CHAPTER I. AMONG THE ANCIENTS.

The Greeks are possibly the earliest people who attained a sufficient degree of civilization to have any definite laws of war, consequently we shall first look to them for laws of prize distribution. In his chapter on "the right of acquiring things captured in war",[1]Grotius treats at length the condition of private property in war among the ancients. His remarks are intended to refer to both land and naval warfare though in fact all his instances are drawn from land warfare. It is probable that the same theories applied in both cases though on the high seas from the nature of the case, the state would have much greater difficulty in enforcing any restrictions upon the right of making captures and appropriating the profits therefrom than on land.

In regard to the Greek treatment of prize, Grotius says:[2]

"After the battle of Plataea there was a severe edict that no one should privately take any part of the booty.[3]Afterwards when Athens was conquered the booty was made public property by Lysander[4]and the Spartan officers who had to deal with the measure were called prize sellers.[5]If we go to Asia the Trojans were accustomed as Virgil teaches to draw prize lotsas is done in dividing common property.[6]In other cases the decision of the matter was with the general and by this right Hector promises Dolon the horses of Achilles when he stipulates for them,[7]by which you may see that the right of prize treasure was not in the captor alone. So when Cyrus was victor, the booty was taken to him,[8]and when Alexander, to him."[9]

In his work on International law among the ancients,[10]Phillipson has presented similar instances of the distribution of booty. He adds to the statement made by Grotius in regard to the battle of Plataea that after making proclamation that no one should take the booty "Pausanias ordered the helots to collect the treasure of which one tithe was allotted to the Gods at Delphi, another to the Olympian God, and a third to the God at the Isthmus, and the rest was divided according to title and merit. An additional reward was also given to those who particularly distinguished themselves, and a special portion reserved for Pausanias."[11]and again, "In 426 B.C. when Ambracia was reduced by the Acaranians with the help of the Athenians under Demosthenes, a third part of the spoils was assigned to Athens, three hundred panoplies to Demosthenes and the remainder divided by the Acaranians among their cities."[12]

Similar practices have been noted by Prof. Amos S. Hershey in a recent article. He says "It was customary to divide the booty amongst the victorious soldiery, i.e. after devoting one tenth of the spoil to the Gods and a portion to theleaders and warriors who had particularly distinguished themselves."[13]

The Greeks also appear to have recognized the right of reprisal. Thus in the Iliad, Nestor speaks of making reprisals on the Epeian nation, in satisfaction for a prize won by his father Neleus at the Elian games and for debts due to many private subjects of the Pylian kingdom. The booty was equitably divided among the many creditors.[14]

This testimony is based on the writings of Herodotus, Plutarch, Xenophon, Homer, Virgil, Pliny and other classical writers. It has little bearing on our present subject except in so far as it indicates the recognition even at so early an age of the principle that the title to captured property does not rest in the immediate captor but that proceeds of prize shall be equitably divided by the general or other officer. In the case of the battle of Plataea there seems to be also a recognition of the principle that prizes of right belong to the whole public, in other words to the state.

These two principles, that prizes do not belong to the original captor but should be divided, and that the state may appropriate prizes seem to constitute the Greek theory on the subject. It is unlikely that they were the subject of definite laws but recognition was given to them if at all by command of the general on the occasion of a particular war, as is indicated in the cases cited.

The basis for this theory, apparently far ahead ofits time may be found in the well developed feeling of political obligation among the Greeks. They appear to have recognized public war as a state affair, consequently individual soldiers acted only in the capacity of agents of the state in regular military operations.[15]Their captures accrued not to themselves but to the state for whom they acted.

