Читать книгу Commentary on the Law of Prize and Booty - Hugo Grotius - Страница 14
ОглавлениеArticle I. Is the seizure of prize or booty1 ever just? [20′]
Article II. Is it ever just for Christians?
Article III. Is such seizure ever just for Christians, from Christians?
Having completed our discussion of the question [of justice] in relation to war, let us pass to another phase of the subject, [justice in relation to] the seizure of prize or booty. The problems arising under this second head are not unlike those previously included under the head of war, and may be dealt with on the basis of the arguments already set forth.
General Exposition Based on Concl. I and preceding proofs. See also Chap. ix, infra, discussion of aims [of war].
For, when a particular thing is just in so far as it tends toward the attainment of a given end, that end itself is just in a much higher degree. But war is just for the very reason that it tends toward the attainment of rights; and in seizing prize or booty, we are attaining through war that which is rightfully ours. Consequently, I believe those authorities to be entirely correct who hold that the essential characteristic of just wars consists above all in the fact that the things captured in such wars become the property of the captors:a a conclusion borne out both by the German word for war,b [krieg from Middle High German kriec (g), which means “exertion,” “endeavour to obtain something,”2] and by the Greek word for Mars, since Ἄρης, [“Ares,” i.e. “Mars,”] is apparently ἀπὸ του̑ αἴρειν, “derived from ἀείρειν,” [which means “to take away,” “to seize”]. Therefore, the seizure of spoils of war is necessarily just on some occasions;a and furthermore, it must be just in regard to the same persons and by that same criterion of all law, embraced in our demonstration of the justice of war.
However, since it is especially important that this part of our discussion should be understood, and since the matter has not been thoroughly dealt with by other writers on the law of war, it seems expedient to reexamine in this connexion the divisions of subject-matter already considered in answering the preceding question.
Formal Exposition of Article I Cf. 1st Form. Exp. of Art. I, Concl. I
Accordingly, in order to understand how seizure of spoils is agreeable to the Divine Will as revealed through laws, one must realize that such seizure is made up of two elements, namely, deprivation of previous possession, and acquisition of new ownership. For, just as it is impossible that a given thing should appear at one and the same time in two different forms, so there cannot exist simultaneously two full possessors, or owners, of one and the same thing;b and therefore, just as removal of the old form must precede the introduction of any new form, so deprivation must precede the establishment of [new] possession and ownership.
The concept of deprivation, too, has a dual character. It may be absolute, [i.e. a total negation of ownership,] as the naturalists hold that it is by natural disposition in the case of primal matter, and as we [jurists] find it to be in the case of all things that have not yet come into anyone’s possession, a situation which we call ἀδεσποτεία, “absence of ownership.” Thus we say, “Nature has granted freedom even to dumb animals,” meaning by this assertion that such animals, as long as they have not been captured, are not subject to anyone’s ownership.a Again, deprivation may be specific, as the naturalists describe it in connexion with secondary matter, and as we use the term when ownership has been taken away in actual fact.
The latter process assumes various guises, but the simplest is that in which loss of ownership follows upon loss of possession, precisely as acquisition of ownership follows upon acquisition of possession.b For this is a natural train of events, and one which would always find [21] acceptance if the Fourth Law did not stand in the way. Under the said law, disregard of [existing] possession gives rise to legal claims;c that is to say, seizures made contrary to law are held to be invalid.
But the Fourth Law cannot operate in defiance of the laws of the first order [Laws I and II];d and since the latter allow us to commit any act necessary for the protection of our lives and property, it cannot be doubted that they allow us to take away the instruments with which we are attacked. Now riches, whether in private life or in affairs of state, are rightly defined as constituting a vast stock of instruments.e Thus all enemy possessions are so many instruments prepared for our destruction; that is to say, through them weapons are provided, armies are maintained, the innocent are stricken down. It is no less necessary to take away these possessions, wresting them from the enemy, than it is to wrest the sword from a madman, if we wish to protect our property or even our personal security. Onasanderf supports this view, when he says: ζημία γὰρ χρημάτων καὶ καρπω̑ν ἔνδεια μειοι̑ πόλεμον, ὥσπερ ἔ οὐσία τρἑφει; “For the infliction of property losses and scarcity of revenue weaken the sinews of war, which feeds upon riches.” In such circumstances, indeed, we shall not be deterred by the precept that bids us refrain from seizing another man’s possessions, since even the prohibition against infliction of injury upon others will have no force. For the different laws must be observed in the order of their importance. Moreover, the rulea which decrees that “The lesser ought not to be impermissible for him to whom the greater is permitted,” rests upon precisely the same basis of certainty as the rule of the mathematicians to the effect that “The greater always includes the lesser”—a principle also adopted by the jurists,b and quite rightly, since regard for proportion is as important in the legal realm as it is in the measurement of numbers and magnitudes. But killing exceeds plundering in gravity to the same extent that life takes precedence over property in the computation of our blessings;c and therefore, since one is not charged with homicide for having slain a man in a just war, far less is one convicted of theft for having borne away an enemy possession. Cicero’sd statement, “Nor is it contrary to nature, to despoil (if one can) any person whom it is right to slay,” has been repeated by the juristse in various passages. [21′]
Surely the reason why an enemy ought to be deprived of his property is by now sufficiently apparent; but there is still room for doubt as to whether or not an impartial examination of the laws already cited will result in assigning irrevocable ownership to the party who seizes the property.
