OFFICIALS IN OCCUPIED TERRITORY.

324. Oath of officials.-The occupant may require such officials as are continued in their offices to take an oath to perform their duties conscientiously and not to act to his prejudice. Every such official who declines to take such oath may be expelled; but, whether they do so or not, they owe strict obedience to the occupant.1

1 G. O. 100, 1863, art. 26, states: "Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious Government or rulers, and they may expel anyone who declines to do so." Such oath is not essential, and should not be insisted upon, especially when the form of the oath implies allegiance which pertains to sovereignty.

325. Retention of officials.-It is to the best interests of the occupant, and more especially to that of the population, that at least some of the civil officials should remain in their offices in order to assist in the maintenance of order, as well as for the safety of the inhabitants themselves and of their property.1 1 Hague Conference, Actes, 1899, p. 148.

326. Municipal officials should remain.-Municipal officials, including the judges and magistrates, sanitary and police authorities, as well as the staffs of museums, libraries, and all establishments entitled to special protection during hostilities, should remain and be retained in office if consistent with the safety of the Army. The political officials, as well as railway, postal, telegraph, and telephone officials, will probably cease work.1

1

1 Land Warfare, Opp., par. 395.

327. Salaries of officials.-The salaries of civil officials of the hostile government who remain in the invaded territory, and continue the work of their offices, especially those who can properly continue it under the circumstances arising out of the warsuch as judges, administrative or police officers, officers of city or communal governments are paid from the public revenues of the invaded territory, until the military government has reason wholly or partially to dispense with their services. Salaries or incomes connected with purely honorary titles are always suspended.1

1 G. O. 100, 1863, art. 39.

328. Resignation of officials.-An official of the hostile government who has accepted service under the occupant should be permitted to resign and should not be punished for exercising such privilege. Such official should not be forced to exercise his functions against his will.1

1 Brussels Conference, p. 243; Spaight, War Rights on Land, p. 365.

329. Removal of civil officials.-By virtue of his powers of control the occupant is duly empowered to remove officials of every character. He will on principle remove political officials. Any official considered dangerous to the occupant may be removed, made a prisoner of war, or expelled from the occupied territory. 330. Punishment of civil officials.—Acts of civil officers that are harmful or injurious to the occupant will be dealt with under the laws of war. Other wrongs or crimes committed by them will be punished according to the law of the land.

CHAPTER IX.

TREATMENT OF ENEMY PROPERTY.

331. Destruction and seizure of.-H. R. Art. XXIII, par. (g). It is especially forbidden * * to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.

332. General rule as to war right to seize and destroy property. The rule is that in war a belligerent can destroy or seize all property of whatever nature, public or private, hostile or neutral, unless such property is specifically protected by some definite law of war, provided such destruction or seizure is imperatively demanded by the necessities of war.1

1 This right is recognized by comparison of H. R. XXIII and XLVI. The only property safeguarded is the matériel of the mobile sanitary formations under the Geneva Convention.

For the American rule, see G. O. 100, 1863, art. 15, ante par 12. The British rule is given as follows: "The necessities of war' may obviously justify not only the seizure of private property but even the destruction of such property and the devastation of whole districts." Spaight, War Rights on Land, p. 116.

The German rule is as follows: "No damage must be done, not even the most trivial, which is not necessitated by military reasons. Every damage the very greatest-is justifiable if war demands it or if it is a consequence of the proper carrying on of war." Kriegsbrauch, p. 54.

PRIVATE PROPERTY.

333. Must be respected.-H. R. XLVI, par. 1.

must be respected.

Private prop

334. Devastation.-The measure of permissible devastation is found in the strict necessities of war. As an end in itself, as a separate measure of war, devastation is not sanctioned by the law of war. There must be some reasonably close connection between the destruction of property and the overcoming of the enemy's army. Thus the rule requiring respect for private property is not violated through damage resulting from operations, movements, or combats of the army; that is, real estate may be utilized for marches, camp sites, construction of trenches, etc. Buildings may be used for shelter for troops, the sick and wounded, for animals, for reconnoissance, cover, defense, etc. Fences, woods, crops, buildings, etc., may be demolished, cut down, and removed to clear a field of fire, to construct bridges, to furnish fuel if imperatively needed for the army.1

