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have ever esteemed conquest a lawful title; and that title has seldom been disputed, unless where it was derived from a war not only unjust in itself, but even destitute of any plausible pretext." (1)

indemnifica

These opinions of Vattel seem to embody the essence Seizure of of the arguments regarding the right which a bellige- property for rent has to the property of his enemy. A nation has a tion justifiable. complete right, by the law of nature, to take possession of the property of an enemy, as far as the purposes of equitable satisfaction or the necessities of just warfare require; so as to obtain, in the well known phrase, "indemnity for the past, and security for the future." But no one State has a right to prescribe to another independent State, limits to the extent of its claims to satisfaction, so as to say how far one belligerent is justified in seizing upon the property of another. Thus, as a fact, the law, as declared by Grotius, allowing unlimited right over the property of enemies, still applies as a general rule, where the rule is not excepted from by the usage of nations. Spoliation in a wrong cause can never be consistent with the law of nature; but, by the positive Law of Nations, acquisitions resulting from unjust conquest are regarded as the legitimate property of the captor. Flagrant injustice may induce one State to deny the rightful possession of property seized by another State in an unjust war; but this is a case to be settled by negotiation or hostilities, not by any tribunal engaged in considering property acquired by conquest. Spoliation in an unjust war is a most fearful violation of the laws of God; but it is a question of moral responsibility, not of human jurisdiction, as far as concerns independent States. Property captured in war must be regarded as having equally changed owners, whether the war be just or unjust, whether the

(1) Droit des Gens, liv. III. ch. XIII. § 193, 194, 195.

A victorious

State.

seizure be exorbitant or be merely adequate for indemnity; and the general rule authorizing such acquisitions is subject to no human limitation, excepting such as have been introduced by custom, and now form part of the positive Law of Nations.

But the obligations arising from this latter source, State takes the the positive Law of Nations, have interfered to alter the place of the sovereign of a laws of war, as they once existed, in a great many parvanquished ticulars. Formerly the lands of the individual subjects of a conquered State were confiscated by the victors; many such instances will immediately present themselves to the memory of the classical student, or to the reader of modern history, in the examples of the conquest of the Gauls by the Franks, and of England by the Normans. But, at the present day, landed property, and immovable property in general, is not liable to confiscation from the effects of war. A conquering State enters upon the rights of the sovereign of a vanquished State; national domain and national revenues pass to the victor; but the immovable property of private individuals is, by the positive Law of Nations, not liable to be seized by the rights of war. This moderation is a great improvement upon the ancient custom; it mitigates the evils of war without interfering with its results; it was a change introduced as civilization advanced; it has been for many centuries the constant usage of European warfare, and is now firmly established as part of the European Law of Nations. (1)

Laws of war regarding movable

property.

With regard to movable property, the law is not so moderate in its treatment; movable property is still considered as liable to seizure; but, by the practice of

(1) Vattel, Droit des Gens, liv. 282.
III. ch. XIII. § 200. De Martens,
§ 256.

Précis, liv. VIII. ch. IV. § 280,

Klüber, Par. II. tit. II.

.

modern warfare, this also is frequently respected, the right of seizing movable property being relinquished for the levy of requisitions, or forced contributions, of different things needed by the invading army; and, as long as these are supplied, all other movable property is respected by the hostile force, and cannot be taken unless paid for, excepting such cases as where towns are taken by assault, or where retaliation is used for the conduct of the enemy. Requisitions, in a hostile country, have advantages over a system of irregular booty, both to the invading army and to the possessors of property in the hostile country; to the invading army, because greater regularity in its supplies may be relied on when irregular plunder is not allowed; and to the possessors of property, because they will only have to supply what the army requires, and not be exposed to the additional evils of the cupidity and license of marauding soldiery. (1)*

naval warfare.

