CHAPTER XIX. ENEMY'S PROPERTY ON LAND. CONTENTS. - 1. General right of war as to enemy's property 2. Rules different for different kinds of property-23. The real property of a belligerent state—§ 4. Title to such property acquired during war-85. Who may become purchasers 6. Purchase by neutral governments-7. Movable property28. Documentary evidence of debts-29. Public archives - 10. Public libraries and works of art 11. Civil structures and monuments - § 12. Private property on land-213. Exceptions to rule of exemption — § 14. Penalty for illegal acts-15. Military contributions-16. War in the Spanish peninsula - 17. Mexican war- 18. Remarks on military pillage 19. Property taken on field of battle or in a siege-320. All booty primarily belongs to the state-21. Municipal laws respecting its distribution-22. Useless destruction of enemy's property- 23. Laying waste a country-24. Rule of moderation - 25. Questions of booty - 26. Ancient courts of chivalry-27. English law respecting booty. § 1. It has already been stated that war, when duly declared, or officially recognized, makes legal enemies of all the individual members of the hostile states; that it also extends to property, and gives to one belligerent the right to deprive the other of everything which might add to his strength, and enable him to carry on hostilities. But this general right is subject to numerous modifications and limitations which have been introduced by custom and the positive law of nations. Thus, although, by the extreme right of war, all property of an enemy is deemed hostile and subject to seizure, it by no means follows that all such property is subject to appropriation or condemnation, for the positive law of nations. distinguishes not only between the property of the state and that of its individual subjects, but also between that of different classes of subjects, and between different kinds of property of the same subject; and particular rules, derived from usage and the practice of nations, have been established with respect to each. We shall confine our remarks, in this chapter, to enemy's property on land. (Grotius, De Jur. Bel. ac Pac., lib. 3, cap. 4, §8; Vattel, Droit des Gens, liv. 3, ch. 9, § 163; Wheaton, Elem. Int. Law, pt. 4, ch. 2, §5; Polson, Law of Nations, sec. 6; Wildman, Int. Law, vol. 2, p. 9; Manning, Law of Nations, pp. 132, et seq.; Bello, Derecho Internacional, pt. 2, cap. 4, §1; Merlin, Repertoire, verb. Declaration de Guerre; Heffter, Droit International, §§ 130, 131; Hautefeuille Des Nations Neutres, tit. 7, ch. 1.) § 2. It will be hereafter shown that a firm possession is sufficient to establish the captor's title to personal or movable property captured on land, but that a different rule applies to immovables or real property; that a belligerent, who makes himself master of the provinces, towns, public lands, buildings, etc., of an enemy, has a perfect right to their possession and use; but that his ownership or dominion is not complete till his conquest is confirmed, in some one of the modes prescribed by the rules of international jurisprudence. In other words, the possession of real property by a belligerent gives him a right to its use and to its products, but not a completely valid and indefeasible title, with full power of alienation. The original owner is still entitled to the benefit of postliminy. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 5, 11; Kent, Com. on Am. Law, vol. 1, pp. 110, 111; Heffter, Droit International, §§ 130, 131; Martens, Precis du Droit des Gens, §§ 280, 282; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12.) §3. Some have asserted that the right of a belligerent to the property of an enemy, should be limited to moveables, or such things as may be conveyed or carried away. It is argued that war being but a temporary relation of nations, their practices during such a condition of things should be regulated and limited by the temporary character of that relation; that, as real property must remain after the termination of the war, and may revert to its former owner by the jus postliminii, it can properly never be alienated by the conqueror so long as the war continues. The force of this argument is not readily perceived. The necessity of self-preservation, and the right to punish an enemy, and to deprive him of the means of injuring us, by converting those means to our own use against him, lie at the foundation of the rule, and constitute the right of a belligerent to enemy's property of any kind; and it is difficult to see why this right should be restricted to a particular species of property-to cattle, horses, money, ships, goods-and not include lands or immovables. We think, therefore, that by the just rules of war, the conqueror has the same right to use or alienate the public domain of the conquered or displaced government, as he has to use or alienate its moveable property. This principle, we believe to be recognized and sustained by the general law of nations. