ON THE ACQUISITION OF TERRITORY AND PROPERTY BY RIGHT OF CONQUEST.
Law of nature with respect to the acquisition of things captured
in war--Law of nations on the same subject--In what cases the
law of nations confirms the capture of things moveable--Lands
acquired by conquest--Lawful prize cannot be made of things not
belonging to an enemy--Goods found on board an enemy's ships--Law
of nations authorises the making prize of what an enemy has taken
from others in war--Sovereigns may acquire possession and dominion
through those employed by them--Acts of hostility divided into
public and private--Territory may be acquired by a sovereign or
people--Private and public captures explained--Discretionary
power of generals in this respect--Prizes belong either to the
treasury, or to those, who take them--Places sometimes given up
to be plundered by the soldiery--Different methods of dividing
spoils--Peculation, a portion of the spoils sometimes given
to allies, who have supported the war--Sometimes given up to
subjects--This illustrated by examples--Utility of the above
practices--Whether things taken without the territory of either of
the belligerent powers can be acquired by the rights of war--In
what manner this right peculiarly applies to solemn wars.
I. Besides the impunity allowed to men for certain actions, which
have been mentioned before, there are other consequences and effects,
peculiar to the law of nations, attending solemn and formal war. The
law of nature indeed authorises our making such acquisitions in a just
war, as may be deemed an equivalent for a debt, which cannot otherwise
be obtained, or as may inflict a loss upon the aggressor, provided it
be within the bounds of reasonable punishment. According to this right,
as we find in the fourteenth chapter of Genesis, Abraham devoted to God
a tenth part of the spoils, which he had taken from the five kings:
and the inspired writer in the seventh chapter of his Epistle to the
Hebrews gives the same interpretation of this passage. In the same
manner the Greeks too, the Carthaginians, and the Romans, devoted a
tenth portion of the spoils of war to their deities. Jacob, in making
a particular bequest to Joseph above his brethren, says, "I have given
to thee one portion above thy brethren, which I took out of the hand
of the Amorite with my sword, and with my bow." In this place, the
expression, I TOOK, is used according to the prophetic style, where
an event, that will for certain take place, is spoken of in the past
time, and an action is here attributed to Jacob, which some of his
descendants were to perform, supposing the progenitor and his children
to be the same person.
Nor is it upon conjecture alone that such a right is founded, but the
divine law giver himself pronounces sentence against a city that has
rejected the offers of peace, and afterwards been taken by storm, that
he gives all her spoils to the conqueror.
II. But according to the law of nations, not only the person, who makes
war upon just grounds; but any one whatever, engaged in regular and
formal war, becomes absolute proprietor of every thing which he takes
from the enemy: so that all nations respect his title, and the title
of all, who derive through him their claim to such possessions. Which,
as to all foreign relations, constitutes the true idea of dominion.
For, as Cyrus, in Xenophon observes, when the city of an enemy is
taken, every thing that is taken therein becomes a lawful prize to the
conquerors; and Plato, in his treatise on laws asserts the same. Cicero
in his speech against Rullus says that Mitylene belonged to the Roman
people by the laws of war, and the right of conquest; and, in the first
book of his offices, he observes, that some things become the private
property of those, who take possession of them, when unoccupied, or
of those, who make a conquest of them in war.--Theophilus, in his
Greek institutes, calls the one the natural mode of acquisition, and
Aristotle denominates the other the natural way of acquisition by the
sword, without regarding any other reason, but the bare fact, from
which the right arises. Thus Nerva, the son, as Paulus the lawyer
relates, said that property arose from natural possession, some traces
of which still remain respecting wild animals taken either upon the
sea, or upon the land, or birds flying in the air. It is seen also in
things taken in war, all which immediately become the property of the
first captors. Now things are considered as taken from an enemy, when
taken from his subjects.
Thus Dercyllides argues, in Xenophon, that as Pharnabazus was an enemy
to the Lacedaemonians, every thing belonging to Mania, who was his
subject, might be seized by the laws of war.
