fortresses, and the pillage and murder of their inhabitants. And yet it would be difficult to find in the history of the most barbarous ages, scenes of drunkenness, lust, rapine, plunder, cruelty, murder, and ferocity equal to those which followed the captures of Ciudad Rodrigo, Badajos, and San Sebastian. The only excuse offered for these horrible atrocities was: 'The soldiers were not to be controlled!' Napier, the English historian of that war, says, in plain terms, 'That excuse will not suffice; for a young colonel of energetic spirit did constrain his men at Ciudad Rodrigo, to keep their ranks for a long time after the disorder commenced; but as no previous general measures had been taken, and no organised efforts made by higher authorities, the men were finally carried away in the increasing tumult.' 'It is said,' remarks the same author, that no soldier can be restrained after storming a town, and a British soldier least of all, because he is brutish and insensible of honour! Shame on such calumnies! * * Undoubtedly, if soldiers hear and read that it is impossible to restrain their violence, they will not be restrained. But let the plunder of a town, after an assault, be expressly made criminal by the articles of war, with a due punishment attached; let it be constantly impressed upon the troops that such conduct is as much opposed to military honour and discipline, as it is to morality; * * let instantaneous punishment -death if necessary-be inflicted for such offences. With such regulations, the storming of towns would not produce more military disorders than the gaining of battles in the field.'1

§ 24. Fugitives and deserters, says Vattel, found by the victor among his enemies, are guilty of a crime against him, and he has an undoubted right to punish them, and even to put them to death. They are not properly considered as military enemies, nor can they claim to be treated as such; they are perfidious citizens, who have committed an offence against the State, and their enlistment with the enemy cannot obliterate that character, nor exempt them from the punishment they have deserved. They are not protected by any compact of war, as a truce, capitulation, cartel, etc., unless

Napier, Peninsular War, book xxii. chap. ii.; Jomini, Vie Politique et Mil. de Napoléon, chaps. xiv., xvii; Alison,Hist. of Europe, vol. iii. pp. 464, 470; vol. iv. p. 240; Southey, Peninsular War, vol. vi. p. 240; Belmas, Sièges, etc., tome iv. pp. 279, 469, app.; Jones, War in Spain, vol. ii. pp. 64, 76, 80; Thiers, Consulat et l'Empire, tome xiii. pp. 355, 375.

specially and particularly mentioned and provided for. They are not military enemies in the general meaning of that term, nor are they entitled to the rights of ordinary prisoners of war, either under the law of nations, or by the general terms of a special compact or agreement. But when stipulations of amnesty are introduced into such compacts, in such terms as to include such fugitives and deserters, by fair and proper intendment, good faith requires that all promises of this kind be honestly and fairly carried into effect. A violation of such agreements is infamous. Amnesties of this character are very common where the principal war is accompanied with insurrections and civil commotions, involving questions of personal duty and allegiance.'

§ 25. In the operations of a war, the belligerent States not unfrequently adopt the rule of reciprocity, both with respect to the person and property of the enemy. Moreover, the same rule, as will be shown hereafter, is extended to neutrals. There is much justice and good sense in this rule, if confined within proper limits. As already remarked, modern usage has restricted many of the extreme rights of war, or, at least limited their exercise and application. But this usage has not yet assumed the character of a positive law, and a belligerent will sometimes refuse to acknowledge its doctrines as fully established, or its rules as obligatory. In such a case, the opposing belligerent applies the rule of reciprocity, and metes out to his enemy the same measure of justice which he receives from him. Thus, if his enemy releases, on parole, prisoners of war, he does the same; if his enemy levies heavy contributions upon the conquered, he does the same; and if the enemy, exercising the extreme rights of war, seizes and destroys, or converts to his own use, public and private property, he retaliates by measures of the same character.3

1 Vattel, Droit des Gens, liv. iii. ch. viii. § 144; Heffter, Droit International, § 126; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xiv.

The Duke of Wellington writing to Sir H. Wellesley, 1810, says, 'Since I have commanded the troops in this country I have always treated the French officers and soldiers who have been made prisoners with the utmost humanity and attention; and in numerous instances I have saved their lives *** I must do the French the justice to say that our officers and soldiers who fell into their hands have been universally well treated, and in recent instances the wounded prisoners of the British army have been taken care of before the wounded of the French army.'

