There was a custom somewhat like this among the Hebrews who always placed the crown of the vanquished king upon the head of the conqueror, and assigned to him every thing that was taken, belonging to the royal household. We read of the same conduct in Charles the great, who, upon conquering the Hungarians, gave up the private property as plunder to the soldiers, reserving for the royal use all the public treasures.
Some things indeed are too inconsiderable to be made public property. It is a generally received maxim for such things to belong to the individual captors.[64]
This was the practice in the ancient times of the Roman republic. A privilege not unlike this is sometimes given to seamen, who serve for pay. It is what the French call spoils, or pillage, including all wearing apparel, and all gold and silver under the value of ten crowns.
On this point different customs prevail in different countries. In Spain sometimes a fifth, and sometimes a third was allowed to the soldiers, and at others half was reserved for the crown. On some occasions, a seventh or tenth part was allowed to the general, and the rest belonged to the captors, except ships of war, which belong entirely to the crown.—Sometimes a division was made in proportion to the hazard and expence: which was the case among the Italians, where the third part of the prize was assigned to the owner of the victorious vessel, another third to those who had merchandise on board, and the remaining third to the combatants.
In some cases it happens that private adventurers are not allowed the whole of their captures, a certain portion of which must go to the state or to those, who have received a grant of such prizes from the state. Thus in Spain, if in time of war ships are fitted out by private persons, one part of the captures, which they make belongs to the crown, and another to the Lord High Admiral. So likewise in France, and Holland, the tenth part of a prize belonged to the Admiral, a fifth also being previously deducted for the use of the state. But by land it is customary upon the taking of towns, and in battles, for every one to keep the prizes which he takes. But in excursions, every thing taken becomes the common stock of all engaged, being afterwards divided amongst them according to their respective ranks.
XXV. As a consequence deducible from the above positions, it may be observed, that if a people not engaged in war be made mediators in a doubtful matter respecting things captured in war, the cause must be adjudged in favour of him, who has on his side the laws and customs of the country, which he has espoused. But if no such right can be proved, the prize must be adjudged to the state, rather than to the individual captor.—The maxim indeed of Quintilian can never be admitted, that the laws of war can never be enforced in matters, that may be decided by judicial authority; and that, on the other hand, whatever has been gained by arms can be maintained by force of arms alone.
XXVI. It was observed in a former part of this chapter, that things, NOT BELONGING to an enemy, cannot be taken, although found with him. For this is neither consonant to natural justice, nor introduced by the law of nations. But if in those things the enemy had any right connected with possession, such as the right of pledge, retention or service, that would not obstruct the power of the captors.
It is a disputed point, both as to persons and things, whether they can be lawfully taken in the territory of a power at war with neither of the belligerents. In regard ONLY to the law of nations, as far as it allows us to kill an enemy wherever he is found, the PLACE has nothing to do with the question. But considering the rights of the sovereign, to whom that territory belongs, he undoubtedly has a right to forbid the seizure of persons, or the capture of things within his own dominions: and may demand satisfaction for the violation of that right. In the same manner, though beasts, that are wild by nature, become the property of those, who take them, still an owner may forbid any one to commit a trespass upon his lands in order to take them.