papers, arms, horses, carts, etc., may be appropriated as booty, although experience has shown that it is difficult to hold soldiers in check and carry out this regulation to the letter.

While the belligerent necessity for a particular destruction of private property is usually within the discretion of the commanding officer, international commissions may pass upon the legitimacy of war measures in a given case.1 Thus awards have been made on numerous occasions for wanton and manifestly unnecessary acts of destruction and pillage by the military forces of the government.2 The destruction of private property in war where no military end is served is illegitimate. This rule gained universal recognition during the nineteenth century, and it is now expressly provided by Article 23 (g) of the Hague Regulations that "to destroy . . . enemy's property, unless such destruction . be imperatively demanded by the necessities of war, is prohibited."

One of the most important results of this codification of the rules of war has been the enlargement of the sphere of immunity of private property on land from the injurious consequences of the war. Vattel, as already observed, was the first to draw a clear distinction between

1 Rule 6 of Spanish Treaty Claims Commission. In Rules 7 and 8 the Commission prescribed definite limitations to concentration and devastation as legitimate war measures. Final Rep., p. 4. Award of the Commission in Tuinucu v. U. S., No. 240. The opinion of the military authorities as to the necessity of a destruction is not ordinarily justiciable by the regular courts. Ex parte Marais (1902), A. C. 109. See also Wentworth v. U. S., 5 Ct. Cl. 309.

2 Usually with respect to neutral's property. Quotations from publicists and state papers in Moore's Dig. VI, § 1037; Chourreau (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3705; Du Bois (U. S.) v. Chile, Aug. 7, 1892, ibid. 3712; Moss (U. S.) v. Chile, May 24, 1897 (extending 1892 commission) Report, 1901, No. 25; Rule 5 of Span. Tr. Cl. Com.; S. B. Crandall in 4 A. J. I. L. 820; Award of King Oscar on Samoan claims of Germany against Great Britain and United States, Convention Nov. 7, 1899, La Fontaine, 613, for unwarranted military action; Strobel's Report, item V on British claims against Chile, For. Rel., 1896, 35 et seq., Moore's Arb. 4930; Shrigley (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3711-12; Peruvian Indemnity, Mar. 17, 1841, Moore's Arb. 4591; Willet (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3743; Brooks (U. S.) v. Mexico, July 4, 1868, ibid. 3672; Johnston, ibid. 3673 (defendant government held to have burden of proving damage necessary); Jeannotat, ibid. 3673; H. Rep. 386, 22nd Cong., 1st sess., 14; Indus (U. S.) v. Mexico, Moore's Arb. 3718 (violation of rules of war by selling captured vessel without determination of prize courts). For extracts dealing with liability for violations of rules of civilized warfare, see Wharton's Digest, II, § 225. See Rule 18 of the Rules of the Institute of International Law on Naval Warfare adopted at Oxford, 1913.

the injuries to property due to imperious and immediate military necessity, for which compensation is not generally due, and the more deliberate use of or injury to private property for some public belligerent purpose, analogous to eminent domain, for which the state owes compensation to the individual. It has not always been easy to draw the line between imperious unavoidable necessity and a deliberate act of use, occupation or destruction involving an element of choice. Yet in a general way, international commissions have endeavored to maintain the distinction by making awards for various kinds and degrees of appropriation of private property for public belligerent purposes, and municipal legislation and courts have also recognized the distinction.

§ 104. Appropriation of Private Property.

A long line of decisions has established the principle that the appropriation of private property for military purposes involves the responsibility of the state. That such a use justifies the taking is uniformly

1 Vattel, Bk. III, ch. 15, § 232.

2 Mason v. U. S., 14 Ct. Cl. 59; Waters v. U. S., 4 Ct. Cl. 299; Kimball v. U. S., 5 ibid. 252; Heflebower v. U. S., 21 ibid. 228, 237; Grant v. U. S., 1 ibid. 41, 43–44 (a leading case); Sen. Rep. 544, 55th Cong., 2nd sess., 6. The Court of Claims has proceeded on the theory of implied contract and intention to pay. The U. S. Supreme Court leans more directly towards the theory of eminent domain. Mitchell v. Harmony, 13 Howard, 113, 134; U. S. v. Russell, 13 Wall. 36.

