Chapter 6

The Acquisition of Territory and Property By Right of Conquest

July 21, 2022

Part 1

Besides the impunity allowed to men for certain actions, which have been mentioned before, there are other consequences and effects, peculiar to the law of nations, attending solemn and formal war. The law of nature indeed authorises our making such acquisitions in a just war, as may be deemed an equivalent for a debt, which cannot otherwise be obtained, or as may inflict a loss upon the aggressor, provided it be within the bounds of reasonable punishment. According to this right, as we find in the fourteenth chapter of Genesis, Abraham devoted to God a tenth part of the spoils, which he had taken from the five kings: and the inspired writer in the seventh chapter of his Epistle to the Hebrews gives the same interpretation of this passage. In the same manner the Greeks too, the Carthaginians, and the Romans, devoted a tenth portion of the spoils of war to their deities. Jacob, in making a particular bequest to Joseph above his brethren, says, “I have given to thee one portion above thy brethren, which I took out of the hand of the Amorite with my sword, and with my bow.” In this335 place, the expression, I TOOK, is used according to the prophetic style, where an event, that will for certain take place, is spoken of in the past time, and an action is here attributed to Jacob, which some of his descendants were to perform, supposing the progenitor and his children to be the same person.

Nor is it upon conjecture alone that such a right is founded, but the divine law giver himself pronounces sentence against a city that has rejected the offers of peace, and afterwards been taken by storm, that he gives all her spoils to the conqueror.

Part 2

According to the law of nations, not only the person, who makes war upon just grounds; but any one whatever, engaged in regular and formal war, becomes absolute proprietor of every thing which he takes from the enemy: so that all nations respect his title, and the title of all, who derive through him their claim to such possessions. Which, as to all foreign relations, constitutes the true idea of dominion. For, as Cyrus, in Xenophon observes, when the city of an enemy is taken, every thing that is taken therein becomes a lawful prize to the conquerors; and Plato, in his treatise on laws asserts the same. Cicero in his speech against Rullus says that Mitylene belonged to the Roman people by the laws of war, and the right of conquest; and, in the first book of his offices, he observes, that some things become the private property of those, who take possession of them, when unoccupied, or of those, who make a conquest of them in war.—Theophilus, in his Greek institutes, calls the one the natural mode of acquisition, and Aristotle denominates the other the natural way of acquisition by the sword, without regarding any other reason, but the bare fact, from which the right arises. Thus Nerva, the son, as Paulus the lawyer relates, said that property arose from natural possession, some traces of which still remain respecting wild animals taken either upon the sea, or upon the land, or birds flying in the air. It is seen also in things taken in war, all which immediately become the property of the first captors. Now things are considered as taken from an enemy, when taken from his subjects.

Thus Dercyllides argues, in Xenophon, that as Pharnabazus was an enemy to the Lacedaemonians, every thing belonging to Mania, who was his subject, might be seized by the laws of war.

Part 3

But in this question upon the rights of war nations have decided, that a person is understood to have made a capture, when he detains a thing in such a manner, that the owner has abandoned all probable hopes of recovering it, or, as Pomponius, speaking on the same subject, says, when a thing has escaped beyond pursuit. This takes place with respect to moveable things in such a manner, that they are said to be taken, when they are carried within the territories of the enemy, or places belonging to him. For a thing is lost in the same manner as it is recovered by postliminium. It is said to be recovered whenever it returns within the territories of its owner’s sovereign, that is, into places, of which he is master. Paulus indeed has expressly said, that a power or state has lost a subject, when he has gone, or been carried out of the territories of that power: and Pomponius defines a prisoner of war to be an enemy, whom the troops of some other belligerent power have taken and carried into one of their own places; for before he is carried into those places, he continues still a subject of the enemy.

The law of nations, in these respects, treated persons and things in the same manner. From whence it is easy to understand, what is meant, when in another place it is said that things taken from an enemy immediately become the lawful prize of the captors, but only upon the condition of those things continuing in their possession for a reasonable and certain time. Consequently it is plain, that ships and other things taken at sea cannot be considered as really the property of the captors, till they have been carried into some of their ports, or to some place where their whole fleet is stationed. For in that case all hope of recovery seems to have vanished. By a late regulation among the European powers, it has been made an established maxim of the law of nations, that captures shall be deemed good and lawful, which have continued in the enemy’s possession for the space of twenty-four hours.