1 Vide Hall, Int. Law (5th ed.), p. 535; Spaight, War Rights on Land, p. 112 et seq.; Dig. Int. Law, Moore, sec. 1113.

335. American rule.-This rule (respect for private property, etc.) does not interfere with the right of the victorious invader

to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, boats or ships, lands, and churches, for temporary and military use.1

1 G. O. 100, 1863, art, 37, par. 2.

336. Confiscation.-H. R. Art. XLVI, par. 2. Private property can not be confiscated.1

1 The seizure of enemy property by the United States as prize of war on land, jure belli, is not authorized by the law of nations, and can be upheld only by an act of Congress. United States v. 1,756 Shares Capital Stock (5 Blatchf., 231).

"It is no bar to the recovery of a claim that it was confiscated during the rebellion by a Confederate court, because due to a loyal citizen." (Stevens v. Griffith, 111 U. S., 48.)

"The Government recognized to the fullest extent the humane maxims of the modern law of nations, which exempt private property of noncombatant enemies from capture as booty of war.' (U. S. v. Klein, 13 Wall., 128, 137; Lamar . Browne, 92 U. S., 194.)

"If property be such that it ministers directly to the strength of the enemy and its possession alone enables him to supply himself with the munitions of war and to continue the struggle, then it may be confiscated." (Prize cases, 2 Black, 687.)

337. Booty All captures and booty belong, according to the modern law of war, primarily to the Government of the captor. Prize money whether on land or sea can now only be claimed under local law.1

! 1" The rightful capture of movable property on land transfers the title to the Government of the captor as soon as the capture is completed." Young v. U. S., 97 U. S., 39, 60,

"This rule as to property on land has received very important qualifications from usage, from the reasoning of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted to special cases dictated by the necessary operation of the war,' and as excluding in general the seizure of the private property of pacific persons for the sake of gain." Mrs. Alexander's Cotton, 2 Wall., 404, 419. Briggs v. U. S., 143 U. S., 346, 355-358.

As to abandoned and captured property act, see Dig. Int. Law, Moore, sec. 1152.

338. Private gain by officers and soldiers prohibited.-Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense.1

1 G. O. 100, 1863, art. 46.

· 339: Pillage.-H. R. Art. XLVII. Pillage is formally forbidden.1

1"Pillage was defined by Prof. Holland as "Booty which is not permitted." He refers to the following offenses for which the death penalty or any less punishment may be inflicted when committed by a soldier on active service: (1) Leaving his commanding officer to go in search of plunder; (2) committing any offense against the property or

person of any inhabitant of or resident in the country in which he is serving; (3) breaking into any house or other place in search of plunder." Vide Spaight, War Rights on Land, p. 188.

Baron Jomini remarked in the Brussels Conference, "There is a kind of booty which is allowed on the field of battle, for instance, that which consists of horses, munitions, cannon, etc.- -it is the booty gained at the cost of private property which the committee wish to forbid."

340. Private property can be seized only by way of military necessity for the support or other benefit of the Army or of the occupant. All destruction of property not commanded by the authorized officer, all pillage or sacking, even after taking a town or place by assault, are prohibited under the penalty of death, or such other severe punishment as may seem adequate to the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.1

1 G. O. 100, 1863, arts. 38 and 44.

341. Private property susceptible of direct military use.— H. R. Art. LIII, par. 2. All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is declared.

342. What included in rule.-The foregoing rule includes everything susceptible of direct military use, such as cables, telephone and telegraph plants, horses, and other draft and riding animals, motors, bicycles, motorcycles, carts, wagons, carriages, railways, railway plants, tramways, ships in port, all manner of craft in canals and rivers, balloons, airships, aeroplanes, depots of arms, whether military or sporting, and in general all kinds of war material.1

1 Land Warfare, Opp., par. 415.

343. Destruction of such property.—The destruction of the foregoing property and all damage to the same is justifiable if it is required by the exigencies of the war.1

1 Spaight, War Rights on Land, pp. 117 et seq., 410. 344. Submarine cables.-H. R. Art. LIV. 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.1

1 The Institute of Int. Law in 1902 agreed to the following rules: 1. A submarine cable uniting two neutral territories is inviolable. 2. A cable uniting the territories of two belligerents or of two parts of the territory of one of the belligerents may be cut anywhere, except in the territorial waters or the neutralized waters of a neutral State.