public property, prior to its distribution. Ambrosea takes the same view when he declares it to be a rule of military science “that everything shall be preserved for the king.” For when Ambrose uses the term “king,” he has reference to the person who represents the state. He adds, however, that part of the acquisitions may justly be given to those who have been of assistance to the community, as a reward for their labours. At the moment, indeed, the reward is not yet ours; but it is a debt owed to us, and it may be paid from any source whatsoever. This is the thought that Scipio had in mind when he said, in the speech addressed to Masinissa, an ally of the Romans:b “Syphax has been conquered and captured under the auspices of the Roman People. Therefore, he himself, his wife, his kingdom, his lands and towns, the inhabitants thereof and, in short, everything that formerly belonged to Syphax, are now spoils belonging to the Roman People.” Lucius Aemilius, too, as quoted by Livy, clearly declares that, when a city has been captured, the right of decision regarding the spoils rests not with the soldiery but with the commander: that is to say, with the person who has received this right from the state, a point which we shall clarify presently by citing examples.
Nor is there any incompatibility between the theory just[61′] expounded and the well-known maximc that things captured in war become forthwith the property of the captors. For that maxim is quite reconcilable with our opinion that things so captured cease to be enemy property, although the term “captor” should be interpreted as referring to the state, which effects the captures through the agency of others. Certainly, if this last assumption is not acceptable, nothing at all can be acquired for the state through the process of seizing possession,d since the whole must rely for that purpose upon the services of the individual parts.
Accordingly, in our discussion of public wars, we shall apply to citizens the same assertions that we applied to children and slaves in discussing private warfare.a For citizens are just as truly subject persons, and in that capacity they are part of the state itself; nor does the fact that they may also be considered as individuals capable of gaining acquisitions for themselves, have any bearing on this point, since the activities involved in a public war proceed from the citizens as such. Moreover, just as a distinction is made between the case of a son who possesses in his own nameb property acquired with his father’s consent through military service,10 and, on the other hand, the case of a slave owned in common by two or more individuals or in whom some person other than the owner possesses a usufructuary right, or that of a person serving another in good faith,c,11 so also in the present connexion we shall be justified in saying that whatever is acquired through the citizens by the command and in the interests of the state is acquired for the state.
As for allies who make acquisitions by command [of the principal belligerent], the statements already applied to them in our analysis of private warfare are equally applicable at this point.
For the rest, there is a single argument that suffices to refute the contentions of those persons who would interpret the maxim concerning things captured in war to mean that, by the primary law of nations, such things become the property of the individual captors. I refer to the fact that this primary law, which may also be called the law of nature, involves no need for a distinction between movable and immovable possessions, in relation to acquisitions. Thus an island rising from the sea becomes the property of him who takes possession, in the same way that pearls become the property of him who takes them from the ocean.a Nevertheless, the fact that lands and cities captured from the enemy are public property and not that of the individuals who seize them, is so clearly established by all historical records and by the categorical pronouncement of Pomponius,b that no one has ever ventured to deny it. Therefore, the same conclusion should hold true in regard to other captured goods, save in so far as distinctions have been expressly introduced by a later law,c as we shall presently explain.
The assent of all nations and the tradition of all ages serve, too, as additional confirmation of this principle whose truth we have already demonstrated by logic, namely: that rights over spoil reside, not in the individuals who seize it, but in the state; or else in the prince who rules the state, or in the leader who directs the war, to the extent that such rights have been transmitted to the said prince or leader by the state. We know that, among the Hebrews,d spoil was brought to the leaders, and was not given over to the individuals who had seized it with their own hands, nor even exclusively to those who had engaged in actual combat; on the contrary, a part was assigned to the army as a whole, a part was given to the people, and yet another part was consecrated in accordance with divine command and accepted custom. Again, has it not been observed that the same practice was followed among the Greeks? Thus Homere wrote:
According to the same poet,a Achilles spoke as follows of the cities he had captured:
It was Achilles, too, who addressed these words to Agamemnon:b
And it was likewise on behalf of the state that,
Nor was this custom abandoned in later times: a point which I shall prove by citing only a few celebrated examples. Aristidesd guarded the spoils from Marathon. After the battle of Plataeae, the Greeks issued a proclamation prohibiting removal by private individualse of any part of the captured goods, which were distributed instead in accordance with the deserts of each national group. When Athens had been subdued, Lysandera handed over as public property everything that he had taken. If an example from Asiatic practice is sought, you will find that the Trojans were accustomed (so Virgilb observes) “to draw lots for the spoils.” The power of decision in such matters was vested in the commander. Otherwise Dolon would not have asked Hector for the horses of Achilles, nor would Hector have promised to comply with the request, an incident recorded by both Homerc and Euripides.d Furthermore, how much fell to the lot of Cyrus, when Asia was conquered, and how much to Alexander?e Shall we extend our inquiries to the customs of Africa and the Carthaginians? We know what was acquired by Carthage from the battle of Cannae, after Agrigentum and the other cities were captured.f
But the Romans are the most worthy of our attention, among all those peoples whose opinions are heeded in relation to the various branches of law and, most especially, in matters pertaining to the law of war. Nor am I by any means the firstg to declare that, among the Romans, every kind of spoil, including even movable possessions, was acquired not for the soldier who seized it, and not even for the commander in his own right, but for the Roman People.
This assertion apparently meets with opposition in the statement made by Celsus:h “And those enemy possessions which are found among us become, not public property, but the property of the persons who seize them.” However, aside from the fact that the entire law of which this statement forms a part, has been so wrenched from its context that one can scarcely ascertain its intended field of application, the words themselves certainly indicate that Celsus is speaking, not of enemy goods captured by force, such as we are discussing here, but rather of enemy goods (movables, I believe) which are caught in our own possession at the time when war breaks out. Things of this kind, since they were not acquired at public expense, evidently fall to the lot of the individuals who seize them, after the fashion of ownerless property, though not so much in accordance with the law of nations, as by Roman civil law. That is to say, although the actual title under which Celsus is cited (“Concerning the Acquisition of Property Ownership”)a pertains properly to the law of nations, nevertheless, a great many items are included under this head which represent a departure from the universal law and which are based on statutes, or on custom, or on accepted opinion. For the title in question embraces both the varying pronouncements of the jurists and the collections of imperial ordinances.
As for that other maxim which has misled the legal commentators—namely, the doctrine that captured goods become the property of the captorsb —we have already made it quite clear that the said maxim should be understood as referring to the state.c Moreover (in my opinion, at least), no interpreter of Roman law could be superior to Dionysius of Halicarnassus;d and this most painstaking of writers on Roman history makes the following statement in regard to the laws governing prize and booty: τὰ ἐκ τω̑ν πολεμίων λάφυρα, ὅσον ἂν ἔμι̑ν ὑπάρχῃ τυχει̑ν δἰ ἀρετὴν, δημόσια εἰ̑ναι κελεύει ὁ νόμος, καὶ του̑το οὐχ ὅπως τις ἰδιώτης γίνεται κυρίος, ἀλλ’ οὔδε αὐτὸς ὁ τη̑ς δυνάμεως ἔγεμών. ὁ δὲ ταμίας αὐτὰ παραλαβὼν ἀπεμπολει̑ καὶ εἰς δημόσιον ἀναφἑρει. “The law ordains that all spoils whatsoever obtained from the enemy as a result of valor, shall be public property, in the sense that neither private individuals nor even the commander of the army himself may become the owners thereof. On the contrary, the quaestor receives such spoils, and returns to the public purse the proceeds derived12 from their sale.” According to Dionysius, these were the words employed by the accusers of Coriolanus. In part, they are true; and in part, swollen into an expression of envy, they exceed the truth. It is true that the owner of the spoil is not the soldier nor the commander, but the Roman People; on the other hand, it is no less true that by Roman law the commander is the steward of the spoil and holds the supreme power of decision in regard to it. Lucius Aemilius is quoted by Livya as saying: “Captured, not surrendered, cities are plundered; and even in the case of captured cities, the power of decision rests with the commander, not with the soldiers.” Thus the commanders occasionally transferred this power, delegating it to others in order that envy might not be aroused (as Camillus,b for example, delegated it to the Senate), while on other occasions they retained it for themselves.
We find, moreover, that those who adopted the latter course used their power in diverse ways, according to the varying temper of the times, or their own devotion to fair fame, piety, or ambition.