Of the actual effect of such a prize law among the Greeks it is difficult to make a statement. It might be supposed that the incentive toward the capture of booty would be decreased by such a rule yet so far as we can learn of Greek warfare there was no limit to the atrocities committed either on persons or property.[16]The Greek soldier felt justified in going to any extreme in acting for his state.[17]

Grotius has nothing to say of prize laws in maritime warfare. Phillipson believes that the Greeks made prize of enemy vessels and also of neutral vessels for breach of blockade. He gives evidence which indicates that theoretically, confiscable goods went to the state, and that rudimentary prize courts were held. Thus he says:

"In most Greek states there was something of the nature of a prize court, to which appeals could be made by those who held they had been contrary to the law of nations deprived of their property. In Athens, the assembly of the people frequently took cognizance of such claims. Thus two trierarchswere accused of appropriating the proceeds of a cargo from Naucrates on the ground that if confiscable it ought to have gone to the State. An assembly was therefore held and the people voted for a hearing on the question."[18]But in general, law at sea was very poorly enforced and neutral rights seldom respected. In fact it seems likely that maritime war fell little short of piracy so far as the capture of private property was concerned.[19]Thus Polycrates of Samos wishing to establish his supremacy on the Aegean built up a navy which swept the sea, robbing friend and foe alike,[20]and so "at the commencement of the Peloponnesian war the Lacedaemonians captured not only the trading vessels of their enemy the Athenians, and also of their allies, but even those of neutral states and all who were taken on board were treated as enemies and indiscriminately slaughtered."[21]

The Aegean sea was a nest of pirates and the profession was looked upon not only as a legitimate means of emolument but was even considered glorious.[22]They were frequently engaged in war as mercenaries. Thus Psammilicha was reinforced by Carian and Ionian pirates,[23]Euripidas and Aelotian employed pirates as mercenaries in 218 B.C.[24]and Polyxenidas the commander of the fleet of Antiocha entered into an alliance with Nicander, a pirate chief who contributed five decked ships in 190 B.C.[25]In such cases of course the state surrendered all right in controlling the distribution of prize money or of itself sharing in the proceeds.

The Rhodian sea laws[26]are said to have been effective in the third century B.C. in temporarily freeing the sea of Pirates[27]and giving opportunity for considerable commercial advancement. Unfortunately these laws have been almost entirely lost so we do not know what measures were taken for disposing of the captured pirate vessels or other enemy goods that might be considered prize.

It seems that the theory of the states control over prize applied in naval as in land war but that in practice government authority at no period of ancient Greek history extended very effectively over the seas for any considerable length of time and that private property was for the most part at the tender mercies of the pirates.

Chapter I, Part 1.

[1]Grotius, Hugo.De Jure Belli et Pacis. 3 Vols. Original and English translation from the Latin by William Whewell. Cambridge, England, lib. iii, c vi, p. 104.

[2]Op. cit. iii, 123.

[3]Heroditus, ix, 79, quoted in Grotius, op. cit. iii, 123.

[4]Plutarch, Lysander, 442 a, quoted ibid.

[5]Xenophon, de Lacedemonia Republica, c 13, n 11, quoted ibid.

[6]Virgil, Aeneid, ix, 268, quoted ibid.

[7]Homer, Iliad, v, 331, quoted ibid.

[8]Euripides, Rhes. v, 182, quoted ibid.

[9]Pliny, xxxiii, 3, quoted ibid.

[10]Coleman Phillipson. The International Law and Custom of Ancient Greece and Rome. 2 Vols. London, 1911.

[11]Heroditus, ix, 80, 81, quoted in Phillipson, op. cit. ii, 237.

[12]Thucidides, iii, 114; Heroditus, viii, 11, 123; Plutarch, Alcibiades, 7; Plato, Synp. 220; quoted in Plato op. cit. ii, 237.

[13]Hershey, Amos S. The History of International Relations During Antiquity and the Middle Ages. American Journal of International Law, 1911, v. 915.

[14]Homer, Iliad, lib ii, quoted in Blackstone, Commentaries, i, 259.

[15]Fustel de Coulanges, The Ancient City, English Translation from French by Willard Small, 10th Edition, Boston, 1901, p. 293.

[16]Wheaton, History of the Law of Nations, New York, 1845, p. 5. Walker, History of the Law of Nations, Cambridge, Eng., 1899, p. 41.

[17]"To a king or commander nothing is unjust which is useful." Thucydides, History, lib vi, quoted in Wheaton, History, p. 5; see also Hershey, op. cit. American Journal of International Law, v. 915.

[18]Phillipson, op. cit. ii, 381.

