CHAPTER LXIV.

HOSTILITIES AGAINST PROPERTY.

ARTICLE 835. What property may be seized.

836. What the belligerent may appropriate, and for what end. 837. Destroying means of communication.

838. Destroying facilities of navigation.

839. Ravaging or laying waste enemy's country.

840. Property exempt from acts of hostilities.

841. Property exempt not to be sold or carried away.

842. Use of and title to public immovables.

843. Title to movables.

844. Revenues held in trust for governing the country.

845. Public ships surprised by war.

846. Private property to be respected.

847. Rescue.

848. Effect of recapture of property of a neutral.

849. Effect of recapture of property of a belligerent.

850. Military burdens of passive enemies.

851. Compensation for property taken for military uses.

The most important change of existing rules which is proposed by the provisions of this Chapter, is the exemption of private property from capture, at sea as well as on land, except in the cases of its being contraband, or employed in illegal traffic, or actually used to promote the purposes of the war; and except, also, in cases of military necessity, when compensation is made.

The rule that private property on land ought to be respected as far as possible may now be regarded as fully recognized; Bluntschli, Droit Intern. Codifié, § 651; Lieber's Instructions, 38; subject, however, to the ill-defined exceptions of military necessity. See notes to Article 846.

It may be conceded that the earlier authorities sustained the right of taking booty on Jand; and that the modern rule had its origin as asserted by Hautefeuille, (Droits et Devoirs des Nations Neutres, tit. III., section III., § 1,) in the impolicy of exasperating the inhabitants of a territory

by depriving them of their goods; but whatever its original reason, it is sufficiently settled as a rule of civilized warfare to need no further discussion here. The question now is whether the same rule ought not to be extended to property at sea.

The apothegm of Sir John Nicholl, (8 Term Rep., 548,) that "there could be no such thing as a war for arms and a peace for commerce;" and that of Sir Travers Twiss, (Law of Nations, pt. II., p. 52,) that "because private war is inconsistent with public peace, it follows that public war is equally inconsistent with private peace," are little more than a play upon words, or at best, maxims which belong to the times when every individual of one belligerent nation was deemed an enemy of every individual of the other; when Vattel could inquire whether women and children are numbered among enemies, and answer in the affirmative; and when even Kent could declare, that all meeting of citizens of adverse belligerents, except in deadly combat, was unlawful.

The rule now generally acknowledged by civilized nations is that the belligerent nations, not their non-combatant members, are enemies, (see Articles 705 and 744;) and the history of recent great wars has demonstrated that there may be such a thing as a peace for commerce during a war of arms. Private war having become illegal, private peace should be secured so far as possible. There is no reason why public war should disturb private peace, merely for the sake of booty.

The chief arguments on this question, which still deserve consideration, are perhaps more completely indicated by Ortolan, (Diplomatie de la Mer, liv. III., ch. 2,) than by any other author.

After alluding to the reasons of humanity, and of commercial interest, on which the protection of private property at sea has been urged, and raising the inadequate objection that some other severities of war are still more objectionable in these respects, and replying to the argument that the rule of justice must be uniform, by saying that the land and the sea are so different that the one can not afford a rule for the other, he defends the right of capture at sea, upon the following grounds:

1. The object of war is to compel a peace by injuring the enemy; and on land the military power may impose requisitions and levies on the inhabitants; which, in fact, are only convenient modes of seizing private property, and can not be substituted at sea for individual capture :

2. If war at sea were to be restricted to the naval forces, it would be impossible to injure the enemy there, he keeping his ships of war in port; and meanwhile he might carry on intercourse by private ships with impunity;

3. The capture of a ship and cargo is not like the confiscation of a warehouse of goods; for the ship and seamen are potentially an auxiliary of the naval forces of the nation, and constitute means of extending its power beyond its proper territory;

4. The doctrine of the freedom of the seas favors the right of capture; for, since a belligerent can not take possession of the sea and hold it as a territory, he can only take the ships he finds there; and as by occupy

ing territory he may interfere with the territorial power of his enemy, so at sea by capturing ships he may interpose against his enemy's right of passage on the seas;

5. The land rule does not leave non-combatants free to carry on an unrestricted commerce on the territory within military occupation; but it forbids trade, it makes personal property inviolable only for a sufficient time to allow its sale or removal, and the continued protection of the title to real property is a principle inapplicable to ships which are personal property;

6. Without capture of private property, war at sea would be imperfect and, in so far, interminable.

And, finally, he concludes that it is a question of conflict between national and private rights; and that private rights being the less important interest, must yield so far as incompatible with the greater in

1erest.

The solution which he suggests is the maintenance of the right of capture, both of ship and cargo; together with the partial protection of private right, by a restoration of the value of the goods, in specified cases, to be made either immediately, or at the termination of the war.

The one exception which he recognizes is that of the vessels, &c., of coast fisheries, when they serve chiefly as the means of subsistence of inoffensive inhabitants, and have no public and general importance.

Dana, (in a note to Wheaton,) earnestly advocates the practice of warring on commerce, declaring that in his opinion it is the most humane, and often the most efficient part of war, and the least objectiona ble part. "It takes no lives, sheds no blood, imperils no households: has its field on the ocean, which is a common highway, and deals only with the persons and property voluntarily embarked in the chances of war, for the purposes of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels; but a grand valiant appeal to force, to secure an object deemed essential, when every other appeal has failed." Dana's Wheaton, Elements of Intern. Law, p. 876.