Those who wished to be regarded as exceedingly virtuous did not touch the spoils, but ordered instead that the quaestor of the Roman People should take possession of that part in which money was included, while the rest should be sold at auction through the quaestor. The money received from such sales constituted what some writersc designate as manubiae. This money was subsequently transferred by the quaestor to the state treasury, although a public display preceded the transference in cases involving a triumphal celebration. Such was the course followed by Pompey, as described in this statement taken from the works of Velleius Paterculus:a “In accordance with Pompey’s custom, the money paid by Tigranes was delivered into the hands of the quaestor, and recorded in the public accounts.” Similar measures were adopted in connexion with the Parthian war by Marcus Tullius Cicero,b who says, in a letter addressed to Sallust: “As for my booty, no one except the city quaestors—in other words, the Roman People—has touched or shall touch a farthing from it.” This was the most usual practice under the old Republic, too, whose customs Plautusc had in mind, when he wrote:
Again, Plautusd describes the captives thus:
Moreover, the phrase, “sold under the slave’s chaplet,” refers to captives of this kind.[64′]
Some other commanders, however, were not in the habit of delivering the spoils to the quaestor. It was their custom to conduct the sales themselves and pay the proceeds into the public treasury, as Dionysius of Halicarnassus clearly implies in the passage following immediately after the one above cited from the accusation against Coriolanus.13 [64′ a] Similarly, we [read]14 that even in very ancient times King Tarquin [sent] booty and captives to Rome after routing the Sabines;e and also that, [because of] the impoverished condition of the treasury, the Consuls Romilius and Veturius sold the spoils taken from the Aequians, an action viewed with displeasure by the army.a
A special inquiry into the subject would be needed, however, before one could ascertain how much each general delivered to the treasury directly and how much through the quaestors, first, as a result of the victories in Italy, and subsequently, as a result of the African, Asiatic, Gallic, and Spanish triumphs; for there is no point that recurs more frequently in the pages of Roman history. Furthermore, it is evident[64′] from those same historical records that the said generals were not necessarily obliged to follow either of the courses mentioned, as their accusers would seem to intimate. For spoil was sometimes offered to the gods, sometimes to persons who had fought in the war, and at other times to other recipients.
Spoil was offered to the gods either in its original form, as in the case of that dedicated by Romulusb to Jupiter Feretrius,15 or else through the money received from its sale, as when Tarquinius Superbus decided to build a temple consecrated to Jupiter on the Capitoline Hill, with the money obtained from the sale of the Pometian booty.c
The bestowal of captured goods upon soldiers was, in the eyes of the ancient Romans, an act of ambitious ostentation. For example, Sextus, the son of Tarquinius Superbus, was said to have lavished spoil upon the soldiery (not in Rome, to be sure, but while he was a fugitive in Gabii) in order that he might thus gain power for himself.d Appius Claudius,e speaking before the Senate, declared that largess of this kind was unusual, prodigal, unfair, and ill-advised.
Now, the spoils that fall to the soldiery are either given by a process of apportionment, or snatched up as plunder. Apportionment may take the form of payment of wages, or of reward for merit. Appius Claudiusa urged that the distribution should be made as payment of wages, if the money received from the spoils could not be allowed to lie in the treasury. The entire procedure involved in such apportionment has been explained by Polybius,b as follows: it was customary to send half the army, or less, during each day or each watch period, to collect the booty; and whatever the various individuals found would be gathered together and conveyed to the camp for equitable distribution by the tribunes, those persons also being summoned to receive their share who had stayed to guard the camp, or who had been absent because of ill health or[65 a]16 special duties assigned to them. On some occasions, it was not the actual spoil, but money in the place of spoil, that was given to the soldiers. This latter procedure was usually adopted in the case of triumphal celebrations. I find that the following proportionate system of distribution was in use:c a single share for the foot-soldier, a double share for the centurion, a triple share for the cavalryman; or, in some instances, a single share for the foot-soldier, and double for the cavalryman;d or again, in other instances, a single share for the foot-soldier, double for the centurion, and four shares for the tribune as well as for the cavalryman;e and also, a single share for [sailors who were] naval allies, double for pilots, and four shares for ship’s captains.f Account was frequently[64′] taken of special merit, however, as when Marcius, because of his valiant conduct, was presented by Postumius with a share of the booty acquired at Corioli.
Whatever the method of apportionment adopted, the supreme commander was permitted to receive ἐξαίρετον, a special honorary share for himself, of such worth as he might choose. Thus King Tullius [Tarquin?]17 chose for himself Ocrisia of Corniculum.a According to Dionysius of Halicarnassus,b Fabricius, in his speech before Pyrrhus, made this statement: ἐκείνων δορυκτήτων ἐξόν μοι λαβει̑ν ὁπόσα βουλοίμην; “It was permissible for me to take as much as I wished, from the spoils that had been seized in the war.” Isidorec alludes to that same privilege when he says, in his definition of “military law”:18 “[This phase of law] likewise [embraces] the disposition of spoils and a just apportionment thereof in accordance with the qualifications and exertions of the individuals involved, as well as the matter of the prince’s portion.” Tarquinius Superbus (so Livyd relates) wished not only to be enriched in his own person, but also to soften with spoils the spirit of the common[64′ a] people. Servilius,e in his speech on behalf of Lucius Paulus, declares that the latter could have made himself rich from the spoils available for distribution. There are some persons,f indeed, who prefer that the term manubiae should be employed to designate this portion pertaining to the supreme commander, rather than in the sense above defined.19
Nevertheless, the highest praise has been accorded to the abstinence of those leaders who either waived their own rights and refrained entirely from touching the spoils (the course followed by the aforementioned Fabricius, as well as by Scipio after the conquest of Carthagea ), or else took only a small portion, as was done by Pompey, whom Cato (quoted in Lucan’s work) extols for having contributed [to the state] more than he retained.[64′]
In the process of apportionment, account was sometimes taken of absentees, in accordance with Hebrew custom. Fabius Ambustus ordered this to be done on the occasion of the capture of Anxur.b At other times, certain persons who had been present were omitted from the reckoning, as befell the army of Minucius under the dictatorship of Cincinnatus.c
It should also be noted that the right to distribute spoils which was invested under the old Republic in the commander-in-chief, was subsequently transferred to other officers. This fact is clearly indicated in a certain passage of the Justinian Code,d which exempts from the necessity of public registration the movable or automotive goods given to soldiers from captured enemy property, by the said officers, whether on the actual field of battle or wheresoever these soldiers may be found in residence.
[In general,] however, this practice of apportioning [spoils among the soldiers]20 rarely escaped criticism: not because anyone could say that such a course of conduct exceeded the authority of the supreme commander, but because it presented the appearance of an attempt to acquire private influence through the disposal of public property. Thus accusations were made against Servilius, [Marcius] Coriolanus, Camillus and others,a on the ground that they were bestowing largess from public sources upon their own friends and clients. Nevertheless, in some instances, donations of this kind sprang from the most equitable of motives, ἵνα οἱ συναράμενοι του̑ ἔργου τὸν τω̑ν πόνων καρπὸν κομισάμενοι προθύμως ἐπὶ τὰς ἄλλας στρατιὰς ἀπαντω̑σιν,b21 “the intention being, that those who had lent themselves to the enterprise in question might be rendered all the more willing, after receiving the fruit of their labours, to engage in new expeditions.” Sometimes the soldiers were allowed to take booty by a process of unrestrained pillaging, after a battle or a siege, scattering for that purpose at a given signal. Such methods were rather rare in ancient times, but occasionally they were practised: by Lucius Valerius in the territory of the Aequians,c for example; by Quintus Fabius when the Volscians were routed and Ecetra was captured,d and quite frequently by other individuals of a later period. This custom, too, is condemned by some persons and defended by others. Those who condemn it maintain that hands greedy for plunder snatch away the rewards earned by valiant warriors, “since it usually comes to pass” (these are the words of Appius Claudius, as quoted by Livye ) “that he who is less zealous seizes the spoils, whereas he who excels in valour is wont to seek the chief share of toil and danger.”22 In reply to this contention, Appius’ opponent tells us that,a “in every instance, whatever a man has taken from the enemy with his own hands and carried home with him, will be a source of greater satisfaction and rejoicing than any that he might derive from something many times more valuable, received through the decision of another.” An additional point to be considered, is the fact that the practice in question sometimes cannot be checked, or can be checked only by exciting the gravest ill will and indignation on the part of the soldiers. We find an early illustration of this difficulty23 in the storming of Cortuosa:b for the tribunes decided too late that the spoils from that city should become the property of the state, [and were unable to take them away from the soldiers for fear of offending the latter]. Another illustration may be drawn from a later period, when the camp of the Galatians was pillaged by the troops of Gaius Helvetius, against his will.c
As for my assertion that spoils, or the money derived therefrom, used to be given upon occasion to persons other than soldiers, such grants generally took the form of payment of exact compensation to persons who had furnished contributions for a war. But we should also note that provision was made for public games out of the proceeds from[65′] the spoil, even in the early days when the kings ruled [Rome].d
Nor is it only where different wars are involved, that diverse methods of dealing with prize and booty have found favour. On the contrary, it has frequently happened that the spoils taken on a single occasion have been put to a number of uses, distinct from one another with respect both to apportionment and to the classification of the captured property itself. An example relative to apportionment may be drawn from the conduct of Camillus, who devoted a tenth part of the spoils to the fulfilment of his vow to Apollo,a in imitation of the Greek custom. [As for the question of classification,] the various kinds of spoil were grouped, as a rule, in the following manner: captured persons; herds and flocks, properly designated in Greek as λεία, [“pillageable property,” especially cattle as contrasted with human captives]; money, and, finally, other movable goods, whether valuable or of comparatively little worth. Examples [of varying procedure based upon this system of classification] are easily found in the records of every historical period. Quintus Fabius, after defeating the Volscians, ordered that the cattle and [other saleable] spoils should be sold through the quaestor, while he himself delivered to the public treasury the money that had been seized;b but that same Fabius, when the Volscians and Aequians had been completely subdued, gave the captives (with the exception of the Tusculans)c to the soldiery, and allowed human beings and cattle to be seized as booty in the territory of Ecetra. On the occasion of the capture of Antium, Lucius Cornelius handed over the gold, silver, and copper to the treasury,d sold the captives and various other spoils through the agency of the quaestor, and gave to the soldiers those articles which were in the form of food or clothing. Similar to this was the plan adopted by Cincinnatus,e when he took Corbio, a town of the Aequians; for he sent the more valuable portion of the booty to Rome and divided what was left among the different companies. Camillus, when the Faliscans and Capenates had been routed,f brought back the greater part of the spoils to the quaestor and granted a much smaller share to the soldiers. That same dictator, after the conquest of Veii, gave nothing into the possession of the state save the money from the sale of captives. When the Etruscans had been vanquished and the captives taken on that occasion had been sold, he repaid the matrons out of the proceeds for the gold that they had contributed; and he also set up in the Capitoline temple three golden libation saucers. Fabricius, after subduing the Lucanians, Bruttians, and Samnites,a enriched the soldiers, compensated the citizens for their contributions and turned four hundred talents in to the treasury. Quintus Fulviusb and Appius Claudius, on the occasion when Hanno’s camp was captured, sold and divided the spoils, bestowing rewards upon those whose services had been outstanding. When Lamia was taken, Acilius apportioned a part of the booty, and sold a part.c After the Galatians had been conquered and the arms of the enemy burned in accordance with a Roman superstition, Gnaeus Manlius ordered that all should join in bringing together the remainder of the spoils:d a part of what was thus collected (the part destined for the public treasury) he sold, and the rest he divided among the soldiers, taking care that the division should be as equitable as possible. When Perseus was defeated, Pauluse gave the spoils of the conquered army to the infantry, and those taken from the surrounding country-side to the cavalry. Subsequently, when the entire war had been brought to a conclusion and immediately after the triumphal procession, he handed over to the treasury the money of the fallen king.