[19]Walker, History, p. 41. Walker, Science of International Law, Cambridge, England, 1893, p. 60.

[20]G. W. Botsford, A History of Greece, New York, 1912, p. 75.

[21]Thucydides, ii, 67, quoted in Phillipson, op. cit. ii, 382.

[22]Homer, Iliad, i, 367; vi, 58; ix, 588, xxii. 64; Odyssey, xv, 385; 426; xvii, 425; quoted in Phillipson, op. cit. 370.

[23]Heroditus, ii, 152, quoted in Phillipson, op. cit. ii, 371.

[24]Polybius, iv, 68, quoted ibid.

[25]Livy, xxxvii, 11, quoted ibid.

[26]The so-called Rhodian laws of the middle ages, the earliest manuscript of which apparently dates from 1478, have no connection with the ancient sea laws of Rhodes. Of the latter only the law of Jettison survives, see Robert D. Benedict, The Historical Position of the Rhodian Law, Yale Law Journal, 1908-09, xviii, 223; Hershey, op. cit. Amer. Jour. of International Law, 1911, v. 917; Walter Ashburner, the Rhodian Sea Law, Oxford, 1909.

[27]Hershey, op. cit. American Journal of International Law, 1911, v. 915; Phillipson, op. cit. ii, 373.

From the Greek theories the Roman legal mind developed elaborate rules for the apportionment of booty captured in land war. The Romans clearly recognized that the prizes taken in public war belong to the state.

"Whatever is captured from the enemy, the law directs to be public property: so that not only private persons are not the owners of it, but even the general is not. The Questor takes it, sells it and carries the money to the public account." says Dionysius of Halicarnassus.[1]This might seem to imply that no individual could enjoy a share of the proceeds but such does not seem to have been the case. It simply means that the title to all captures vested in the state which could if it saw fit transfer a share of the booty to the captors or others. Grotius[2]gives definite rules employed by the Romans in dividing the produce of such booty. His statements are based on the writings of Livy and other Latin writers.

In dividing booty money account was taken of the pay of the soldiers and of special bravery.[3]Special reward was usually made to the general.[4]Sometimes a portion was given to others who had contributed to the expenses of the war.[5]Often a portion was dedicated to the Gods[6]although this practice was much less common among them than among the Greeks. It was considered a particularly worthy act on the part of a generalif he refused to accept any share of the booty as was sometimes done by those seeking state honors.[7]The whole system was closely circumscribed by law. A penalty attached to the crime of peculation, the private secreting of booty without submitting it to the public.[8]Roman orators dilated at length on the infamy of peculation.[9]

These rules applied only to soldiers of the regular army engaged in regular war. In irregular warfare soldiers were often given the privilege of committing indiscriminate pillage in which case the booty belonged to the captor.[10]This practice however was greatly deplored by many writers.[11]Captures made by allies not under the immediate commands of Roman generals or by subjects carrying on war without pay at their own risk accrued to the sole benefit of the captors.[12]

As to captures at sea, the Jurisconsult Valneius Maecianus said, "I am master of the earth, but the law is mistress of the sea."[13]Grotius has nothing to say directly of maritime captures among the Romans, though he implies that the same laws applied to them as to land captures. A case of naval prize arose during the Punic war in the capture of the Carthaginian woman, Saphonoba, from a vessel at sea. The Roman general considered that all prize of war belonged to the Roman people and was to be divided by the senate, so ordered that she be sent to Rome. The lady settled the matter by taking poison.[14]

The Romans were a land people. They very much disliked naval warfare,[15]consequently they never supported much of a fleet.[16]True, on meeting a naval power like Carthage they created a very effective navy on short notice[17]but whenever they could they avoided naval warfare. Piracy was extremely prevalent on the Mediterranean during Roman times. Often Roman generals made use of pirate vessels both for transport and to harass the enemy.[18]In these cases of course the state put up no claim to control prizes. Later, pirates became so powerful that Rome saw the necessity of crushing them. Servilius actively engaged in suppressing piracy and he felt bound to render full account to Rome of all captures.[19]Pompey finally crushed the pirates in the battle of Coracesum B.C. 67 and completely drove them out of the Mediterranean.[20]The Romans recognized the right of reprisal and according to Chancellor Kent they required the carriage of a commission by vessels engaged in that business.[21]

Roman law, then, recognized that captures were the property of the state, that apportionment should be governed by law, that in special cases the state could waive all right in favor of the immediate captors.

