Commentary on the Law of Prize and Booty. Hugo Grotius
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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