Saulnier (U. S.) v. Mexico, March 3, 1849, Moore s Arb. 3715; Hollenbeck (U. S.) v. Costa Rica, July 2, 1860, ibid. 3717 (building burned down in operations for defending town); Baker (U. S.) v. Mexico, July 4, 1868, ibid. 3668 (cattle and horses taken by Mexican army); Marks (U. S.) v. Mexico, ibid. 3722, Hall, ibid. 3722; Elliott, ibid. 3720; Bartlett, ibid. 3721; Cole, ibid. 3721; The Macedonian (U. S.) v. Chile, Nov. 10, 1858, ibid. 1465; cases cited in Hale's Rep. 44, Moore's Arb. 3688, Commission of May 8, 1871, and Henderson (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3728; Wilkinson, ibid. 3736; Braithwaite, ibid. 3737; Adlam, ibid. 2552. Means (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3706 (property destroyed in friendly territory to give better range to guns); Labrat (France) v. U. S., ibid. 3706; Shrigley (U. S.) v. Chile, Aug. 7, 1892, ibid. 3712; Dix (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 7; Kunhardt (U. S.) v. Venezuela, ibid. 63, 69; Spanish Treaty Cl. Com. Final Rep., May 2, 1910, pp. 15-17 (allowances for property used by Spanish authorities, regardless of the purpose); Reyes, No. 153; Del Valle, No. 222, No. 278; Yznaga, No. 279; Constancia, No. 196. Principles of allowance in Mixed Claims Commission in China, following revolution of 1911.

See Act of April 9, 1816, § 5 (3 Stat. L. 261); Act of July 4, 1864 (13 Stat. L. 381). The Act of Mar. 3, 1871 (16 Stat. L. 524) establishing Southern Claims Com

admitted. The rules relating to requisitions and contributions adopted at recent Hague Conferences, which will be examined presently, endeavor to give precision to the practice of appropriation of private property in belligerent territory. Under the present Hague Regulations private enemy real property cannot be appropriated. Private movables which may serve as war material may be appropriated, but they must be restored at the conclusion of peace and indemnities paid (Article 53). They must be acknowledged by receipt, and as between the belligerents, the treaty of peace determines upon whom shall fall the duty of making compensation. Personal property other than war material may not as a rule be appropriated. Article 46 provides that "private property may not be confiscated." But under exceptional circumstances of necessity, where there is no time for ordinary requisitions of food, etc., or where the property has been abandoned by its owner, the belligerent may properly seize it. It has already been noted that private enemy property found in belligerent territory at the outbreak of war or brought into it during the war may not be confiscated.

When the invading belligerent becomes a military occupant he is under still greater restrictions with respect to private property, which is subject to appropriation only under the rules governing requisitions and contributions.2

mission provided that “stores and supplies furnished by or taken from loyal citizens in the insurrectionary states should be paid for." Conventions of July 4, 1868 with Mexico, May 8, 1871 with Great Britain, and Jan. 15, 1880 with France permitted of similar payments to subjects of those countries. But where the person or property was tainted with unneutral character no recovery was allowed. Davidson, No. 66, Hale's Rep. 43. See House Doc. 460, 56th Cong., 1st sess., 9; order of Sec'y of War, June 22, 1862, Moore's Arb. 1036; proclamation of the President, July 13, 1898; Sen. Doc. 318, 57th Cong., 1st sess., 19. See Abandoned or Captured Property Act, March 12, 1863 (12 Stat. L. 820), Moore's Dig. VI, 901 and Moore's Arb. 3745. See also Lawrence's Rep. supra; Whiting's war powers under the Constitution, p. 340; article by Wm. King, War claims for property, 20 Amer. Law Reg. (1881), 227, 233. See also a few pertinent extracts in Moore's Dig. VI, § 1034.

1 Oppenheim, II, 170 et seq. See the Bulgarian decree of Feb. 25, 1913 to the effect that private real property abandoned by its Mussulman owners would become the property of Bulgaria. This is contrary to Art. 46. 40 Clunet (1913), 1043. On the principles followed by Greece during the occupation of Salonica see Maccas in 20 R. G. D. I. P. (1913), 230 et seq.

