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.

These two principles, that prizes do not belong to the original captor but should be divided, and that the state may appropriate prizes seem to constitute the Greek theory on the subject. It is unlikely that they were the subject of definite laws but recognition was given to them if at all by command of the general on the occasion of a particular war, as is indicated in the cases cited.

The basis for this theory, apparently far ahead of its time may be found in the well developed feeling of political obligation among the Greeks. They appear to have recognized public war as a state affair, consequently individual soldiers acted only in the capacity of agents of the state in regular military operations.[15] Their captures accrued not to themselves but to the state for whom they acted.

Of the actual effect of such a prize law among the Greeks it is difficult to make a statement. It might be supposed that the incentive toward the capture of booty would be decreased by such a rule yet so far as we can learn of Greek warfare there was no limit to the atrocities committed either on persons or property.[16] The Greek soldier felt justified in going to any extreme in acting for his state.[17]

b. Maritime War.

Grotius has nothing to say of prize laws in maritime warfare. Phillipson believes that the Greeks made prize of enemy vessels and also of neutral vessels for breach of blockade. He gives evidence which indicates that theoretically, confiscable goods went to the state, and that rudimentary prize courts were held. Thus he says:

"In most Greek states there was something of the nature of a prize court, to which appeals could be made by those who held they had been contrary to the law of nations deprived of their property. In Athens, the assembly of the people frequently took cognizance of such claims. Thus two trierarchs were accused of appropriating the proceeds of a cargo from Naucrates on the ground that if confiscable it ought to have gone to the State. An assembly was therefore held and the people voted for a hearing on the question."[18] But in general, law at sea was very poorly enforced and neutral rights seldom respected. In fact it seems likely that maritime war fell little short of piracy so far as the capture of private property was concerned.[19] Thus Polycrates of Samos wishing to establish his supremacy on the Aegean built up a navy which swept the sea, robbing friend and foe alike,[20] and so "at the commencement of the Peloponnesian war the Lacedaemonians captured not only the trading vessels of their enemy the Athenians, and also of their allies, but even those of neutral states and all who were taken on board were treated as enemies and indiscriminately slaughtered."[21]

The Aegean sea was a nest of pirates and the profession was looked upon not only as a legitimate means of emolument but was even considered glorious.[22] They were frequently engaged in war as mercenaries. Thus Psammilicha was reinforced by Carian and Ionian pirates,[23] Euripidas and Aelotian employed pirates as mercenaries in 218 B.C.[24] and Polyxenidas the commander of the fleet of Antiocha entered into an alliance with Nicander, a pirate chief who contributed five decked ships in 190 B.C.[25] In such cases of course the state surrendered all right in controlling the distribution of prize money or of itself sharing in the proceeds.

The Rhodian sea laws[26] are said to have been effective in the third century B.C. in temporarily freeing the sea of Pirates[27] and giving opportunity for considerable commercial advancement. Unfortunately these laws have been almost entirely lost so we do not know what measures were taken for disposing of the captured pirate vessels or other enemy goods that might be considered prize.

It seems that the theory of the states control over prize applied in naval as in land war but that in practice government authority at no period of ancient Greek history extended very effectively over the seas for any considerable length of time and that private property was for the most part at the tender mercies of the pirates.

_NOTES._