[335] CHAPTER VI.

Of the right of acquiring things captured in War.

I. 1 BESIDES the impunity of certain acts among men, which we have hitherto noticed as one of the effects of war, there is another effect peculiar to a war regular according to the Law of Nations: namely, acquisition.

By Natural Law we acquire in a just war such things as are equivalent to a debt due to us which we cannot otherwise obtain, or such things as inflict on a guilty person a reasonable measure of punishment, as we have explained elsewhere. By this right Abraham gave of the spoil which he had taken from the five kings, a tenth to God, as the narrative in Gen. xiv. is explained by the writer to the Hebrews, vii. 4. And in the same way the Greeks, the Carthaginians, and the Romans, consecrated a tenth of their booty to their gods, Apollo, Hercules, and Jupiter Feretrius. And Jacob, leaving to Joseph his legacy, says, I give thee a portion above thy brethren which I took from the hand of the Amorite with my sword and with my bow: Gen. xlviii. 22. In which place the word took seems to be used by a prophetic 336mode of speaking for shall take; and that is ascribed to Jacob which his posterity were to do: as if the progenitor and his descendants were the same person. For this is a better explanation than to refer it to the plunder of the Shechemites, which had been already perpetrated by the sons of Jacob: for that deed Jacob, as a pious man, always condemned. Gen. xxxiv. 30; xlix. 6.

2 That the right of taking booty within the natural boundaries which I have mentioned was approved by God, appears from other places also. God, in his law, speaking of a city taken after it had refused peace, says, Deut. xx. 14: All the spoil thereof shalt thou take to thyself; and thou shalt eat the spoil of thine enemies which the Lord thy God hath given thee. So I Chron. v. 20, the Reubenites, Gadites, and half tribe of Manasseh, made war upon the Hagarites and their neighbours, and took much spoil; there being added as a reason, that they cried to God in the battle and he was entreated of them. Also 2 Chron. xiv. 13, the pious king Asa is related to have cried unto the Lord, and to have conquered the Ethiopians who attacked him unjustly, and to have carried away very much spoil: which is the more to be noted, because in that case arms were not taken up by a special mandate, but on the ground of the common Laws of Nations.

3 Also Joshua, (xxii. 8) when he sent away the Reubenites, and blessed them, said, Divide the spoil of your enemies with your brethren. And David, (1 Sam. xxx. 26) when he sent to the Hebrew elders part of the spoil of the Amalekites, said, Behold a present to you of the spoil of the enemies of the Lord. Indeed as Seneca says, it is a graceful thing for a military man to enrich a friend with the spoil of an enemy. There are also divine laws concerning the division of the spoil, Num. xxxi. 27. And Philo says that it is among the curses of the law, that the land be plundered by the enemy, whence want to friends and abundance to enemies.

II. 1 But by the Laws of Nations, not only he who for just cause carries on a war, but any one, in a regular war, may without limit or measure take and appropriate what belongs to the enemy, to this effect, that both he and those who derive their title to the property from him are to be defended in possession thereof. So Xenophon and Plato say that in war all the property of the conquered becomes the right of the conqueror: and the latter in another place enumerates among the natural modes of acquisition that by war, contest, or strong hand; and in this Xenophon agrees with him, as where Euthydemus is made to allow that it is not unjust to despoil an enemy.

2 So Aristotle says the law is a sort of convention by which what is taken in war becomes the property of the captors. So Antiphanes, Plutarch, Xenophon, Philip, Eschines.

3 Marcellus in Livy speaks of what he took from the Syracusans as taken by the laws of war. So the Romans to Philip, Masinissa, 337Mithridates in Justin, Cicero, of Mitylene. So he says, that private property began when men took possession of what was vacant, or won it in war. So Dio Cassius, and Clemens Alexandrinus.

4 What is taken from the enemy becomes the property of the captor, says Caius the Jurist. This Theophilus calls natural acquisition; so Aristotle. For in this case the naked fact of possession is looked at, and right arises from that. So Nerva, as Paulus quotes him, said that ownership arises from natural possession; and that a vestige of this right appears in things which are taken in hunting, and also in war, which forthwith are the property of the captors.

5 Those things are supposed to be taken from the enemy which are taken from his subjects. So Dercyllides reasons in Xenophon, that since Pharnabazus is the enemy of the Lacedæmonians, and Manias the subject of Pharnabazus, the goods of Manias are in a condition in which they may be fairly captured as prize of war.