III. But in this question upon the rights of war nations have decided,
that a person is understood to have made a capture, when he detains
a thing in such a manner, that the owner has abandoned all probable
hopes of recovering it, or, as Pomponius, speaking on the same subject,
says, when a thing has escaped beyond pursuit. This takes place with
respect to moveable things in such a manner, that they are said to be
taken, when they are carried within the territories of the enemy, or
places belonging to him. For a thing is lost in the same manner as it
is recovered by postliminium. It is said to be recovered whenever it
returns within the territories of its owner's sovereign, that is, into
places, of which he is master. Paulus indeed has expressly said, that
a power or state has lost a subject, when he has gone, or been carried
out of the territories of that power: and Pomponius defines a prisoner
of war to be an enemy, whom the troops of some other belligerent power
have taken and carried into one of their own places; for before he is
carried into those places, he continues still a subject of the enemy.
The law of nations, in these respects, treated persons and things in
the same manner. From whence it is easy to understand, what is meant,
when in another place it is said that things taken from an enemy
immediately become the lawful prize of the captors, but only upon
the condition of those things continuing in their possession for a
reasonable and certain time. Consequently it is plain, that ships and
other things taken at sea cannot be considered as really the property
of the captors, till they have been carried into some of their ports,
or to some place where their whole fleet is stationed. For in that case
all hope of recovery seems to have vanished. By a late regulation among
the European powers, it has been made an established maxim of the law
of nations, that captures shall be deemed good and lawful, which have
continued in the enemy's possession for the space of twenty-four hours.
IV. Lands are not understood to become a lawful possession and absolute
conquest from the moment they are invaded. For although it is true,
that an army takes immediate and violent possession of the country
which it has invaded, yet that can only be considered as a temporary
possession, unaccompanied with any of the rights and consequences
alluded to in this work, till it has been ratified and secured by some
durable means, by cession, or treaty. For this reason, the land without
the gates of Rome, where Hannibal encamped, was so far from being
judged entirely lost, that it was sold for the same price that it would
have been sold for before that period.
Now land will be considered as completely conquered, when it is
inclosed or secured by permanent fortifications, so that no other
state or sovereign can have free access to it, without first making
themselves masters of those fortifications. On this account Flaccus,
the Sicilian, assigns no improbable conjecture for the origin of the
word territory, because the enemy is DETERRED from entering it. At
least there is as much probability in this conjecture, as in that of
Varro, who derives it from the word _terendo_, treading the soil.
Frontinus deduces it from _terra_, the earth, and Pomponius from the
TERROR of judicial authority exercised in each country. Xenophon
however in his book on tributes, seems to accord with the first of
these opinions: for he says, that in time of war the possession of a
country is kept by walls, strong holds, and barriers.
V. It is a clear point too, that for any thing to become a prize or
conquest by the right of war, it must belong to an enemy. For things,
within an enemy's territory, for instance, in any of his towns or
garrisons, cannot be acquired as property by the laws of war, if
the owners of those things are neither subjects nor confederates of
the enemy. It is observed in one of the speeches of Aeschines, that
Philip, though at war with the Amphipolitans, could not lawfully
take possession of Amphipolis, as a conquest, it being a city, which
belonged to the Athenians. For as the enemy is likely to derive no
assistance in the war, from things which neither belong to himself,
nor to a confederate, no just reason can be assigned for taking them,
and the right of making things change their owners by force is of too
odious a nature to admit of any extension.
VI. The observation usually made, that all things on board an enemy's
ships are to be deemed an enemy's goods, ought not to be received as
a STANDING and ACKNOWLEDGED rule of the law of nations, but only as a
maxim, indicating the strong presumption that both goods and vessel
belong to the same owner, unless clear proof to the contrary can be
brought. The States General of Holland made such a decision in the
year 1338, at a time when the war with the Hanse-towns raged with the
greatest violence, and the decision consequently passed into a law.
