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ment of this duty is provided for by the rule recognized in the United States whereby all prizes, enemy as well as neutral, are submitted to prize courts before final appropriation. The general principles of prize court jurisdiction and procedure have been discussed under the law of neutrality" and it should again be emphasized that the whole institution of prize courts is primarily intended for the benefit of neutrals. Enemies benefit from them only incidentally. The rules applied in distinguishing enemy and neutral property and vessels has also been discussed as has the attitude of the United States on the question of total immunity of enemy private property from seizure during war."

In the case of neutral vessels and goods, immunity from capture is the general rule. Capture can only be justified in certain exceptional cases, as breach of blockade, carriage of contraband, unneutral service, constructive enemy character, or necessity. With enemy property and vessels the case is reversed. Here the rule is liability to capture. Cases of immunity are exceptional. Under the two treaties which the United States has concluded, insuring the total immunity of enemy private property during war, this would not be true, and if this principle were adopted as a general rule, a condition which the United States has advocated since the foundation of the Republic and notably at the second Hague conference, enemy private property and merchant vessels at sea would be in practically the same condition as neutral vessels and property are today. This condition, however, does not exist, and by international law cases in which enemy property at sea is immune, are exceptions to the general rule of liability.

The cases in which enemy property at sea is immune from capture are defined in the Declaration of Paris and the Hague conventions and may be classified as (1) vessels in port on the outbreak of war, (2) vessels leaving their last port before the outbreak of war, (3) postal correspondence, (4) coast fishing vessels, (5) enemy property under the neutral fiag, (6) "vessels charged with a religious, scientific or philanthropic mission," (7) hospital ships bearing the red cross flag when they are commissioned and authorized by the belligerent government. In the

Supra p. 187 et seq.

"Supra, pp. 158, 166.

"Treaties with Prussia, 1785-1799, art. 23, Malloy, p. 1484; Italy, 1871, art. 12, p. 973.

last two cases public as well as private owned vessels are immune from capture."

The immunities granted in these cases were provided for in Stockton's Naval War code of 1900 to 1904.10 In the proclamation and instructions11 on the outbreak of the Spanish war, days of grace on departure with immunity until they reached a home port were granted to enemy vessels, and the immunity of vessels bound for the United States which left their last port before the outbreak of war was also prescribed, the rule being applied in several cases.12 In the case of the Paquete Habana,13 arising during the Spanish war, the court held that coast fishing vessels of the enemy were not liable to capture, before the enunciation of this doctrine by any international convention.

The immunity of enemy property under the neutral flag is a doctrine which has been supported by the political department of the government since its foundation, but not given legal recognition until the war of 1898, when the president's proclamation required adhesion to the rules of the Declaration of Paris in this respect. In many of the early treaties the doctrine of "free ships, free goods" had been specified as binding between the contracting parties.15

Although there have not been a great many cases before the prize courts in which these immunities have been applied, in the few cases that have come up the court has followed the rules laid down in treaties and executive orders. The general principle requiring the adjudication of all prizes operates as a guarantee to the enforcement of this duty of abstention.

'See Hague Conventions, 1907, x, arts. 1-3, vi, xi.

10 Stockton's Naval War Code, 1900-1904, arts. 13-15, 21-22.

11 Proclamation, Apr. 26, 1898, 30 stat. 1770; Instructions, June 20, 1898, art. 7, For. Rel. 1898, 780.

12The Buena Ventura, 175 U. S. 384, was released under the proclamation. The Panama, 176, U. S. 535, although in the terms of the exemption, was condemned as an armed vessel forming part of the enemy auxiliary navy, a case provided for in the proclamation. The Pedro, 175 U. S. 354, although her ultimate destination was the United States, was condemned because her immediate voyage was to an enemy port. The doctrine of continuous voyage was here denied, where it would have operated to the advantage of an enemy vessel. Four justices dissented from this opinion but it was followed by the court in the case of the Guido, 175 U. S. 382. See Moore's Digest, 7;453-9.

13 The Paquete Habana, 175 U. S. 677, (1899).

14 Proclamation, Apr. 26, 1898, 30 stat. 1770.

15 This principle has been embodied in thirty-one treaties, with twentyone countries. Seven are now (1915) in force. Supra p. 164, note 106.

Were the international prize court established as provided by the Hague conventions of 1907, cases involving these immunities would all be subject to its jurisdiction.16 By its signature of this convention and its consent to its ratification, the United States signified its willingness to add this further sanction to the enforcement of these duties.

ENEMY PRIVATE PROPERTY ON LAND

According to international law, enemy private property on land is exempt from capture." Consequently, the government is under an obligation to abstain from such captures. Exceptions to this rule are recognized in the case of necessity, which justifies military requisitions. The expense of adminstering territory under military government may also be reimbursed by money contributions of the inhabitants, which thus resemble taxes. In both of these cases the enforcement of the rule is in the hands of military authorities, and is discussed in considering the obligations of prevention in relation to the land forces.18

Ordinarily the sanction of military law, controlling the armed forces, alone guarantees this obligation of abstention. There is no possibility of recourse to judicial authority as is provided in the case of naval captures. Prize courts have repeatedly asserted that their jurisdiction does not extend to land captures." The reason for this difference is to be found in the fact that in naval war, questions of neutral rights are apt to be involved; whereas this is not so true in land captures. Property on enemy territory is prima facie enemy property. The enemy's privilege of a judicial adjudication of his property captured at sea arises from the probabliity of its association with neutral property.