New explanation
For some persons will be of the opinionf that the thing seized is res nullius, inasmuch as the former owner has been lawfully deprived of it, and that consequently it becomes (like other things so classified) the property of the first party to take possession. Such would seem to have been the view adopted by Nerva the Younger and, after him, by Paulus,g when these authorities included property taken in war among the things naturally acquired (in virtue of the fact that they were previously res nullius) by the person first taking possession. This contention will be strengthened, moreover, by the argument which we ourselves adduced just above, namely: that the laws of the superior order, relative to our own good, do not give way for the sake of another’s good when they come into conflict with lesser laws. A thoughtful reading of the passage in question indicates that Ciceroa had precisely this principle in mind when he observed that Cassius had set out “for a province which, if men obeyed written laws, would be regarded as belonging to another, but which, when such precepts had been overthrown, was his own by the law of nature,” that is to say, by that precept which we have listed as Law II.b
Nevertheless, anyone who pauses to reflect, more carefully, that all laws are equally to be observed as soon as such general observance becomes possible, will readily perceive that a just distinction should be drawn in this connexion. For he will understand clearly enough that, for the duration of the war and in view of the continued danger, it will not be permissible, for captured possessions to be reclaimed by the one who lost them;c but he will fail to see any reason why, after peace has been restored, you should not give back those things which you have seized solely for the sake of your own security,d since the Fourth Law does not conflict with any other law under these circumstances, and should therefore come into force again. Thus there is a vast difference between acquisition of that which was truly res nullius, and acquisition of property formerly belonging to another. Mere possession suffices for acquiring those things which had no owner, whereas the appropriation for oneself of another person’s property requires not only possession but also cause, that is to say, some reason on the basis of which the original owner of the property should, willingly or unwillingly, be deprived of it. Therefore, that general title which we invoke for the seizure of previously ownerless property, does not suffice for the establishment of full legal rights over enemy possessions. On the contrary, some other title is needed. In time of war, however, this title is never lacking,a a fact which may be deduced in the following manner.
In the first place, with reference to those cases in which we take [22] up arms for the purpose of recovering our own property, there is no question but that we may rightly employ military force to divert unjust possession from an armed possessor.b For who can fail to perceive that, when we are granted the right to acquire for ourselves those things which are useful,c the further right to guard such things after they have been acquired and to recover them if they are taken from us, is implicitly conceded at the same time? But if I am not able to regain the actual piece of property involved, then that unjust possessor is nevertheless my debtor to the extent of the value of the said property.d Therefore, I should be permitted to obtain from among his goods, the equivalent of his debt to me. Moreover, the same argument will apply if from the very beginning I was not laying claim to my own property, but was attempting to collect a debt.e For, since the excess possessed by that other person corresponds exactly to the deficit in my own possessions, that excess should be taken from him and given to me. Similarly, in cases involving the execution of a judicial decree,f we see creditors put in possession of debtors’ goods, in order that the former may obtain satisfaction therefrom. To be sure, the rule that such goods should be put up for public auction and the proceeds applied solely for the benefit of the creditors, arises not from the law of nations but from civil law,g which has been accepted as a model even in the case of reprisals.h Nature herself, however, grants me permission to acquire in any way whatsoever, from him through whom I suffer the loss of property belonging to me, the exact equivalent of that lost property; and the thing so acquired becomes my own. This principle is also accepted by the theologians.a Indeed, in the natural order, it is impossible for one who is not himself the owner of a thing, to transfer a valid title to ownership;b and this rule has, moreover, been incorporated in [man-made] law.
