2

civil government Such revenues and income are held in trust exclusively for the government of the country.

1 Defined by Article 728.

2 Lieber's Instructions, ¶ 39.

Public ships surprised by war.

845. Public ships of one belligerent in the ports of another at the commencement of hostilities, or the declaration of war, or coming there afterwards without knowledge of the hostilities or declaration, are free from capture or detention, but may be required to leave immediately, being allowed, if necessary, to take sufficient supplies to reach the nearest port of their own nation.

This Article is new, and is suggested in derogation of war.

Private property to be respected.

846. Private property, whether tangible or intangible, on land or at sea,' and belonging to the enemy or a neutral, cannot be in any manner taken or violated, under pretext of war, except in the cases and to the extent allowed by the provisions of this Book."

2

1 For the discussion of the right of private property at sea, see note at the beginning of this Chapter; also Hautefeuille, des Droits et des Devoirs des Nations Neutres, tit. III., § 1; Ortolan. Diplomatie de la Mer, liv. III., ch. 2; Vattel, Droit des Gens, liv. III., (ed. of 1863;) Grotius, Droit de la Guerre et de la Paix, (ed. of 1867,) liv. III., vol. 3, p. 35; Fioré, Nouveau Droit Intern., 2d part, ch. 8, vol. 2, pp. 314–332.

2 Fioré, Nouveau Droit Intern., vol. 2, p. 313. This principle, says Pradier Fodéré, is now adopted by modern nations, as to property on land. Id., note.

It is embodied in many modern treaties, which provide that in case of war or collision between the two nations, property of whatever nature of their respective citizens, is not subject to seizure or sequestration, nor to any other burdens than those imposed on members of the nation. See treaty between France and Peru, March 9, 1861, 8 De Clercq, 193.

The rule proposed by the United States as a condition of its acceding to the treaty of Paris, was, that "all private property at sea, not contraband of war, be exempt from capture."

According to many authorities, however, a nation has the right, stricti juris, to seize and confiscate any property of an enemy found in the country on the happening of war, Dana's Wheaton, Elements of Intern.

Law, note 156, p. 387; 1 Kent's Commentaries, 59; Halleck, Intern. Law and Laws of War, p. 365; Woolsey's Intern. Laic, § 118; Brown v. United States, 8 Cranch's U. S. Supr. Ct. Rep., 123–129.

Vattel says, that "the sovereign can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration."

The English text writers, like the American, are of opinion that the law of nations is not settled against the right, but in fact admit it. Manning, Law of Nations, 167; 1 Phillimore's Intern. Law, 115–135.

No transfer of title to all or any movables, being private property, is worked by the mere fact of belligerent occupation of the country. There must be an act of capture or transfer. Dana's Wheaton, Elem of Intern. Law, note 169, p. 432. Private property on land is exempt from confiscation. Id., § 346.

As to immovables, the existing rule, according to most authorities, (and Bynkershoeck, who contends for the power of absolute confiscation of immovables, admits that in practice the power is not exercised,) is that a belligerent may sequestrate the profits only of immovables within its territory belonging to enemies, and must reinstate the owner on the return of peace. Twiss, Law of Nations, Part II., pp. 118, 126.

The right to confiscate debts is contended for on theoretic grounds by some authorities, who, however, are not, we think, sustained by modern usage or by the weight of opinion. Id., Part II., p. 108.

As to debts, Kent, (1 Commentaries, 65,) states, that it rests in the discretion of the legislative authority of a nation to confiscate private debts or not; but as the exercise of the right is contrary to universal practice, it may "well be considered as a wicked and impolitic right, condemned by the enlightened conscience of modern times.”

Wildman, (Intern. Law, v. II., 10, 11,) speaks of the old rule as more or less mitigated by the wise and humane practice of modern times.

Phillimore, (Intern. Law, vol. III., 132, et seq.,) says, “the strict right,the summum jus, by the reason of the thing and the opinion of every eminent jurist, remains unquestioned.”

Manning, (Law of Nations, p. 129,) says, such debts "may be confiscated by the rigorous application of the rights of war, but the exercise of this right has been discontinued in modern warfare.”

Woolsey, (Law of Nations, § 118,) says, " from the strict theory of hostile relations, laid down above, it would follow, that enemy's property within the country, at the breaking out of war, was liable to confiscation. This principle would also apply to debts due to them at that time.”

Halleck, (Intern. Law and Laws of War, pp. 362–9,) agrees with Kent, that the law of nations in this respect cannot be considered as changed, so as to prohibit the confiscation. So, also, Pfeiffer, Kriegseroberung, § 14. The state of war itself works no change in the relation of debtor and creditor between the citizens of the respective belligerents, beyond a mere suspension of the remedy. Upon the return of peace, the rights

and obligations continue in force, and the remedies which were in abeyance come again into full operation. Peabody's claim on Texas indemnity bonds, 12 Opinions of U. S. Attorneys-General, 74. And a sequestration of debts does not divest the property therein, but only prevents the creditor from recovering them pending the war. Georgia v. Brailsford, 3 Dallas, U. S. Supr. Ct. Rep., 1.