IlI. I But in this question of war, it has been established as a rule of nations, that he is understood to have captured a thing who detains it in such a manner that the other has lost probable hope of recovering it; or so that the thing has escaped from his grasp, as Pomponius says. And in moveables, this is applied so that things are considered as captured when they are brought within the boundaries, or intra præsidia, under the protection of the enemy. A thing is lost in the same way in which it is recovered by postliminium: and it is recovered when it comes again within the boundaries of the empire, which is elsewhere explained as intra præsidia. Indeed Paulus expressly says of a man, that he is lost when he goes out of our boundaries; and Pomponius explains a man taken in war to be one of ours whom the enemy has taken and brought intra præsidia sua: and that till then he is a citizen.

2 A man and a thing in this part of the Law of Nations are under the same rule. Hence it is to be understood that when it is said that things captured forthwith become the property of the captors, is to be understood with a certain condition, namely, that the possession continues till they are thus brought intra præsidia. Whence it seems to follow that at sea, ships and other things captured are understood to be captured when, and not till, they are brought into dock or harbour, or to the place where the fleet is; for then recovery becomes desperate. But we find that it has been established by the more recent law of nations among Europeans that such things are understood to be captured when they have been twenty-four hours in the possession of the enemy.

IV. 1 But lands are not understood to be captured as soon as they are occupied. For though it be true that the part of the land which an army has entered upon with a great force is for the time in its possession, as Celsus notes; yet for the effect of which we speak, possession of every kind is not sufficient, but firm possession is required. Thus the Romans were so far from judg338ing the land on which Annibal had planted his camp to be lost, that at that very time it sold for no less than it had sold for before. That land then is conceived to be captured, and no other, which is included in permanent defenses, so that it is evident there is no access to it till these are carried.

2 And this origin of the word territory, a terrendis hostibus, from terrifying the enemies from it, given by Siculus Flaccus, appeals no less probable than that given by Varro, a terendo, from ploughing it; or that of Frontinus*, from terra, the land; or that of Pomponius the jurist, from the right which the magistrates had terrendi, of going out with the lictors before them (Gronov.). So Xenophon says that possession in the time of war is held by muniments.

V. This also is plain, that in order that a thing may become ours by the right of war, it is requisite that it should have belonged to the enemy. The things which are in the hands of the enemy, as in their houses or under their protection, but of which the owners are neither subjects of the enemy nor hostile in intention, cannot be acquired by war; as Eschines shews that Amphipolis, which city belonged to the Athenians, could not become the property of Philip by his war against the Amphipolitans. For the reason why it should do so is wanting; and this right of changing the ownership by mere force is too odious to be extended beyond the strict meaning of the rule.

VI. Wherefore what is said, that goods found in enemies’ ships are to be treated as enemies’ goods, ought not to be accepted as a settled rule of the Law of Nations, but as indicating a certain presumption which may be rebutted by valid proofs to the contrary. And so it was judged in full senate by our Hollanders in 1333, when a war was raging with the Hanse towns; and the judgment has become law.

VII. 1 But this is beyond controversy, if we look at the Laws of Nations, that those things which we take from our enemies cannot be reclaimed by those who possessed them before the enemy, and lost them in war; because the law of nations first made them owners prima facie, and then us. And on this ground, among others, Jephtha defends himself against the Ammonites, because the land which the Ammonites claimed had passed by the law of war from the Ammonites, as also another part from the Moabites to the Amorites, and from the Amorites to the Hebrews. So David takes as his own and divides what he had taken from the Amalekites, and the Amalekites before from the Philistines.

2 Titus Largius, when the Volsci reclaimed in the Roman Senate what they had formerly possessed, declared that the Romans held the right of possession of land by conquest to be good, and would not recede from it. So the Romans in their answer to the Aurunci; and again to the Volsci; and to the Samnites.

3 Livy, after relating that the land near Luna was divided by the 339Romans, remarks, This land had been taken from the Ligurians, and had at a still previous period belonged to the Etruscans. On this ground they retained Syria, and did not restore it to Antiochus Pius, from whom Tigranes, an enemy of the Romans, had won it. And so Pompey replied to the same Antiochus [Antiochus Magnus, J. B.], that he had not taken it from him, and would not give him what he did not know how to defend. So those parts of Gaul which the Cimbri had taken from the Gauls, the Romans kept as their own.

VIII. It is a more serious question, who becomes the owner of things of the enemy taken in a public and regular war; whether the people itself, or particular persons of the people, or in the people. On this point the recent interpreters of the law greatly vary. The greater part of them, having read in the Roman Law that things captured become the property of the captors, and in the body of canons, that the booty was distributed by public order, have followed one another, as is usual in such cases; and have said that in the first place, and by law, the captures become the booty of the persons who actually take them, but that they are to be assigned to the general to distribute among the soldiers. As this opinion, though generally received, is false, it must be carefully refuted by us, as a specimen how little safety there is in such authority on such subjects. For it cannot be doubted that by the consent of nations either rule might be established; that captures might go, either to the people which makes the war, or to the individuals who actually take them. But we inquire what they really have established, and we say that they have ruled that the property of enemies should be, for enemies, in the same condition as res nullius, that which is no one’s property, as we have already explained from the dictum of Nerva (§ II. Art. 4).

