CHAPTER XVIII

STATUS OF PROPERTY ON LAND

106. Public Property of the Enemy

(a) FORMERLY the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less

Early practice.

extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. By Article 245 of the Treaty of Versailles, June 28, 1919, Germany was bound to restore to France works of art, etc., carried away in 1870-1871. The practice in regard to public property of the enemy has now become fairly defined though not always observed in the World War.

The public property of one belligerent state within the territory of the other at the outbreak of war, if real property, may be administered during the war for the benefit of the local state; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.1 (b) In case one belligerent by military occupation acquires

Provisions of the Hague

Conference.

authority over territory formerly within the jurisdiction of the other, the rules of the Hague Conference of 1907 provide as follows:

"ART. 53. An army of occupation can only take possession of the cash, funds, and realizable securities belonging strictly to the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for military operations.

"All appliances, whether on land, at sea, or in the air, adapted 1 Appendix, pp. viii, lxviii, lxxi.

for the transmission of news, or for the transport of persons or things, apart from cases governed by maritime law, depôts of arms and. generally, all kinds of war material, even though belonging to private persons, may be seized, but they must be restored at the conclusion of peace, and indemnities paid for them.

"ART. 54. Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.

"ART. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of usufruct.

"ART. 56. The property of communes, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property.

"All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of proceedings." 1

107. Real Property of Enemy Subjects

The real property of the subject of one belligerent situated within the territory of the other belligerent was in early times appropriated by the state; later practice administered it during the war, for the benefit of the state; and recently it was treated as the real property of any nonhostile foreigner, but during the World War alien enemy property was ordinarily placed under government control or restrictions.2

1 Appendix, p. lxxi.

British Proclamation relating to Trading with the Enemy, August 5, 1914; French Decree of September 14, 1914; U. S. Trading with the Enemy Act, October 6, 1917, 40 Sts. at Large, 459; and subsequent legislation. See also 2 Hyde, 232.

It is generally conceded that real property of the subjects of either state is unaffected by hostile occupation by the forces of the other state, except so far as the necessities of warfare may require.1

108. Personal Property of Enemy Subjects

(a) The movable property of the subject of one of the belligerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown v. United States,2 in 1814, the Supreme Court held that the "existence of war gave the right to confiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws."3 Recent practice before the World War had exempted personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property was liable to the taxes, etc., imposed upon others not enemy subjects and could not be used for war purposes by the

owner.

In case of hostile occupation, the Hague Conference of 1907 summarized the rules as follows:

"ART. 46. . . Private property cannot be confiscated. "ART. 47. Pillage is formally prohibited.

1 Appendix, pp. vii, .lxxi.

'See Index U. S. Treaties, "War."

28 Cr., 110.

"ART. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do so, as far as possible, in accordance with the rules in existence and the assessment in force. . .

"ART. 49. If . . . the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory."

Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for requisitions.1

The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity.2

With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the public debt held by an enemy subject is wholly exempt from seizure or sequestration, and in practice interest has often been paid to enemy subjects during the continuance of the war.

(b) A practice similar to that formerly sanctioned under the so-called right of angary (jus angariae) was permitted in regard to means of transport and communication under Articles 53 and 54 of Hague Convention IV and Article 19 of Hague Convention V of 1907.3 These articles permit the belligerent to seize the means of transport and communication subject to restoration and compensation. During the World War this practice was common.

In case of belligerent occupation, contributions, requisitions, and other methods are sometimes resorted to in supplying military needs.

(c) Contributions are money exactions in excess of taxes. Contributions should be levied only by the general-in-chief. Appendix, pp. vii, lxx.

Appendix, p. lxx.

Appendices, pp. lxxi, lxxv; see also p. 355.

(d) Requisitions consist in payment in kind of such articles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region.

Receipts for the value of both contributions and requisitions should be given, in order that subsequent impositions may not be made without due knowledge, and in order that the sufferers may obtain due reparation on the conclusion of peace, the Hague Convention provided:

The requisitions in kind shall, as far as possible, be paid for in ready money; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.1

In naval warfare "requisitions for provisions or supplies. for the immediate use of the naval force before the place in question" are allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, cannot be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.3

It was generally accepted in principle that contributions should not be exorbitant or penal in character. Before 1914 it was maintained that reasonable contributions from cities would distribute the burden of war, the contribution levied upon the city being used to purchase supplies from rural communities.

(e) Foraging is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual process of requisition, and consists in the actual taking of provisions for men and animals by the troops themselves.

Receipts should, when possible, be given. It often happens

1 1 Appendix, p. lxxi.

Scott, " Conferences," p. 262.

Ibid.