Part 4

Lands are not understood to become a lawful possession and absolute conquest from the moment they are invaded. For although it is true, that an army takes immediate and violent possession of the country which it has invaded, yet that can only be considered as a temporary possession, unaccompanied with any of the rights and consequences alluded to in this work, till it has been ratified and secured by some durable means, by cession, or treaty. For this reason, the land without the gates of337 Rome, where Hannibal encamped, was so far from being judged entirely lost, that it was sold for the same price that it would have been sold for before that period.

Now land will be considered as completely conquered, when it is inclosed or secured by permanent fortifications, so that no other state or sovereign can have free access to it, without first making themselves masters of those fortifications. On this account Flaccus, the Sicilian, assigns no improbable conjecture for the origin of the word territory, because the enemy is DETERRED from entering it. At least there is as much probability in this conjecture, as in that of Varro, who derives it from the word terendo, treading the soil. Frontinus deduces it from terra, the earth, and Pomponius from the TERROR of judicial authority exercised in each country. Xenophon however in his book on tributes, seems to accord with the first of these opinions: for he says, that in time of war the possession of a country is kept by walls, strong holds, and barriers.

Part 5

For anything to become a prize or conquest by the right of war, it must belong to an enemy. For things, within an enemy’s territory, for instance, in any of his towns or garrisons, cannot be acquired as property by the laws of war, if the owners of those things are neither subjects nor confederates of the enemy. It is observed in one of the speeches of Aeschines, that Philip, though at war with the Amphipolitans, could not lawfully take possession of Amphipolis, as a conquest, it being a city, which belonged to the Athenians. For as the enemy is likely to derive no assistance in the war, from things which neither belong to himself, nor to a confederate, no just reason can be assigned for taking them, and the right of making things change their owners by force is of too odious a nature to admit of any extension.

Part 6

The observation usually made, that all things on board an enemy’s ships are to be deemed an enemy’s goods, ought not to be received as a STANDING and ACKNOWLEDGED rule of the law of nations, but only as a maxim, indicating the strong presumption that both goods and vessel belong to the same owner, unless clear proof to the contrary can be brought. The States General of Holland made such a decision in the year 1338, at a time when the war with the Hanse-towns raged with the338 greatest violence, and the decision consequently passed into a law.

Part 7

According to the law of nations it is undoubtedly true, that things taken from an enemy which had been captured by him cannot be claimed by those, to whom they belonged before they were in the enemy’s possession, and who had lost them in war. Because the law of nations assigned them to the enemy by the first capture, and then to the person, who took them from him by the second.

Upon this principle among others, Jephthah defends himself against the Ammonites, because by the laws of war they had lost the land, which they claimed, in the same manner, as another part had been transferred from the Moabites to the Amorites, and from the Amorites to the Hebrews. Thus David too claims and divides as his own, what he himself had taken from the Amalekites, and the Amalekites, before him, from the Philistines.

Titus Largius, as we are informed by Dionysius of Halicarnassus, when the Volscians laid claim to some possessions, which they had formerly held, delivered it as his opinion in the Roman Senate, that “the Romans were the fair and just owners of what they had gained by the right of conquest, nor ought they to be so weak as to abandon the fruits of their valour. For not only the people of that day, but their posterity also had a right to a share of those possessions: so that to abandon them would be treating themselves like enemies.”

Parts 8-9

One great point, which the law of nations designed to establish, was that the effects or possessions of one enemy should be considered by another, as things having no owner.

Things, belonging to no one, became the property of those, who find or take them, both of those, who, like sovereign powers, employ others in such service, and of those, who take them with their own hands.

Thus not only slaves, or the immediate members of a man’s household, but all, who engage themselves, any way, in the service of others, may be said to acquire for their employers all the property, which they take or gain, even in those things, which apparently lie in common to all men, such as pearls, fish, or fowl.

Modestinus has justly said, “that whatever is naturally gained, like a possession, we may acquire through the339 means of any one we chuse to employ,” and, upon the same principle, Paulus observes, that “in every acquisition, the exertion of mind and body must concur; the former purely our own, and the latter, either our own, or that of another. In the same manner possession may be taken for us by an attorney, guardian, or trustee, provided they do it on our account and in our name.” The reason of which is, because one man may naturally be the voluntary instrument of another, with the consent of that other.

So that the distinction made between persons in a servile and free condition, as to the acquisition of property, is a distinction only of the civil law, and applicable to its rules of transferring, acquiring, and confirming, property. And yet the emperor Severus afterwards applied these rules to the natural acquisition of things, not only from motives of utility, but, as he avowed himself, from motives of equity and justice. So that, apart from all authority of the civil law, it is an established maxim that what any one can do for himself, he can do through means of another, and doing such acts by another is the same as doing them himself.