Commentary on the Law of Prize and Booty. Hugo Grotius

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      Exposition of whole question by examples

      The examples set by holy men remain for our consideration. Abraham^c easily leads them all in supplying us with a wealth of arguments. For, in the first place, when Abraham^d forcibly bears away goods that were previously in the possession of the enemy, he makes it sufficiently clear that one ought not to relinquish, on the ground that it is another’s property, that which the enemy are seeking to retain; and therefore, we shall act rightly in imitating his conduct on this point. Secondly, he grants recognition to the institution of spoil when he gives a tithe thereof to the priest,^e a fact expressly brought out in the Epistle to the Hebrews.^f Moreover, this same practice relative to a tenth part of the spoils is found to exist among other peoples.^g Finally, Abraham could not have offered clearer confirmation of the right to take spoil than he did in assigning certain portions of it for the maintenance of his attendants and in willing that other portions be allotted to his allies.^h For Abraham was not one to bestow a gift that could not honourably be accepted.

      On the other hand, he rejected the remainder of the captured goods, not on the ground that it had been unlawfully acquired (for he had openly declared himself to the contrary on this very point, nor, for that matter, has such a construction been placed upon his behaviour by any interpreter),^a but rather for a far different reason. Some persons, indeed, explain the passage in question by asserting that Abraham had already bound himself, before setting out on the expedition, by a vow to the effect that he would take no part of the spoil for himself. Now, it cannot be denied that we make vows for undertakings other than those which constitute [in themselves] inescapable obligations; and in any case, [25] whether or not Abraham was bound by a vow in this matter, the reason that impelled him to repudiate any share in the spoils is indicated in the words:^b “lest thou shouldest say, I have made Abram rich.” Thus he ceded his right freely and because of a certain nobility of spirit. For this guiltless man quite justifiably feared that impious persons who were hostile to the true faith might heedlessly calumniate him, giving the impression that he had meddled, solely through greed for plunder, in a war that did not properly concern him.

      The case of Abraham, then, is based upon a special motive, and his conduct does not differ greatly from that of Pericles and Fabius, who brought private loss upon themselves lest unjust suspicion be excited against them. Fabricius, too (according to Dionysius’^c account), offers a somewhat similar explanation of the fact that he made no part of the spoils his own, although he could have done so: καὶ τὸν ἐκ δικαίου πλου̑τον ὑπεριδω̑ν ἕνεκα δόξης; “spurning riches, even those justly gained, in comparison with glory.” Fabricius furthermore asserts that, in taking this step, he was following the example set by Valerius Publicola and others. Marcus Cato conducted himself in much the same fashion after the victory in Spain, saying^d (almost in the very words employed by Abraham) that no part of the spoils of war would be acquired by him, save only those things which he had eaten or drunk. He added that, in taking this stand, he was not casting reproach upon those other leaders who would accept the profits assigned to them from the said spoils, but merely preferred for his own part to vie in virtue with the most virtuous rather than in wealth with the wealthiest.

      Abraham may also have been influenced by the fact that many of the things found in the possession of the conquered kings had not belonged to them in olden days, having been snatched away recently from the citizens of Sodom, who were the allies of Abraham himself at the time in question.^a Consequently, there was some reason for him to return these possessions to their former owners or to the ruler of the latter, in accordance (so to speak) with the principle of postliminium. The Roman juridical principle of equity,^b too, has given rise to a similar procedure in regard to certain things. Furthermore, we read of occasional instances in which such a procedure has been adopted out of benevolence, even though the law makes no provision to that effect. Thus the behaviour of Abraham in the case under consideration, was the same as that of the Romans on another occasion, when the latter, after the camp of the Volscians had been captured, and the Latin and Hernician allies had been summoned by edict to identify their property, gave back the possessions so identified.^c In connexion with the conquest of the Samnites, Volumnius and subsequently Atilius followed the same course of action. Gracchus and Lucius Aemilius customarily did likewise. Scipio, too, gave similar orders after the Lusitanians were vanquished, and again, after the capture of Carthage, with reference to the standards and votive offerings that had belonged to the Siculians.

      For the rest, if there is anyone to whom the above-mentioned examples are displeasing, let him pause to consider what men he is condemning, and of what sort. For we read that the seizure of spoils was practised by Moses^a (a far more reliable model of justice than was either Lycurgus or Aristides); by that exceedingly saintly leader, Joshua;^b by David,^c the King who was most pleasing to God; by the sons of Reuben, too, in company with the children of Gad and the half tribe of Manasseh, of whom it is written^d that they were enriched with the spoil of their enemies because they had placed their trust in God, and also by Asa,^e a prince most highly commended for his piety. Again, if [25′] we turn our attention to Christian princes, we shall find not a single one who failed to follow those same examples. For although slavery has fallen into disuse in Christian practice^f (at a late date, to be sure, and owing to a reason distinct [from condemnation of spoils], as we could easily demonstrate save that in so doing we should be straying from the plan of our discussion), nevertheless, all authorities on law^g have come to the conclusion that the following principle still stands: “Things captured in war shall be acquired by the captors.”

      Exposition of whole question on basis of authoritative opinions

      There is no need, however, to amass a great heap of additional testimony on this point. Do we seek the opinion of the theologians? Then let Augustine^h speak alone for all of them, as follows: “If you have been deprived of anything originally possessed by you, for the reason that the Lord God hath given to us goods that were taken from you, we are not on that account [to be regarded as] covetous of property belonging to others; for those goods have become ours and are justly held as our own, by the command of Him who owns all things.” Is it our pleasure to consult the doctors of pontifical law? Pope Innocentⁱ himself declares that, “Things acquired in legitimate warfare are legitimately retained.” Moreover, this assertion is repeatedly confirmed by Hostiensis,^a by Panormitanus,^b and by Archidiaconus.^c And what do we find among the interpreters of Roman law? Bartolus^d says: “In cases of licit warfare, those who have taken spoil are not bound by civil law to make restitution.” Baldus^e goes still further, asserting that, “Even before the inner tribunal of the conscience, it is licit to retain things captured in a just war.” The opinion of Baldus is cited by Jason,^f and is universally approved not only by the jurists but also by those commentators on Holy Writ who have devoted special attention to this question; for example, Sylvester,^g Adrian,^h Angelus [de Ubaldis],ⁱ Lupus,^j and (among the Spaniards) Victoria^k and Covarruvias.^l Indeed, if we examine the pronouncements of all the authorities, we shall find that not one of them condemns the seizure of spoils, although many do condemn manifestations of greed in connexion with that practice, that is to say, τὸ πλεονἑκτημα, “the acquisition of more than one’s due”; just as it was not war itself that we found to be blameworthy, but rather cruelty in warfare.

      Conclusion II

      Therefore, from the standpoint of all law, it is sometimes just for Christians to take prize or booty from Christians.^m

CHAPTER V

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