IX. 1 Now res nullius do indeed become the property of those who take them, but of those who take them by the agency of others, as well as by their own. Thus, not slaves only, or sons who are under their fathers, but also free men, if they work for others in fishing, fowling, hunting, pearl-fishing, acquire their captures for those who employ them. So Modestinus says that the possession which we can acquire by natural law, we may acquire by any one whom we appoint: and Paulus, in a well known maxim We acquire possession by bodily or mental act: the mental act is our own; the bodily act may be ours or another’s; which he explains to mean, if others give their labour to us. Thus, among the Greeks, the prizes at the Olympian Games were gained by those who sent the combatants. The reason is, that by Natural Law, a man who wills it, may be the instrument of another who wills it, as we have elsewhere said.

2 Wherefore the distinction which is delivered between free persons and servile, as to acquisitions, belongs to the Civil Law, and properly pertains to civil acquisitions, as appears from the passage quoted from Modestinus. And even these civil acquisitions, the emperor Severus afterwards brought nearer to the example of natural acquisi340tions, not only for the sake of utility, as he professes, but also of jurisprudence. Hence, setting aside Civil Law, the rule holds, that what a person can do by himself he may do by another, and it is the same thing whether he do it by himself or by another.

X. But in our question, we must distinguish between acts really public done in a war, and private acts done on the occasion of a public war: and by these private acts, things are acquired by private persons primarily and directly; by those public acts, they are acquired to the public. And by this law of nations Scipio deals with Masinissa: Syphax was conquered and taken under the auspices of the Roman people; therefore he and all that was his is the booty of the Roman people. In the same way Antiochus the Great argued that Cœle-Syria became the property of Seleucus, not of Ptolemy, because the war was the war of Seleucus, and Ptolemy had only acted as an auxiliary.

XI. 1 Landed property cannot be taken except by a public act, by leading in an army, and establishing strong places. Therefore, as Pomponius gave his opinion: Land which is taken from an enemy becomes public property: that is, as he explains, does not become private booty. So Salomo the præfectus prætorii said: That captive, and other things should become private booty is not unreasonable, (that is, if it be done by the public consent,) but land belongs to the prince and people of Rome.

2 So among the Hebrews and Lacedæmonians [Qu. Athenians, J. B.], land taken in war was divided by lot. So the Romans, when they took land in war, either kept it and let it for rent, some­ times leaving a small portion to the ancient possessor, honoris gratia; or sold it; or assigned it to settlers; or imposed a ground-rent upon it; as we have perpetual evidence in the laws, and histories, and in the commentaries of the agrimensores. So Appian. Cicero, in his Oratio pro Domo sua, notes that sometimes lands taken from the enemy were consecrated by the Imperator, but by order of the People.

XII. 1 Things moveable and self-moving are either taken in the public service or extraneously to it. If extraneously to it, they are the property of the individual captors. To this we must refer what Celsus says, The things which, belonging to the enemy, are in our hands, are not public property, but the property of those who take possession: the things which are in our hands, that is, which are found with us when war arises. The same rule was observed with regard to men, at the time when men were reckoned among things captured. There is a noted passage of Typho on the subject: Those who in peace come to another nation, if war between the nations suddenly breaks out, become the slaves of those enemies among whom their destiny has thrown them. He speaks of destiny because they are reduced to slavery by no desert of their own. So Nævius, It is the destiny of the Metelli to be consuls at Rome.

2 It follows from the same view, that what soldiers capture, when 341not on duty or on service to which they are ordered, but in the course of what they do by promiscuous right or by permission, is forthwith their own: for they do this not as public servants. Such are spoils which they win from any enemy in single combat; and such as they take in free excursions not made by order, at a distance from the enemy; (the Roman rule was ton miles, as we shall see). This kind of capture the Italians at present call correria, plunder, and distinguish it from butina, booty.

XIII. But when we say that by the law of nations such things are acquired directly by individuals, we are to understand that this is the law of nations previously to all civil law. For any nation may establish a different rule with regard to its own subjects; and anticipate the ownership of individuals, as we see in many places done with regard to wild beasts and birds [by game-laws]. And so a rule may be introduced by law that all things which are taken from the enemy shall be public property.