In the second place, if it is also our purpose in warfare to inflict punishment for offences,c then such punishment will surely be directed not only against the person of the offender but also against his property, which is ordinarily awarded to the injured party in forensic judgements, too.d The reason underlying this method of punishment is explained by Tryphoninus,e as follows: “For he who has deserved ill of the state ought also to suffer extreme poverty, in order that he may serve as an example to deter others from wrongdoing.” The words of Cicerof are pertinent in the same connexion: “[Even the confiscation of goods is prescribed, in addition,] to the end that every torment of mind and body, including want and beggary, may follow.” Again, this passage regarding Lepidusg is peculiarly appropriate: “And if, after laying down his arms, he should be condemned for violence (a judgement against which he certainly could not offer any defence), his children would share in the same disaster through the confiscation of [his] goods.” Yet again, we find this query, which also refers to Lepidus:h “And if that very penalty is applied to citizens condemned in court, how could we have been more lenient toward public enemies?”
Furthermore, the right to acquire enemy property—whether for the sake of [recovering] the property itself, or in the process of collecting a simple debt, or in 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’sd 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 portione 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 theologiansf 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 shownb 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 demonstratede 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 Plutarcha 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 Aristotled declares that, ἔ πολεμικὴ φύσει κτητική πως; “in the natural order, the art of war is, in a sense, an art of acquisition.” Theophiluse 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 Demosthenesg 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 Himselfb awarded the eastern kingdoms sought by force of arms.)
The law of war is a part of the law of nations. Accordingly, Aeschinesc says: εἰ μὲν πρὸς ἔμα̑ς πολεμήσας δορυάλωτον τὴν πόλιν εἵλες, κυρίως ἔχεις τῳ̑ του̑ πολἑμου νόμῳ κτησάμενος; “But if, in a war undertaken against us, you have occupied a city that was captured by armed force, you rightly retain possession of that city, under the law of war.” Othersd have called this same law “the law of victory.” Moreover, all the philosopherse hold that there is a certain special kind of acquisition from enemies, which they variously designate as acquisition πολεμικήν [by war], λῃστικήν [by piracy], ἀγωνιστικήν [in combat], or χειρωτικήν [by conquest]. Xenophonf also tells us how Socrates, in accordance with his habitual practice of drawing out the truth (by obstetrical skill, as it were) from the seeds already implanted in human minds, leads Euthydemus through a process of interrogation to an admission of the fact that, despite the latter’s classification of despoliation under the head of injustice, nevertheless this very act of despoiling is consonant with justice, when committed against an enemy. Plato,g too, makes the following statement: πάντα τω̑ν νικωμἑνων ἀγαθὰ τω̑ν νικώντων γίγνεσθαι; “all those goods which were the property of the vanquished, become the property of the victor.”
Thus we clearly perceive the absurdity of the beliefa that seizure of spoils should be excluded from wars among Christians; unless, perchance, all such wars are held to be unjust. But other authoritiesb have laid bare the ignorance underlying this contention on the part of men who are otherwise learned. We ourselves, on the basis of the [23′] principles already expounded, believe the matter to be so clear that it requires no more protracted discussion; and we furthermore consider it permissible to observe that the proponents of a different opinion have lacked even an adequate understanding of what constitutes prize and booty.
As for the argument derived by our opponents from civil war, it is doubly absurd. For, in the first place, who will acquiesce in their assumption that the wars of Christians are civil wars, as if to say, forsooth, that the whole of Christendom constitutes a single state?c Again, they are mistaken even in their contention that seizure of spoils has no proper place in civil warfare. For, aside from the testimony of history, which teaches us that the very abundance of spoils taken in civil wars is such that men have on numerous occasions been impelled to revolution by their greed for plunder,d what logical argument can be advanced to show that a magistrate ought not to collect by armed forcee the debt that is owed to the state, even when that debt consists solely in the penalty for rebellion, if he cannot collect it by any other means? Plato,f in fact, even while maintaining that in cases of civil dissension war should be conducted as temperately as possible, nevertheless concedes that, τὸν ἐπἑτειον καρπὸν ἀφαιρει̑σθαι [. . .] τοι̑ς κρατου̑σι τω̑ν κρατουμἑνων, “the annual harvest may be taken from the vanquished by the victors.” Besides, what could be more inconsistent than prohibiting the seizure of prize or booty in a situation where slaughter is permitted?a
Formal Exposition of Article IV
Surely, since the despoliation of enemies is accepted under the law of nations, it must necessarily be sanctioned by civil law, too. This inference is clearly confirmed by the laws and customs of individual nations relative to the distribution of spoils; and in every part of the world, such laws and customs abound. Again, the Roman Corpus Iurisb repeatedly states that things captured in war become the property of the captors; and the same rule is approved by canon law.c The facts just stated, considered as a whole, make it impossible for us to doubt that seizure of enemy spoils is permitted by every branch of law.
