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, 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. II 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. 14 16 § 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 victor 18. 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. 15 Dumont Traités, Tom. VI. 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. pur 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 chase 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, |