VII. According to the law of nations it is undoubtedly true, that
things taken from an enemy which had been captured by him cannot be
claimed by those, to whom they belonged before they were in the enemy's
possession, and who had lost them in war. Because the law of nations
assigned them to the enemy by the first capture, and then to the
person, who took them from him by the second.
Upon this principle among others, Jephthah defends himself against the
Ammonites, because by the laws of war they had lost the land, which
they claimed, in the same manner, as another part had been transferred
from the Moabites to the Amorites, and from the Amorites to the
Hebrews. Thus David too claims and divides as his own, what he himself
had taken from the Amalekites, and the Amalekites, before him, from the
Philistines.
Titus Largius, as we are informed by Dionysius of Halicarnassus, when
the Volscians laid claim to some possessions, which they had formerly
held, delivered it as his opinion in the Roman Senate, that "the Romans
were the fair and just owners of what they had gained by the right of
conquest, nor ought they to be so weak as to abandon the fruits of
their valour. For not only the people of that day, but their posterity
also had a right to a share of those possessions: so that to abandon
them would be treating themselves like enemies."
VIII. and IX. One great point, which the law of nations designed to
establish, was that the effects or possessions of one enemy should be
considered by another, as things having no owner.
Things, belonging to no one, became the property of those, who find or
take them, both of those, who, like sovereign powers, employ others in
such service, and of those, who take them with their own hands.
Thus not only slaves, or the immediate members of a man's household,
but all, who engage themselves, any way, in the service of others, may
be said to acquire for their employers all the property, which they
take or gain, even in those things, which apparently lie in common to
all men, such as pearls, fish, or fowl.
Modestinus has justly said, "that whatever is naturally gained, like a
possession, we may acquire through the means of any one we chuse to
employ," and, upon the same principle, Paulus observes, that "in every
acquisition, the exertion of mind and body must concur; the former
purely our own, and the latter, either our own, or that of another.
In the same manner possession may be taken for us by an attorney,
guardian, or trustee, provided they do it on our account and in our
name." The reason of which is, because one man may naturally be the
voluntary instrument of another, with the consent of that other.
So that the distinction made between persons in a servile and free
condition, as to the acquisition of property, is a distinction only of
the civil law, and applicable to its rules of transferring, acquiring,
and confirming, property. And yet the emperor Severus afterwards
applied these rules to the natural acquisition of things, not only from
motives of utility, but, as he avowed himself, from motives of equity
and justice. So that, apart from all authority of the civil law, it is
an established maxim that what any one can do for himself, he can do
through means of another, and doing such acts by another is the same as
doing them himself.
X. A distinction must be made between actions in war, that are
really of a PUBLIC NATURE, and the acts of INDIVIDUALS, occasioned
by public war: by the latter, individuals acquire an absolute and
direct property, in the things, which they take, and by the former,
the state makes those acquisitions. Upon this principle of the law of
nations Scipio treated with Masinissa, stating that as it was under
the auspices of the Roman people, that Syphax was conquered and taken
prisoner, himself, his wife, his kingdom, his territory, his towns,
and subjects inhabiting those towns, in short, every thing belonging
to him became a lawful prize to the Roman people. In the same manner,
Antiochus the Great maintained that Coelo-Syria belonged to Seleucus,
and not to Ptolemy, because Seleucus had been the principal in the war,
to which Ptolemy had contributed his assistance. In the fifth book of
Polybius, there is an account of the matter.
XI. Things immoveable are generally taken by some public act, such as
marching an army into the country, or placing garrisons there. So that,
as Pomponius has said, "lands taken from the enemy become the property
of the state, and form no part of the booty belonging to the individual
captors." Thus among the Hebrews and Lacedaemonians, lands that were
made a conquest, were divided by lot. The Romans too either retained
conquered lands to let them out for rent, sometimes leaving a small
portion to the ancient possessor, or divided them among colonists,
whom they sent out, or made them tributary; innumerable instances of
which we meet with in their histories, their laws, and treaties on the
admeasurements of lands.
