§ 12. Private property on land is now, as a general rule of war, exempt from seizure or confiscation; and this general exemption extends even to cases of absolute and unqualified conquest. Even where the conquest of a country is confirmed by the unconditional relinquishment of sovereignty by the former owner, there can be no general or partial transmutation of private property, in virtue of any rights of conquest. That which belonged to the Government of the vanquished, passes to the victorious State, which also takes the place of the former sovereign, in respect to the right of eminent domain; but private rights, and private property, both movable and immovable, are, in general, unaffected by the operations of a war, whether such operations be limited to mere military occupation, or extend to complete conquest. Some modern text-writers - Hautefeuille, for example,-contend for the ancient rule, that private property on land is subject to seizure and confiscation. They are undoubtedly correct with respect to the general abstract right, as deduced from the law of nature and ancient practice; but while the general right continues, modern usage, and the opinions of modern text-writers of the highest authority, have limited this right by establishing the rule of general exemption. The private property of a sovereign is considered in the same light as that of any other individual.1

§ 13. But it must also be remembered that there are many exceptions to this rule, or rather, that the rule itself is not, by any means, absolute or universal.2 The general theory of war is, as heretofore stated, that all private property may be taken by the conqueror, and such was the ancient practice.

the town itself as much as possible. Even then they shelled one of the towers of the Cathedral, on which the French had established an observatory. (Edwards, Germans in France.)

1 Puffendorf, de Jure Nat. et Gent., lib. viii. ch. vi. § 20; Heffter, Droit International, § 133; Martens, Précis du Droit des Gens, § 282; Hautefeuille, Des Nations Neutres, tit. vii. ch. i.

6

2 The Franco-Austrian campaign, 1859, affords an example of the manner in which war may be carried on without causing ruin to the surrounding country. Preserve,' said Napoleon III., when addressing his troops, that strict discipline which is the honour of the army. Hereforget it not-there are no other enemies than those who fight against you in battle;' and well was that order obeyed. On the other hand, during the American Civil War, General Sherman on his memorable march to the sea through the Gulf States in 1864, seized private property as booty, and devastated the whole country through which he passed. This act doubtlessly accelerated peace in a very material degree.

cases.

But the modern usage is, not to touch private property on land, without making compensation, except in certain specified These exceptions may be stated under three general heads: Ist, confiscations or seizures by way of penalty for military offences; 2nd, forced contributions for the support of the invading armies, or as an indemnity for the expenses of maintaining order, and affording protection to the conquered inhabitants; and 3rd, property taken on the field of battle, or in storming a fortress or town.

§ 14. In the first place, we may seize upon private property, by way of penalty for the illegal acts of individuals, or of the community to which they belong. Thus, if an individual be guilty of conduct in violation of the laws of war, we may seize and confiscate the private property of the offender. So also, if the offence attach itself to a particular community or town, all the individuals of that community or town are liable to punishment, and we may either seize upon their property, or levy upon them a retaliatory contribution, by way of penalty. Where, however, we can discover and secure the individuals so offending, it is more just to inflict the punishment upon them only; but it is a general law of war, that communities are accountable for the acts of their individual members. This makes it the interest of all to discover the guilty persons, and to deliver them up to justice. But if these individuals are not given up, or cannot be discovered, it is usual to impose a contribution upon the civil authorities of the place where the offence is committed, and these authorities raise the amount of the contribution by a tax levied upon their constituents.1

15. In the second place we have a right to make the enemy's country contribute to the expenses of the war. Troops, in the enemy's country, may be subsisted either by

1 In 1870 the Germans levied contributions in money on many towns of France, the principle adopted by them, apparently, being that towns offering resistance, or throwing obstacles in the way of the invaders, were heavily fined, while peaceful towns were held exempt. Thus Dieppe was fined 2.000/. for a few shots fired from a French steamer at some Prussians. Nevertheless, some towns which had offered resistance, but which had been severely bombarded, such as Strasburg and Péronne, were spared. (Edwards, Germansin France.) There is no doubt but that the Germans were justified in levying a fine on Dieppe, but the principle of punishing an invaded town for its resistance (if the conclusion of the above writer be correct) is inconsistent with the rules of civilisation. See chap. xx.,

