that no use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and, generally, all other public or private individuals engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war, by which they forfeit their immunity. (a) 168 § 346. The application of the same principle has also Enemy's limited and restrained the operations of war against the property, territory and other property of the enemy. From the mo- ject to capment one State is at war with another, it has, on general confiscation. principles, a right to seize on all the enemy's property, of whatsoever kind and wheresoever found, and to appropriate the property thus taken to its own use, or to that of the captors. By the ancient law of nations, even what were called res sacra were not exempt from capture and confiscation. Cicero has conveyed this idea in his expressive metaphorical language, in the Fourth Oration against Verres, where he says that "Victory made all the sacred things of the Syracusans profane." But by the modern

how far sub

ture and

(a) Rutherforth's Inst. b. ii. ch. 9, § 15. Vattel, Droit des Gens, liv. iii. ch. 8, §§ 145-147, 159. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, sect. 2, ch. 1, §§ 245-247.

[168 In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war. If noncombatants―i.e., persons not in military service-make forcible resistance, or violate the mild rules of modern warfare, give military information to their friends, or obstruct the forces in possession, they are liable to be treated as combatants; and, although none of these acts be done, non-combatants, in a particular place, under special circumstances, may be disarmed, required to give security for their peaceful conduct, or be held as prisoners, as where there is reason to doubt their inaction, and the situation of the forces in possession is precarious. (Halleck's Intern. Law, 427, 428.) The Instructions to the Armies of the United States (suprà, note 166) include among persons liable to be treated as prisoners of war "all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency, and promote directly the objects of the war, . . . citizens who accompany an army for whatever purpose, such as sutlers, editors or reporters of journals, and contractors;" and so, if captured on belligerent ground, and if unfurnished with a safeconduct from their captor's government, "the monarch and members of the hostile reigning family, male or female; the chief and chief officers of the hostile government; and all persons who are of particular and singular use and benefit to the hostile army or its government.”]—D.

usage of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country. In ancient times, both the movable and immovable property of the vanquished passed to the conqueror. Such was the Roman law of war, often asserted with unrelenting severity; and such was the fate of the Roman provinces subdued by the northern barbarians, on the decline and fall of the western empire. A large portion, from one third to two thirds, of the lands belonging to the vanquished provincials, was confiscated and partitioned among their conquerors. The last example in Europe of such a conquest was that of England, by William of Normandy. Since that period, among the civilized nations of Christendom, conquest, even when confirmed by a treaty of peace, has been followed by no general or partial transmutation of landed property. The property belonging to the government of the vanquished nation passes to the victorious State, which also takes the place of the former sovereign, in respect to the eminent domain. In other respects, private rights are unaffected by conquest. (a) 169

(a) Vattel, Droit des Gens, liv. iii. ch. 9, § 13. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, sect. 2, ch. 1, §§ 250-253. Martens, Précis, &c., liv. iii. ch. 4, §§ 279-282.

[169 Conquest and Belligerent Occupation. It was not the purpose of the author to treat largely of the laws of war. Consequently his work is not full on the subject of the rights of a conqueror in case of belligerent occupation (occupatio bellica), or of completed conquest (debellatio-ultima victoria), as respects immovable property, movables, incorporeal rights, and obligations. This subject has received a full treatment in the work of Pfeiffer (B. W.), Das Recht der Kriegseroberung in Beziehung auf Staatscapitalien, Cassel, 1823.

Pfeiffer discusses the subject in the scholastic manner of the continental publicists, and with constant reference to the technical terms of the Roman law. His views may be stated in substance thus: War-capture (occupatio bellica) is, by the showing of all the authorities, only a species of the occupatio of the Roman law, and follows the same rules; viz., there must be literal corporeal apprehensio, the taking possession of an unowned object (res nullius), which, in order to such kind of possession, must itself be corporeal. The requisite of res nullius is satisfied by the rule, that an enemy has no jus commercii, and consequently no capacity of ownership. His effects become those

§ 347. The exceptions to these general mitigations of Ravaging the extreme rights of war, considered as a contest of force, the enemy's territory, all grow out of the same original principle of natural law, when lawwhich authorizes us to use against an enemy such a de- ful?

of the first occupant. The author affirms this to be the undoubted law of modern as well as of former times.

