Commentary on the Law of Prize and Booty. Hugo Grotius

cases where such collection is combined with a penal purpose—does not necessarily exist prior to war, but may sometimes be a concomitant thereof.^a

      For, in the first place, who among the enemy seeks only our lives and not our property, also? Or rather, what enemy does not seek our lives because of our property? We shall be acting justly, then, if we recover through war whatever is taken from us day by day, or the equivalent of what is taken.^b On this basis, it has been widely held that wars carry with them a tacit agreement of exchange,^c so to speak, an agreement to the effect that each belligerent, acquiescing in the turn of the die as the contest proceeds, shall take the other’s property or lose his own, thus [22′] bearing out Menander’s^d assertion that,

      οἱ γὰρ θἑλοντες προσλαβει̑ν τὰ τω̑ν πἑλας

       ἀποτυγχάνουσι πολλάκις νικώμενοι,

       τὰ δ’ ἴδια προστιθἑασι τοι̑ς ἀλλοτρίοις.

      They who desire to snatch a neighbour’s wealth, Fall oft from hope to ruinous defeat, Adding their own goods to that alien store.

      Aristotle,^e too, makes much the same point when he says: ὁ γὰρ νόμος ὁμολογία τίς ἐστιν, ἐν ᾡ̂ τὰ κατὰ πόλεμον κρατούμενα τω̑ν κρατούντων εἰ̑ναι φασιν; “For this law is a species of common agreement under which things captured in war are said to be the property of the captors.”

      A second consideration, to which I now turn, has constant force and can never be absent from war. For what war is waged without expense and loss? Assuming that all else prospers according to one’s desire (although this is never the case), he who is forced to engage in warfare is nevertheless diverted meanwhile from the management of his private affairs. Yet any person who justly takes up arms has a right to collect indemnity for all losses and expenses, regarding them as debts due to him,^a just as it is right, in forensic disputes,^b that the person who has deliberately failed to obey the law should make reparation not only for the costs and expenses connected with the suit itself, but also for those involved in the execution of the sentence. This is the principle underlying the formula,^c “bound to pay the expenses of war, in accordance with the law governing the conquered.”

      Finally, it is an indisputable fact that he who knowingly resists a just war, commits a grave offence.^d Even if such a belligerent is to some extent successful, he is a thief, an armed robber, an assassin. Now, these crimes are of such a nature as to bring upon the defendant a fine depriving him of all, or at least a large portion^e of, his goods; and the goods thus forfeited should be allotted to the injured party, whether the latter be an individual or a state. Moreover, the theologians^f lay down the following doctrine: if, at the beginning of a war, the enemy offers full reparation, not only for the injury done and the damage to property but also for losses and expenses, he should be given a hearing; but it is a different matter if the war is already raging, for the culpable belligerent will no longer be in a position to make amends; on the contrary, it will be³ [entirely just for him] to suffer [penalties graver than the original injuries], with the opposing side constituted, of course, as the judge empowered [to impose such penalties according to its own decision].

      In the light of the foregoing discussion, it is quite evident that even the peace of the state and the authority of magistrates cannot always be preserved without the seizure of enemy spoils.^a This is true above all because of the vast expenditures necessary for the preservation of such peace and such authority, as well as because of the fact that those persons who rashly offer resistance ought not to go unpunished. Accordingly, since we have clearly shown^b that it is just, inasmuch as it is pleasing to God Himself, that we should safeguard our own welfare, defend or recover our own property, and collect the debts due to us (including those whose payment involves punishment), all of these acts being based upon rights that God does not compel us to remit in behalf of any other person,^c owing primarily to the fact that it is to the common advantage that evil deeds should not remain unpunished and that the state and its magistrates should be actively defended; since none of these ends can be attained unless the enemy is stripped of his resources; since, moreover, there are many things which we ourselves cannot obtain save by acquiring through war that which was formerly enemy property; and finally, since this procedure constitutes what is known as the seizure of prize or booty,^d it follows, as an absolutely certain conclusion, that such seizure is sometimes just.

      First Formal Exposition of Articles II and III

      We have already demonstrated^e that the institutions of prize and booty spring from the law of nature. This origin is clearly apparent [not only among human beings, but] also in the case of other animate creatures, including even those that feed in flocks and those that fly; for though, at times, creatures of this kind cede to the possessor those things which have been taken into the possession of the latter, yet they act otherwise when enraged by combat. The following passage from Plutarch^a may be quoted in this connexion: οὐδὲν αὐτοὺς δεινὸν οὐδ’ ἄδικον ποιου̑ντας, ἀλλὰ τῳ̑ πρεσβυτάτῳ τω̑ν νόμων ἀκολουθου̑ντας, ὃς τῳ̑ κρείττονι [23] τὰ τω̑ν ἔττόνων δίδωσιν, ἀρχόμενος ἀπό του̑ θεου̑, καὶ τελευτω̑ν εἰς τὰ θηρία. “You are doing nothing that is harsh or unjust; rather, you are following the most ancient of laws, which bestows upon superiors the goods of their inferiors: a law that has its beginning in God and its final effect in the beasts.” Similar statements are found in the Gorgias of Plato, and also elsewhere, in the works of various authors. Josephus,^b too, and Aristides,^c in more than one passage, have assigned this same precept to the law of nature, on the ground that it has force even among wild animals. And Aristotle^d declares that, ἔ πολεμικὴ φύσει κτητική πως; “in the natural order, the art of war is, in a sense, an art of acquisition.” Theophilus^e calls such acquisition φυσικὴν κτήσιν, that is to say, “natural possession.” Whence it follows that even among Christians there is a place for the laws of prize and booty.

      Second Formal Exposition of Articles II and III

      The institutions of prize and booty have also been traced, quite correctly, to the law of nations,^f or (in the language of Theophilus) to ἐθνικῳ̑ νόμῳ. Thus Demosthenes^g says: εἰ̑τ’ οὐ δεινὸν ω̑̓; γη̑ καὶ θεοί, καὶ φανερω̑ς παράνομον, οὐ μόνον παρὰ τὸν γεγραμμἑνον νόμον, ἀλλὰ καὶ παρὰ τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον, τὸν ἄγοντα καὶ φἑροντα βίᾳ τἄμα ἐν πολεμίου μοίρᾳ μὴ ἐξει̑ναι μοι ἀμύνασθαι; “Then is it not grievous—O, Heaven and Earth!—is it not manifestly unjust, and contrary not only to written statutes but also to the universal law of mankind, that I should be prohibited from repaying like for like when my possessions are taken from me by violence and borne away in hostile fashion?” In the opinion of Cyrus,^a too, νόμος ἐν πα̑σιν ἀνθρώποις ἀΐδιός ἐστιν ὅταν πολεμούντων πόλις ἁλῳ̑ τω̑ν ἑλόντων εἰ̑ναι τὰ χρήματα; “It is an enduring law of mankind that, when a city belonging to the enemy has been captured, the goods and the wealth of that enemy shall be ceded to the victor.” (I am speaking of that same Cyrus to whom God Himself^b awarded the eastern kingdoms sought by force of arms.)

      The law of war is a part