In view of the facts above set forth, it is apparent that spoils of war were public property according to Roman law, and that persons in high command were allowed to apportion such spoils, subject always to the understanding that they would be held liable under the laws if it should be said that they had fraudulently turned to their own advantage the authority with which they had been entrusted. This interpretation is clearly confirmed by the case of Lucius Scipio, who was tried for “peculation,” and convicted (so Valerius Maximusf tells us) of having received in silver four hundred and eighty pounds more than he turned in to the treasury. Similar confirmation is afforded by the above-mentioned instances in which certain persons were charged with distribution of largess for ambitious ends. According to Aulus Gellius,a Marcus Cato, in his oration On Division of Spoils among Soldiers, also complained vehemently and with eloquence of unpunished “peculation” and lawlessness. From that oration, Gelliusb quotes the following statement: “Those who are guilty of private thefts pass their lives in fetters and shackles; public thieves pass theirs garbed in purple and gold.” On another occasion, the same orator spoke of himself as marvelling “that any person should dare to set up among his household furnishings, statues which had been taken in war.” Ciceroc likewise added fuel to the ill will aroused by Verres’ peculation, when he charged that Verres had carried off a statue, and one, moreover, which had been taken from the spoils of the enemy.
Soldiers who had failed to turn in their booty were also held for peculation, in precisely the same manner as their commanders. For all alike were bound (as Polybiusd testifies) by an oath to the following effect: περὶ του̑ μηδἑνα νοσφίζεσθαι μηδὲν τω̑ν ἐκ τη̑ς διαρπαγη̑ς, ἀλλὰ τηρει̑ν τὴν πίστιν κατὰ τὸν ὅρκον; “that no one would purloin any part of the spoils, but each would keep faith in scrupulous observance of the oath.” Perhaps we have here the source of the formal oath recorded by Gellius,e whereby soldiers are prohibited, while within the territory occupied by the army or lying within a range of ten miles from the army, from carrying off anything worth more than one sesterce; and whereby, in the event that they do carry off any such article, they are commanded to bring it to the consul or make public confession regarding the matter within the next three days.24
The foregoing formula enables us to understand the words of Modestinus:f “He who has pilfered spoils from the enemy, is liable to a charge of peculation.” Even from the evidence contained in that one statement, our teachers of law should have deduced the tenet that spoils are essentially public property; for peculation can occur only in connexion with public or sacred or religious matters.a Thus the Romans were in complete agreement with the Greeks and with other peoples, in regard to this point. Therefore, since all nations agree in classifying the[67′]25 seizure of spoils under the head of public rather than private rights, that very concept would deserve recognition as an accepted legal principle even if its validity had not been demonstrated on the basis of natural reason. For it has been established by the unanimous opinion of the juristsb that, with respect to those things which have not yet been acquired in the name of any owner but which are capable of being acquired by any person whatsoever, the state possesses unrestricted power, so that it may award the things in question to whomsoever it deems most fitting, or may even attach those things to itself. For the right of acquisition involved in such cases is in a sense a common right, and rights held in common pertain to the state. Accordingly, we find that in many localities the rights over fowling, fishing, hunting, treasure troves, abandoned possessions and similar matters have been vested in the state and transferred by the latter to its ruler.Conclusion IX, Article II, Part I Therefore, in an absolute sense, the state that undertakes a public war acquires the spoils derived therefrom, up to the point where satisfaction has been obtained for the state’s own rights.
But it is furthermore permissible for the state, no less than for private citizens, to transfer such captured property, whether before or after acquisition. For example, transfer takes place after acquisition when spoils are awarded by the quaestor to a purchaser; or when they are bestowed upon someone as a gift, as they were bestowed upon the priests by David, upon the soldiers by Caesar during his dictatorship, or (a frequent occurrence) upon some general by the state in recognition of valour. Thus lands captured from the enemy were allotted to the veterans through an ordinance of Romulus,a and this same practice was followed in a later age over a very long period. Before acquisition, the transfer may be made either to a specified or to an unspecified person. For example, it would have been made to a specified person if anyone had purchased the Roman shops from Hannibal [in anticipation of their acquisition by him], as Dolon was promised the horses of Achilles [in anticipation of a Trojan victory]. On the other hand, the fact that spoil may rightfully be donated to an unspecified person who is nevertheless destined to become a specific individual, is evidenced by the custom of the consulsb which consisted in flinging forth presents to be acquired by any person who might seize them, even though the consuls themselves did not know what the various individuals would receive, just as the master of a feast prepares food for the guests [without knowing what portion will be consumed by each guest].Conclusion IX, Article II, Part II Hence we arrive at the following conclusion: either the state becomes the owner of the spoils, or he to whom the state has transferred acquisition of the spoils, becomes the owner.
The latter effect may be produced in either of two ways: through a special concession, or through a permanent legal statute. For it cannot be doubted that the laws create ownership. The said effect arose from a special grant, for instance, whenever men scattered at a given signal to engage in plunder; but a similar result may arise from a legal statute. Nor do these two methods differ in any respect other than the fact that legal precepts are governed by a certain abiding principle,c that is to say, the principle of equity.
New explanationEquity consists in striking a balance between gains and losses. But there are losses of more than one kind, since some befall persons who are unwilling, while others befall persons who are willing. Loss of possessions that have been seized by enemies is suffered involuntarily. We act voluntarily when we give of our labour or riches.
Now, it is an established fact that he who employs another to discharge a mandate is responsible to the mandatary for any subsequent loss that occurs not by mere chance but in consequence of the mandate.a As regards expenses incurred, there has never been any doubt but that these are recoverable through a judgement based upon the existence of a mandate. In so far as concerns reward for labour expended, it is true that such a reward cannot be exacted under Roman lawb unless an agreement has been concluded to this effect; but it is owed, none the less, under that law of naturec which imposes upon us the obligation of doing good, in our turn, to those who are our benefactors. This assertion is confirmed by the fact that, in many cases where civil action does not lie, mandators are nevertheless compelled, as if by natural equity operating beyond ordinary bounds, to give recompense for work performed. This is the basis of the paymentsd designated as “factorages,” ἑρμηνευτικά [interpreters’ fees], μήνυτρα [rewards for information], φιλάνθρωπα [gratuities], and by various names. Hence we infer that in other cases, too, it is not an appropriate principle of the law of nations that is lacking for the exaction of compensation, but civil authorization for that purpose. Our inference applies, for example, to those contracts which include no stipulation [providing for recompense] under the law of the Quirites;26 to sales transacted on a basis of good faith with respect to payment, in Plato’se opinion; to unproven thefts, by Spartan custom, and to loans and deposits, among the East Indians of earlier times.f Seneca says:g “There are many things which do not come under the laws, nor do they admit of action in court; and with respect to these things, human custom, which is more forceful than any law, shows us the way.” Certainly it is not to be supposed that any person will leave his own affairs in large part neglected while he takes time for the affairs of another entirely gratis, since most men make their living by their daily[68 a] labour.a Thus Senecab declares that we owe physicians and teachers a price for their labours, that is to say, compensation for the trouble they take, because they devote their efforts to serving us and put aside their own interests in order to find time for ours. According to Quintilian,c similar repayment is both just and necessary in the case of orators, since the actual labour required in their profession and the fact that all their time is given to the affairs of others, are factors which cut them off from every additional means of making money. Nor is the comparison of what is done and what is given, the one with the other, a concept foreign to law.
