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Right within

having recourse to a measure of such extreme rigour.

§ 64. As the object of war is to bring about a enemy's just peace, a belligerent Nation is justified in interritory. vading the territory of the Enemy, and in seizing

Movable property booty of

war.

its goods, its towns, and its provinces, in order to bring it to reasonable conditions, and to compel it to acquiesce in an equitable and firm peace. With this view a belligerent Nation may take possession of the property of the Enemy to an extent far beyond what would be a just indemnification for any injury which it may have suffered, with the design of restoring the surplus by a treaty of peace.

A belligerent Nation, in taking possession of the property of the Enemy, acquires possession of the Rights which are incident to that property: for instance, if a belligerent Nation takes possession of an Enemy's territory, it takes possession not merely of the soil and the movable property upon it, but of the Sovereignty over it, and may exercise the latter during such time as it remains in possession of the territory.

With regard to the property which is found upon the Enemy's territory, all movable property which belongs to Enemy-Subjects is booty (butin) of war, and passes with the territory into the possession of the belligerent; for the actual owners of the property are not distinguishable, as individuals, from the body of the Enemy-Nation, and the actual captors are the trustees of a belligerent Nation in making capture. The rule which governs all captures is expressed by the maxim, Parta bello cedunt reipublicæ. the towns and land taken from the Enemy," writes

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"As

7 The Elsebe. 5 Ch. Robinson,

p. 181.

pro

Vattel," are called conquests, all movable perty taken from the Enemy comes under the denomination of booty. This booty naturally belongs to the Sovereign making war equally as the conquests, for he alone has such claims against the hostile Nation, as warrant him in seizing the property and converting it to his own use. His soldiers, and even his auxiliaries, are only instruments which he employs in asserting his right." All the movable property, accordingly, of a vanquished enemy, is of strict right at the mercy of the conqueror; but this strict right is in practice only enforced on the part of the conqueror, where the Right of Resistance has been maintained to the uttermost by the vanquished party, as for instance where a town has been besieged, and has been formally summoned to surrender on terms, and has refused to surrender, and has been subsequently taken by assault. In such a case the conqueror is justified by the extreme resistance of the adversary in exercising his extreme Right of Conquest, and in seizing, as booty of war, all the movable property of the enemy. It is customary indeed for the Sovereign, or the authority which represents the Sovereign Power of the Nation, to grant to its army a share of the booty taken on such occasions. The mode, however, in which such booty is to be shared amongst its army depends upon the pleasure of the Sovereign Power". In some cases it is customary to give up the whole of the booty to the troops which have taken it; as for instance, where it is the immediate result of a pitched battle, or where a fortified camp or town has been taken by storm in such cases the actual captors are allowed to gather freely the spoils of their victory.

8 L. III. c. 9. § 165. Klüber, § 253.

9 Grotius, L. III. c. 6. § 13. Vattel, III. c. 9. § 164.

contribu

tions in lieu of booty.

On the other hand, where the booty is the ultimate result of a general campaign, it is usual for the Sovereign Power to distribute it amongst all the divisions of the army, engaged in the combined operations of the campaign 10.

In cases, however, where the Enemy has surrendered upon terms, it is now the practice among Christian Nations for the Sovereign Power not to seize and confiscate, as booty of war, the private Military property of individual citizens, but either to content itself with making prize of all the public property of the Enemy-Nation, which is of a movable character, such as jewels, or treasure, or instruments of war, or military stores; or in case it should assert its Right of Conquest over the private property of enemy-citizens, to limit itself to levying upon them a Contribution of money or provisions, in consideration for which their actual property is guaranteed from pillage. But the commander of a victorious army must, under such circumstances, be moderate in his demand of Contributions, if he wishes to escape the reproach of inhumanity and greediness".