§ 21.

regular magazines, by forced requisitions, or by authorised pillage. It is not always politic, or even possible, to provide regular magazines for the entire supplies of an army during the active operations of a campaign. Where this cannot be done, the general is obliged either to resort to military requisitions, or to entrust their subsistence to the troops themselves. The inevitable consequences of the latter system are universal pillage, and a total relaxation of discipline; the loss of private property, and the violation of individual rights, are usually followed by the massacre of straggling parties, and the ordinary peaceful and non-combatant inhabitants are converted into bitter and implacable enemies. The system is, therefore, regarded as both impolitic and unjust, and is coming into general disuse among the most civilised nations—at least for the support of the main army. In case of small detachments, where great rapidity of motion is requisite, it sometimes becomes necessary for the troops to procure their subsistence wherever they can. In such a case, the seizure of private property becomes a necessary consequence of the military operations, and is, therefore, unavoidable. Other cases, of similar character, might be mentioned. But even in most of these special and extreme cases, provisions might be made for subsequently compensating the owners for the loss of their property.'

§ 16. In the invasion of the Spanish peninsula, Napoleon had to choose between methodical operations, with provisions carried in the train of his army, or purchased of the inhabitants, and regularly paid for, and irregular warfare, supplying his troops by forced requisitions and pillage. The former was adopted for some of the main armies, moving on prescribed lines, and the latter for the more active masses. Soult and Suchet, in favourable parts of the country, succeeded for a considerable length of time, in procuring regular supplies for their armies, but most of the French generals obtained subsistence for their troops mainly by pillage. Napoleon, at St. Helena, attributed most of his disasters to the animosities thus created among the Spanish people.

1 Jomini, Tableau Analytique, ch. ii. sec. 1, art xiii.; Halleck, Elem. Mil. Art and Science, ch. iv. pp. 90, 91; Scott, General Orders, No. 358, November 25, 1847 ; Ibid. No. 395, December 31, 1847.

2 Napoleon, Memoirs of St. Helena.

On the principle that wars should be made to pay for themselves

17. Upon the invasion of Mexico by the armies of the United States, in 1846, the commanding generals were, at first, instructed to abstain from appropriating private property to the public use without purchase, at a fair price; but a principle which Vattel supports-Buonaparte tried to save France from fresh taxes by making large requisitions on the enemy. In 1806, after the battle of Jena, he caused Prussia to pay upwards of a hundred million francs. After Suchet's conquest of Valencia in 1812 that country was forced to pay fifty thousand francs, together with an additional two hundred million francs for the use of the army.

The Duke of Wellington, on the other hand, was adverse to requisitions, both when he was in the Peninsula and when he was in France, although they could not always be avoided. After the battle of Waterloo his army received their provisions and forage by requisition on the country, but in every case upon regular receipts by the commissioners attached to his troops; this was done not with the view of paying for what had been received, but in order to avoid abuse and plunder, and to restrict the requisition to food and forage only—both strict necessaries. (Wellington's Dispatches, 1815.)

Although requisitions are permissible, they are demoralising, and leave a sting in the memory of the inhabitants who have been forced to contribute. During the Franco-German war, 1870, the French sometimes took away the municipal papers of a town in order that, should the town fall into the hands of the enemy, the latter might not be able to ascertain the taxation, or, consequently, be able to know how large a requisition the town might bear. (Russell, Diary of last War.) The Prussians on entering French towns or villages billeted their troops on the inhabitants, writing in chalk on the door of each house the number of soldiers to be provided for within. When there was time for doing things in an orderly manner, requisitions were addressed to the mayor, and by him given out to private individuals; it was for the person executing the requisitions to obtain payment from the mayor, who generally did pay in whole or in part out of the local funds, looking, on behalf of his commune, to the State for future indemnification. Requisitions were issued for every imaginable thing. Horseshoes were constantly the object of requisitions, and on the great lines of march blacksmiths were everywhere impressed into the Prussian service.