As to the requisite of a corporeal thing, an extension, in analogy with the Roman private law, has been allowed to such incorporeal rights ( jura in re) as are appurtenant and accessory to a corporeal object; e.g., a servitude belonging to a landed estate is held to be occupied together with the dominant estate, as appurtenant to it. But personal servitudes (ie., belonging to persons), and, above all, obligations (choses in action), are incapable of occupation; and, by mere capture and conquest, no title in them is acquired. In treating the effect of belligerent occupation of immovables, Pfeiffer's language is not free from incongruities. He sometimes admits in terms a provisional or revocable property dependent upon the terms of the peace; but his final, ex professo result is, that, until relinquishment by the original owner, neither the captor nor his grantee has any proprietary title, nor even a defensible and precarious one; and, eventually, he even gives this as the general rule, to which movables are an exception. (pp. 71, 73.) As to obligations (the creditor's interest in choses in action), capture and conquest per se create no right of ownership; and the legal relation of creditor can only be obtained by succession into the status and rights of the creditor. In case of a private person, this could be done in invitum only by reducing the creditor to slavery, when the master would succeed to his rights.

But, on the point of effecting a succession to the sovereign or State, as a result of capture or conquest, and, in virtue of such successorship, becoming substituted as the proper creditor in the public securities, Pfeiffer holds, 1st, That, so long as the war continues, there can be no such succession. 2d, The treaty concluding the war will generally settle this question in practice, if thereby, or in some other way, the previous sovereign cedes his right, or merely renounces it, leaving the power in the hands of the conqueror. 3d, If this do not occur, then the substitution in fact of the new power for the old; the cessation of any substantial resistance on the part of the people; practical general acquiescence in the relation of subjects, together with their being treated as such, and no longer as public enemies, by the conqueror,—this state of things will suffice to create him successor to the former ruler, and consequently to all his right and interest in the public assets.

But, though occupation merely gives the conqueror no legal right to play the part of creditor in the public securities, yet, in consequence of the military duress which he may exercise over the debtors, they will be allowed subsequently the benefit of certain payments to him which were bonâ fide compulsory. Thus, if, by direct forcible levy on their property, or by a command attended with penal consequences, he collects amounts actually due by the terms of the obligation, this will be regarded as an occupatio by him of the effects of the enemy State in their hands. This is a relaxation from the strict rule of law; for, a money-debt being payable in genere, the debtor is not strictly released by any act or casualty that does not exhaust the genus. The theory, that it is an occupatio of the property of the hostile sovereign in the debtor's hands, is resorted to for the sake of equity. But, to obtain the benefit of this modification in the debtor's favor, it is requisite that the amount shall be already due. Yet, if it be overdue, and that by the debtor's fault, so that by reason of his delay the conqueror has had the opportunity to carry off the payment due to the proper creditor, then the debtor will not be allowed the benefit of his payment. It may be

gree of violence, and such only, as may be necessary to secure the object of hostilities. The same general rule, which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste suggested, that, if the debtor is compelled to anticipate the pay-day, his hardship is greater, and he would seem entitled to the same equity as where he pays or compounds a debt due; but the above theory, resorted to in his favor, will not bear so great an extension.

Again, the paying debtor must be under the military power of the conqueror; and payment by a non-resident debtor will not be credited to him, as the element of duress would be insufficient. There must be actual payment: acquittances without payment will not avail. If, to avoid forcible levy, the debtor compromises, or avails himself of a general proviso in the order for collection, by paying a portion of the debt for the whole, he will be allowed the benefit of his actual payment, as an expense incurred to preserve the whole debt from occupatio, whereby it would have been lost to the original creditor, of whom he is regarded in this transaction as negotiorum gestor.

The entire subject of the rights of the conqueror, whether by virtue of mere belligerent occupation, or of completed conquest, and with reference to movables and immovables, corporeal and incorporeal rights, is treated with great fulness by Halleck, in that portion of his work on International Law which relates to the Laws of War. Most writers on international law treat this subject, but less fully than Halleck, with whom the laws of war are the leading object. Heffter, Europ. Völker. §§ 124, 131-134, 185. Puffendorf, de Jure Nat. et Gent. lib. viii. ch. 6. Vattel, liv. iii. ch. 5, 8, 13, 14. Bouvier's Law Dictionary, verb. " conquest." Grotius, de Jur. Bel. ac Pac. lib. ii. ch. 22. Wildman's Intern. Law, i. 163 et seq. Phillimore's Intern. Law, iii. 157, 158, §§ 545-556. The summary of the positions taken by these writers, on the several departments of this subject, may be stated thus:

IN CASE OF COMPLETED CONQUEST. Completed conquest supposes the conquering power to have become the permanently established sovereignty of the country. This may be either by a cession from the former sovereign, or by a practical acquiescence by him or by the people of the territory in its subjection to the conquering State, or by the entire extinction of the political existence of the conquered State.