Accordingly, since friendships rest upon mutual benefits, he who looks after another person’s interests binds that other person to himself, under the precepts of nature, by an obligation to make repayment in excess of mere indemnification.d This was one reason that moved the Romans to restore goods captured from the enemy to the possession of allies who were the former owners and who recognized such goods as their own;e and it was also a reason for the admission of those same allies (stipulated, for example, in the treaty with the inhabitants of Latium) to a share of the spoils that would equal the Roman share.f Moreover, a similar interpretation must be given to the words of Ambroseg in the passage above cited,27 where he says: “To be sure, Abraham declared that a part of the spoil was to be given as a reward for labour expended, to those who had accompanied and aided him, possibly in the capacity of allies.” This same principle—namely, that allies and subjects should have a share in the spoils—was in force among God’s chosen people at all times, that is to say, from the age of Abraham to the period covered in the Books of Maccabees.a
The point thus raised calls for more detailed consideration, particularly in relation to subjects. In this connexion, we maintain that the following fact must be acknowledged: both allies and subjects place the state undertaking the war under obligation to them,b not only for[68′] losses and expenses incurred, but also for effort expended. For even though the individual subjects are in duty bound to serve the public weal, nevertheless, the principle of proportional justicec decrees that whatever any person expends for the community—whether by donation or by active effort—in excess of his individual obligation, may be reclaimed from the other members of the community: a precept which holds good (so we find) in all communal matters.d Nevertheless, subjects differ from alliese in one respect, as follows: allies cannot diminish their own rights save through pacts entered into by themselves, whereas the rights of subjects are frequently altered by the laws of the state,f since it has been agreed once for all, and confirmed by experience, that private interests should be subordinated to public interests. For this reason, it often happens that subjects do not recover compensation from the state for losses suffered in war. Let us draw some examples illustrating this point from the field of Roman law.
Originally, in the light of the established principle that things captured in war by either belligerent should fall to the lot of the captors,g it was generally recognized that a Roman citizen’s property, after being seized by the enemy, became the property of the latter; and that it would return ipso iure, if recovered from the said enemy, not to the citizen but to the state, owing undoubtedly to its inclusion among the goods of one who was in debt to the state. Thus the Roman People were placed under an apparent obligation to indemnify the despoiled citizen for his loss; but this obligation was annulled on some occasions in order to prevent the public treasury from being depleted (especially in time of war) by excessive disbursements, and on other occasions, in order that no one might be enticed by this facile means of recovery into defending his property less vigorously, thereby increasing the resources of the enemy.
Before long, special cases presented themselves in which it seemed more equitable and more expedient that the state should cede its own rights to the extent of repairing losses on the part of citizens without inflicting loss upon itself, or in other words, to the extent of permitting goods recovered from the enemy to return to their former owners. Here we have the origin of the right of postliminium,The right of postliminium a well-known institution of Roman law, although it was not clearly understood by the earliest interpreters. Let us pause to give this concept of postliminium such attention as will suffice for our discussion of spoils. For a disquisition on the subject of postliminium among remote nations, and on human beings who either return or are recaptured in warfare, would be tedious and foreign to our purpose.
New explanationThe Romans maintained that, by postliminium, lands reverted to the original owners.a Indeed, some agreement regarding indemnification was necessary in order to encourage men to hold and cultivate their estates, since military operations could not be sustained without natural produce, and since a great many persons would be impelled by threat of danger to abandon their agricultural labours, especially if they were to be deprived of all hope of recovering their estates in the future, after being driven out not in consequence of their own negligence but by the superior force of the enemy. For that is the usual cause, where lands are involved. A different development is observed in connexion with movable property,a owing not only to the difficulty of conducting investigations concerning such property, but also to the fact that in unsettled times movable possessions are burdensome rather than useful and sometimes breed timidity and an unwarlike spirit, so that they were designated by those same Romans, not inappropriately, as impedimenta, [i.e. impediments, or baggage]. Nevertheless, it was necessary to make an exception regarding movables useful in warfare,b such as warships and transports (but not fishing-smacks and pleasure-craft), stallions and mares (but only those broken to the bit, not all stallions and mares), and pack-mules, also.c For nothing is more advantageous in warfare than to have close at hand an abundant supply of those articles which the sudden exigencies of war often require. Therefore, it was advisable that the citizens be encouraged to make ready such a supply, and all the more so because things of this kind are frequently lost through no one’s fault, as Marcellusd observes in regard to horses. On the other hand, it is equally easy to understand why things which could not be lost without shame, such as the arms of a soldier, were properly excluded from the class of movables subject to postliminium.e Owing, moreover, to the fact that in the process of commercial exchange, articles which were classified as subject to that right frequently fell into the hands not of their former owners but of persons attached to the same side,f the resultant question of “onerous cause,” as we term it—that is to say, the question of an equitable settlement between the former owner and the purchaser—had to be settled by providing that the said owner might recover his property by offering to reimburse the purchaser.
Nowadays, of course, not all of these principles are universally observed in precise accordance with the forms established in Roman law. To mention one example, in most regions, ships are not subject to post-liminium, since they revert to their former owners only if the vessels have been recovered immediately, or else prior to their removal into the locality occupied by the enemy, and always after a fee has been tendered to the persons who recaptured them. Thus there is now no difference at all, [in most localities,] between the law regarding ships and the law regarding merchandise, an assertion which may be confirmed by consulting the French and Italian maritime regulations.a
To be sure, the above-mentioned remedies were established only with a view to their application in rem, so to speak [i.e. to the particular object lost and recaptured]. For it was not provided by Roman law that one should furnish reparations from some other source for losses connected with possessions not restored to one’s own side; and the same statement holds good with respect to the present age, save for those occasional extraordinary instances in which certain portions of the spoil yet to be taken are assigned to persons who have suffered loss, and which are in a sense instances of reprisal in the very course of warfare.
On the other hand, rewards for military services cannot be paid[69′] from any other source more expediently than from spoils. For as a result of this method of payment the state is spared all expense, and at the same time the enemy becomes poorer, because soldiers are more eager for every gain if they know that they are making conquests for themselves, also. The spoils are not all allotted in this manner, however, since such an allotment would be excessive; on the contrary, only a specific kind or portion is so assigned, and this is done in accordance with the rule that each individual shall become the owner of that which he himself has taken from the enemy. Thus the uncertain perils of war find compensation in a reward that is likewise uncertain.b
Whatever falls to the lot of individuals in consequence of such lawful assignments is called praeda [private spoils] in a strict sense,Praeda in the strict sense of the term and with a special significance attached to a term which in other contexts has a general connotation. Varroa believes that this term may be traced to a form of manu pario, [denoting acquisition by force,] but in my opinion it was more probably derived from [a form of] praehendendus [to be seized]29 with an elision of the harsher sounds. Thus the expressions publicari, [to be made public property] and in praeda esse [to be a part of the private spoils], are mutually opposed.b
Now, different states have established different practices in this connexion.
It is generally agreed that lands captured from the enemy are not a part of the private spoils but become, instead, public property.c The opposite view seems to prevail in regard to movable and automotive things, for the reason that it is too difficult to recover possession of such things from the individuals holding them.
New explanationAccordingly, the principle laid down by the interpreters of civil and pontifical law as well as by some theologiansd —namely, that movable articles taken from the enemy become the property of the individuals who seize them—is more pertinent to the present context than to our earlier discussion. For this principle proceeds, not from what we have called the primary law of nations, but rather from positive law, which is made up in large measure of customs. Moreover, the said principle is based, not upon a unanimous agreement that gives it binding force over the various states, but rather from a chance accord, so to speak, which individual peoples are free to repudiatea whenever such a step seems advisable. Furthermore, even in cases where the principle is observed, acquisition takes place not directly, but by a process of fictitious delivery.
Nor should this criterion be applied indiscriminately. Spoils are seized either during a raid or in a pitched battle. In referring to these two alternatives,Correría respectively, Italian legal authorities speak of a correría [foray],Bottino and of bottino [plunder].b
I am of the opinion that movables seized in the course of a raid—that is to say, not by the common valour of the whole army, but by a marauding band—were granted to the individuals who seized them, save in those instances where it is clear that some other action was taken. For the infliction of losses upon the enemy is practically the only purpose of such raids, and besides, any investigation in these circumstances would be difficult. We see, then, that even under Roman law, spoils taken from the enemy in combats between individuals became the property of that individual who was the victor.