§65. The exercise of the Natural Right of a belligerent to ravage the Enemy's territory, with the exception of those cases in which the conduct of the Enemy has merited special chastisement, is governed by the maxim that nothing is allowable against an enemy but what is necessary, a and nothing is necessary which does not tend to procure victory and bring the war to a conclusion. All damage therefore which is done to an enemy without any corresponding advantage accruing to the belligerent is an abuse of the Natural Right of the latter. Thus indeed a belligerent is entitled to capture all the property of an enemy

10 The Army of the Deccan. 2 Knapp's Reports, p. 114.

11 Vattel, L. III. c. 9. § 165.

tion of

stores and

tion of

which is calculated to enable him the better to carry on hostilities, and if he cannot carry it away conveniently, to destroy it. A belligerent, for example, Destrucmay destroy all existing stores of provisions and military forage, which he cannot conveniently carry away, provisions. and may even destroy the standing crops in order to deprive his enemy of immediate subsistence, and so reduce him to surrender. But a belligerent will not be justified in cutting down the olive trees, and rooting up the vines; for that is to inflict desolation upon a country for many years to come, and the belligerent cannot derive any corresponding advantage therefrom 12. When the French armies desolated with fire and sword the Palatinate in 1674, and again Devastain 1689, there was a general outcry throughout Europe crops. against such a mode of carrying on war; and when the French Minister Louvois alleged that the object in view was to cover the French frontier against the invasion of the Enemy, the advantage which France derived from the act was universally held to be inadequate to the suffering inflicted, and the act itself to be therefore unjustifiable. A belligerent Prince who should, in the present day, without necessity, ravage an Enemy's country with fire and sword, and render it unhabitable, in order to make it serve as a barrier against the advance of the Enemy, would justly be regarded as a modern Attila. The necessity of war has occasionally justified Princes in laying waste their own provinces in order to raise a barrier against an enemy, whom they could not otherwise hope to check. For instance, Peter the Great laid waste an extent of eighty leagues of his own Empire with a view to check the advance of the troops of Charles XII. of Sweden. The Swedes were accordingly worn down with want and fatigue in their advance, and the victory of

12 Vattel, L. III. c. 9. § 166.

Immovable property of enemy subjects.

Pultowa was claimed by the Czar, as the result of the sacrifice. There may be cases, therefore, when necessity will justify similar extremities in an Enemy's country; but such instances will be of rare occurrence, and may be regarded as exceptional.

§ 66. With regard to the immovable property of enemy-subjects, there was a time when the lands of enemy-subjects were confiscated by the victor, just as the rights of the victor over the person of a prisoner. of war was absolute and unlimited 13. But the right of a victor to use his prisoners of war as slaves has ceased to be exercised since the middle of the seventeenth century11; and it may be said to have become the universal practice of Christian Powers, since the Treaty of Munster, (30 Jan. 1648,) 15 to release all prisoners at the end of a war without ransom 16. So likewise the landed and immovable property of private individuals is in general by the positive law of Nations not liable to confiscation by a victorious Enemy". A victorious Nation on the other hand enters upon the public rights of the vanquished Nation, and the National domain and the National treasure pass to the victor18. He may dispose of the National domain at the risk of the purchaser, in case the vanquished Nation should recover possession of its dominions ; for it is only by a treaty of peace, or by the entire

13 Vattel, L. III. c. 7. § 1.
14 At the commencement of
the seventeenth century we find
many treaties of peace, in which
it was stipulated that prisoners
of war should not be sent to the
galleys.

15 Dumont Traités, Tom. VI.
Pt. I. p. 434.

16 There was a special provision in the Treaty of Amiens (1802) concluded between Great Britain on the one hand, and the

French and Batavian Republics on the other, that the prisoners on both sides should be released without ransom. This provision may have been rendered necessary by the previous conclusion of a cartel for the ransom of prisoners at fixed money prices.

17 Manning. c. 8. p. 162.

18 Vattel, L. III. c. 12. § 200. Martens, Précis, § 280. Klüber, § 256. Wheaton, Pt. IV. c. II. § 5.

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