[CHAPTER I. AMONG THE ANCIENTS.]
[PART 1. GREECE.]
a. Land War.
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 lots as 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 the leaders 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.