3 Garden, De la Diplomatie, liv. vi. § 9; the 'Santa Cruz,' i. Rob. Rep.,

§ 26. There is, however, a limit to this rule of reciprocity. If the enemy refuses to shape his conduct by the milder usages of war, and adopts the extreme and rigorous principles of former ages, we may do the same; but if he exceed these extreme rights, and becomes barbarous and cruel in his conduct, we cannot, as a general thing, follow and retort upon his subjects, by treating them in like manner. We cannot go beyond the limits prescribed by international law to the rights of belligerents. Thus, the conduct of Great Britain toward Denmark, in 1807, in condemning Danish vessels as droits of Admiralty, thereby exercising an extreme right of war, justified Denmark in resorting to the corresponding extreme right of sequestrating British debts due from Danish. subjects. So, also, the sequestrating of English debts by France, in 1793, justified England in retaliating by a countervailing measure. Again, the seizure and condemnation of French vessels by Great Britain, in 1803, was an exercise of an ancient and severe rule of war, for which Napoleon retaliated by the exercise of another and still more extreme right, also contrary to the milder rules of modern usage, by seizing all English travellers in French territory.' But suppose an enemy should massacre all prisoners of war, this would not afford a sufficient justification for the opposing belligerent to do the same. Suppose our enemy should use poisoned weapons, or poison springs and food, the rule of reciprocity would not justify us in resorting to the same means of retaliation. A savage enemy might kill alike old men, women, and children, but no civilised power would resort to similar measures of cruelty and barbarism, under the plea that they were justified by the law of retaliation.2

1

1 This was regarded by the British Government as a return to barbarism, who therefore refused to regard the détenus as prisoners lawfully captured. However, in 1811, Mr. Yorke informed the House of Commons that it was the intention of Government that all military and naval prisoners should be first exchanged, and, as there would remain a great surplus of French prisoners, it seemed a dictate of humanity to relieve the détenus by continuing the cartel for them, it being vain to urge the practice of modern warfare on the then French Government.

Wheaton, Elem. Int. Law, pt. iv. ch. i. § 2; Alison, Hist. of Europe, vol. ii. p. 270; Thiers, Consulat et l'Empire, liv. xvii.; Las Cases, Mémoires de Napoléon, vol. vii. pp. 32, 33; Martens, Nouveau Recueil, tome ii. p. 16; Garden, De la Diplomatie, liv. vi. § 9.

96

CHAPTER XXI.

ENEMY'S PROPERTY ON LAND.

1. General right of war as to enemy's property-2. Rules different for different kinds of property-3. The real property of a belligerent State-4. Title to such property acquired during war-5. Who may become purchasers-6. Purchase by neutral Governments-7. Movable property-8. Documentary evidence of debts-9. Public archives -10. Public libraries and works of art-11. Civil structures and monuments-12. Private property on land-13. 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 -20. 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.

§ I. IT has already been stated that war, when duly declared, or officially recognised, 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.'

1 Grotius, De Jur, Bel, ac Pac., lib. iii. cap. iv. § 8; Vattel, Droit des Gens, liv. iii. ch. ix. § 163; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 5;

§ 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.

Polson, Law of Nations, sec. 6; Wildman, Int. Law, vol. ii. p. 9; Manning, Law of Nations, pp. 132, et seq.; Bello, Derecho Internacional, pt. ii. cap. iv. § 1; Merlin, Répertoire, verb. Déclaration de Guerre; Heffter, Droit International, §§ 130, 131; Hautefeuille, Des Nations Neutres, tit. vii. ch. i.; Kent, Com. on Am. Law, vol. i. pp. 110, 111.

According to Grotius, every State has a strict right, on war breaking out between it and another State, to seize the property and the person of anyone belonging to the hostile State, should such property or individual chance to be on the territory of the former. But this harsh rule has been by degrees modified by various treaties, for example, that of Breda between Great Britain and the States General of the Netherlands, allowing the term of six months to the subjects of either party to transport their property; that of Utrecht between Great Britain and France, similar in effect; that of 1766 between Great Britain and Russia, re-enacted in the 12th article of the treaty of commerce between the same parties in 1797; and that of 1795 between Great Britain and the United States, limited to twelve years from the date thereof. But Emerigon and later publicists consider modifying treaties as merely affirming the law of nations. Vattel says, that the sovereign who declares war can neither detain those subjects of the enemy who are within his dominions at the time of the declaration of war, nor their effects, for that by permitting them to enter his territories and continue there he tacitly promised them protection to return. Montesquieu notices that 'the Magna Charta of England forbids the seizing and confiscating, in case of war, the effects of foreign merchants, except by way of reprisals. It is an honour to the English nation that they have made this one of the articles of their liberty' (xx.-c. 14). But this enactment seems to have been restricted to the case of merchants absolutely domiciled in England. (Hale, P.C. 93.)

The 27 Edward III. c. 17, and 4 Henry V. c. 5, followed the spirit of Magna Charta, but in more definite and liberal terms. In 1854, at the commencement of the Crimean war, Lord Clarendon in answer to a deputation of Russian merchants declared that the Government was disposed to respect the persons and property of all Russian subjects residing as merchants in this country, to the full extent promised by the Emperor of Russia towards British subjects, and that all necessary measures would be adopted to enable them to remain unmolested in the quiet prosecution of their business.

In 1870, at the commencement of the Franco-Prussian war, France