Rome's policy was directed toward the securing of order through law. Discipline and authority were the fundamental principles on which her greatness was founded. Her military policy was to subordinate individuals to the general good, to make each soldier a cog in the wheel working in harmony with the whole. Individual freedom of action was curtailed not inthe interests of humanity but in the interests of the efficiency of the general army. Her rules of prize distribution are completely in harmony with these principles. No private right of aggrandizement in war existed, all was controlled by the state. The state was the combatant in war, the state bore the losses and to the state accrued the gains. State authority overshadowed every act of the individual.[22]

In practical effects the Roman laws of prize money probably accomplished the purpose for which they were intended, that is, they lessened the chance for insubordination among the soldiers. Under them soldiers remained at their post of duty instead of going on journeys of pillage. It made war regular and public instead of guerrilla and private.

Humanitarian effects were slight or none at all. Though not impelled by the hope of personal gain the Roman soldiers seem to have captured, devastated and destroyed without compunction. Wheaton says of Roman warfare, "Victory made even the sacred things of the enemy profane, confiscated all his property, moveable and immoveable, public and private, doomed him and his posterity to perpetual slavery and dragged his kings and generals at the chariot wheels of the conqueror thus depressing an enemy in his spirit and pride of mind, the only consolation he has left when his strength and power are annihilated."[23]

Though Roman warfare was cruel, it was regulated by law. Roman civilization recognized the supremacy of the state, thepublic character of regular war, and of immediate interest to the present subject, the exclusive control by the state of all military captures.

Chapter I, Part 2.

[1]Antiquita Roma, vii, 63, quoted in Grotius, op. cit. iii, 124.

[2]Grotius, op. cit. iii, 127.

[3]Livy, xiv, 34, 40, 43, quoted in Grotius, op. cit. iii, 129.

[4]Heroditus, ix, 80, quoted in Grotius, op. cit. iii, 130.

[5]Dionysius of Halicarnassus, v, 47, quoted, in Grotius, op. cit. iii, 134.

[6]Livy, v, 23, quoted in Grotius, op. cit. iii, 135; Phillipson, op. cit. ii, 238.

[7]Apud Dionysius of Halicarnassus Excerpt, p. 714, quoted in Grotius, op. cit. iii, 131.

[8]Polybius, History, x, 16, quoted in Grotius, op. cit. iii, 138.

[9]Cato, xi, 18; Cicero, Verres, iv, 41, quoted in Grotius, op. cit. iii, 137, 138.

[10]Livy, xliv, 45; xlv, 34, quoted in Grotius, op. cit. iii, 133.

[11]Livy, v, 20, quoted in Grotius, op. cit. iii, 134.

[12]Cald. Cons. 85, quoted in Grotius, op. cit. iii, 140.

[13]Digest, xiv, 3, quoted in Charles Calvo,Le Droit International Theorique et Pratique, 5th Edition, 6 Vols., Paris, 1896, i, 15.

[14]Livy, xxx, 14; 11 Appian Pun. 28, quoted in W. E. Heitland, The Roman Republic, 3 Vols., Cambridge, England, 1909, sec. 385.

[15]Heitland, op. cit. secs. 246, 436; Phillipson, op. cit. ii, 369.

[16]Heitland, op. cit. sec. 161.

[17]Heitland, op. cit. sec. 245.

[18]Heitland, op. cit. secs. 949, 960.

[19]Cicero, Verres, i, 56, 57, quoted in Heitland, op. cit. sec. 965.

[20]Heitland, op. cit. sec. 993.

[21]Kent, Commentaries, Holmes, Editor, 12th Edition, 4 Vols., Boston, 1893, i, 95.

[22]de Coulanges, op. cit. 293.

[23]Wheaton, History of the Law of Nations, p. 25.

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