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session of the Southern Confederacy was enemy territory, and the property there enemy property, so far as warlike capture was concerned, and without regard to the question of individual loyalty.
3. Neutral subjects having houses of trade in the enemy's country.
These are enemies so far as their property involved with these houses of trade is concerned. At the same time an enemy merchant with house of trade in a neutral country is likely to have his goods also seized. It is a case where a rule does not work both ways. In the first place the national character of the place prevails, in the second case the national character of the person holds.
Effect of war as to property.—The first property that takes an inimical character is naturally the property of a belligerent state of a warlike nature. In fact all property belonging to the state becomes enemy property with the limitation that property not of a warlike nature, or of the nature of resources, cannot properly be subject to wanton destruction. It can be used, of course, but not legitimately destroyed. A familiar historical example of the violation of this rule was the destruction or partial destruction of the Capitol and other public buildings in Washington during the War of 1812 by the British forces. Even English writers of the present day do not condone this action. The excuse was offered by the British authorities at the time that it was in retaliation for the burning of the village of Newark in Canada by our forces; but it was established that this burning was an incident of the hostile operations there, and not deliberate, and besides no complaint had been made to us nor reparation asked. It is reasonably well established that before retaliation can be exercised against an enemy, proper reparation should be asked, which, if refused, then gives a right to exercise retaliation.
Property belonging to a state or territory occupied by an
enemy cannot be sold by the occupying belligerents. The property can be used or rented by the belligerent, but upon his departure he has neither the right to destroy it, if it be not of a military nature, nor to sell it. All such acquired titles are illegal and, of course, not recognized by the state to which they belong upon reoccupation.
The seizure of money belonging to the enemy state is legitimate, except funds set apart for hospitals, schools, and for scientific or artistic objects. Taxes for local administrative purposes, such as roads, police, lighting towns, etc., are not legitimate objects of capture or confiscation. Timber can be cut and sold from state forests, but apart from the necessities of war, such as the necessity for fuel, etc., timber should not be cut so as to affect the future annual productiveness of the timbered lands. During the Franco-German War, for instance, the German authorities sold 15,000 oaks growing in the state forests in certain departments of France. After the war the French authorities seized those which had not already been removed. The purchasers appealed to the German Government, but the latter left it to the French courts, which annulled the sale as being wasteful and excessive.
Vessels of the state engaged in peaceful explorations or voyages of scientific discovery are by common consent granted immunity from capture, as has been previously stated.
Although the usage is not definitely settled the prevailing opinion of jurists and of the most enlightened people is that the contents of museums and libraries, as well as works of art, are not legitimate objects of capture or removal. During the campaigns of the Revolution, and of the First French Empire, the practice was otherwise, but until the recent shortlived Turko-Greek War the rule was not to disturb such things. In 1897 the director of museums at Constantinople
. sent an order to the commander-in-chief of the Turkish army at Thessaly to transport to the capital all antiquities found
during the occupation. This has been done, and the great powers of Europe, in arranging the treaty of peace, either ignored or assented to this spoliation.”
Property of individual enemy subjects.—2. Property belonging to the individual subjects of the enemy
state assumes the character of enemy property.
Property on land of this kind is in modern times exempt from direct seizure, but through contributions and requisitions, fines, etc., such property suffers indirectly but heavily in occupied territory, not to speak of the direct results of the march of a great army through a territory. Besides there is the possibility of its use for hostile purposes and a liability to direct destruction of anything approaching military resources in case a devastation is ordered to prevent the supplies reaching the other belligerent. Private property under an enemy flag at sea is still liable to capture and confiscation by the laws of the United States, although we have by action of Congress expressed our desire to see this liability abolished by the universal assent of the maritime powers.
There are some anomalies that would come within this subject, as when one belligerent assumes a protectorate over another state or country. In this case war does not necessarily exist between the protected state and the other belligerent. A case in point was the position of the Ionian Islands in the Crimean War. This little republic, under the protectorate of Great Britain, still kept up its trade with Russia, and an Ionian vessel captured for trading with the enemy was released by the English courts on the ground that the Ionian Republic was not at war with Russia. Hall gives a good rule for such cases when he says that the use which a country or place is put by the power which exercises de facto control determines the neutrality or belligerency of the territory.
2 Art. 56 of Hague Laws of War on Land.
As to persons living in enemy country.—One of the first questions arising at the outbreak of war would be the future status of enemy subjects or citizens residing in the state of the other belligerent at the outbreak of war.
The treatment of such persons has varied very much since the Middle Ages, but the usage has been progressively more and more humane and liberal.
The modern doctrine can be stated to be that expulsion may be resorted to in extreme cases, the necessity to be judged by the government of the state, but unless there are special reasons existing the subjects or citizens of the enemy state should be allowed to remain in the state of the other belligerent so long as they gave no aid or information to their own country.
The United States took the stand by special treaty with Great Britain in 1794 that in future wars between the countries, subjects or citizens of each residing in the country of the other should remain undisturbed so long as they lived peaceably and observed the laws. If their conduct was such as to cause them to be suspected they were to be allowed a term of twelve months to settle their affairs before leaving.
Dr. T. J. Lawrence sums up the modern rule of international law as to this matter in general terms to be “that, in absence of treaty stipulations, the right to arrest no longer exists, and, though the right to expel remains, it should be used sparingly and only in great emergencies."
The last instance of expulsion was in 1870 of Germans from the Department of the Seine during the Franco-German War of that date,
WAR CODES.—LAWS OF WAR.—GENEVA CONVENTIONS.
War codes.-It is gratifying to quote the statement of Bluntschli, a distinguished European publicist, when he says that of the various modern acts and movements that have tended to ameliorate the evils of war, the promulgation of the “instructions for the government of the armies of the United States in the field, drawn up mainly by Dr. Francis Lieber, as a general order in 1863, was among the first and most remarkable." These rules are still in existence, and are in substantial accordance with the existing conventions adopted by The Hague Conferences in 1899 and 1907. These latter codes were adhered to by the United States, and that of 1907 will be found in the Appendix.
To these codes have been added the authoritative rules embraced in what is known as the Geneva Convention for the amelioration of the condition of the sick and wounded. This convention has been agreed to generally by the civilized powers, the United States acceding to the original articles March 1, 1882, and the convention is also authorized by The Hague code for warfare on land. The additional articles of the Geneva Convention which were tentatively adopted by the United States, have been superseded by the articles adopted by The Hague Conference of 1907, which are also in the Appendix.
Men who take up arms against one another in public war do not, as one of the articles of the code says, cease on that account to be human beings, responsible to one another and to God. The laws of war do not recognize in belligerents