XIV. 1 But with regard to the things which any one takes by a regular military process, the case is different. For then individuals bear the character of the State and act on its behalf; and therefore the people, if the civil law do not otherwise direct, obtains through them both possession and ownership, and transfers it to whom it will. And as this is directly at variance with public opinion, we must adduce proofs more largely than usual, from the examples of the most eminent peoples.

2 I begin with the Greeks. Homer speaks of the cities being divided which had been taken: he makes Achilles say that he gave to Agamemnon all that he won in war. In which case Agamemnon is to be regarded partly as the prince of all Greece, and as representing the people; and partly as holding the office of general, and therefore having a larger share than the rest. So in another place Achilles says to him. [See.] And in another place, Agamemnon offers to Achilles, by the public consent, a ship full of brass and gold and twenty female slaves. So Virgil, speaking of the capture of Troy, describes the plunder under the custody of Phoenix and Ulysses. So at a later period, Aristides guarded the booty taken at Marathon. After the battle at Platæa there was a severe edict that no one should privately take any part of the booty. Afterwards, when Athens was conquered, the booty was made public property by Lysander: and the Spartan officers who had to deal with this measure were called prize-sellers.

3 If we go to Asia, the Trojans were accustomed, as Virgil teaches, to draw prize-lots, as is done in dividing common property. In other cases the decision of the matter was with the general: and by this right, Hector promises Dolon the horses of Achilles when he stipulates for them; by which you may see that the right of prize-treasure was not in the captor alone. So when Cyrus was victor, the booty was taken to him; and when Alexander, to him.

If we look at Africa the same custom recurs. Thus what was 342taken at Agrigentum, and in the battle of Cannæ, and elsewhere, was sent to Carthage.

Among the ancient Franks, as we learn from Gregory of Tours, what was captured was divided by lot; and the king had nothing of the booty but what the lot gave him.

4 But in proportion as the Romans were eminent above other nations in military matters, they are the most worthy examples to refer to. Dionysius of Halicarnassus, a most diligent observer of Roman manners, thus teaches us on this subject: Whatever is captured from the enemy, the law directs to be public property; so that not only private persons are not the owners of it, but even the general is not. The Questor takes it, sells it, and carries the money to the public account. These are the words of those who accuse Coriolanus, somewhat turned to the purpose of making him odious.

XV. For, that the people was the owner of the prize-treasure was true; but it was not less true that the office of deciding on its distribution had been left with the General while the republic was free; with the condition that be was responsible to the people. So L. Emilius, Cities taken not surrendered, are plundered; but in these cases the decision is with the general, not the soldiers. But this decision which usage gave to the general, they sometimes, in order to avoid all suspicion, threw upon the Senate, as Camillus: and they who retained it, in proportion as they were actuated by conscience, reputation, or ambition, are found to have used it diversely.

XVI. 1 They who wished to be, or to appear, most scrupulous, did not at all touch the booty, but if the prize were money, directed it to be received by the questor; or, if it were other objects, ordered them to be sold by auction (sub hastâ) by the questor: and on this account the money thus raised was called manubias. This money was transferred by the questor into the treasury: being in the first place however, if there was a triumph, publicly shown. So Livy of C. Valerius; Velleius of Pompey; Cicero of himself. And this was the common custom in the good old times. So Plautus.

2 But other generals sold the booty themselves without the intervention of the questor, and transferred it to the treasury, as is to be collected from the words of Dionysius. So when king Tarquin had conquered the Sabines, he sent the booty and the captives to Rome. So Romilius and Veturius the consuls are related to have sold the booty on account of the low state of the treasury, the army being much discontented with the proceeding. But inasmuch as this occurs perpetually, there is no need to accumulate examples, how much each general carried to the treasury from Italian, African, Asiatic, Gallic and Hispanic triumphs. That is rather to be noted, that the booty, or a part thereof, was sometimes given to the gods, sometimes to the soldiers, and sometimes to others. To the gods either the captured things themselves were given, as the spoils which Romulus hung up to Jupiter Feretrius, or the money produced from them, as Tarquinius 343Superbus from the Pometine spoil built the temple of Jupiter in the Tarpeian mount.

XVII. 1 To give the plunder to the soldiers appeared to the ancient Romans an act savouring of ambition or popularity-hunting: as Sextus the son of Tarquin the Proud, while an exile at Gabii, is said to have distributed the booty among the soldiers, as a mode of gaining influence. Appius Claudius in the senate condemned a similar liberality as new, lavish, and imprudent.

