been given to them by one who had obtained it by the right of conquest. Jurists have generally sustained the supposed decision of the Amphictyons, on the ground of the complete conquest of Thebes, and that Alexander became the universal successor of the conquered State, but not on the ground of the mere capture of the documentary evidence of the debt. The instruments cannot be regarded as the debt, because a creditor may recover his debt, though the instruments be lost or destroyed; they are means, but not the only means of proving that it exists. It is, therefore, held that the mere fact of the conqueror possessing himself of the documents, relating to incorporeal rights, does not give to him the possession of the rights themselves; and as his rights, as derived from military force, are simply those of possession, it is not competent for him to bestow upon, or transfer to another, what he cannot physically take possession of himself.1

$9. There is one species of movable property belonging to a belligerent State which is exempt, not only from plunder and destruction, but also from capture and conversion, viz.: State papers, public archives, historical records, judicial and legal documents, land titles, etc., etc. While the enemy is in possession of a town or province, he has a right to hold such papers and records, and to use them in regulating the government of his conquest; but if this conquest is recovered by the original owner during the war, or surrendered to him by the treaty of peace, they should be returned to the authorities from whom they were taken, or to their successors. Such documents adhere to the Government of the place or territory to which they belong, and should always be transferred with it. None but a barbarous and uncivilised enemy would ever think of destroying or withholding them. The reasons of this rule are manifest. Their destruction would not operate to promote, in any respect, the object of the war, but, on the contrary, would produce an animosity. and irritation which would extend beyond the war. It would inflict an unnecessary injury upon the conquered without

1

Quintilian, Inst. Orat. lib. v. cap. x.; Puffendorf, de Jur. Nat. et. Gent., lib. viii. cap. vi. § 23; Pfeiffer, Das Recht der Kriegseroberung, pp. 165-180; Brumleger, Diss. de Occupatione Bellica, p. 38; Phillimore, On Int. Law, vol. iii. §§ 561, 562; Heffter, Droit International, § 134; Schweikart, Napoleon und der Kur, pp. 74, 82; Tittman, Ueber den Bund der Amp., p. 135.

any benefit to the conqueror. Moreover, such archives, records, and papers, often constitute the basis and evidence of private property, and their destruction would be a useless destruction of private property; in other words, it would be an injury done in war beyond the necessity of war, and therefore, illegal, barbarous, and cruel. The same reasons apply to carrying them off and withholding them from their proper owners and legitimate use.'

§ 10. Some have contended that the same rule applies to public libraries and to all monuments of art and models of taste. But there is an obvious distinction in the two cases. No belligerent would be justifiable in destroying temples, tombs, statues, paintings, or other works of art (except so far as their destruction may be the accidental or necessary result of military operations). But, may he not seize and appropriate to his own use such works of genius and taste as belong to the hostile State, and are of a movable character? This was done by the French armies in the wars of conquest which followed the revolution of 1789. The practice was condemned by the English writers of that age, but this condemnation seemed rather the result of national prejudice than sound reasoning. The acquisitions of the Parisian galleries and museums from the conquest of Italy were generally obtained by means of treaty stipulations, or forced contributions levied by Napoleon on the Italian princes. They are equally condemned by the English historians. It should be remembered that but few of the masterpieces taken from Italy were in their original places, or in the possession of their original owners. We need hardly mention the Apollo Belvidere, the Dying Gladiator, the Venus, the Laocoon, the Bronze Horses, etc. Major Henry Lee, an American writer of great ability, discusses this question in his 'Life of Napoleon,' and deems these forced contributions as not only justifiable by the laws of war, but as highly creditable to the conqueror, as adding grace and refinement to the warfare, and as reflecting lustre on the French arms, by harmonising the rudeness of military fame with the softer glories of taste and imagination. It is proper to remark, however, that other distinguished and impartial writers dissent from the forego

1 Real, Science du Gouvernement, tome v. ch. ii.; Leiber, Political Ethica, p. vii. § 25; Bello, Derecho Internacional, pt. ii. cap. iv. § 6.

ing opinion, and regard this species of military contribution as an abuse of the power of conquest, and contrary to the usages of modern civilised warfare. On the invasion of France, in 1815, the pictures, statues, and other monuments of art, collected from other countries, as spoils of war, or acquired under treaties, were seized and distributed among the allies. In the debate in the British House of Commons, February 20th, 1816, Sir Samuel Romilly, speaking incidentally of this proceeding, stated, that it was not true that the works of art, deposited in the museum of the Louvre, had all been carried away as the spoils of war; many, and the most valuable of them, had become the property of France, by express treaty stipulations; and it was no answer to say, that these treaties had been made necessary by unjust aggressions and unprincipled wars, because there would be an end of all faith between nations, if treaties were to be held not to be binding, because the wars out of which they arose were unjust, especially as there could be no competent judge to decide upon the justice of the war, but the nation itself. By whom, too, was it that this supposed act of justice, and this “great moral lesson," as it was called, had been read? By the very Powers who had, at different times, abetted France in these, her unjust wars! Among other articles carried from Paris, under the pretence of restoring them to their rightful owners, were the celebrated Corinthian Horses which had been brought from Venice; but how strange an act of justice was this to give them back their statues, but not to restore to them those far more valuable possessions, their territory and their republic, which were, at the same time, wrested from the Venetians? But the reason of this was obvious: the city and territory of Venice had been transferred to Austria by the treaty of Campo Formio, but the horses had remained the trophy of France; and Austria, whilst she was thus hypocritically reading this moral lesson to nations, not only quietly retained the rich and unjust spoils she had got, but restored these splendid works of art, not to Venice, which had been despoiled of them, the ancient, independent, republican Venice, but to Austrian Venice, -to that country which, in defiance of all the principles which she pretended to be acting on, she still retained as a part of her own dominions.' On an examination of all that has been said and written on this subject, and weighing all the circumstances connected

with the formation and spoliation of the rich museum of the Louvre, we think the impartial judge must conclude, either that such works of art are legitimate trophies of war, or, that the conduct of the allied Powers, in 1815, was in direct violation of the law of nations. It is impossible to avoid one or the other conclusion.1

