submission of and extinction of the vanquished Nation, that the acquisition of its public domain by the victor is consummated, and his proprietary right made perfect. A neutral Power cannot lawfully step in and purchase a conquered country, while the war continues; for it is inconsistent with neutrality for him to furnish a victorious belligerent with money to enable him to prolong the war; and if he should take possession of his purchase and maintain it against its original owner, he would be aiding his adversary. Thus the King of Prussia became a party with the enemies of Sweden by accepting Stettin from the hands of the King of Poland and the Czar of Russia 18, under the Convention of Schwedt (6 October 1713,) after they had captured it from the Swedes, and by consenting to hold it as sequestrator, until peace should be concluded. The conduct of the King of Prussia, which was inconsistent with a just neutrality, involved him, not long after he had so taken possession of Stettin, in hostilities with Sweden. But when a conquered Nation has by a definitive treaty of peace ceded a country to the conqueror, the former has relinquished all right to it, and the new occupant has an indefeasible title to it, which he may transfer to a third party. A victorious Nation, in acquiring the sovereignty de facto over a country, from which it has expelled its adversary, does not acquire any other rights than those which belonged to the expelled Sovereign; and to those, such as they are, with all their limitations and modifications, he succeeds by Right of War. It is accordingly usual in treaties of peace, by which a territory, which has been occupied by a victorious Nation, is formally ceded to it, for the vanquished Power to stipulate that the inhabitants shall retain all their 18 Vattel, L. III. c. 13. § 198. Schoell, Histoire Abrégée des Traités de Paix, Tom. IV. p. 213. State liberties and immunities; and as those liberties and immunities are the creatures of civil law, it is not uncommon to stipulate that the civil law of the conquered people shall be maintained, the victor being at liberty to introduce his own criminal law. Thus when the Dutch Colony of Cape Town surrendered to the British fleet in 1795, it was stipulated in the articles of Capitulation that the Dutch Law should continue to furnish the rules for interpreting all civil contracts and obligations; in other words, that the proprietary rights of the inhabitants should be regulated by the same law as heretofore. § 67. There is a class of movable property belonging to an Enemy which is exempt from capture and confiscation by a belligerent Power, such as State papers, public archives, judicial and legal records, land titles, &c. Such property is regarded as adhering to the Sovereignty of the country, and passing with it, and is as it were an appurtenance of the National domain. When a belligerent Nation takes possession of an Enemy's country, it sequesters the rents of the immovable domain, but it cannot rightfully alienate the domain itself. It is not until peace has been concluded, and the conqueror's title has been recognised by the vanquished, that the public domain becomes at the absolute disposal of the conqueror. So likewise with regard to all movable articles, which appertain to the Government of a country, and over which the Sovereign for the purpose of government has full dominion, they are at the absolute disposal of the conqueror for the purpose of government, whilst he is in possession of the country, but in practice they are not booty of war. They are in the nature of public proofs or evidences of Rights; and as in the case of private debts, the mere fact of the conqueror possessing himself of the documents relating to incorporeal Rights, per does not give to him the possession of the Rights braries and § 68. With regard to Public Libraries and Collec- Public Litions of works of Art, such as pictures, statues, and Museums. other forms of sculpture, there is not the same agreement amongst text-writers, that a belligerent is restrained by practice from seizing and carrying them away as booty of war. All writers indeed are of accord, that to destroy such works wantonly would be to violate the modern usage of war;19 but they do not agree in holding that it is inconsistent with the usage of war to carry off such works, as booty. The French armies, in the wars which attended the Revolution of 1789, carried off 19 Kent, Commentaries, Vol. I. p. 93. Klüber, § 253. Vattel, L. III. c. 3. § 168. lery of the 1815. all the finest works of genius and taste which they found in Italy, Holland, and other enemy-countries, and which were of a movable character. In some cases they obtained them by means of forced Contributions, in other cases by express Conventions with the conquered States. Upon the victorious entry of the Allied Powers into Paris in 1815, they found those treasures of Art collected together in the various galleries of the Louvre and other Museums. It appears from a note delivered in by Viscount Castlereagh to the Ministers of the Allied Powers, and placed upon the Protocols of Paris (11 Sept. 1815), that the Pope, the Grand Duke of Tuscany, the King of the Netherlands, and other Sovereigns, "claimed through the intervention of the High Allied Powers, the restoThe Gal- ration of the statues, pictures, and other works of Louvre in Art, of which their respective States had been successively and systematically stripped by the late Revolutionary Government of France, tontrary to every principle of justice and to the usage of modern warfare."20 Lord Castlereagh, on this occasion, placed on record the opinion of Great Britain, that works of Art have been invariably respected by modern conquerors, as inseparable from the countries to which they respectively belonged; and that to tear them away from the territories to which they appertained was a reproach to the Nation which had adopted such a principle of war. The French Commissioners on the other hand who concluded the military Convention under which the Allies took possession of Paris, appear to have considered that the Allies might with justice claim to exercise their right, as belligerents, to strip in the same manner the galleries of Paris of their spoils, as the French armies had exercised their right of spoliation in the countries 20 Martens, Nouveau Récueil, T. II. p. 632. the Duke which they had overrun; for they proposed to introduce into the Convention an article which should secure to France the treasures of Art which she had amassed. But Prince Blucher would not assent to it on behalf of Prussia, and the Duke of Wellington rejected it in the interest of the other Powers. The Opinion of Duke of Wellington was of opinion "that the Allies of Wellinghaving the contents of the Museum justly in their ton. power, could not do otherwise than restore them to the countries from which, contrary to the practice of civilised warfare, they had been torn during the disastrous period of the French Revolution and the tyranny of Bonaparte "1" The Allied Powers acted upon this view of the Rights of War, and their conduct may be regarded as a practical affirmation on their part of the principle that Public Collections of works of Art are not booty of war, according to the modern usage of civilised Nations. American writers on Public Law are not altogether of accord with European publicists on on this subject. Mr. Wheaton does not pronounce any decided opinion, but is content to quote a speech of Sir Samuel Romilly in the House of Commons on 20th Feb. 1815, expressive of his dissatisfaction with the conduct of the Allied Powers in 181522, as not altogether consistent with justice. The tendency however of Mr. Wheaton's remarks is in favour of the milder practice 23. General Halleck on the other hand maintains that an impartial judge must conclude, on a careful examination of the circumstances connected with the formation and spoliation of the rich Museum of the Louvre, either that such works of Art 21 Despatch of the Duke of Wellington to Viscount Castlereagh. Paris, Sept. 23, 1815. Martens, N. R. II. p. 642. 22 Wheaton, Elements, Part IV. c. 2. § 6. 23 Hansard's Parliamentary Debates, Feb. 20, 1815. Life of Romilly, Vol. II. p. 404, and Halleck, International Law, c. 19. § 10. |