But what conclusion shall we adopt in regard to formal battles and the capture of cities by assault? Goods taken from the conquered after the victory has been won in such cases would not seem to fall under the head of “military spoils”c [i.e. those assigned to individual soldiers]. The Greeks, when they wished to draw a distinction, referred to these articles as σκυ̑λα [spoils stripped from the enemy]. On the other hand, I find that it is the custom of a great many nations to allot to individuals the goods wrested from the foe in the heat of battle or during assault by storm, and designated by the Greeks as λάθυρα [spoils seized by violence]: in other words, goods torn away while
Apparently, however, an exception must be made of things which were formerly public rather than private enemy property. Certainly we know that when the Macedonians burst into the camp of Darius after their victory by the river Pyramus, they snatched away a vast quantity of gold and silver, and left only the tent of the king untouched, “so that the victor” (these are the words of Curtiusa ) “might be received in the tent of the vanquished king, in accordance with established custom.” At Arbela there were even persons who accused certain soldiers of having conspired, in defiance of custom, to appropriate all the spoils for themselves, leaving nothing to be brought to the general’s tent.b We note, too, that there existed among the Hebrews a practice similar to the one just mentioned: the placing of the vanquished king’s crown upon the head of the victorious king.c Again, after the conquest of the Hungarians by Charlemagne, private riches fell to the lot of the soldiers, and royal riches to the public treasury. Under the old Roman régime, however, it was not the custom to abandon the spoils to the soldiery even when a city had been taken by storm, a point very clearly brought out in the words of Lucius Aemilius as recorded by Livy and quoted by us in an earlier part of this chapter.d Nevertheless, I do not question the fact that the practice, already begun by the generals as a bestowal of favours, was converted into custom30 through the licence characteristic of civil wars, which is more indulgent to the soldiers than to their leaders. Consider, for example, the first step taken by Caesar after the battle of Pharsalia, when he handed over Pompey’s camp to be plundered by the soldiers, and added:
In the course of another civil war, the Flavian troops, who had been led to Cremona, conceived the desire to take that rich settlement by assault, despite the fact that night was falling; for the darkness would afford greater licence for plundering, and they feared that otherwise the wealth of the inhabitants would find its way into the purses of the commanders and lieutenants. It is in connexion with this incident that Tacitusb records the famous observation that, “the booty from a city taken by storm falls to the soldiery, whereas the booty from a surrendered city falls to the officers.” The custom defined in this comment gradually[70′] passed into law. Undoubtedly the transition was motivated by a justifiable fear that soldiers, if they should be denied the right to receive spoils after the battle, might disregard the enemy and burden themselves with booty in the midst of the struggle, a form of avarice which in itself alone has sufficed on many occasions to stand in the way of victory. Thus Suetonius,c during the conflict with the Britons, exhorted his men to devote themselves steadfastly to the work of slaughter, unmindful of booty, but appended to this admonition the promise that everything would be given over to them as soon as the victory was won. Other passages of similar import may be found, scattered about in various contexts. According to Procopius,d when certain soldiers were claiming for themselves the fields taken from the Vandals, Solomon, the commander of the imperial bodyguard, replied to them by drawing a distinction between real and movable property. He explained that the latter was conceded to the soldiery, whereas the former was retained by the state, which had nurtured the soldiers and bestowed upon them that title and honourable position, not to the end that they themselves might possess the estates which they had taken from the barbarian insurgents against the majesty of Rome, but rather in order that these estates might be gathered into the public treasury, whence means of subsistence would be derived for those same soldiers and for other persons, too, as the need arose. Among the statements made by Solomon, the following words may be quoted:a ὡς τὰ μὲν ἀνδράποδα καὶ τὰ ἄλλα πάντα χρήματα τοι̑ς στρατιώταις ἐς λάφυρα ἰἑναι οὐκ ἀπεικὸς εἰ̑ναι· γη̑ν μἑντοι αὐτὴν βασιλει̑ τε καὶ τῃ̑ ῥωμαίων ἀρχῃ̑ προσήκειν· “Indeed, it does not seem at all unreasonable that the captives and other [movable] goods should be given as booty to the soldiers; but the land itself belongs to the ruler and empire of the Romans.” The belief that this passage points to the existence of a certain universal law to the same effect, is borne out by the very fact (to which we have already alluded) that it was not at all an unheard-of occurrence for lands, also, to be allotted to soldiers, but as an exceptional measure.
Furthermore, all of the concessions in question may be made even when definite compensation has been fixed for the soldier’s labour, as if to indicate by means of such concessions that the spoils are an addition to his regular pay, or that he is paid less in cash precisely because of the profit to be derived from the spoils. For, in almost all parts of the world, soldiers’ wages are so niggardly that it would be difficult to find anyone attracted to the military mode of life if that hope of extra gain were not offered as an inducement. As matters stand, this one conviction sustains the soldier in his exertions, namely, the assurance that
At the present day, indeed, a part of the spoils is everywhere given to the fighting man who makes the seizure, while a part reverts to the state or is conferred by a grant from the latter upon the leaders in the war, whatsoever their rank, as a reward for their labours. This fact is stated in the laws of all nations, in connexion with both maritime and terrestrial warfare.a For example, according to the Spanish Constitutions [or Royal Ordinances],b sometimes a fifth part of the booty that has fallen into the hands of the soldier, sometimes a third part, and again, at other times, a half, is owed to the king; and a seventh, or in some instances a tenth, is owed to the leader of the army. In certain cases, it is not merely a fraction of the spoils, but all spoil pertaining to a given class, that is withdrawn: thus, by the aforesaid Spanish laws,c warships become the property of the sovereign.
The practice of estimating effort expended and peril undergone, when spoils are apportioned, is matched by the equally or even more justifiable practice of taking into account the expense incurred, whenever a private individual has made expenditures for a public war; and the debt owed by the state for such expenditures cannot be discharged more suitably than by payment out of the spoils. According to Italian custom,d when an enemy ship has been captured, one third of the prize falls to the master of the victorious ship, another third to those persons whose goods were on the latter vessel, and yet another third to the men who participated in the battle: that is to say, compensation is given in the first instance for the expense incurred, in the second instance for the risk run, and in the third instance for the labour performed. In regions outside of Italy, moreover, it is an accepted custom that he who has lent a horse to a soldier for a given expedition shall share the booty with that soldier.e Among the Spaniards,f whatever is acquired in a naval battle becomes the property of the king, provided that the latter has fully outfitted the ships and supplied the soldiers and sailors with provisions; so that, in such cases, no part of the prize is allotted to the admiral in command. On the other hand, in cases where a ship has not been equipped at royal expense, the victors divide among themselves all that remains after the king and the admiral have been presented with their respective portions. If, then, a given person furnishes the labour for a public war (whether indirectly or through the agency of others), if he makes expenditures from his own resources, if he takes upon himself all the losses and risks, and if he does these things without having been granted any payment from the public purse, that person (according to the unvarying and commonly accepted opinion of all the doctors of law),a acquires for himself whatever is taken from the enemy, and acquires it, moreover, in its entirety. In short, since it is unjust (as Paulb declares in his First Epistle to the Corinthians) στρατεύεσθαί τινα ἰδίοις ὀψωνίοις, in other words, that any person should wage war “at his own charges” (or, to follow the interpretation of [St. Ephraem] the Syrian31 “at his own expense,” that is to say, without hope of compensation, an implication clearly brought out by Paul’s illustrative reference to the planter of a vineyard and the feeder of a flock), and since, conversely, it is consistent with natural equity that he who suffers the disadvantageous consequences of any action shall also enjoy its advantageous consequences in accordance with a[71′] tacit agreement, such as that which exists in connexion with a pledge of antichresis, it obviously follows that the state, content to have brought misfortune upon the enemy without cost to itself, will yield its rights over enemy property in favour of the person who for his part took upon his own shoulders the entire burden for which the state itself should have made provision.
Now, it is unquestionably true, as our legal interpretersa maintain, that the common law of war accepted by the majority of nations ought always to be observed, unless some different course of action has been specifically laid down by statute or by pact. For what obstacle precludes the existence of just and lawful pacts in regard to spoil as well as in regard to other matters?b Thus the state has the power to take for itself or to allot to others by way of recompense, a certain portion even of those spoils which are captured at private expense and with no payment for soldiers involved, as if a kind of partnership had been establishedc with respect to the said spoilsd in that the state furnishes the cause while the subject [who bears the expense] furnishes all the other elements required. According to the laws of France, in cases of naval warfare a tenth part is taken out and awarded to the admiral in command, while the remainder is left in the possession of those who bear the expenses; and for this particular regulation there is an additional reason,e namely that it is of the greatest importance to the state that as many persons as possible be found to defend the public cause and fit out ships for use against the enemy, with their own resources. Among the Dutch,f a fifth part is owed to the state and a tenth part to the admiral, except that nowadays this rule of apportionment holds good only within the circle of the summer solstice, whereas beyond that circle the proportion specified is a thirtieth.
In preceding passages of the present chapter,g we have shown that acquisition may be effected either directly or through agents, and we have applied this principle both to private and to public warfare. In support of our thesis, moreover, we have advanced irrefutable arguments that lead to the following conclusion: if any private individual shall conduct a public war at his own expense, to his own loss, and at the risk of damage to his personal interests,32 while nevertheless employing for that enterprise the labour of other persons whom he has hired either at a fixed price or by entering into an agreement regarding a portion of the spoils which properly belong to him, the said individual will acquire immediately the goods captured from the enemy through the efforts of those hired assistants. For he has possession through the agents whom he was able to substitute for himself, to be sure, in the actual waging of the war;a and cause is supplied to him by the state. In most cases, of course, it is customary to grant certain comparatively trifling articles of spoil to agents: for example, in maritime warfare, to the sailors. The Constitutions [or Imperial Ordinances] of Franceb refer to this procedure as despouille [spoliation] or pillage [pillage],Pillage and make it applicable to clothing as well as to gold and silver of a value not exceeding ten crowns. In some instances, a larger amount is given as a result of custom or on the basis of an agreement with the persons actually engaged in battle.
CorollaryTherefore, in accordance with an absolutely indisputable right, to him who wages a public war at his own expense, to his own loss, and [at the] risk [of damage to his personal interests],33through the efforts of his own agents, and in the absence of any agreement regarding recompense, all the spoil so taken properly pertains, save in so far as some part thereof is excepted in consequence of a special law or agreement.