Booty which is given up to the soldiers is either divided or scrambled for. It may be divided either in the proportion of the pay, or of the deserts of individuals. That it should be divided in proportion to the pay, was the direction of Appius Claudius; and if he could not carry that, that the money raised from it should be transferred to the treasury. Polybius explains accurately the whole scheme of such a division; namely, that one part of the army, the lesser portion, was commonly sent to collect the booty; and that what each found he was ordered to bring into the camp, that it might be equally divided by the tribunes; those being summoned to take their share who had guarded the camp, (which also was ordered by David among the Hebrews, and thence, as we learn, passed into a law,) and those who had been absent from sickness, or any sent off on service elsewhere.

2 But it was not the booty itself, but the money raised from it, which was given to the soldiers in the place of the booty, which was often done in the triumph. I find this proportion in Livy; one share to a foot-soldier, twice as much to a centurion, three times as much to a horseman or knight. Sometimes one share to each of the foot, two to the horse. Again, one share to the foot soldier, two to the centurion, four to the tribune and the horsemen. Often account was taken of desert, as Marcius, in consideration of his bravery, was rewarded out of the spoils of Corioli by Posthumius.

3 In whatever way the division was made, it was allowed to the general to take a first choice, some principal thing, of what value he chose, that is, what he thought fair: and this was sometimes awarded to others on account of their valour. So Euripides in the Troades, speaking of the noblest of the Trojan women, says, that they were given to the leaders of the army. And of Andromache, that in this way she became the property of Pyrrhus. So Ascanius says, in Virgil, that the shield and the helmet he will exclude from the division by lot. Herodotus tells us that after the battle at Platæa, Pausanias had, given to him, the most eminent objects, women, horses and camels. So king Tullius received Ocrisia, the principal person of the Corniculanæ. Fabricius in Dionysius, in his oration to Pyrrhus, says, Of those things which were taken in war, it was allowed me to take what I chose. Isidorus, referring to this passage, when he speaks of military law, says, the distribution of the spoil is, a just division according to the qualities and performances of persons, and 344the prince’s portion. Tarquin the Proud, as it stands in Livy, both wished to enrich himself and to win the minds of the people with the distribution of prize-money. Servilius in his oration for L. Paulus, says that he might have made himself rich by dividing the shares of booty*. And there are writers who think that the prince’s portion was rather what was really meant by manubiæ as Asconius Pedianus.

4 But those persons are more praised who, giving up their right, took no part of the booty to themselves; like Fabricius, of whom I have spoken, Who in his love of glory put aside even just gain, as Dionysius says; which he said he did according to the example of Valerius Publicola, and a few others. And these, M. Porcius Cato also imitated in his Spanish victory; asserting that nothing should come to him from the spoils of war, except what he had spent in meat and drink; adding however, that he did not blame the generals who had accepted the advantages usually granted; but that he would rather contend for the prize of virtue with the best, than for the pre-eminence in wealth with the richest. Nearest to this praise come those who have taken to themselves a moderate share of the prize-treasure; as Pompey in Lucan is praised by Cato, for having given up more than he kept.

5 In the division, there is sometimes account taken of those who have been absent; as Fabius Ambustus directed when Anxur was taken. And sometimes for some special reason account is not taken of some of those who were present, as of the Minutian army, by the dictator Cincinnatus.

6 The right which, under the old republic, the Imperator had, was after the extinction of the republic, transferred to the magistri militum, as appears by the Codex of Justinian; where, in speaking of reports to be made to the emperor, of the proceedings of the military authorities, an exception is made with regard to donations of moveables which the magistri militum make to the soldiers out of the spoils of the enemy; whether in the occupation of war, or in the places where they are known to live.

7 But this division, from an early period, gave opening to calumny, as if the generals had in this way sought private favour; on which ground accusations wore brought against Servilius, Coriolanus, Camillus, as having lavished the public treasure upon their friends and clients. And they defended themselves by alleging the public good, that they who had had a share in the service, by receiving the reward of their labour, might be more prompt to other expeditions, as Dionysius says.

XVIII. 1 I come now to speak of indiscriminate pillage. This was granted to the soldiers, either when a country was to be ravaged; or, after a battle or the taking of a town, it was allowed that pillage 345was to begin at an appointed signal. This was rare in early ages, but still, not without example. Tarquinius gave up Suessa to be pillaged by the soldiers; Q. Servilius the Dictator gave up the camp of the Equi to the same fate: Camillus the city of Veii; Servilius the consul, the camp of the Volsci; L. Valerius permitted pillage in the country of the Equi; Q. Fabius did so when the Volsci had been dispersed, and Ecetra taken; and others frequently on subsequent occasions. When Perseus was conquered, Paulus the consul gave the spoils of the army which was defeated to the infantry, the plunder of the surrounding country to the cavalry. The same leader, by a decree of the senate, gave up the cities of Epirus to pillage by the soldiers. When Lucullus conquered Tigranes, he long restrained the soldiers from taking spoil, but at last, when the victory was certain, he gave permission to pillage. Cicero puts, among the ways of acquiring property, if we take anything from the enemy which is not liable to be divided and sold on the public account.

