senses: (1) as a form of reprisal by which enemy merchantmen in belligerent ports were formerly confiscated; (2) the detention of vessels to prevent the spread of important military information; and (3) the right, better known as angary, to use and if necessary, destroy neutral vessels temporarily in a belligerent port. The United States in its treaty of 1795 with Spain stipulated that "Citizens . . . shall not be liable to any embargo or detention . . . for any military expedition, or other public or private purpose whatever. This inhibition of embargo has been held to extend to property on land as well as to vessels. and their cargoes.2 In former times, it was a common practice for belligerents to lay an embargo on enemy merchantmen in their ports at the outbreak of war. Article 1 of Convention VI of the Second Hague Conference provides that it is desirable that an enemy merchantman in port be allowed freely to depart, and it is probable that only for grave reasons will a belligerent now detain an enemy merchantman. Such vessels as are detained may not be confiscated, but must either be returned, without indemnity, at the end of the war or may be requisitioned on payment of compensation (Article 2). The same rule applies to vessels which left their last port before the outbreak of war, and while ignorant of the war, are met at sea by a belligerent war vessel (Article 3). As in modern days vessels rarely remain ignorant of war for any length of time, this apparent exemption from capture is likely to be illusory.

The right of belligerents in case of necessity, for belligerent purposes,

1 A somewhat similar clause is contained in Art. 7 of the treaty of 1828 with Brazil. Macias (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3775; Thompson, ibid. 3779; Rivas, ibid. 3780. The cases of embargo under the decree of 1869 in Cuba are discussed in Moore's Arb. 3754 et seq. Indemnities for similar embargoes were provided for in the unratified Strobel-Figuera agreement of May 3, 1887. For the embargoes under decree of 1896 and the embargo claims arising out of the 1895-1898 Cuban insurrection, see Moore's Dig. VI, 908–914 and cases of Hernsheim, No. 297, Bauriedel, No. 239, and Gato, No. 171, before the Spanish Treaty Cl. Com. See also Rule 10 of that Commission.

3 Oppenheim, II, §§ 40, 102a. See full discussion in Scott, Hague Conferences, 556-568. The United States is not a signatory of this convention. Contrary to the general practice, Turkey, which has not ratified Convention VI, seized some Italian vessels in Turkish ports at the outbreak of the Turko-Italian war of 1911. 15 R. D. I. n. s. (1913), 577. On days of grace for departure of enemy vessels in port at outbreak of war, see supra, p. 62.

to detain, use, or even destroy neutral property not vested with enemy character is known as the right of angary, a modern development of the former jus angarice.1 The payment of indemnity is a necessary condition of such use of neutral property. The application of this rule has generally arisen through the detention, use or destruction of neutral vessels temporarily in the ports of a belligerent.2

§ 105. Requisitions and Contributions.

Requisitions and contributions are a modern survival of the old usage of spoliation and confiscation. They are levies of supplies and money made by a belligerent on the theory that he may make his enemy pay for the continuation of the war. They are imposed usually in territory under military occupation, although requisitions may also be levied by an army on the march. By municipal law, states often levy requisitions upon their own subjects, but this is generally conditioned upon payment of proper indemnities. While the property of neutral aliens useful for military purposes, such as horses or automobiles, is subject to requisition, the national governments of these aliens may properly insist upon payment in cash, or else acknowledgment by receipt with a view to future payment. It is also proper to insist that there be no discriminatory treatment of the subjects of any one foreign nation.

When exercised by a belligerent upon enemy territory, the unrestricted right of requisitions and contributions is too apt to become an indirect means of spoliation, and the Regulations adopted at the Hague Conferences are intended, first, to limit the right to immediate military necessities, and secondly, to prevent the burden falling upon the individual alone, but rather to distribute it equally over the population as a

1 Oppenheim, II, § 364; Westlake, II, 119; Hall, 741; U. S. Naval War Code, Art. 6.

2 Labuan (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3791; Ophir (U. S.) v. Mexico, April 11, 1839, ibid. 3045; Brig Splendid (U. S.) v. Mexico, ibid. 3714; Kidder (U. S.) v. Mexico, March 3, 1849, Opin. 519 (not in Moore); Orr and Laubenheimer (U. S.) v. Nicaragua, March 22, 1900, For. Rel., 1900, 824, 829; The Moshona and the Beatrice (U. S.) v. Great Britain, For. Rel., 1900, 529-618; The Tabasqueno v. U. S., For. Rel., 1907, 614 (neutral cargo is in the same position as the neutral vessel); U. S. v. Russell, 13 Wall. 623 (implied contract in municipal law). See the celebrated case of the sinking by German troops of British vessels in the Seine, 1870, in which indemnity was paid. 61 St. Pap. 575, 600, 611 and Moore's Dig. VI, 904.

whole. Article 52 of the Hague Regulations provides that "neither requisitions in kind, nor services, can be demanded from localities or inhabitants except for the needs of the army of occupation. They must be in proportion to the resources of the country. . . . Supplies in kind shall as far as possible be paid for on the spot; if not, the fact that they have been taken shall be established by receipts." 1 In addition, only the local commander, and not individual officers or soldiers, may order requisitions. Quartering is a special kind of requisition, which comes under the general rule.