[1. ]The single Latin word periculo would seem to call for a more general interpretation, e.g., “and at peril to themselves.” Near the close of the present chapter, however, Grotius presents this corollary in a slightly fuller form, employing the phrase suarum rerum periculo (literally: “and at the risk of one’s own interests”); hence the expanded English interpretation. Cf. notes 32 and 33, p. 242, infra.
[a. ]Concl. II and Arts. III and IV; Corolls. II, and III to Concl. VII, supra, pp. 68–88, 177, and 181.
[b. ]Cf. Chap. vi, supra, pp. 92–100.
[a. ]Concl. II and Art. III, Concl. VII, supra, pp. 68–88 and 152 ff.
[b. ]See Concl. VII, Arts. I and II, supra, pp. 127–152.
[c. ]Xenophon, Training of Cyrus, II [iii. 2]; Plato, Sophist [p. 219 d, e]; id., Laws, I [p. 626 b]; Arist., Politics, I. viii. [I. iii. 8].
[d. ]Chap. iv, passim, supra.
[e. ]Dig. XLI. ii. 1, § 1; and ibid. i. 5, at end; and ibid. 7, at beg.
[a. ]Jason, On Dig. XLI. ii. 1, n. 8; Duaren, On Dig. ibid.; Doneau, Commentaries, IV. xxi.
[2. ]Reading abstinere iubet (bids us refrain), or possibly, capere vetat (forbids us to seize) for the phrase actually written by Grotius, abstinere vetat (forbids us to refrain). The context clearly indicates that Grotius was referring to the principle laid down in Law IV, and that he distorted his own thought by a slip of the pen.
[b. ][p. 335 d, e.]
[c. ][Isthmian Odes IV. 48.]
[d. ]On Duties, I [xi. 33].
[3. ]I.e. Camillus, as quoted by Livy in the anecdote concerning Camillus’ refusal to take advantage of a Faliscan tutor’s treacherous offer to deliver his charges into the hands of the Romans.
[e. ]Livy, V [xxvii].
[4. ]utique, in Grotius’s text; utrisque (on both sides, in both peoples) in Livy’s text. While such slight variations from the language of the authors quoted are the rule rather than the exception in the Commentary, this particular inaccuracy calls for comment, partly because it is so slight that it could be interpreted as an inadvertent misspelling of the word Grotius actually intended to write, and partly because stress upon the factor of mutual obligation would make the quotation still more forceful for his purposes.
[a. ]Epistles, cxx .
[b. ]Beg. of Chap. iv.
[c. ]Innocent and Panormitanus, On Decretals, II. xiii. 12 and II. xxiv. 29; Bartolus, On Dig. XLIX. xv. 24 [nn. 9–11]; Jason, On Dig. I. i. 5, n. 30; Arias, De Bello, 24 ff.
[d. ]Institutes, II. i. 17.
[a. ][On Institutes, II. i. 17.]
[b. ]Concl. VII, Art. I, supra, pp. 130–42.
[c. ]See beg. of Chap. iv, supra, p. 68 and Concl. VII, Art. I, supra, pp. 130–42.
[d. ]At end of Chap. ii, supra, p. 50.
[5. ]Hostis usually refers to a public enemy, whereas an individual who bears us ill will in a private capacity is called in Latin inimicus.
[a. ]See Arias, De Bello, 24 ff.
[b. ]Matthaei, in Req. 1, also Dig. IX. ii. 25–6.
[c. ]Decretals, II. xxiv. 29; Code, IX. xii. 6.
[d. ]On the Consolation of Philosophy, IV [120–1].
[e. ]Henry of Gorkum, De Bello Iusto, Prop. 10.
[f. ]Nic. Ethics, V. vii [V. iv].
[a. ]In Chap. iv, supra, pp. 72 ff.; see also Chap. ii, Law V, supra, pp. 29 f., and Chap. viii, Concl. I [Concl. VII, Art. I], supra, pp. 130 ff.
[b. ]Archidiaconus, On Decretum, II. xxiii. 2. 2; Sylvester, on word bellum [Pt. I] x; Vict., De Jure Belli, 51.
[c. ]Ibid. and on word repressalia, at beg. [i.] 4; Laudensis, De Bello, Qu. 5.
[a. ]Dig. I. iii. 4–6; Dig. V. iv. 3, at end.
[b. ]Chap. viii, Coroll. III, supra, p. 181.
[a. ]In Chap. ii, supra, pp. 40 f.
[b. ]Cf. Laws IX and XIII [XII?], supra, pp. 43, 46; see discussion of Concl. VII, Art. I, supra, pp. 127 ff.
[c. ]Arias and others cited above.
[d. ]Innocent, On Decretals, II. xiii. 12, n. 8; ibid. II. xxiv. 29, n. 6 and Panormitanus, on the same passages of the Decretals; Sylvester, on word bellum [Pt. I] iii.
[e. ]See also Sylvester, ibid. x: prima.
[6. ]Pignerationes was evidently employed in both civil and canon law as equivalent to represaliae. Cf. Bartolus, On Reprisals, Qu. 1, ad 1, and Sylvester, word bellum, Pt. I. x: prima.
[a. ]See Bartolus, On Reprisals, IX, qu. 1, ad 2 and 3.
[b. ]See Sylvester, on word repressalia, at end [ix].
[c. ]Sylvester, on word furtum, x ; and discussion of Sext, V, ult. reg. 73.
[d. ]Cf. Dig. VIII. v. 8, § 3.
[a. ]Code, VII. xiv. 5.
[b. ]Genesis, xiv.
[c. ]Plutarch, Caesar [p. 708 a–c].
[d. ]Consilia, III, cons. 68.
[e. ]De Iure Belli, I. ii.
[f. ]See discussion of Corollary, this chap., infra, pp. 227–42.
[a. ]See Bartolus, On Reprisals, IX, qu. 1, ad 3.
[b. ]Dig. XLII. viii. 6, § 6; ibid. 24.
[c. ]See supra, Chap. iv, p. 72, and Concl. VII, Art. III, supra, pp. 153, 164–65; Sylvester, on word bellum, [Pt.] I. vii. 5 [xi. 3].
[a. ]See Chap. vi, supra, pp. 94 f.; Institutes, II. ix, at beg.; Dig. I. vi. 1, § 1; ibid. XLI. i. 10, § 1; ibid. ii. 1, § 5.
[b. ]Dig. XLI. i. 20, § 2; Institutes, II. ix. 5.
[c. ]Dig. XLI. i. 54; ibid. ii. 1, § 22; Code, IV. xxvii. 2; ibid. II. xix. 23; Dig. XLI. ii. 18.
[d. ]Code, VII. xxxii. 1.
[a. ]Code, VII. xxxii. 8; Dig. XIII. vii. 11, § 1; Paulus, Sententiarum Receptarum, V. ii, at beg.
[b. ]Dig. XLIV. vii. 11; ibid. XLV. i. 38, § 17; Code, IV. xxvii. 1.
[c. ]Dig. XLI. i. 53.
[d. ]Dig. XLI. ii. 1; ibid. 34, § 1.
[e. ]Code, IV. xxvii. 1 [VII. xxxii. 1].
[f. ]See discussion of Law II, Chap. ii, supra, pp. 23–25; add Dig. XLI. ii. 8.
[g. ]Dig. XLI. ii. 1, §§ 3 and 20.
[h. ]Sententiarum Receptarum, V. ii.
[a. ]Chap. v, supra, pp. 89 f., and in discussion of Concl. VI, Art. III, supra, pp. 114–21.
[b. ]Sext, V, ult., reg. 68, 72; see also discussion of Law X, Chap. ii, supra, p. 44.
[c. ]Dig. XLI. ii. 1, § 20.
[d. ]Code, VII. xxxii. 8.
[e. ]Dig. XLI. ii. 42, § 1; ibid. i. 20, § 2; ibid. XXXIX. v. 13.
[f. ]Dig. XIX. i. 11–12.
[a. ]Dig. XLI. ii. 1, § 20.
[b. ]Genesis, xiv, at end.
[c. ]See discussion of Rule III, Chap. ii, supra, p. 34; Institutes, II. i. 40.
[7. ]Mutuo, which refers properly to a loan for purposes of consumption, made subject to an agreement providing for equivalent compensation. The passage cited here from the Institutes, however, clearly refers to cases in which “anyone has sold or given to you, something already freely loaned . . . to you”; and even in Grotius’s statement, the translation of mutuo as “loan” would be somewhat confusing. Hence the translator assumes that Grotius meant to stress the idea of payment implicit in this term.
[a. ]Institutes, II. i. 44.
[b. ]Dig. XXIV. i. 3, § 12.
[c. ]Dig. XXIII. iii. 43.
[a. ]Bartolus, On Dig. XLIX. xv. 28; Alexander of Imola, and Jason, On Dig. XLI. ii. 1; Angelus de Ubaldis, On Institutes, II. i. 17; Panormitanus, On Decretals, II. xxiv. 29, n. 7; Thomas Grammaticus, Decisiones Neapolitani, lxxi. 17; Laudensis, Qu. 4.
[a. ]Etymologies, V. vii, cited in Decretum, I. i. 10, and see Gloss thereon.