2 They who condemn this practice say, that greedy hands, active in pillage, are so forward as to snatch the prizes which ought to fall to the share of the bravest; for it commonly happens that they who are slowest in fight are quickest in plunder, while the bravest soldiers commonly take the main share of danger and toil; as Appius says in Livy. And so in Xenophon. On the other hand it is said that what each takes from the enemy with his own hand and carries home, is more grateful and valued than a thing of many times the value, which he receives at the will of another.

3 Sometimes again, pillage is allowed, when it cannot be prevented. In the storming of Cortuosa, a town of the Hetrusci, Livy says, The Tribunes directed that the booty should be public property; but the command was too slow for the intention. The soldiers had already taken the booty, and it could not be taken from them without doing a very odious thing. So the camp of the Gallo-Græcians was plundered by the troops of C. Helvius contrary to the general’s wish.

XIX. What I have said, that booty or prize-money is sometimes given to others than soldiers, generally happens, in order that those who have contributed to the expenses of the war should be remunerated; we may also sometimes read of public spectacles provided out of the spoils.

XX. 1 But not only have different usages prevailed in different wars, but in the same war the same booty has often been applied to different uses, either by dividing it into parts, or by distinguishing the kind of objects. Thus Camillus dedicated the tenth part of the spoil to Pythian Apollo, following the example of the Greeks, which however, came originally from the Hebrews: and at that time, the dedication of a tenth of the spoil was held by the priests to include, not moveables only, but the lands and the city. By the same general, when victorious over the Falisci, the greater part of the booty was transferred to the questor, and a small part only given to the 346soldiers. So L. Manlius, either sold the spoil, that part of it which was to go to the public, or divided it among the soldiers, taking care that the division should be exactly fair, as Livy says.

2 The classes of objects into which spoil may be divided, are these: men, captives, herds and flocks, which the Greeks, when they speak strictly, call λεία; money and other moveables, either precious or common. Q. Fabius, when he had conquered the Volsci, ordered the λεία and spoils to be sold by the questor; he himself managed the money. The same, when the Volsci and Æqui were conquered, gave to the soldiers the captives, except the Tusculans; and in the land of Ecetra, gave up men and cattle to pillage. L. Cornelius, when Antium was taken, transferred to the treasury the gold, silver, and brass; the captives and spoil he sold by the questor; he gave up to the soldiers what pertained to food and raiment. Nor was the rule of Cincinnatus dissimilar, who, when he became master of Corbio, a town of the Æqui, sent the more precious parts of the spoil to Rome, and divided the rest according to centuries. Camillus, when Veii was taken, assigned nothing to the public except the money from the sale of the captives. When the Hetrusci were conquered, and the captives sold, out of the money he repaid to the matrons the gold which they had contributed, and placed three golden pateræ in the Capitol. When Cossus was dictator, all the prey of the Volsci, except the bodies of the free men, was given up to the soldiers.

3 When Fabricius had conquered the Lucani, Brutii and Samnites, he enriched the soldiers, restored the tributes to the cities, and carried forty talents to the treasury. Q. Fulvius and Appius Claudius, when the camp of Hannibal was taken, sold the booty and divided it, giving donations to those who had performed eminent services. Scipio, when Carthage was taken, gave up to pillage what was in the city, excepting the gold, silver, and donations. Acilius, when Lamia was taken, partly divided and partly sold the spoil. Cn. Manlius when the Gallo-Græcians were conquered, burnt their arms from a Roman superstition, and ordered all to bring in the rest of the spoil; and either sold that part of it which was to go to the public, or divided it with care that the division should be fair*.

XXI. 1 From what we have said, it appears that among the Romans, as well as among most other nations, the spoil belonged to the people, but that some discretion in dividing it was allowed the general; but, as we have said, in such way that he was responsible to the people. This appears, among other instances, by the example of L. Scipio, who was condemned for peculation, as Valerius Maximus tells us, as having received four hundred and eighty sesterces of silver more than he had transferred to the treasury; and of others whom we have mentioned.

347 2 M. Cato, in an oration concerning prize-treasure, written, as Gellius says, in vehement and brilliant language, complained of the impunity and licence of peculation. Of that oration this fragment is extant: Private robbers are put in prison and in bonds: public robbers are seen in purple and gold. He had elsewhere said that He marvelled that any one could set up in his house images which were taken in war. So Cicero makes it a point to inflame the odium against Verros, that he had appropriated an image, and that one taken as spoil from the enemy.