As to debts and other personal obligations due from resident debtors to the ejected sovereign, Dana, (in his edition of Wheaton, Elem. of Intern. Law, note 169, p. 432,) says, that a payment made to a conqueror relieves the debtor from further liability to the extent of the payment made. But it does not cover mere releases or quittances. It is a defense to a second demand to the extent of the coercion and actual payment. A non-resident debtor of the ejected sovereign has not the excuse of coercion; and a payment by him is in his own wrong, and not a defense against the demand of the restored sovereign.

Possession by the military occupant, of the documentary evidence of a debt due to the ejected State or its inhabitants, does not carry with it the right to the debt itself, so as to make the military occupant the legal alienee of the creditor. Halleck, Intern. Law and Laws of War, 451-3; Heffter, Europ. Volker., 134; Phillimore's Intern. Law, III., §§ 561-2; Pfeiffer's Kriegseroberung, 165-180; Vattel, Droit des Gens, liv. III., ch. 14, § 112.

3 The principal exceptions are: 1. Contraband; 2. Property forfeited by offences of the owner; and, 3. Property taken under military necessity.

Rescue.

847. The rescue by passive enemies or neutrals of any person or thing captured from them at sea or on land, before lawful transfer to a neutral purchasing in good faith and for value,' is lawful, if effected without committing an act of hostility."

1 Bluntschli, Droit Intern. Codifié, § 740.

If a neutral master," says Sir William Scott, (in The Catherina Elizabeth, 5 Ch. Robinson's Rep., 206,)" attempts a rescue, he violates a duty which is imposed upon him by the law of nations, to submit to come in for inquiry, as to the property of the ship or cargo; and if he violates that obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner, and it would, I think, extend also to the confiscation of the whole cargo entrusted to his care, and thus fraudulently attempted to be withdrawn from the rights of war." And he further says: “With an enemy master the case is very different. No duty is violated by such an act on his part,―lupum auribus teneo,—and if he can withdraw himself he has a right to do so."

See The Dispatch, 3 Ch. Robinson's Rep., 278; The Washington, 2

Acton, p. 30, n.; The Franklin, 2 Id., p. 109; The Short Staple v. The United States, 9 Cranch's U. S. Supr. Ct. Rep., 55.

Effect of recapture of property of a neutral.

848. Movable property of a neutral nation, or of its members or domiciled residents, recaptured by one belligerent from another, before its condemnation as prize by the latter, must be restored to its owner, on payment of reasonable salvage.

Act of Congress of the United States, March 3, 1800, 2 U. S. Stat. at L., 16; and Act of 1864, § 29, 13 U. S. Stat. at L., 314. And see The Adeline, 9 Cranch's U. S. Supr. Ct. Rep., 244, 288; The Star, 3 Wheaton's U. S. Supr. Ct. Rep., 78, 91.

A rescue from the attack of an enemy by approaching with a superior force, is equivalent to a recapture from possession within the rule. The Ann Green, 1 Gallison's U. S. Circ. Ct. Rep., 274.

General provisions as to the allowance, &c., of salvage, are contained in Chapter XXXV., entitled SALVAGE. See also Article 890.

Effect of recapture of property of a belligerent. 849. Private property of a belligerent captured during war, reverts to the owner from whom it was captured, on its coming again under the power of his nation, before the termination of the war, as follows:

1. Immovable property, after any interval of time; 2. Movable property, captured on land, before its removal to a place of safety, or the expiration of twenty-four hours, as provided by article 843; and,

3. Movable property, captured at sea, at any time before its condemnation as prize, as provided by article 896.

If the original capture was unlawful, the property reverts, upon its recapture, at any time previous to judicial condemnation.

Military burdens of passive enemies.

850. A belligerent, within the limits of his military occupation of hostile territory, may levy forced loans, and billet soldiers; and may appropriate lands, buildings and ships for temporary military uses.' But mem

bers of neutral nations, lawfully within the territory, are exempt from liability to these burdens."

1 Lieber's Instructions, ¶ 37. The right of eminent domain, defined by Article 50, gives greater power to a nation within its own territory.

2 The provisions of the Book on PEACE, (Article 358,) exempt foreigners from military and naval service. This exemption should not be suspended by war. See Fioré, Nouveau Droit Intern., v. 2, p. 306.

During the German occupation of Paris in 1871, the United States minister endeavored to give protection to the apartments of Americans in Paris, by issuing to the occupants certificates of nationality, and authorizing them to display the American flag. In disregard of these, German soldiers were billeted in the American apartments; but as the occupation was brief, and no substantial injury done, no complaint seems to have been pressed. Foreign Relations of the United States, 1871, p. 307. Count Bismarck refused to acknowledge on this point the neutral character of real property of neutrals. Id., Id., p. 308.

Compensation for property taken for military

uses.

851. When private property of enemies or neutrals, not being contraband of war, is taken by way of military necessity, the commander making the seizure must give a receipt therefor, unless compensation is made at the time.

Compensation may be by agreement, or fixed by the commander.

By the general order of the U. S. War Department, of August 18, 1863, Gen. Ord., v. 2, p. 364, No. 288, in every case of seizure of goods by officers acting under the authority of the department, a true and perfect inventory was required to be made in triplicate; one copy to be given to the person from whom the goods were taken; the others for the officer and the government.