[8. ]Various items not mentioned here by Grotius are included in Isidore’s definition of ius militare, which is considerably broader than the modern definition of “military law.” On the other hand, Isidore’s interpretation of the term in question does not cover the entire field included in Grotius’s ius belli (law of war), so that it has seemed best to translate ius militare literally, rather than as the equivalent of ius belli.
[9. ]In the Greek, “corrective [i.e. compensatory] transactions.”
[b. ]See Arist., Nic. Ethics, V. v–vii [V. ii. 12–13, V. iv. 2].
[c. ]Th. Aq. II-II, qu. 61, arts. 1 ff.
[d. ]Chap. i [ii], before Law V, supra, pp. 28 f.
[e. ]See Glossators, On Decretum, II. xii. 2. 25 ff.
[a. ]On Abraham, I. iii , cited in Decretum, II. xxiii. 5. 25; Gloss thereon; Baldus, On Code, VIII. liv. 36.
[b. ]Livy, XXX [xiv. 8–10].
[c. ]Dig. XLI. i. 5, § 7; ibid. 7; Institutes, II. i. 17; Dig. XLI. ii. 1, § 1.
[d. ]Dig. XLI. ii. 2.
[a. ]See Chap. vi, at end [at beginning], supra; Arist., Politics, I. ii.
[b. ]Institutes, II. ix. 1.
[10. ]The passage cited here from the Institutes merely brings out the fact that ordinarily, under the old Roman law, property acquired by children still under the control of their ascendants, was acquired for the latter; but the phrase castrense peculium, in its primary acceptation, refers to property owned by the child himself under special conditions, as indicated above in the expanded English interpretation of that phrase.
[c. ]Code, IV. xxvii. 3; Dig. XLI. i. 23, § 3; ibid. 10.
[11. ]That is, property acquired by such slaves or individuals serving in good faith was acquired for the person or persons under whose control the former were acting.
[a. ]Institutes, II. i. 18, 22.
[b. ]Dig. XLIX. xv. 20, § 1.
[c. ]See Glossators, On Dig. XLIX. xiv. 31; Bartolus, On Dig. XLIX. xv. 28; Alexander of Imola and Jason, On Dig. XLI. ii. 1; Covarr., On Sext, rule peccatum, Pt. II, § 11.
[d. ]Numbers, xxxi. 27, 31, 47; Joshua, vi. 27 ; ibid. xxii. 7–8; 1 Samuel, xxx. 22 f.
[e. ][Iliad, I. 125.]
[a. ][Ibid. IX. 330 ff.]
[b. ][Iliad, I. 163 f.]
[c. ]Virgil, Aeneid, II. 762 ff.
[d. ]Plutarch, Aristides [v. 5].
[e. ]Herodotus, IX [80 ff.].
[a. ]Plutarch, Lysander [xvi. 1].
[b. ][Aeneid, IX. 268.]
[c. ]Iliad, X [319 ff.].
[d. ]Rhesus [181 ff.].
[e. ]Pliny [Nat. Hist.], XXXIII. iii; Plutarch, Alexander [xxxvi. 1] and Curtius Rufus [History of Alexander, V. vi. 20]; Diodorus Siculus, XVII [66 and 71]; Strabo, XV [iii. 6–9].
[f. ]Diodorus Siculus, XIII ; Livy, XXIII [xii].
[g. ]See Faber, Semestria, II. iii–iv.
[h. ]Dig. XLI. i. 51.
[a. ]Dig. XLI. i. 50; ibid. 7, § 7; ibid. 19; ibid. 27, § 1; ibid. 16; Institutes, II. i. 39.
[b. ]Dig. XLI. ii. 18.
[c. ]Ibid. i. 7.
[d. ]Roman Antiquities, IV [VII. lxiii. 2].
[12. ]Collotype p. 63′ contains only deleted material which is apparently part of a long deleted passage extending from the bottom of p. 63 through pp. 63′ and 67. In confirmation of this supposition, it may be noted that pp. 63 and 63′ make up the sheet originally numbered “56,” while p. 67 was once numbered “57.”
[a. ]XXXVII [xxxii. 12].
[b. ]V [xx].
[c. ]Gellius, XIII. xxiii [xxv].
[a. ]II [xxxvii. 5].
[b. ]Letters to his Friends, II. xvii .
[c. ]The Two Bacchises .
[d. ]Captives [34 and 111].
[13. ]It was charged that Coriolanus “neither reported to the quaestor” the prisoners and booty captured from the Antiates, “nor sold them himself and turned over the proceeds to the state treasury,” but distributed everything instead among his own friends (Antiquities, VII. lxiii. 3).
[14. ]One corner of MS. p. 64′a has been torn away. The bracketed words in this English sentence represent a conjectural restoration of the missing Latin text, based primarily on Grotius’s own wording in an almost identical passage deleted by him at the top of p. 64′, and confirmed by the text of the two citations from Livy. Thus misisse legi [mus] is supplied at the end of line 1, and propter at the end of line 2.
[e. ]Livy, I [xxxvii. 5].
[a. ]Ibid. III [xxxi. 4]. [Livy]
[b. ]Dionysius of Halicarnassus [Roman Antiquities], II [xxxiv].
[15. ]“Jupiter the Subduer of Enemies,” to whom the arms taken in battle from vanquished generals were frequently offered.
[c. ]Livy, I [liii. 3].
[d. ]Ibid. [liv. 4].
[e. ]Ibid. V [xx. 5].
[a. ]Livy, V [xx. 5].
[b. ]X [xvi].
[16. ]The insertion symbols in the MS. indicate that the slip numbered “65a” was meant to be inserted here on MS. p. 64, rather than at some point on p. 65 as one would infer from the numbering.
[c. ]Livy, XLV [xl].
[d. ]Ibid. [xxxiv].
[e. ]Suetonius, Caesar, xxxviii and Appian, Civil Wars, II [xv. 102].
[f. ]Livy, XLV [xlii].
[17. ]According to the passage above cited from Dionysius of Halicarnassus, Ocrisia of Corniculum, widow of Tullius and subsequently mother of his posthumous son, Servius Tullius, was selected from the spoils by King Tarquin after the capture of Corniculum by the Romans and the death of her husband in that same battle. There is no indication in Dionysius’ account that Ocrisia was chosen on any occasion as a share of the spoils of war by either Tullius or Servius Tullius; yet Grotius repeats this puzzling statement, citing the same source, in his treatise On the Law of War and Peace (III. vi. 17. 3). His memory of the account may have been confused, or he may have written “Tullius” for “Tarquin” by a slip of the pen, in the Commentary, copying the error inadvertently in the later work.
[a. ]Dion. of Hal., Roman Antiquities, IV [i].
[b. ]In Frag. [Selections on Embassies, p. 18].
[c. ]Etymologies, V. vii, cited in Decretum, I. i. 10.
[18. ]Cf. note 8, p. 208, supra.
[d. ]Livy, I [lvii].
[e. ]Ibid. XLV [xxxvii].
[f. ][Pseudo-] Asconius, [On Cicero’s] Against Verres, III [II. i. 59, § 154 = p. 44 verso].
[19. ]Supra, p. 215.
[a. ]Plutarch, On Chance [p. 97 c].
[b. ]Livy, IV [lix].
[c. ]Ibid. III [xxix].
[d. ]VIII. liv. 36, § 1.
[20. ]At first glance, Divisio . . . haec (this apportionment) would seem to refer to the particular method of distribution just mentioned, i.e. distribution of spoils by subordinate officers rather than by the commander-in-chief; but the next few lines of the context clearly show that the phrase must be given a broader interpretation.
[a. ]Dion. of Hal. VI [xxx]; ibid. VII [lxiii]; Livy V [xxxii].
[b. ]Dion. of Hal. VII [lxiv. 4].
[21. ]The reference to Dionysius is inadvertently repeated after the Latin translation of this quotation.
[c. ]Ibid. IX [lv].
[d. ]Ibid. X [xxi].
[e. ]V [xx].
[22. ]Grotius deviates here more than he usually does, from the actual language of the author cited. Thus we have not so much a quotation from Livy as a paraphrase of the latter’s thought, which could be literally translated as follows: “. . . since it usually comes to pass that, in proportion as a man is wont to seek a leading share in toil and danger, he is slow in seizing spoil.”
[a. ]Ibid. [Dion. of Hal. V. xx]
[23. ]Reading e [ius] (of this) for the broken word at the end of the collotype line (p. 65, l. 8 from bottom). On this page, as on many others, small portions of various words have been lost where the collotype page is worn away at the margin, although in most cases there is no doubt as to the letter or letters which should be supplied.
[b. ]Ibid. VI [iv. 9–11].
[c. ]Livy, XXXVIII [xxiii].
[d. ]Ibid. I [xxxv].
[a. ]Ibid. V [xxiii]. [Livy]
[b. ]Dion. of Hal. VIII [lxxxii].
[c. ]Ibid. X [xxi].
[e. ]Ibid. [xxv].
[f. ]Livy, V [xix, xxii].
[a. ]Dion. of Hal., Frag. [Selections on Embassies, p. 18].
[b. ]Livy, XXV [xiv].
[c. ]Ibid. XXXVII [v].
[d. ]Ibid. XXXVIII [xxiii].
