Right of

country.

our own country a regular sentence of condemnation is deemed necessary to establish the change of ownership. But De Martens and Klüber both assert that, by most of the powers of Europe, property captured at sea is regarded as being transferred by a possession of twentyfour hours. (1)

It remains to consider one more question of the rights laying waste a of a belligerent over the property of his enemy, namely, the right of devastating the enemy's country. That this right exists is indisputable; but it is no less certain, that it has often been fearfully abused in the excesses of warfare. It is clearly a belligerent's right to destroy the enemy's property as far as necessary in making fortifications, or in making approaches to those of a place besieged, or in the indiscriminate destruction that takes place in a bombardment, and similar necessary operations of warfare. It may also be allowable, in extreme cases, to destroy the produce in an enemy's country, so as to render it impossible for his army to subsist there, a measure of which the possible efficacy was shewn by the results of the campaign in Russia in 1812. Thus there are cases in which the destruction

(1) De Martens, Précis, liv. VIII. ch. IV. § 282, b. Klüber,

Droit des Gens, Par. II. tit. II. § 254.

[The more recent rule would seem to be in favour of the sole, but absolute, necessity of condemnation in a Prize Court. See for the progress of this doctrine, Heffter, § 138. It is not necessary that the capturing enemy have actual possession. It is sufficient if the possession be "not absolute but almost indefeasible," as where a ship has struck. (Sir W. Scott in The Franklin, Rob. IV. p. 150.) Where circumstances do not permit property captured at sea to be taken into port, the captor sometimes permits the original owner to "ransom " it. A "ransom bill" is one of those contracts which can only subsist in time of war, though by the 22 Geo. 2, c. 25, s. 1, the making of them was forbidden to English subjects. Circumstances of necessity may still render them allowable even to English captors. (See all the cases enumerated by Phillimore, Part IX. chap. VIII.).]

of the enemy's property may be justifiable, and even imperative; but any single instance in which an injury is committed that is not expressly called for by the circumstances of the case-every unnecessary crueltyis a crime of which the frequent recurrence in warfare affords no palliation. Destruction of the enemy's property is justifiable as far as indispensable for the purposes of warfare, but no further. In the words of Vattel, "all damage done to the enemy, unnecessarily, every act of hostility that does not tend to procure victory and bring the war to a conclusion, is a licentiousness condemned by the law of nature." (1) *

(1) Droit des Gens. liv. III. ch. IX. § 172.

[*The subject of the present chapter has been much discussed of late years, and formed a prominent topic of debate at the Brussels Conference of 1874. Mr. Dana, in his edition of Wheaton (Part IV. chap. 11.) has given a careful and almost exhaustive summary of the existing law, and General Halleck's comments, in his nineteenth chapter on "Enemy's Property on Land," and his thirtythird chapter on the "Rights of Complete Conquest," may both be read with profit for the present purpose. In the Brussels Conference an unsuccessful attempt was made by the German representative to introduce the conception of a sort of "constructive" occupation. It was said, "Generally speaking, the occupying power "is established as soon as the population is disarmed, "or even where the country is traversed by flying "columns. It being impossible to occupy bodily each "and every point of a province, the expression territory must, as regards occupation, be interpreted liberally." Nearly all the other delegates were opposed to this view, and the Conference finally adopted, as the "modified text" of their proposals on this part of the subject, the terms: "A territory is considered as occupied when it is actually

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["placed under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised."

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The general consideration of the subject divides itself into the rights of a belligerent, first (1) in the case of mere occupation, and secondly (2) in that of completed conquest.

(1) In the case of occupation, the captor acquires, if he pleases, an absolute right of ownership in all movables on which he actually lays his hands, and in the profits, products or rents of all immovables. The acquisition of such a right is, however, at the present day, limited by a number of practical restrictions which humane customs have gradually introduced. Thus, it is not the practice to seize state papers, public archives, historical records, judicial and legal documents; and it has been attempted to extend the restriction to public libraries, monuments of art, the property of religious bodies, and the like. Again, the property of private persons is respected, except in the case of (1) forced contributions; (2) confiscations by way of penalties for military offences; and (3) property taken on the field of battle, or in storming a fortress or town. It is well settled that a belligerent invader can acquire no right in "incorporeal things" not annexed to corporeal things, such as debts, and that even the possession of the documentary evidence of them gives him no such right.

(2) In the case of completed conquest, the relations of the belligerents are determined by the treaty of peace, the rule being that the complete title to immovable property can only be accorded by such a treaty, but that when it is made it relates back in time to the moment of the original capture. If the treaty makes no provision about a captured piece of territory, it vests in the possessor.

There is a third situation intermediate between that

[of transitory possession of territory-as in passing through it—and completed conquest: that is, occupation of a large extent of territory during, but only for the purposes of, the war. In this case the invading army steps into the situation of the ordinary government and assumes its civil rights and responsibilities. It acquires a right to sequestrate the taxes, and even to impose fresh ones for the expenses of government, and all civil acts done under the authority of the invader have a claim to recognition by the government on its recovery of the territory.

A good deal of light is thrown on the actual interpretation set by modern armies upon the rules of the Law of Nations in reference to some parts of this subject, by the accounts of the German invasion of France, in 1870 (see "The Germans in France," by Mr. H. Sutherland Edwards, correspondent of the Times, Stanford).

The "Instruction for the Government of the Armies of the United States on the Field," prepared by the late Professor Lieber, a Prussian by birth, and who in his youth served in the Prussian army, and took part in the campaign of 1814 and 1815, are appended to Mr. Sutherland Edward's treatise. They are interesting on many grounds, but especially as furnishing the type of the modern German code of war, and so indicating some of the directions in which the Law of Nations, in reference to war, is moving.

Meaning of

the term.

CHAPTER VI.

OF POSTLIMINIUM.

POSTLIMINIUM is the name given to the law by which persons or property, captured by an enemy, revert to their original owner, when recaptured from the enemy by individuals belonging to the nation from which they were captured. The word is said to be derived from the return within the confines (limina) of a State, which gives occasion to its exercise in certain cases. "Est ergo postliminium," says Grotius, "jus quod nascitur ex reditu in limen, id est fines publicos." (1) If property captured from an enemy be considered as once fully vested in the captor, the captor can afford a good title to such property to whomsoever it may be transferred. In the preceding chapter it has been mentioned that movable property is usually considered as transferred by a possession of twenty-four hours, or by the prize being taken to a place of security. Till such transference has taken place, property recaptured from the enemy reverts to its original possessor, from whom it is not regarded as having passed. "Et vero res," says Grotius, quæ infra præsidia perductæ nondum sunt, quanquam ab hostibus occupatæ, ideo postliminio non egent, quia dominium nondum mutarent ex gentium jure." (2) But, if the property is once vested in the captor, as a general rule, those who recapture it from the enemy have a right to the property, it being enemy's property, and therefore lawful prize. "Ab hostibus capta," says Bynkershoek, "et deinde recuperata,