XII. But things moveable, whether inanimate, or living, are taken
either as connected or unconnected with the public service. When
unconnected with the public service, they become the property of the
individual captors.[62]
Reference may here be made to the remark of Celsus, that "enemy's
goods found among us do not belong to the state, but to the prior
occupant." By which are meant things found among us at the breaking out
of a war. For the same was observed of persons, when, under the same
circumstances, they were considered as goods taken.
On this subject there is a remarkable passage in Tryphoninus. "Those
persons, _says he_, who have gone into a foreign country in time of
peace, upon the sudden breaking out of war, are made slaves by those,
among whom it is their misfortune to be found, being considered as
enemies."
XIII. What has been said upon the law of nations, allowing individuals
to acquire property by taking it from an enemy, must be understood as
meaning the law of nations, prior to the regulations of civil laws
upon that point. For the capture of an enemy's goods which at first
appear to resemble things in common, which any one may seize, is now,
like that of wild birds or beasts, subject to limitation by the laws
of every state, being in some cases assigned to the sovereign, and in
others, belonging to the captors. It may in some countries, indeed, be
introduced as a rule of law for the whole of an enemy's goods found
there to be confiscated.
XIV. The case is very different respecting what any one takes in
actual engagements. For there every individual bears the character of
his country, acting in her stead, and supporting her rights. Through
the exertions of those individuals, the state acquires both property
and dominion, with a power, according to the principles of civilized
countries, of conferring them on whom she pleases.
This is not a practice of modern date, but one prevailing among the
most free and independent nations of remote antiquity. The poets,
and historians of those days, describe the hero, after the heat, the
burden, and dangers of the day, carrying his spoils to the common
stock, to be divided by the General among the army, after retaining his
proper share to himself.
XXIII.[63] It is observed by legal authorities to be a custom, which
has silently gained ground, for either allies or subjects, who engage
in war, without pay, and at their own risque and expence, to be
rewarded with the captures that they make.
The reason, why allies have such a privilege, is evident. Because one
ally is naturally bound to another to repair the losses, which he has
sustained by entering into a mutual agreement to support a common
cause. Besides it seldom happens, that services are given without some
consideration in return.
Quintilian, applying the same reasoning to another case, alleges that
it is but just for orators and advocates, who devote their whole
time and talents to the business of others, to be requited for their
services: as thereby they preclude themselves from acquiring gain in
any other way.
It is most likely therefore that some advantage gained from the enemy
is always expected, as a compensation for the loss and risque incurred,
unless there is evidence to the contrary from some antecedent treaty,
in which there is an express stipulation for gratuitous assistance and
services.
XXIV. Such claim to a share of the spoils is not equally evident,
where SUBJECTS ONLY are concerned. For the state has a RIGHT TO THEIR
SERVICES. Still where ALL are not engaged in arms, but only SOME,
those, who give up their time to the calling of soldiers, and expose
their lives to its hazards, have a right to be rewarded and supported
by the body politic:--and as a compensation for this loss of time, and
this personal danger, it is but reasonable they should have a share of
the spoils.
With respect to allies there is an example in the Roman treaty, in
which the Latins are admitted to an equal share of the spoil, in those
wars, which were carried on under the auspices of the Roman people.
Thus in the war, which the Aetolians carried on with the assistance
of the Romans, the lands and cities were ceded to the Aetolians, and
the prisoners and moveable effects were given to the Romans. After
the defeat of king Ptolemy, Demetrius gave part of the spoils to the
Athenians. Ambrose, in speaking of the expedition of Abraham, shews the
equity of this practice. He asserts that it was but just for those, who
had assisted him as partners in the danger, to share in the prizes,
which were their due reward.