According to Bluntschli, invaders are entitled to claim from the invaded, lodging, food, and drink, fuel, clothing and carriage. The Prussians did not, as a rule, call upon the enemy to provide clothing for them, although a quantity of cloth was requisitioned at Elbœuf, Louviers, and other towns; boots and socks were sometimes requisitioned, and late in the campaign, horses were very frequently demanded. In theory nothing was taken for which a receipt was not given, but this rule often broke down in practice.

An idea got abroad that the Germans would, on the conclusion of peace, redeem the requisition papers. This supposition may have had its origin in the fact that during the invasion of 1792 the requisitions issued by the Duke of Brunswick were in the name of Louis XVI., and not, as during the above war, in that of German Generals, or of Commanders of detached corps. These officials alone possessed the right to issue requisitions. (Edwards, Germans in France.)

The requisitions, made daily, by the Germans, while in occupation of Versailles, were as follows:-120,000 loaves of bread, 80,000 pounds of meat, 90,000 pounds of oats, 27,000 pounds of rice, 7,000 pounds of roasted coffee, 4,000 pounds of salt, 20,000 litres of wine, and 500,000

subsequently, instructions of a severer character were issued. It was said by the American Secretary of War (Mr. Marcy) that an invading army had the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war. He further observed, that upon the liberal principles of civilised warfare, either of three modes might be pursued to obtain supplies from the enemy: first, to purchase them in open market at such prices as the inhabitants of the country might choose to exact; second, to pay the owners a fair price, without regard to what they themselves might demand, on account of the enhanced value resulting from the presence of a foreign army; and, third, to cigars. Other requisitions were made as required. In theory none was to be made unless the demand was in writing, but the French complain that verbal requisitions were often made. Further, they say that although every written demand should have borne the visa of the German General commanding the place, the visa was not placed on by him, but at his office, by under-officers or soldiers. These granted it to the first comer, and thereby a great disadvantage was caused to the invaded, for every refusal to comply with a requisition became, not a refusal to the bearer, but a refusal to the Commander-in-Chief. (Delerot, Versailles.) Requisitions were also levied by the French troops on their own countrymen. Edwards (Germans in France) gives an example of this. Five places in the department of the Orne claimed 11,000 francs for requisitions levied on them by francs-tireurs in a regular manner, and 16,000 francs for requisitions levied in an 'irregular' manner.

The Brussels Conference, 1874, declares : — - Art. 40. As private property should be respected, the enemy will demand from parishes (communes) on the inhabitants, only such payments and services as are connected with the necessities of war generally acknowledged in proportion to the resources of the country, and which do not imply, with regard to the inhabitants, the obligation of taking part in the operations of war against their own country. Art. 41. The enemy, in levying contributions, whether as equivalents for taxes (vide Art. 5), or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and assessment of the taxes in force in the occupied territory. The civil authorities of the legal Government will afford their assistance if they have remained in office. Contributions can be imposed only on the order and on the responsibility of the General-in-Chief, or of the superior civil authority established by the enemy in the occupied territory. For every contribution a receipt shall be given to the person furnishing it. Art. 42. Requisitions shall be made only by the authority of the commandant of the locality occupied. For every requisition an indemnity shall be granted, or a receipt given.

In a march of twenty-two miles in an enemy's territory in the Isle de la Passe, the British, under Captain Willoughby, abstained from pillaging the least article of property. Even the sugar and coffee laid aside for exportation, and usually considered as legitimate objects of seizure, remained untouched; and the invaders when they quitted the shore for their ship, left behind them not merely a high character for gallantry but also for rigid adherence to promises. James, Nav. Hist., vol. v. 278.