3 And not the generals only, but the soldiers also, were held accountable for peculation of prize-treasure; that is, if they did not transfer it to the public. For all were bound by the military oath, as Polybius says, not to appropriate any part of their booty, but to keep their good faith as sworn. And to this perhaps we may refer the formula of oath in Gellius, by which the soldier is commanded not to take anything, within ten miles of the army, of more value than a silver nummus (sesterce), or if he did take it, to bring it to the consul, or to announce it within three days. Hence we may understand what Modestinus says; He who secretes booty taken from the enemy is guilty of peculation; and this passage alone might satisfy juristical interpreters, that they are not to suppose that what individuals take from the enemy becomes their own: since peculation can only apply to property public, sacred, or religious. All these cases concur to make it appear, as we have said above, that setting aside the Civil Law, and primarily, things taken by military operations become the property of the people or king who are carrying on the war.

XXII. 1 I have added “setting aside the Civil Law, and primarily,” that is, directly. The first clause, because concerning things not yet actually acquired, the law may regulate according to public utility; whether the law be made by the people, as among the Romans, or by the king, as among the Hebrews and elsewhere. And under the name of “law,” I also include custom rightly introduced. The other clause, “primarily,” tends to this: that we mean that spoil, like other things, may be conceded by the people to others, not only after acquisition, but also before; so that when the capture follows, the two events may be conjoined brevimanu, so as to be one, as the jurists speak. And such concession may be made, not only naming each person, but by classes; as in the times of the Maccabees, a part of the spoil was given to widows, old men, and needy orphans; or even to uncertain persons, as in a scramble, in which the Roman consuls gave things to those who caught them.

2 And this transfer of right (from the public to private persons,) which is made by law or concession, is not always a mere donation, but sometimes a contract, sometimes a payment of what is due, or a remuneration for losses suffered, or expenses incurred in the war, either in the way of payment or of work done; as when allies and 348subjects serve in the war without pay, or with pay insufficient to the work. For we see cases in which the whole booty, or a part of it, is assigned for such causes.

XXIII. And this we find that our jurists note as almost universally introduced by custom; that what is captured by allies or subjects who carry on the war without pay, at their own risk, becomes theirs. The reason in the case of allies is evident; because, by Natural Law, ally is bound to ally for the reparation of losses which occur in the course of a common or public transaction. Add, that work is seldom done gratis. Physicians are paid, says Seneca, because they leave their own business to attend to ours. Quintilian thinks the same thing is reasonable in advocates, because by spending their time and strength on that office, they are prevented from making gain in other ways. So Tacitus. It is therefore presumable, except some other cause appear, for instance mere good will or antecedent contract, that this hope of getting gain from the enemy was looked to, as the compensation for loss and labour.

XXIV. 1 In the case of subjects the argument is not equally obvious, because they owe their labour to the state. But on the other band, when it is not all, but only some, who serve in war, these have a claim to retribution for the labour and expense which they incur beyond others, and still more, for the loss. And in the place of such certain retribution, it is not unreasonable to concede to them a hope either of the whole spoil, or of an uncertain part thereof. So the Poet Propertius.

2 We have an example, as to allies, in the Roman league, in which the Latins are admitted to an equal share of the spoil in the wars carried on under the auspices of the Roman people. So in the war which the Etolians carried on, the Romans helping them, the cities and lands were given to the Etolians, the captives and moveables to the Romans. After the victory over king Ptolemy, Demetrius gave a part of the spoil to the Athenians. Ambrose, in treating of the history of Abraham, shews the equity of this custom: He gives to those who had been with him and helped him, a part of the gain as a reward of their labour.

3 With regard to subjects, we have an example in the Hebrew people, among whom half of the spoil went to those who were in service in the army. Thus also the soldiers of Alexander had for their use the booty taken from private persons, except that there was a custom of transferring to the king any object of peculiar value; and accordingly, we find that those who were said to have conspired at Arbela, wore accused of intending to appropriate the whole of the spoil, and to give nothing to the treasury.

4 But what had been with the enemy, public property or king’s property, was exempted from this licence. Thus we read that the Macedonians, when they stormed the camp of Darius at the river Pyramus, plundered a great mass of gold and silver, and left nothing 349untouched except the king’s tent: according to the established usage, says Curtius, that the conquered party should receive the conqueror in the king’s tent. And the usage of the Hebrews was not different, who put the crown of the conquered king on the head of the conqueror, and assigned to him (as we read in the Talmudic Collections) the royal furniture which was taken in the war. So, in the history of Charlemagne, we read that when he had conquered the Hungarians, the private treasure went to the soldiers, the royal, to the treasury. Among the Greeks there were two different words for public and private spoil, λάφυρα and σκῦλα. The latter implies what was taken from the enemy during the contest; the former, what was taken afterwards; which distinction was also made by some other nations.

