destruction on July 11, 1898, of claimants' property in the Santiago District as a military measure to prevent the spread of pestilence. This was during actual hostilities, before the capitulation, and before the President's proclamation. It thus came within the same distinction which the court brushed aside in respect to the Hijo Case. It was also distinguishable on other grounds. The destruction of property as an incident to military operations, as distinguished from its taking for the use of the army, has almost never been held to involve any liability, whether the destruction is of enemy or friendly property. It makes no difference whether the destruction is incident to a bombardment, to the construction of fortifications, or to the enforcement of sanitary measures. In any of these cases, the individual loss or damage is merely incidental to the accomplishment of a greater public purpose. In many cases, the loss or damage is inevitable if the result is to be attained at all, and it is usually impracticable to estimate its amount or justly to apportion and award compensation. This would be particularly true in the case of damage incident to a bombardment. Moreover, independent of the laws of war, or of the existence of hostilities, there exists a commonlaw right of summary destruction in the case of any great emergency which can be met in no other way. This doctrine was very clearly laid down as early as Coke's Reports thus:

"And for the commonwealth a man shall suffer damage, as for saving of a city or town a house shall be plucked down if the next to fire; and the suburbs of a city in time of war for the common safety shall be plucked down; and a thing for the commonwealth every man may do without being liable to an action, as it is said in 3 H. 8, fol. 15. And in this case the rule is true; Princeps et respublica ex justa causa possunt rem meam auferre." The Case of the King's Prerogative in Saltpetre, 12 Rep. 12."

And thus:

"Everyone ought to bear his loss for the safeguard and life of a man; for interest rei publicæ quod homines conservantur, 8 Ed. 4, 23, &c., 12 H. 8, 15, 28 H. 8, Dyer, 36, plucking down of a house, in time of fire, &c., and this pro bono publico; et conservatio vitæ hominis est bonum publicum.

This last expression was used in a case of loss where merchandise was cast overboard to lighten the barge in a tempest for the safety of the

lives of the passengers and it was held that the ferryman was not liable unless the barge was overloaded through his fault. Mouse's Case, 12 Rep. 63. (And see Bowditch v. Boston, 101 U. S. 16.)

The destruction of property complained of in the Juragua Case might, therefore, have been justified even in a time of profound peace, and the decision in that case seems a wholly inadequate basis for a reversion to mediæval methods of confiscation of private property for reasons of mere administrative thrift.

The Civil War cases, such as The Venice, supra, were distinguished on the ground that they involved the re-establishment of national authority over territory from which it had been temporarily displaced by rebellion, and not the extension of national authority over hostile foreign territory. This argument really tends in the other direction. All the inhabitants of territory in rebellion might well be considered as infected with treason and subject to punishment in their persons and confiscation of their goods. But the peaceful private citizens of a foreign country have committed no crime against an invader, and when, through the voluntary action of their official defenders, they are peacefully turned over to the undisputed control of the invader, he surely owes them the fullest protection in their persons and property, since there is no one else who can protect them at all. Moreover, the Supreme Court had held in the Civil War cases themselves, that rebel territory was enemy territory, and that the rules of international law applied to the effects of its military occupation. (Coleman v. Tennessee, 97 U. S. 515.)

The whole modern development of the laws of war has been in the direction of greater immunity in person and property for all noncombatants at all times. The civilized view of war is that it is an affair of governments, acting through and against officially organized forces, and that the peaceful private citizens of both countries should be as little disturbed as possible. Whether or not this is wise may be a debatable question; possibly the more obnoxious war can be made to those unofficially affected, as well as to those officially engaged in it, the sooner it may be eliminated as an unnecessary evil. But this does not seem to be the trend of history. It is more and more generally recognized that only the regular armed forces should fight, that only government property should be captured, and that the private citizen should suffer only

through increased taxation. Naval prize is an exception, but it is recognized as such, and its scope is more and more limited by international conventions. It can hardly be supposed that the United States Supreme Court intended to start this country in a direction counter to the general civilized current, and it is to be hoped that in some practicable and appropriate method the modern view of the immunities incident to a capitulation may be officially recognized and adopted by this nation.

HOWARD THAYER KINGSBURY.

[Being the fifth part of a series of Studies on the Eastern Question. The preceding parts appeared in the January, April and July numbers of the Journal for 1911, and the January number for 1912.]

From the foregoing explanations, it will be seen that in the TurkoBulgarian arrangement relative to the question of independence, less care was taken in regulating according to juridical principles the transmission of the attributes of sovereignty than in an effort to reach a financial compromise capable of conciliating opposing interests. We have in particular considered the property of the public domain as a real property for which the emancipated State must refund the accumulated outlay. This is a curious idea for our times, when we have lost the habit of looking at the public power in the light of patrimoniality. But this conception is self-explanatory, if we but remember that we are in the Orient, in Turkish territory where the coining of the attributes of sovereignty has always been the rule, where the principles of the Middle Ages have survived longer than anywhere else. And these conditions are self-explaining if we think of the persisting uncertainty of the nature and the real meaning both of the Treaty of Berlin and of the union of 1885 regarding Bulgaria and Rumelia. From all these conditions, there issues an impression of indecision and of archaism. This impression is further accentuated by Art. 3 of the protocol of St. Petersburg:

The sum of 5 million Turkish pounds *** due to the Imperial Ottoman Government represents *** for another 40 million the 310 kilometers of Eastern Railways situated in Eastern Rumelia and seized by the Bulgarian Government *** and for forty-three million francs the equivalent in value for the properties of the domain of the Ottoman state, situated in Eastern Rumelia and in Bulgaria.

* Translated from the French by courtesy of Dr. Theodore Henckels of Washington, D. C.

What does all this refer to? Properties of the private domain of the Turkish State left in possession of the Bulgarian State? Search for them would be in vain, particularly in the Northern Balkans. Does it refer to the properties of the public domain? Turkey in that case would be reimbursable for the construction of highways, canals, public works of every description she might have built before the Treaty of Berlin. Can it be meant to illustrate in the extreme the development of the patrimonial conception of the public domain? In reality, these dispositions in disguised form dispose for a certain sum of money of the rights which the Sultan thought he still had over the two Bulgarias, another patrimonial conception of the rights of sovereignty and of suzerainty, but especially a political transaction stripped of all juridical meaning.1

Vakoufs and Tevliets. — A last question is that relating to "vakoufs," to which we referred incidentally in connection with the religious situation. "Vakoufs" ordinarily means religious Mussulman establishments; but there were several kinds of vakoufs, and some had a social and economic aim rather than a religious one. Sometimes they comprise another institution of feudal origin, called "tevliets" or "vakoufs mustesna," in which the religious feature is only accessory. Moreover, they are not public, but private establishments.

According to the terms of Article XII of the Treaty of Berlin, a Turko-Bulgarian Commission, within two years' time was to settle all matters regarding the manner of transferring or operating on behalf of the Sublime Porte the property of the State and of religious establishments (vakoufs), as well as all matters relating to the interests of private individuals who might be connected with them.

In order to understand what vakoufs are we will suppose that in Bulgaria, under Turkish rule, an individual built a mosk, or disposed of part of his property, either by donation or by request, to maintain a mosk, school, or charitable institution. At his death, we will suppose,

1 We will be all the more convinced of this, if we will remember that in the AustroTurkish convention relating to Bosnia and Herzegovina an analogous disposition disguises in the same manner the conveyance for a lump sum, purely nominal rights of sovereignty which the Treaty of Berlin in recognizing the Austrian occupation, had reserved to the Sultan just for the sake of form.