In reply to the observations that capture at sea corresponds with the right of requisition on land, and that the enemy may unexpectedly turn private ships and seamen into naval forces, it may be said that the right of requisition is restricted, and requires compensation; see Article 851,) and that the capacity of a ship to serve in the war could at most be a ground for its detention, not for confiscation either of the ship or its

contents.

The freedom of the seas, and the possibility of a belligerent avoiding maritime war by ceasing to send out ships of war, and the suggestion that maritime warfare will become inconclusive without the right of private capture, may well be urged as arguments in favor of the reform against which they are cited. The sea is the highway of nations, and may well be dedicated by common consent, to peaceful uses. The pecu.

liar sufferings and abuses incidental to hostilities at sea, and the fact

that the result of a conflict there is so far dependent on fortuitous circumstances, such as the number and strength of vessels meeting, the condition of the weather, &c., -as to have in modern times but slight connection with the ultimate fortunes of the war, should incline us to the conclusion, that this concession to peace would not involve a sacrifice of essential belligerent rights.

The objection that commerce on land is interrupted by war, is entitled to the weight of analogy under existing rules; but if the succeeding Articles should be received with favor, commerce on land, (in goods not contraband,) will be interrupted only between places in the actual military possession of the belligerents, or when it directly subserves the purposes of the war. This salutary modification has already been made in several wars, which are noticed below.

So far as the consistency of a theory is entitled to weight on such a question as this, it seems sufficient to say with Fioré, (Nouveau Droit International, v. 2, pt. II., pp. 322, 324,) and Pradier-Fodéré, (note to Vattel, Droit des Gens, Ed. of 1863, liv. 3, ch. 5, § 72, 1,) that war is now a relation between nation and nation, and that therefore private property, at sea as well as on land, should be respected as far as possible. The right to injure the enemy is a right to injure the State, and not its non-combatant members. On land, some injury of private property is necessarily incident to the pursuit of the enemy; and, so far, such injury is allowa ble; at sea, the capture of private ships is not incidental to the right to pursue the enemy, and there should not be allowable.

For a satisfactory solution of the question we must, however, look beyond theoretic considerations to the interests which are practically involved; and in this respect the question is this: Can private property be spared, without seriously impairing the efficiency of military measures, as a last resort for the settlement of disputes between nations bound so closely, in pacific relations, as those which may unite in this Code ?

And here it is to be observed, that the interests of peace which are affected are much broader and more sensitive than those of war. The advantage of the existing rule is the pressure it puts upon the enemy to submit; the disadvantage includes, besides the actual loss of property, and derangement of commerce during war, the immense losses sustained on account of the apprehensions of war during time of peace. The measure of the advantage, on the one hand, is not the actual loss inflicted during the war, but only the pressure indirectly brought to bear on the hostile government through the sufferings of its citizens by those losses, while the measure of the disadvantage exceeds the actual losses, and includes those derangements of commerce which are so quickly felt when an apprehension of war arises, and from which recovery is so slow after peace has been established.

In view of these considerations it is submitted that the complete protection of private property, with proper qualifications in respect to contraband, prohibited intercourse, &c., is demanded by the interests of na

tions and individuals, and that it is not incompatible with the maintenance of efficient and adequate military power as a final arbiter in international controversies.

This principle was recognized and adopted in the treaty between the United States and Prussia, (1785,) and has always been advocated by the government of the United States; and was approved for general adoption by Prussia, in 1824, (Katchenovsky's Prize Law, by Pratt, p. 164,) and is said to have been established by treaties between the Southern American Republics, in 1851 and 1856. Id., p. 164, note (z). In the war of England and France with China, the right of maritime capture was totally suspended. Id., p. 167; and see note to Article 846 of this Code.

In the Franco-Prussian war, (July, 1870,) the North German government declared private property on the high seas to be exempt from seiz ure by them, without regard to reciprocity. The French government refused to relinquish the right of capture. In consequence of the capture of German merchant ships by France, the North German government revoked the exemption they had declared, giving, however, four weeks' notice of the new measure. See Foreign Relations of the United States, 1870, p. 217; ld., 1871, p. 403.

At the commencement of the war between Austria and Italy, in 1866, the belligerents agreed that merchant vessels on both sides should be free from capture; "and the results of this agreement," says Lushington, (Naval Prize Law, Intro., p. viii., note,) "coupled with the rule (prescribed by the treaty of Paris,) 'free ships make free goods,' was that the private property of the enemy at sea was as completely exempt from hostile capture as private property on land."

By a decree of March 29, 1865, the Emperor of the French made restoration to the parties in interest, of all Mexican private ships taken during the war between France and Mexico, and which had at that date been condemned by order of a prize court, and also of the proceeds of those which had been sold but not finally adjudicated upon. 9 De Clercq, 228. Somewhat similar modifications of the general rule were made in 1859, in the war between Italy, France, and Austria. 6 De Clercq,

665.

European governments have frequently, at the termination of a war, restored to one another the ships taken from their subjects, or have established mixed commissions for the purpose of ascertaining the damages incurred by the merchants, and the amount of compensation they were entitled to. As an example, may be cited the convention between France and Spain, in the year 1823. Martens, N. R., VI. 386. England also, at the conclusion of the war with Holland, (1832,) restored to her all the Dutch vessels that had been taken. Martens, N. R., XIII., 97, 98. As to the other exceptions, see Martens, N. R., XVI., 2, 611; and Wurm Zeitschrift für der gesammte Staatswissenschaft, (1851,) 322, 323.*

* During the war between Brazil and Paraguay. (1870,) certain noncombatant Paraguayans (women) deposited their valuables at the United States Legation in Asuncion. The Paraguayan forces subsequently occu