First Informal Exposition of Article I
The same view is explicitly supported in Holy Writ. Is anything more truly one’s will, than that which one commands through an express legal precept? Yet we find among the precepts of military law, this divine pronouncementd concerning captured cities: “[. . .] all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.” Accordingly, just as victory flows from God, so also do the institutions of prize and booty. It is recorded, moreover, that a part of the spoils was consecrated to God and claimed [24] by Him.e Not even the profane nations of the Gentiles were altogetherunacquainted with this practice;f for they offered sacrifices taken from the goods captured in war, to Jove the Plunderer and Minerva the Dispenser of Spoils, and also, indeed, to Mars or Hercules or Vulcan. The sanctity of trophies was derived from this same origin. To take another instance, among the precepts laid down for Joshuag when he set out against Ai, we find the following injunction: “[. . .] the spoil thereof, and the cattle thereof, shall ye take for a prey unto yourselves [. . .].”4 And who can deny that the following command, though it was pronounced by that same Joshua,a was θεόπνευστον [divinely inspired], and dictated by the Will of God? “Return with much riches unto your tents, and with very much cattle, with silver, and with gold, and with brass, and with iron, and with very much raiment: divide the spoil of your enemies with your brethren.” Or we may quote the words of David:b “Behold a present for you of the spoil of the enemies of the Lord.” Sufficient proof was afforded, however, in the sole fact that it was God’s Will that the Israelites, a nation formed by God Himself, should defend their rights in this fashion;c or again, in the fact that He prescribed limits for the seizure of spoil,d and indicated the manner in which it should be divided.
Second Informal Exposition of Article I Cf. 1st Inf. Exp. of Art. I, Concl. I, together with Gen. Exp. at beg. of this chap.
Nor is it inappropriate to cite in this connexion the authoritative passages which demonstrate that war is just, either in an absolute sense or on the basis of [a just] origin, since the very passages that show the permissibility of war for Christians and against Christians, are likewise pertinent to the question of booty. For certainly that which was by its nature immutable could not have suffered change, nor was any innovation introduced into matters of moral conduct by the doctrines laid down in the Gospels.
Third Informal Exposition of Article I Cf. 2d Inf. Exp. of Art. I, Concl. I, together with Gen. Exp. in this chap.
First, Second, and Third Informal Expositions of Article II; First and Second of Article III Cf. 1st, 2d & 3d Inf. Exps. ὀψωνίοις of Art. II, Concl. [I], & also 1st & 2d Exps. of Art. III, same Concl., together with Gen. Exp. in this chap.; or Inf. Exp. of Art. I of Qu. II, together with 1st & 2d Form. Exps. of Arts. II & III, Concl. I.
Neither is it possible to believe that the precept formulated by John the Baptist,a [“Do violence to no man, neither accuse any falsely; and be content with your wages,”] was in conflict with the unequivocal oracles of God. In regard to this point, we should note that John was being consulted, not by soldiers girded for battle and prepared to march against the enemy, but by those stationed in the garrisons of Judea. Now, the writers of that time bear witness to the many injuries inflicted by Roman soldiers upon the unfortunate provincials, and to the extensive desolation wrought in the vicinity of the Romans’ winter quarters. Thus John prohibited such vexatious conduct—which he described as “violence” (concussiones), the word that is used even to-day—as well as all false accusations, and told the soldiers to be content with their wages (for that is the usual meaning of the term employed [in the Gospels]).5 Nor does his admonition require forbearance in regard to any person other than the peasants and the hosts of the soldiers, against whom the latter too frequently commit offences. This is the universally recognized interpretationb of the passage in question. For it is an act of the gravest injustice to despoil innocent rustics who are bearing, for their own [24′] protection and for the maintenance of the soldiers, burdens that have been imposed in the name of the state. In no sense, however, does the said passage refer to enemy property; nor does its purport differ from that of the dictum laid down already by John in reply to the publicans, namely, that they should exact no more than that which was stipulated for them by law. Therefore, if those in command have so decreed, spoil will justly be transferred from the enemy to the soldiers; and it will even be considered a part of the soldier’s pay, that is to say, a part of the profits of war rightfully awarded to them according to the testimony of Paul.a Thus the rule formulated by John for the soldiers serving in Judea, was in effect the same as that decreed by Aurelianb for his armies: “Let each man be content with his own ration; let him live by spoil taken from the enemy, not by the tears of the provincials.”
Informal Exposition of Article IV
Similarly, the authoritative statements already cited to prove that war is just from the standpoint of all law, suffice also to prove that seizure of prize and booty is just from the standpoint of all law.
Exposition of whole question by examples
The examples set by holy men remain for our consideration. Abrahamc easily leads them all in supplying us with a wealth of arguments. For, in the first place, when Abrahamd 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, sayingd (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 Mosesa (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 writtend 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 practicef (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 lawg 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 Augustineh 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? Bartolusd says: “In cases of licit warfare, those who have taken spoil are not bound by civil law to make restitution.” Balduse 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) Victoriak 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
