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 the 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.
X. A distinction must be made between actions in war, that are really of a PUBLIC NATURE, and the acts of INDIVIDUALS, occasioned by public war: by the latter, individuals acquire an absolute and direct property, in the things, which they take, and by the former, the state makes those acquisitions. Upon this principle of the law of nations Scipio treated with Masinissa, stating that as it was under the auspices of the Roman people, that Syphax was conquered and taken prisoner, himself, his wife, his kingdom, his territory, his towns, and subjects inhabiting those towns, in short, every thing belonging to him became a lawful prize to the Roman people. In the same manner, Antiochus the Great maintained that Coelo-Syria belonged to Seleucus, and not to Ptolemy, because Seleucus had been the principal in the war, to which Ptolemy had contributed his assistance. In the fifth book of Polybius, there is an account of the matter.
XI. Things immoveable are generally taken by some public act, such as marching an army into the country, or placing garrisons there. So that, as Pomponius has said, "lands taken from the enemy become the property of the state, and form no part of the booty belonging to the individual captors." Thus among the Hebrews and Lacedaemonians, lands that were made a conquest, were divided by lot. The Romans too either retained conquered lands to let them out for rent, sometimes leaving a small portion to the ancient possessor, or divided them among colonists, whom they sent out, or made them tributary; innumerable instances of which we meet with in their histories, their laws, and treaties on the admeasurements of lands.
XII. But things moveable, whether inanimate, or living, are taken either as connected or unconnected with the public service. When unconnected with the public service, they become the property of the individual captors.[62]
Reference may here be made to the remark of Celsus, that "enemy's goods found among us do not belong to the state, but to the prior occupant." By which are meant things found among us at the breaking out of a war. For the same was observed of persons, when, under the same circumstances, they were considered as goods taken.
On this subject there is a remarkable passage in Tryphoninus. "Those persons, says he, who have gone into a foreign country in time of peace, upon the sudden breaking out of war, are made slaves by those, among whom it is their misfortune to be found, being considered as enemies."
XIII. What has been said upon the law of nations, allowing individuals to acquire property by taking it from an enemy, must be understood as meaning the law of nations, prior to the regulations of civil laws upon that point. For the capture of an enemy's goods which at first appear to resemble things in common, which any one may seize, is now, like that of wild birds or beasts, subject to limitation by the laws of every state, being in some cases assigned to the sovereign, and in others, belonging to the captors. It may in some countries, indeed, be introduced as a rule of law for the whole of an enemy's goods found there to be confiscated.
XIV. The case is very different respecting what any one takes in actual engagements. For there every individual bears the character of his country, acting in her stead, and supporting her rights. Through the exertions of those individuals, the state acquires both property and dominion, with a power, according to the principles of civilized countries, of conferring them on whom she pleases.