[e. ]Ibid. XLIV [xlv].
[f. ]V. iii  and Livy, XLV [XXXVIII. lv. 5].
[a. ]XI. xviii.
[b. ]Priscian [Institutiones Grammaticae], VII [xix. 95], citing Gellius.
[c. ]Against Verres, VI [IV. xli. 88].
[d. ]X [xvi. 6].
[e. ]XVI. iv.
[24. ]The oath also provides for a third alternative, not mentioned by Grotius: restoration of the purloined article to the person thought to be its rightful owner.
[f. ]Dig. XLVIII. xiii. 13.
[a. ]Ibid. 1. [Dig. XLVIII. xiii]
[25. ]Collotype p. 66′ is entirely blank, and p. 67 contains only deleted matter. Cf. note 12, p. 215, supra.
[b. ]See Covarr., On Sext, rule peccatum, Pt. III, § 2, near end.
[a. ]Dig. VI. i. 15, § 2; ibid. XXI. ii. 11; ibid. XLI. i. 16; Lampridius, Alex. Severus [p. 1006 a].
[b. ]Institutes, II. i. 46.
[c. ]Matthaei, Req. 2, p. 5.
[a. ]Dig. XVII. ii. 52, § 3; ibid. i. 15; Innocent, On Decretals, II. xxiv. 29, at end; Syl. on word bellum, [Pt.] I. vii. 10 and xi. 2 and xiii; id. on word mandatum, vi; Dig. XVII. 1. 12, § 9; ibid. 56, § 4; ibid. 27, § 4; Laudensis, Qq. 6 and 42; Syl. on word bellum [Pt. I] vii. 7 and xiv [and xiii: Non de expensis].
[b. ]Dig. XVII. i. 1, § 4.
[c. ]Matthew, x. 10; see Law VI, Chap. ii, supra, p. 29; Seneca, On Benefits, VI. xv.
[d. ]Dig. L. xiv; ibid. XIX. v. 15; ibid. L. xiii.
[26. ]I.e. the ius Quiritium, or Roman civil law, as opposed to the ius praetorium, or equity.
[e. ]Laws, XI [p. 915 e]; Arist., Nic. Ethics, IX. i.
[f. ]Stobaeus [XLIV. 42].
[g. ]On Benefits, V. xxi.
[a. ]Dig. XIX. v. 5, §§ 2, 3.
[b. ]On Benefits, VI. xv.
[c. ]Institutes of Oratory, XII. vii .
[d. ]Argument of Dig. V. iii. 25, § 11.
[e. ]Livy, IV [xxix] and ibid. XXIV [xvi]; see also Chap. iv, near end, supra, pp. 86 f.
[f. ]Dion. of Hal. VI [xcv].
[g. ]On Abraham, I. iii , cited in Decretum, II. xxiii. 5. 25.
[27. ]Supra, p. 209.
[a. ]Genesis, xiv, at end; 2 Maccabees, viii. 28, 30; add proof of Art. II, Pt. I, this chap., supra, pp. 142–56.
[c. ]Vάzquez, Ill. Cont. vi; id. Cont. Post. IV. viii [Ill. Cont., Pt. II, bk. I, chap. viii].
[d. ]Dig. XVII. ii. 38, § 1.
[e. ]Syl. on word bellum [Pt.] I. vii. 6 and more fully in xiii.
[f. ]See discussion of Rule V, Chap. ii, supra, p. 42.
[g. ]Coroll. III, Chap. viii supra, p. 181.
[a. ]Dig. XLIX. xv. 20, § 1.
[a. ]Dig. XLIX. xv. 3.
[b. ]Ibid. 2; Cicero, Topics [viii. 36]; Festus, on word postliminium, citing Aelius Gallus [,Terms which Apply to the Law, I].
[c. ]See Dig. XLIX. xv. 19, at end.
[d. ]Ibid. 2.
[f. ]Ibid. 12, § 7.
[a. ]Constitutions of France [in Code de Henry III], XX. xiii. 24; Consolato del Mare, Chap. 287.
[b. ]See Dig. L. vi. 5, § 3.
[a. ]On the Latin Language, IV [V. 178].
[29. ]Presumably from the neuter plural of the gerundive, praehendenda ([things] to be seized), which corresponds exactly in its termination to praeda. Grotius has praehendendo (which could be construed either as a gerund or as a gerundive form), but it is probable that he used the -o termination merely as an ablative after the preposition a.
[b. ]Dig. XLIX. xv. 20, § 1; ibid. 28.
[c. ]See discussion of Art. II, Pt. I, this chap., supra, p. 211; and Procopius there cited; Duaren, On Dig. XLI. i. 3; Cujas, Observationes, XIV. vii [XIX. vii].
[d. ]Glossators, On Decretals, II. xxiv. 29; Th. Aq., De Regimine Principum, III. ii; Adrian, On the IV Sentences, Tr. De Rest. Aggredior Casus; Florus, III. iv. 1; John Major, On the IV Sentences, Dist. 15, qu. 20; Alph. de Castro, De Just. Pun. Haeret. II. i. 14; Tiraqueau, De Leg. Conn. et de Iure Marit. I. 46; Covarr., On Sext, rule peccatum, Pt. II, § 11; Vict., De Jure Belli, 51.
[a. ]See discussion of Rule VIII, Chap. ii, supra, pp. 45–46.
[b. ]Saliceto, On Code, VIII. l (li). 12 and others cited by Th. Grammaticus, Decisiones, lxxi. 18.
[c. ]Arias, n. 162; Belli, II. xviii. 3–4; Wesenbeck, On Institutes, II. i. 17; Doneau, IV. xxi; Syl. on word bellum, in beg., from Summa Rosella [, Pt. I. i: Limita etiam].
[a. ]III [xi. 23].
[b. ]Plutarch, Apothegms [Moralia, Sayings of Kings and Commanders, p. 180 c].
[c. ]2 Samuel, xii. 30.
[d. ]This Chap. Art. II, Pt. I, supra, p. 215 [Livy, XXXVII. xxxii. 12].
[30. ]Although the MS. clearly reads in consuetudinem, Hamaker expands the phrase to in contrariam consuetudinem (into a contrary custom) without any explanation of his reason for so doing. Possibly he interpreted the preceding beneficii as referring to a favour enjoyed by the generals rather than to a favour conferred by them, in which case some such word as contrariam would be required, to complete the meaning of the sentence as follows: “. . . the fact that whatever special favour had begun to be enjoyed by the generals, was converted into a [contrary] custom through the licence . . . which grants more to soldiers than to their leaders.”
[a. ]Lucan [The Civil War], VII [738 ff.].
[b. ]Histories, III [xix].
[c. ]Tacitus, Annals, XIV [xxxvi].
[d. ]Vandalic War, II [in History of the Wars, IV. xiv. 10], cited by Cujas, Observationes, XIX. vii.
[a. ][Procopius, ibid.]
[b. ]Horace, Satires, I [i. 7–8].
[a. ]See Instructiones Maritimae Foederatorum Belgicarum Provinciarum, Art. 22 [in Groot Placaet-Boeck, V. viii. 1].
[b. ]Spanish Constitutions, IV. xxvi. 2.
[c. ]Ibid. XIX. xxvi. 12; ibid. XX.
[d. ]Consolato del Mare, Chap. 285.
[e. ]Belli, II. v [IV. viii. 8–12].
[f. ][Spanish Constitutions], XIX. xxvi. 2; ibid. XIV.
[a. ]Calderinus, Consilium, 85; Lupus, De Bello, § Si bene advertas; Jason, On Dig. XXX. i. 9; Franc. a Ripa, On Dig. XLI. ii. 1, n. 5; Covarr., On Sext, rule peccatum, Pt. II, § 11; add Bonfini, History of Hungary, IV. v.
[b. ]1 Corinthians, ix. 7; add Matthew, x. 10.
[31. ]Simply Syrus in the Latin; but Grotius is almost certainly referring to the fourth-century saint, Ephraem, born at Nisibis and sometimes known as “the sun of the Syrians.” The works of Ephraem include commentaries on both the Old and the New Testaments.
[a. ]Baldus, On Code, VIII. xlviii. 4; add Socinus, On Dig. XLI. ii. 1; Calderinus, On Decretals, I. xxxiv; Th. Grammaticus, Decisiones, lxxi. 11; Syl. on word bellum, beg. [Pt. I. i: et secundo bona].
[b. ]Baldus, Consilia, II. 358; argument of Code, II. iii. 19.
[c. ]Covarr., ibid.
[d. ]Constitutions of France [in Code de Henry III], XX. xiv. 1.
[e. ]Ibid., Art. 30.
[f. ]Instructiones Rei Maritimae, Art. 22 [in Groot Placaet-Boeck, V. viii. 1].
[g. ]In discussion of Art. I, Pt. I, this chap. supra, pp. 200–205; Art. II, Pt. I, supra, pp. 207–26.
[32. ]Suarum rerum periculo; cf. notes 1, p. 190, supra, and 33, this page.
[a. ]Arias, N. 180; Innocent, On Decretals, II. xxvii. 18; Belli, II. vi.
[b. ][In Code de Henry III] XX. xiii. 10, 16.
[33. ]Simply periculo; cf. notes 1, p. 190, supra, and 32, this page.
Grotius inadvertently repeats the reference to Laudensis.