It is not, however, impossible that all property seized on 16 The international prize court is given jurisdiction over enemy property when the case involves enemy cargo in a neutral ship, and when a claim is based on an allegation that the seizure has been effected in violation of the provisions of a convention or of an enactment of the belligerent captor. Hague conventions, 1907, xii, art. 3. See Charles, Treaties, 1913, p. 250.

17 United States courts have stated this principle, see Brown vs. U. S., 8 Cranch 110, (1814); U. S. vs. 1756 shares of capital stock, 5 Blatch. 231; U. S. vs. Klein, 13 Wall, 128, 137; Lamar vs. Brown, 92 U. S. 194, Moore's Digest, 7;288-289.

18Infra. p. 210.

19 Brown. vs. U. S., 8 Cranch. 110, (1814); Kirk vs. Lynde, 106 U. S. 315, 317; Oakes vs. U. S., 174 U. S. 778, 786, (1899).

land should be subject to legal adjudication before confiscation. The British prize courts have in fact been given jurisdiction of such seizures.20 In the United States the abandoned and captured property act of 1863"1 furnished a somewhat similar remedy during the Civil war. By this act, a sum equal to the value of captured property was to be deposited in the treasury, and persons claiming ownership were permitted to prosecute claims for such property in the court of claims. Property intended for use in waging war such as arms, ordinance ships, steamboats, forage, military supplies, etc., were excluded, and persons who had given "aid or comfort" to the rebellion were denied this privilege.

Such privileges as this have not been granted in other wars. This act probably was due to the fact that being a civil war, many inhabitants of the seat of war were loyal to the union cause. The act was to reimburse such persons, rather than enemies. As a matter of fact, by an act of 186422 it was specifically declared that the jurisdiction of the court of claims should not extend to general claims “against the United States growing out of the destruction or appropriation of or damage to property by the army or navy" during the Civil war.

In general therefore the United States does not provide for the enforcement by means of judicial adjudication of its duty to abstain from capturing enemy private property on land. The duty is enforced indirectly by measures for preventing illegal seizures by armed forces.

20 Statute 1840, 3-4 Vict. c. 65, sec. 22, The Banda and Kirwee Booty L. R. I Adm. and Ecc. 109 (1866) Pitt Cobbett cases and opinions on international law, 2 vols., London, 1913, 2;201.

21 Act March 12, 1863, 12 stat. 820; Moore's Digest, 7;295-300. Cases under this act, see Young vs. U. S. 97 U. S. 39, (1877); Briggs vs. U. S., 143 U. S. 346, (1892); Vance vs. U. S., 30 Ct. Cl., 252. British subjects enjoy the benefits of this act, U. S. vs. O'Keefe, 11 Wall. 178; Carlisle vs. U. S. 16 Wall 147.

22 Act, July 4, 1864, 13 stat. 381.

CHAPTER XV.

OBLIGATIONS OF PREVENTION

INTRODUCTORY

It is for the most part through the enforcement of the duty of prevention, as against its armed representatives, that the state fulfills its duties of abstention; and it is largely through the municipal sanctions thus enforced that the law of war is observed at all. The belligerent's duties toward neutrals tend to be observed because of the sanctions of international law. Neutrals can bring threats of force and demands for reparation which the belligerent usually finds it convenient to heed. But in the law of war the enemy is already using all the force he can. The treaty of peace definitely concludes any further demand for reparation. What therefore is the force which causes obedience to the law of war? There is none, except that of self-interest. Reciprocity benefits both belligerents. Each knows that a breach of law on its part will bring about a retaliatory breach by the other. If this process were continued, war rights would soon pass all limits, the law of war would disappear and savagery would prevail. It is only in so far as the principle of reciprocal benefit acts that the law is obeyed.

The state must therefore take extreme care that its armed representatives do not unwittingly break the law of war, for the minute the breach is made, a progressive march of retaliation and counter-retaliation will have begun which, although contrary to the self-interest of both, neither can stop. We will therefore discuss the laws of the United States designed to prevent infractions of the law of war by its (1) land forces and (2) naval forces. As a third division we will consider the laws of like effect in reference to (3) the civil population.

ACTS BY LAND FORCES

Military law, military government, and martial law are three terms relating to the legal position of land forces in time of war which should be distinguished. Martial law is the law in force in portions of the home territory of a belligerent near

1On these distinctions see Ex Parte Milligan, 4 Wall. 2; W. E. Birkheimer, Military Government and Martial Law, 2nd. ed. London, 1904; p. 21, 372, G. B. Davis, Treatise on Military Law, p. 6.

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