Such have been the modifications introduced by the Different positive Laws of Nations, and now constituting the practice in European usage in wars by land. But in maritime warfare no such moderation has ever been practised. By the treaty between the United States and Prussia, in 1785, made in accordance with what Franklin called his "quaker notions," it was agreed that the merchant ships of the contracting parties should not be liable to capture by each other's cruisers during war; but this article was not renewed in the treaty between the same powers in 1799. With this single exception the practice of States has been always unvaried, in subjecting

(1) Vattel, liv. III. ch. IX. § 165. Moser, Beyträge, &c. in

Kriegs-Zeiten, III. 256.

[* The same arguments also recommend the payment for requisitions in ready money, and not merely by vouchers to be presented to the government of the invaded State.-ED.]

When property is con

sidered to have passed to the captor.

to confiscation the property of enemies captured at sea. This is partly occasioned by the nature of maritime warfare, of which the object is in a great measure the destruction of the commerce of the enemy; and it may partly result from the connexion between piracy and maritime warfare which formerly existed. But, whatever may be the cause of the practice, such is the fact: the most rigorous construction of the rights of war has always been applied to the private property of enemies found at sea; the positive Law of Nations being determined on this point by the constant and uniform practice of all States in all ages. (1)*

With regard to the time when property may be considered as having passed from its original owner to the captor, the opinions of jurists are not uniform, nor do

(1) De Martens, Précis, liv. VIII. ch. IV. § 281.

[The possibility of exempting maritime commerce from the operations of naval warfare has been a good deal discussed of late years, and the United States made the acceptance of such an exemption a condition sine quâ non of their giving in their adhesion to the Declaration of the Treaty of Paris of 1856. An interesting and candid résumé of the recent controversy on the subject is given by M. Ortolan in his "Règles Internationales," (lib. III. chap. II.). He cites the authority of Napoléon I. in favour of the expediency of adopting the new doctrine. He sums up his own objections to that doctrine under two heads: (1) that the mercantile marine is an instrument of naval force ever ready to come to the aid of the general naval forces, and on this ground must be treated as part of these; (2) that the enormous advantage which a free maritime commerce would afford a belligerent would render illusory the effects of the naval war. M. Ortolan, nevertheless, suggests that some improvements in the direction of favouring private rights might be introduced, as by returning to the private owner some share of the prize. M. Ortolan also traces the history of the gradual exemption of fishing-boats from the operations of a naval war. A similar exemption from capture has been accorded to vessels of discovery, and contended for, or accorded, in cases of shipwreck on a belligerent coast, of forced refuge through stress of weather or want of provisions, and of entering a belligerent port from ignorance of the war. Halleck, ch. XX. sub fin.—ED.]

all States conform to the same practice. With regard to any seizure of landed property in war, there is little difficulty; as the Law of Nations does not recognise any right in a victor to confiscate immovable property, the original owner re-enters upon the enjoyment of his right as soon as the hostile occupation ceases; and no transfer to a third party holds good, because the victor never possessed the power to alienate. With regard to movable property captured on land, the general usage is to consider the property as being vested in the captor after a possession of twenty-four hours. No uniform rule exists regarding maritime captures. Grotius says, that prizes made at sea are regarded as having passed to the captor when they have been taken into port or to the captor's fleet; but adds, that, by the later practice of nations, "recenciori jure gentium," twenty-four hours' possession was regarded as transferring the property. (1) Bynkershoek disallows the claim of transference by a possession for twenty-four hours; (2) and says, that to transfer the property nothing is necessary besides real and complete possession; but as it is difficult to say when such real and complete possession has taken place, the property should be conveyed to some place of security, such as the captor's fleet, or to a port of his own, or a friendly country. (3) Vattel also gives this rule of infra præsidia; he says that "at sea a ship taken by the enemy may be retaken and delivered by other ships of her own party as long as she has not been carried into some port or into the midst of a fleet: her fate is not decided, nor is the owner's property irrecoverably lost, until the ship be in a place of safety with regard to the enemy who has taken her, and entirely in his power; "(4) but he adds, that different States have different regulations on this subject. In

(1) De Jure, lib. III. c. VI.
(2) Quæst. Jur. Pub. lib. I.

C. IV.

(3) Id. c. v.

(4) Droit des Gens, liv. III. ch. XIII. § 196.

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