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 5, 11; Vattel, Droit des Gens, liv. 3, ch. 9, § 13; Kluber, Droit des Gens, Mod., §§ 250-253; Martens, Precis du Droit des Gens, §§ 279-282; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 6; Phillimore, On Int. Law, vol. 3, § 90; Heffter, Droit International, §§ 130–133, 186; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12; Isambert, Annales, Pol. et Dip., introd., p. 115; Kampts, Literatur des Valkerrecht, § 307; Wildman, Int. Law, vol. 2, p. 9; Manning, Law of Nations, p. 277.) §4. It must not, however, be inferred that the title which the purchaser acquires to the two species of property is the same. On the contrary, it is essentially different. The purchaser of moveable property captured on land, acquires a perfect title as soon as the property is in the firm possession of the captor; and the title to a maritime capture is complete when carried infra praesidia, or at least after the sentence of a competent court of prize. But the purchase of any portion of the national domain of a conquered country, takes it at the risk of being evicted by the original sovereign owner, if he should be restored to the possession of his dominions. But if such restoration should not take place, and the title of the conqueror should be confirmed by some one of the modes recognized by international law, the title of the pur chaser is then made perfect. It was before, a good and valid title against all except the original sovereign owner, under the jus postlimini, which right is completely extinguished by a confirmation of the conquest. The conqueror cannot, of course, deny his own act, and attempt the recovery of property which he has already alienated, on the ground that the formal cession or confirmation gives him a new title. He sold the title which he acquired by the rights of conquest; a treaty of peace gives him noot her title; it simply confirms that which he already had, by depriving the former sovereign owner of the benefit of postliminy, and thus extinguishing an older adverse outstanding title. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 11-17; Grotius, de Jur Bel ac Pac., lib. 3, cap. 6, § 4; cap. 9, § 13; Vattel, Droit des Gens, liv. 3, ch. 13, §§ 197-200, 210, 212; Kluber, Droit des Gens Mod., §§ 256-258; Martens, Precis du Droit des Gens, § 282; Phillimore, On Int. Law, vol. 3, § 542; Vide, Post, chapters xxxii,. xxxiii, xxxv.) § 5. A question here arises as to who may become the purchasers of immovable property alienated by the conqueror during military occupation, and prior to the confirmation of the conquest. The object of such alienation is, as already stated, to weaken the enemy, and to supply ourselves with the means of carrying on the war. It is evident, therefore, that the subjects of the conquered or displaced government cannot, consistently with their duties to their own sovereign, become such purchasers. They have no right to voluntarily supply us with means for carrying on war against the government to which they owe allegiance. By making such purchases they not only risk the loss of their purchase money on the restoration of the original sovereign to his dominions, but they expose themselves to be punished by their own government for voluntarily furnishing the enemy with the means of prolonging the war. If, however, they are inhabitants of the conquered territory, and their allegiance should be transferred to the new government by the confirmation of the conquest, their title would thereby be made valid, and they themselves be freed from the risk of punishment for having paid the purchase money. Subjects of the conqueror may become purchasers with no other risk than that of being evicted by the original owner on the restoration or recapture of the real property so alienated. The same may be said of foreigners, or the subjects of a neutral state. Such purchase might, however, in some cases, be deemed a hostile act, and not within the limits of legitimate trade, and not consistent with the character of neutrality, and, therefore, attach to the purchaser the character of an enemy to the displaced or conquered power, in so much as pecuniary assistance is rendered by the purchase money paid. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 17; Kent, Com. on Am. Law, vol. 1, p. 110; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 7; De Felice, note 140 to tome 5 of Burlamaqui.) § 6. Whether a neutral may make such purchases and not become a party to the war, will depend upon the character of the assistance which, by the purchase, is afforded to the conquerer, to the injury of the opposing belligerent. It is certain that if he should attempt to possess himself, during the continuance of the war, of the lands so purchased, or to maintain the title so acquired, after the restoration or recapture of the property so alienated, he would assume a hostile attitude toward the original sovereign owner and make himself a party to the war. "A third party," says Vattel, "cannot safely purchase a conquered town or province, till the sovereign, from whom it was taken, has renounced it by a treaty of peace, or has been irretrievably subdued, or has lost his sovereignty; for, while the war continues,— whilst the sovereign has still hopes of recovering his possessions by arms,-is a neutral prince to come and deprive him of that opportunity, by purchasing that town or province from the conqueror? The original proprietor cannot forfeit his rights by the act of a third power; and if the purchaser be determined to maintain his purchase, he will find himself involved in the war. Thus, the King of Prussia became a party with the enemies of Sweden, by receiving Stettin from the hands of the King of Poland and the Czar, under the title of sequestration. But when a sovereign has, by a definitive treaty of peace, ceded a country to a conqueror, he has relinquished all the right which he had to it; and it would be absurd for him to be allowed to demand the restitution from a subsequent conquerer who wrests it from the former, or |