2 The military occupant's relation to public property is discussed by Oppenheim, II, § 134 et seq.

The use and occupation of buildings or real property in more than a temporary way and when not impelled by overruling military necessity has been held to involve the responsibility of the state,' and especially where the territory had come into the permanent possession of the occupying belligerent.2 Loyal citizens in the Southern states during the Civil War were given the right, under the Abandoned or Captured Property Acts, to sue for the rents of their abandoned property covered into the Treasury. It has been held lawful to quarter troops on and occupy the property of active enemy subjects.3 Under imperious military necessity, a belligerent may without indemnification use both public and private buildings and convert them into hospitals, barracks, stables and fortifications, as occasion requires.4

The government has been held liable on numerous occasions for such a use and occupation of private neutral property as to expose it specially to the fire of and destruction by the enemy.5 This rule extends only to property occupied in advance of actual fighting, rather than such as is occupied during an attack or retreat. It is the seizure of private property for the public use and its loss and destruction while so employed, that warrants an indemnity to the owner.

It has been noted that when military necessity in the presence of the enemy demands the immediate destruction of property to prevent its falling into the enemy's hands no liability is incurred by the belligerent.

1 H. Ex. Doc. 124, 43rd Cong., 1st sess.; U. S. v. Speed, 8 Wall. 83; Armendariz (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3722; Willet (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3743.

2 Crutchett (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 46, Moore's Arb. 3734. Other similar cases cited in Moore's Arb. 3735.

3 German practice in Franco-Prussian War, Bentwich, 33. See also Gonzales (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2824; Opin. of Judge Adv.-Gen., Howland, 250 and 253. (In Civil War, residents in insurrectionary states had to prove their loyalty; in Philippines, government had to prove native's disloyalty.)

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* Oppenheim, II, §§ 136, 140.

'Putegnat's Heirs (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3718, 3720,— other cases cited p. 3720; Bowen (U. S.) v. Mexico, ibid. 3731; Willet (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3743; Amer. Elec. and Mfg. Co. (U. S.) v. Venezuela, Feb. 13, 1903, Ralston, 35; Petrocelli (Italy) v. Venezuela, Feb. 13, 1903, ibid. 762; Matamoras Fire Claims (Gt. Brit.) v. Mexico, 52 St. Pap. 281; H. Rep. 386, 22nd Cong., 1st sess., 3, 9, 12; 3 Stat. L. 263, § 9; 3 Stat. L. 397, § 1. See opinion of Judge Adv.-Gen. Sept. 4, 1902, contra, Howland, 253.

The line between overruling necessity in the face of immediate danger and deliberate destruction for the ultimate end of preventing its capture by the enemy is often exceedingly vague, so that courts and commissions in numerous cases have considered such destruction under the latter head as an appropriation of private property for the public use and have awarded indemnities to the owner. To justify its destruction without title to indemnity, the danger of its capture by the enemy must be immediate and impending.

3

The cutting of privately-owned cables connecting occupied territory with neutral territory, when a military necessity, was considered, prior to the First Hague Conference, as not to afford a legal ground for a claim. to indemnity.2 The view of the United States was that such cables were exposed to the risks of war, as was other neutral property, in which view it was confirmed by Article XV of the Convention of March 14, 1884 for the protection of submarine cables, which left the belligerents freedom of action. But in considering the claims for neutral cables cut by United States forces in Cuba and the Philippines during the Spanish-American War, the President recommended their payment by Congress as a matter of equity, and several claims were accordingly paid. Article 54 of the Hague Regulations provides that cables connecting occupied enemy territory with neutral territory shall not be seized or destroyed, except in case of absolute necessity, in which event the cables must be restored at the conclusion of peace and indemnities paid. 5

Embargo, or the detention of private property, meant originally only the detention of vessels in port. The term has been used in several

1 Grant v. U. S., 1 Ct. Cl. 41; Wiggins v. U. S., 3 Ct. Cl. 412; Mitchell v. Harmony, 13 Howard, 115; Turner (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3684; Anderson and Thompson (U. S.) v. Mexico, July 4, 1868, ibid. 2479; Barrington (U. S.) v. Mexico, July 4, 1868, ibid. 3674; Bertrand (France) v. U. S., Jan. 15, 1880, ibid. 3705; The Phare (France) v. Nicaragua, Award of French court of cassation, ibid. 4870, 4873.

2 Atty. Gen. Griggs, 22 Op. Atty. Gen. 654.

3 See also Art. 5 of the U. S. Naval War Code.

'See quotations and citations in Moore's Dig. VI, 924-926 and H. Rep. 8, 57th Cong., 1st sess., pp. 1, 2, 5, 8 and S. Doc. 16, 58th Cong., 2nd sess., pp. 6, 10, 22, 23. Oppenheim, II, § 214. See Rule 54 of the Rules of the Institute of International Law on naval warfare adopted at Oxford, 1913.

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