The great weakness of these Regulations lies in the fact that no definite limitation is imposed upon a military commander, and the owner of private property is only in a little less precarious condition than heretofore. There is no guide to what may be considered "the needs of the army of occupation," and because of the fact that payment need be made only "as far as possible," the right of indemnity is problematical. It is true that receipts evidence the exaction of goods, but no promise to pay is implied, either by the occupant or the occupied country. The treaty of peace may settle the question of payment, but if left open, the owner is dependent on the bounty of his government, unless as in France the law provides that the individual shall have an action against the commune for reimbursement of requisitions.2

Contributions are a further menace to private property. They consist in the levy of money upon the inhabitants of occupied territory, in excess of the produce of regular taxes. The Hague Regulations (Articles 49-51) have endeavored to prevent extortionate demands amounting to spoliation, by systematizing and limiting the right to levy contributions. They may be levied for the needs of the army only or of the administration of the occupied territory. This is to operate as a check upon pillage. Again, the contributions must be levied on the written

1 Bentwich, 34; Albrecht, Requisitionen von neutralem Privateigentum, Breslau, 1912, p. 1 et seq.; Oppenheim, II, § 146 et seq., Westlake, II, 96 et seq. C. N. Gregory in an article in 15 Columbia L. Rev. (1915), 207-227 presents a useful resumé of the views of leading publicists on the subject of contributions and requisitions.

2 Dalloz, Supplement XV, 1895, p. 459; 21 Journ. du Dr. Administratif (1873), 171-187; 37 Clunet (1910), 255, case in Chile. A French law of July, 1909, makes automobiles the subject of requisition, regardless of the nationality of the owners. See proceedings against John Morris, a British subject, noted in Jan. 1914, Journ. of the Soc. of Comp. Leg., p. 283.

order and on the responsibility of a commander-in-chief, and not merely of a local commander. They must not be imposed indiscriminately, but must follow the assessment rolls, and receipts must be given.1 These limitations upon the levy of contributions do not prevent a belligerent from imposing fines upon inhabitants who commit acts of hostility against him, or disobey his commands. Under such circumstances, private property may even be confiscated. This is forfeiture, rather than appropriation. The belligerent may no longer properly, however, "inflict a general penalty, pecuniary or otherwise, on the population on account of violent acts for which it cannot be regarded as collectively responsible." 2

A belligerent government often levies forced loans upon its own subjects immediately before or during the war, and resident neutrals are equally liable to such payment. The United States in 1868 in a case in Italy admitted that its citizens resident abroad are subject to these exactions, on the condition that they be levied on all the inhabitants impartially and in just proportions.3 On the other hand, the United States has protested against the usage on several occasions, or at least insisted upon repayment. Well-ordered countries do not levy forced loans. Mexico has resorted to the practice on several occasions, and numerous claims of this kind have come before arbitral commissions between the United States and Mexico. The Commissions of 1839, 1849 (domestic), and 1868 (until Thornton became umpire), considered forced loans illegal, and made awards in favor of the claimants.5 When Thornton

4

1 Bentwich, 36; Oppenheim, II, § 148.

2 Hague Regulations, Art. 50; Bentwich, 37.

3 Moore's Dig. VI, 916. Although British subjects were protected by treaty against forced loans, it seems Mr. Seward would have regarded their exemption as a discrimination against U. S. citizens who enjoyed no such treaty exemption. See also McManus (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3411, 3415 and Rose (U.S.) v. Mexico, ibid. 3417, 3421.

Mr. Bayard, Sec'y of State, to Mr. Buck, Min. to Peru, May 20, 1886, Moore's Dig. VI, 918; Mr. Fish, Sec'y of State, to Mr. Foster, Min. to Mexico, Aug. 15, 1873, ibid. 917.

5 Ducoing (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3409; Homan (U. S.) v. Mexico, March 3, 1849, ibid. 3409; Robinson (U. S.) v. Mexico, ibid. 3410, and other cases cited on p. 3410; Moke (U. S.) v. Mexico, July 4, 1868, ibid. 3411 (opinion by Wadsworth, Amer. commissioner). See also Beckman (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 599 and De Caro (Italy) v. Venezuela, Feb. 13, 1903, ibid. 818.

succeeded Dr. Lieber as umpire of the 1868 commisssion, he held forced loans to be legal, and provided they are equally distributed amongst all the inhabitants, without discrimination in the exaction or the reimbursement between native and foreigner, even if neither are repaid, there is no ground of complaint.1 Transient aliens are not subject to forced loans. Umpire Thornton also expressed the opinion that treaties exempting the citizens of certain countries from forced loans merely prevented a discriminatory exaction against those citizens, but that they are subject to such loans equally with other inhabitants. The United States, in numerous treaties with foreign countries, has stipulated for the exemption of its citizens from forced loans.

§ 106. War at Sea.

4

With respect to war at sea, only a few rules have thus far been formulated at The Hague. At the London Naval Conference numerous rules were adopted, which, while reasonable and regarded as a restatement of established law, have, as yet, failed of general ratification. As contrasted with land warfare, one of the most important phenomena of maritime war is the difference between private enemy and neutral property. Notwithstanding the efforts of the United States, enemy merchantmen and enemy cargo in such vessels are still subject to seizure.5 Neutral property, however, since the Declaration of Paris, enjoys a considerable range of immunity from seizure, which extends, in the case of vessels, to enemy goods on board, with the exception of contraband, and in the case of goods, exempts them from seizure, if not contraband, even under the enemy flag. Convention VIII of the Second Hague Conference provides for certain methods of legitimate attack upon and capture of enemy

1 McManus (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3411, 3415; Rose (U. S.) v. Mexico, ibid. 3417, 3421; Cole, ibid. 3422 and cases cited p. 3423. But he awarded indemnities when the exaction of the loan was enforced by arrest and imprisonment, as he believed there must have been means of enforcing payment by judicial proceedings.

2 Weil (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3424, Thornton, umpire. 3 Moore's Arb. 3416.

The Institute of International Law, at its Oxford meeting in 1913, adopted a code of naval warfare. 15 R. D. I. n. s. (1913), 677 et seq.

'The history of private property at sea is discussed by Oppenheim, II, § 176 and by Bentwich, ch. VII. See also Loreburn, R., Capture at sea, London, 1913.