(1) Private Property of Citizens. When this change has taken place, it is to be observed that the relations of war give place to those of peace, and military authority to civil administration. There is no reason, therefore, why the State should confiscate the property of its new subjects any more than of its old subjects; for the fact, that they were formerly enemies, is not a crime or a penal offence. Nations now respect the obligation of a citizen or subject to sustain his own State in war, and he is treated by the opposite belligerent as a prisoner of war,-in other words, as a lawful belligerent, and not as a criminal. (This reasoning does not apply to enemies in a civil war which has its origin in rebellion; for that is, in law, a criminal offence.) It follows, therefore, that the private property of citizens is not considered as transferred by the completed conquest to the conquering State. It is a distinct question, how far the completed conquest affects acts of ownership done by the conquering State while in hostile military occupation. Not only does the State, now become the sovereign, respect private rights and titles, but is bound to make laws and regulations to insure to individuals the means of exercising and enjoying their rights, appropriate to the new political system under which they have passed.

(2) The Political Laws of the Former State. Political laws and systems imply a reciprocal relation between citizens and the body politic. By the completed conquest,

their country. If this be necessary, in order to accomplish the just ends of war, it may be lawfully done, but not otherwise. Thus, if the progress of an enemy cannot be stopped, nor our

the former body politic has ceased to exist. Consequently, the former political system disappears, and a new one takes its place. And the new political system is established and regulated by its own force and on its own principles. The political and civil rights of the inhabitants of the country depend on the provisions of the new system, in the absence of treaty stipulations on the subject.

(3) Allegiance to the Conquering State. In the absence of any treaty stipulations on this point, it is considered that the citizens of the conquered country owe absolute allegiance to the new State. If it is a bare case of conquest, the conqueror, now become the permanent sovereign, can surely forbid the departure of former citizens from the country, and claim sovereign rights over them. In the case of a title resting solely on cession, it is understood that the former citizens have the option to stay or leave the country, and the continuance of their domicil is conclusive on the obligation of permanent allegiance.

(4) Municipal Private Laws. The reasons for considering the former political laws as abrogated do not apply to the municipal laws, which regulate the private relations of individuals to each other, and their private rights of property. The change of sovereignty does not obliterate the subject-matters of property or obligations, nor the parties to the rights, duties, or compacts; and, in respect to these things, there is a permanent necessity for an uninterrupted existence of laws of some kind. Accordingly, it is held that the municipal private code remains in force. Yet it is not proprio vigore, or by the will of the people of the conquered country, but by the acquiescence of the new sovereignty, which is held to intend the continuance of such laws in the absence of new laws displacing them.

(5) Property of the Conquered State. The conqueror succeeds to the public property of the conquered State, of whatever character, whether movable or immovable, corporeal or incorporeal, lying in possession or in right of action. It can, of course, give valid titles to it, and valid acquittances to debtors of the former State; and the debtors are bound to pay their debts to the new State, as the successor and representative of the old. The notorious case of the refusal of the Elector of Hesse Cassel to recognize the sale of crown-lands made by the King of Westphalia, was a violation of this principle. His State was conquered by Napoleon in 1806, who made a completed conquest of it, and incorporated it into the Kingdom of Westphalia, which was recognized as a sovereignty by the treaties of Tilsit and Schonbrunn, and by the public law of Europe, for not less than seven years. When the Elector was restored to his throne by the treaty of Vienna, he retook possession of the former crown-lands, which his own subjects had bought of the King of Westphalia, and refused to recognize their titles, or to make them any pecuniary allowance. He refused to permit his courts to pass upon the question, or to leave it to arbitration; and the injured parties did not succeed in getting either the parties to the treaty of Vienna, or the Germanic Confederation, to interfere for their redress. The course of the Elector has been condemned by publicists.

Heffter, Europ. Völker. §§ 185, 186; Rotteck und Welcker's Staats-Lexikon (Domainen-käufer); Schweckart's Napoleon und die Kurhess. Capitalschuldner. Phillimore's Intern. Law, iii. §§ 573, 574. Halleck's Intern. Law, 840, 841.

The Elector of Hesse Cassel also refused to respect the payments made by the public debtors to the King of Westphalia. The case of the Count Von Hahn, which was carried through several tribunals, was a fair test of the principle. Count Von