5 But among the Romans, there was not so much allowed to the soldiers under the old republic; as sufficiently appears from what we have said above. In the civil wars, they began to be more indulged. Thus we read that Equulanum was plundered by the soldiers of Sulla. And Cæsar, in Lucan, gives up the camp of Pompey after the battle of Pharsalia to be plundered. The soldiers of Octavius and Antony plundered the camp of Brutus and Cassius. In another civil war, the Flavians being led to Cremona, though night was at hand, hasten to storm that rich colony; fearing lest otherwise the wealth of the Cremonese should fall into the lap of the prefects and legates; knowing in fact, as Tacitus says, that when a city is stormed, the booty belongs to the soldiers; when it is surrendered, to the general.

6 In the decay of discipline, this concession to the soldiers was the more willingly made, lest they should, before the fight was over, turn away from the enemy to fall on the spoil, and so have their hands ill employed; a turn by which many victories were frustrated. When Corbulo stormed the strong place Volandum in Armenia, the common people, says Tacitus, was sold by auction, the rest of the booty was given to the soldiers. In the same writer, Suetonius, in the Britannic battle, exhorts his men to continue the slaughter of the enemy without regarding the spoil; adding that when the victory is gained, all will be theirs; and the like you find in many other places. Add what we have just adduced from Procopius.

7 Some matters of booty are so small that they are not worth giving to the public. These are commonly allowed to belong to the captor by the permission of the people. Such, in the old republic of Rome, were the spear, javelin, firewood, food, water-bottle, scrip, link, and small money. For we find these exceptions added in Gellius to the military oath. And something similar was allowed sailors when serving in war: the French call this spoil or pillage, and comprehend in it clothing, and gold and silver within ten crowns. In some places, a certain fraction of the booty is given to the soldiers, as in Spain; sometimes a fifth, sometimes a third: in other cases, a half goes to the king; and a seventh, sometimes a tenth, to the general; the rest to the captors; except the ships of war, which go altogether to the king.

350 8 In some cases the partition is made, taking account of trouble, danger, and expense; as among the Italians, the third part of a captured ship goes to the captain of the victorious ship, a third part to the merchants to whom the cargo belonged, and a third part to the sailors. Also in some cases, those who fight at their own danger and expense do not take the whole booty, but are obliged to give a part to the public, or to those who derive their right from the public. So with the Spaniards, if ships are sent out at private expense, part of the prize goes to the king, part to the High Admiral. By the custom of France, the Admiral has a tenth; and so with the Hollanders; but here a fifth part of the booty is taken by the State. By land, the common use everywhere now is, that in pillage of towns, and in battles, every one makes his own what he takes; but in expeditions for booty, the captures are common to those who are in the company, and are divided according to their rank.

XXV. The tendency of these remarks is, that if, in a neutral nation, a controversy arises concerning things captured in war, they are to be adjudged to those to whom they belong by the laws and customs of the people by whose party the capture is made. And if there is no proof on this point, then, by the common Laws of Nations, the thing is to be adjudged to the nation itself, provided it be taken in war. For from what we have said, it appears that the assertion of Quintilian is not exactly true, pleading for the Thebans; that in a matter which can be brought into a court of justice, the right of war goes for nothing; and that which is taken by arms can only be kept by arms.

XXVI. 1 Things which do not belong to the enemy, though they are found with the enemy, do not belong to the captors; for that, as we have said, is neither congruous to natural law nor established by the Laws of Nations. So the Romans say to Prusias, If the land had not belonged to Antiochus, it would thence follow that it did not become the property of the Romans. But if the enemy had any right over these objects, such as is connected with possession; as a right of pledge, retention, servitude, there is no reason why that should not pass to the captors.

2 This also is often made a question, whether things taken outside the territory of both belligerents become the property of the captors; which is controverted, both with regard to persons and things. If we regard only the Laws of Nations, I think the place is not to be considered; as we have said, that an enemy may be lawfully slain anywhere. But he who has authority over the place, may by his law, prohibit such an act; and if it be done against the law, may require satisfaction. It is like the case in which a wild creature taken in another’s land is said to be the property of the captor: but our access to it may be prohibited by the owner of the land.

351 XXVII. This external right*, however, of becoming the owner of things captured in war, is peculiar to a regular war according to the Laws of Nations, so that it does not obtain in other wars. For in other wars between strangers, a thing is not acquired by force of the war, but as a compensation for a debt which cannot otherwise be obtained. But in wars between citizens, whether they be great or small wars, there is no change of ownership without the authority of a judge.