As to what were the privileges of subjects in these respects, we have a
proof in the conduct of the Hebrews, among whom it was usual for half
of the spoils to be given to those, who were engaged in battle. In
the same manner the soldiers of Alexander were allowed to appropriate
to themselves whatever they took from individuals, except that it was
usual for a considerable portion to be set apart for the king. So that
it was made a subject of accusation against those at Arbela, who were
said to have entered into a conspiracy for securing to themselves every
thing that was taken, without contributing a due proportion of it to
the treasury.
But individuals were not allowed in the same manner to appropriate to
themselves the public property of an enemy, that is, such as belonged
to the state. Thus when the Macedonians made themselves masters of the
camp of Darius at the river Piramus, and every thing was given up to
plunder, they spared the royal pavilion, in conformity to an ancient
custom, "according to which, _as Curtius observes_, it was always
reserved as the properest place, in which the victorious prince could
be received."
There was a custom somewhat like this among the Hebrews who always
placed the crown of the vanquished king upon the head of the conqueror,
and assigned to him every thing that was taken, belonging to the royal
household. We read of the same conduct in Charles the great, who, upon
conquering the Hungarians, gave up the private property as plunder to
the soldiers, reserving for the royal use all the public treasures.
Some things indeed are too inconsiderable to be made public property.
It is a generally received maxim for such things to belong to the
individual captors.[64]
This was the practice in the ancient times of the Roman republic. A
privilege not unlike this is sometimes given to seamen, who serve for
pay. It is what the French call spoils, or pillage, including all
wearing apparel, and all gold and silver under the value of ten crowns.
On this point different customs prevail in different countries. In
Spain sometimes a fifth, and sometimes a third was allowed to the
soldiers, and at others half was reserved for the crown. On some
occasions, a seventh or tenth part was allowed to the general, and
the rest belonged to the captors, except ships of war, which belong
entirely to the crown.--Sometimes a division was made in proportion to
the hazard and expence: which was the case among the Italians, where
the third part of the prize was assigned to the owner of the victorious
vessel, another third to those who had merchandise on board, and the
remaining third to the combatants.
In some cases it happens that private adventurers are not allowed the
whole of their captures, a certain portion of which must go to the
state or to those, who have received a grant of such prizes from the
state. Thus in Spain, if in time of war ships are fitted out by private
persons, one part of the captures, which they make belongs to the
crown, and another to the Lord High Admiral. So likewise in France, and
Holland, the tenth part of a prize belonged to the Admiral, a fifth
also being previously deducted for the use of the state. But by land
it is customary upon the taking of towns, and in battles, for every
one to keep the prizes which he takes. But in excursions, every thing
taken becomes the common stock of all engaged, being afterwards divided
amongst them according to their respective ranks.
XXV. As a consequence deducible from the above positions, it may be
observed, that if a people not engaged in war be made mediators in a
doubtful matter respecting things captured in war, the cause must be
adjudged in favour of him, who has on his side the laws and customs of
the country, which he has espoused. But if no such right can be proved,
the prize must be adjudged to the state, rather than to the individual
captor.--The maxim indeed of Quintilian can never be admitted, that
the laws of war can never be enforced in matters, that may be decided
by judicial authority; and that, on the other hand, whatever has been
gained by arms can be maintained by force of arms alone.
XXVI. It was observed in a former part of this chapter, that things,
NOT BELONGING to an enemy, cannot be taken, although found with him.
For this is neither consonant to natural justice, nor introduced by
the law of nations. But if in those things the enemy had any right
connected with possession, such as the right of pledge, retention or
service, that would not obstruct the power of the captors.
It is a disputed point, both as to persons and things, whether they can
be lawfully taken in the territory of a power at war with neither of
the belligerents. In regard ONLY to the law of nations, as far as it
allows us to kill an enemy wherever he is found, the PLACE has nothing
to do with the question. But considering the rights of the sovereign,
to whom that territory belongs, he undoubtedly has a right to forbid
the seizure of persons, or the capture of things within his own
dominions: and may demand satisfaction for the violation of that right.
In the same manner, though beasts, that are wild by nature, become the
property of those, who take them, still an owner may forbid any one to
commit a trespass upon his lands in order to take them.