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untouched 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, λápupa and okûda. 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.

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, Iƒ 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.

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.

* A right which exists between persons of different nations.

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I. 1

BY

Y nature, that is, in the primeval state of nature, and without the act of man, no men are slaves, as we have elsewhere said; and in this sense we may assent to what the jurists say, that slavery is against nature. But that slavery should have its origin in human act, that is, in convention or delict, is not repugnant to natural justice, as we have also shewn.

2 But by the laws of nations, of which we now speak, slavery is more comprehensive, both as to persons, and effects. For, if we regard the persons, it is not those only who surrender themselves, or promise slavery, who are reckoned slaves; but all persons whatever who are taken in a regular war, as soon as they are brought intra præsidia, as Pomponius says. Nor is delict requisite; the lot of all is alike even of those, as we have said, who by their destiny are found within the enemies' boundaries when war breaks out.

3 So Polybius says, What punishment have these justly incurred? some one may say, when he sees men sold with their wives and children, when they have been conquered in war. These calamities are by the laws of war to be borne by those who have done no wrong. And hence, as Philo notes, many good men have, by various misfortunes, lost the liberty to which they were born.

4 Dio Prusacensis, after reciting some modes of acquiring ownership, adds, When a person, having acquired another as a captive in war, holds him as a slave. So to carry off boys captured in war Oppian calls the Law of War.

II. And not only do they themselves become slaves, but their posterity for ever; that is, those who are born of a slave-mother in slavery. And this is what Martianus says, that by the Law of Nations, those are born our slaves, who are born of our slave-servants. The womb was subjected to slavery, says Tacitus, speaking of the wife of a German leader: [Arminius, whose wife was pregnant when she came into the power of the Romans. Gronov.]

III. 1 The effects of this right are unlimited, so that the master may do any thing lawfully to the slave, as Seneca says. There is no suffering which may not be inflicted on such slaves with impunity; no act which may not in any manner be commanded or extorted; so that even cruelty in the masters, towards persons of servile condition, is unpunished; except so far as the Civil Law imposes limits and punishments for cruelty. In all nations alike, says Caius, we may see that the masters have the power of life and death over slaves. He adds afterwards, that by the Roman Law, limits were set to this power, that is, on Roman ground. So Donatus on Terence, What is

not lawful from a master to a slave?

2 And all the property which is taken becomes the right of the master, along with the person. The slave who is under the power of another, can have nothing of his own, says Justinian.

IV. Hence the opinion is refuted, or at least restricted, of those who say that incorporeal things are not acquired by right of war. For it is true that such property is not primarily and per se acquired, but it is acquired by the intervention of a person to whom it had belonged. We must except however rights which flow from a peculiar character of the person, and are therefore inalienable, as the paternal right. If these can remain at all, they remain with the person; if not, they are extinguished.

V. 1 All these powers are introduced by the Laws of Nations, for no other cause than this; that the captors, induced by so many advantages, may willingly abstain from the extreme rigour by which they were allowed to put captives to death, either immediately or after any delay, as we have said. They are called servi, says Pomponius, because the conquerors commonly sell them, and so preserve them from being killed. I have said that they may willingly abstain: for it is not a compact by which they are compelled to abstain, if you look at the Laws of Nations; but a mode of persuading them to adopt a more useful course.

2 For the same reason, this right is allowed to be transferred to others, like the ownership of things. And this right is extended so as to apply to the offspring, on this account; that otherwise, if the captors had used their extreme right, they would never have been born. From which it follows, that those born before the calamity, if they are not captured, do not become slaves. And therefore it was established that the children should follow the condition of the mother, because the cohabitation of slaves was not guarded, either by law or by sure custody, so that there could be no sufficient presumption to indicate the father. And in this sense we must take the dictum of Ulpian: The law of nature is this, that he who is born out of legitimate matrimony follows the mother: that is, the law of general custom, drawn from a natural reason; as we have shewn that the phrase the law of nature is elsewhere improperly used.

3 That these rights were not introduced in vain by the nations, A A

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