Chapter XLIII. HOW THE SPOIL OF BATTLE IS TO BE SHARED NOW to another question. I ask, next, how, according to the civil laws, the things won in battle should be disposed of. The first enquiry to be made is with regard to the person who has gained them by arms. But it is a subtle business to understand in what cases and in what wars these laws hold good. For if a war is waged with the command and consent of the prince who has power to order and declare just war, then, by my faith, I believe that it is simple truth that they do hold good. But suppose a baron makes just war against another, and carries it on well and justly to defend himself and to preserve his lands-in which case it cannot fail to be called just war, because self-defence is allowed by all the laws in the world-now if he, in defending his land, imprison his opponent, does he become lord of his opponent's person ? In truth, he does not, but he may very well guard and detain him until he has opportunity to present him to the sovereign lord, who may give judgment on him. This is the intention of our masters.

But suppose this same baron imprisons his enemy in a place where he possesses high and low justice, and where he has power to pronounce judgment on malefactors, and has been accustomed so to do, as a lord having regalian rights ; I ask if in such case he or his judge may pronounce judgment. Indeed, it would seem that since he has found his enemy over-running, pillaging, and robbing his lands, and killing his men, he may do justice on him through his judge, even though his enemy be a greater lord and of greater estate than himself ; for in this case, where the jurisdiction exists by reason of crime and offence committed, the prisoner, of good right, falls under his jurisdiction. And if it be asked how he can be judge in his own cause, I would reply in two ways. First, in the case stated above, he, in defending his land, has imprisoned his enemy by his own authority, and may keep him and judge him, by privilege of defence. The second argument of defence is that such a thing can be done by permission of law and by authority of decree ; so that he cannot offend, since law gives him licence ; for if a man attack me I can do to him, in defending myself, what he intended to do to me, for this is moderation and measure of reasonable defence.

Now suppose, however, that the captor is acting in self-defence, but, in the place where he makes the capture, has no jurisdiction whatever. In this case, can he imprison his captive ? I reply that he cannot, for he may not possess a prison, or make one, without licence of the sovereign lord. This is the intent of our masters.

And if, in defending himself and his goods, he were to imprison his enemy, he would pass beyond measure of due defence, by making a prison and usurping the jurisdiction of the lordship of his sovereign lord. This, in my view, is the pronouncement of our sovereign masters. Still, if a man possessing no jurisdiction were assailed in his house or on the road, and took his assailant prisoner, without delivering him thereupon to the lord of the territory in which the capture was made, I do not believe that, according to law, he should merit any punishment ; for a clerk might in such case imprison such a person in order to recover his goods and other things.

Now let us return to our question concerning goods gained in war. In truth, the law on the matter is involved and by no means clear, and expressed opinion is doubtful. According to one law it is thought that the chattels a man wins should be his, but another law says that if a man comes into possession of chattels in war, he must deliver them to the duke of the battle. For my part I say that what a man gains from his enemies belongs to hint, if we bear in mind that previously it belonged to his enemies, who have lost their lordship over it ; but it does not belong to the captor to the extent that he is not obliged to hand it over to the duke of the battle ; and the duke should share the spoils out among his men, to each according to his valour.