§ II. But whatever may be the decision of the question respecting the right of the conqueror to seize or levy upon such works of art and taste, belonging to the hostile State, as come under the denomination of movable or personal property, it is the modern usage, and one which has acquired the force of law, that such works cannot be wantonly, or unnecessarily, destroyed, and that all structures of a civil character, all public edifices, devoted to civil purposes only, all temples

1 Assuming that these objects of art were seized by Buonaparte, contrary to the law of nations, it is not so clear that the allied Powers violated that law in restoring the same objects to those people to whom they formed a proud inheritance. The objects were not the fruit of French industry, nor, on the above assumption, were they rightly the property of the French nation. The allied armies entered Paris under a military convention (July 3, 1815) which they had concluded with officers of the existing Government. Article II of that convention determines that, 'Les propriétés publiques, à l'exception de celles qui ont rapport à la guerre, soit qu'elles appartiennent au Gouvernement, soit qu'elles dépendent de l'autorité municipale, seront respectées, et les Puissances alliées n'interviendront en aucune manière dans leur administration et gestion.' The Duke of Wellington says (Disp., July 1815), 'I positively deny that this article referred at all to the museums or galleries of pictures.' The French commissioners in the original draft had proposed to provide for this description of property, but Prince Blucher would not consent to it, as he said there were pictures in the gallery which had been taken from Prussia. It was finally agreed between all parties that the question of the museums and objects of art should be reserved for the decision of the allied monarchs when they should arrive in Paris. The Duke of Wellington refers to this; writing to Blucher to prevent the destruction of the Bridge of Jena, contemplated by the latter, he says, 'Considering the bridge as a monument, I beg leave to observe that its immediate destruction is inconsistent with the promise made to the commissioners, during the negotiations of the convention, viz. that the monuments, museums, &c., should be reserved for the decision of the allied sovereigns.' Evidently the commissioners considered that the allied army had a right to the contents of the museum, and they made an attempt to save them by an article in the convention. The claim of the allies, through the rejection of the article, was broadly advanced. No works of native industry were demanded or seized by them. It was not a question of the allied Powers being at war with France. Acting as the police of Europe, they caused restoration of certain works of art that had been acquired contrary to international law. There is an obvious difference between despoiling the traveller, and searching the thief who has despoiled him. But who is to distinguish the thief from the captor? That is a grave difficulty, and one evidently felt by Sir Samuel Romilly.

of religion, monuments of art, and repositories of science, are to be exempt from the operations of war. If the conqueror,' says Kent, 'makes war upon monuments of art and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world.' As examples under this head, we may refer to the conduct of the British forces, in 1814, in destroying the capitol, president's house, and other civil public buildings, and the naval monument at Washington,' and that of Blucher, in 1815, in destroying the ornamental trees of Paris, and planning 2 the destruction of the Bridge of Jena, and the Pillar of Austerlitz.3

1 It is to be regretted that this event affords an example of the violation of two principles of the laws of war :-I. That private or non-military buildings be respected. 2. That the efforts of commanders be employed to lessen the calamities of warfare, and that the exertions of belligerents be not directed against unoffending individuals. The naval arsenal, and a house (from whence the British troops were fired upon, after they were supposed to be in quiet possession of the city) were destroyed, and such destruction is justifiable, but the destruction of the civil public buildings can only be defended (if at all) on the ground of reprisal; the Americans in the middle of December had set fire to a town in Canada, and had thereby driven the inhabitants into the open country amidst all the severities of a Canadian winter; moreover, on another occasion, when York, the capital of Upper Canada, was in their occupation, they had burnt the public buildings and taken possession of the private property of the governor.

? The demolition of the Bridge of Jena was stopped by order of the Emperor Alexander, after the Duke of Wellington had in vain interposed.

* Polson, Law of Nations, sec. 6; Kent, Com. on Am. Law, vol. i. p. 93; American State Papers, vol. iii. pp. 693, 694; Hansard, Parliamentary Debates, vol. xxx. pp. 526, 527; Alison, Hist. of Europe, vol. iv. p. 544; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xii.

For other examples concerning structures of a civil character, we may mention that, in 1799, General Brune declared to the Duke of York that it would be contrary to the laws of war for the latter to destroy the dykes in Holland and inundate that country, if such act would not be beneficial to his own forces or detrimental to those of the enemy.

Again, in 1815, the British soldiers were forbidden to cut the trees which formed the avenues in the Bois de Boulogne, or even to tie their horses to them. (Wellington, Dispatches.)

But in 1870, the Prussians considering that the operations of a siege could not fail to occupy some weeks, essayed the plan of 'simple bombardment' on Strasburg, a rich and populous city, with a feeble garrison; knowing that it would have to defend itself on the ramparts in open batteries, and they thought that such bombardment might force the inhabitants to induce the Commandant to surrender. A bombardment was kept up relentlessly for two days, during which time the famous Library and Picture Gallery and other public buildings were destroyed. The roof of the Cathedral was burnt, and the cross on the tower struck by a shell. But as this bombardment did not have the expected result, the Prussians commenced the regular siege operations, and thereupon spared