rule has been confirmed by the Hague Regulations of 1899.1 It is, however, subject to certain modifications: (a) Certain kinds of property are considered lawful booty, e. g., arms, horses, and military papers seized from combatants on the field of battle; (b) objects useful in military operations, such as conveyances and war material of all kinds may be taken and used, but must be restored and compensation paid for their use; (c) requisitions of food, money, goods and services are justified by the necessities of war, and then only. They must be paid for or receipts given to be redeemed later;3 (d) contributions or payments over and above the usual taxes may be levied on all the inhabitants. The method of levying them is provided by the Hague Regulations. Such a wide discretion, however, is vested in the military commander as to the purposes for which they may be levied and as to their amount, that the restrictions imposed by the general rule and its strictly limited exceptions, are greatly weakened. The property of neutral subjects in hostile territory is liable to the same burdens as that of subjects of the enemy. The proposals of Germany and the United States at The Hague to grant neutral property greater privileges were defeated by the combined opposition of several of the other great powers. 5 4 6 The private property of alien enemies at sea is subject to capture, unless, where cargo, it is protected by a neutral flag; whereas the property of neutrals, ship or cargo, is exempt from capture, unless contraband. The first of these general rules has resisted the vigorous agitation of several countries, led by the United States, to secure immunity for the private property of enemies at sea, not contraband of war, although several states, by treaty, have agreed to abide by this more enlightened practice. The general rule above mentioned is 1 Latifi, op. cit., 29 et seq. 2 Hague Regulations, art. 53. 3 Hague Regulations, art. 52; Spaight, J. M., War rights on land, London, 1911, p. 381; Pont, Ch., Les réquisitions militaires, Nancy, 1905. 'Hague Regulations, arts. 49, 51. 5 Cases are enumerated in Latifi, op. cit., 32 et seq. • Westlake, op. cit. II, 284 et seq.; Frankenbach, C., Die Rechtsstellung von neutralen Staatsangehörigen in kriegsführenden Staaten, Marburg, 1910. 7 Bentwich, op. cit., 108 et seq. 132; Latifi, op. cit., 74 et seq. exceedingly difficult of application, owing to the difficulty in determining the enemy or neutral character of vessel or cargo. The flag is generally a prima facie test as to neutral property, but not as to enemy property. On the continent the enemy or neutral character of cargo is determined by the nationality of its owner, whereas in Great Britain and the United States this is determined by his commercial domicil. The question is further complicated by uncertainty as to who is the owner, consignor or consignee, by doubt in certain cases where ownership is transferred while goods are in transitu-though doubts are generally construed against the transferee 1-by the origin of certain kinds of produce, whether from neutral or from enemy soil (being enemy property in the latter case, though owned by a neutral), and innumerable other problems to which the question has given. rise.2 Certain kinds of property, however, are exempt from maritime capture. By Convention VI of the Hague Conference of 1907 merchant vessels of the enemy in the ports of a belligerent are allowed a reasonable time to discharge and leave.3 Exemption from confiscation is likewise extended to vessels which left their last port before the commencement of the war and are found on the high seas still ignorant of its existence. Where detention is necessary they must be restored after the war, or where requisitioned, compensation must be made. This rule extends also to enemy cargo under the above circumstances. The rule that enemy vessels with their enemy cargo may be captured, is also subject to exception in the following cases: (a) vessels engaged in religious, scientific and philanthropic missions; (b) cartel ships carrying exchanged prisoners; (c) hospital ships; (d) personal effects of passengers and crew; (e) fishing vessels; (f) postal correspondence and, as between some nations, mail steamers; and (g) submarine cables.* 1 The Vrouw Margaretha, 1 C. Rob. 336. 2 Halleck, op. cit. II, ch. 22, p. 96 et seq.; Wehberg, Hans, Capture in war on land and sea, London, 1911. 'Page, op. cit., 16–19; J. B. Scott in 2 A. J. I. L. (1908), 261; Oppenheim in 8 Ztschr. f. Völkerrecht (1914), 154 et seq.; Baty in 26 Jurid. Rev. (1914), 256. Supra, p. 62 note 2. • Latifi, op. cit., 103 et seq. CHAPTER III MUNICIPAL RESPONSIBILITY OF THE STATE $47. Outline of the Subject. An international claim, with its demand for diplomatic protection, is founded upon some violation of the right of person or property of an alien. In first instance, this right and the remedy for its infringement are measured largely by the municipal law of the state of residence. For this reason it is of importance as a foundation for a closer study of the international responsibility of the state to examine along broad lines the extent to which the state grants municipal remedies to an individual injured by an official or governmental act. This is necessary not only because municipal responsibility is often the measure of international responsibility and because injured aliens are so frequently remitted to their local remedies when calling upon the protection of their own government, but because, as will be seen, the responsibility fixed upon governments toward aliens by international tribunals and in the diplomatic adjustment of cases of protection deviates in many respects from the principles laid down by national judicial and administrative tribunals for the determination of municipal liability. A detailed study of the remedies of the individual in municipal law against acts of the administration, requires more space than is at our command for the present purpose, namely, to lay a foundation for the international responsibility of the state. The discussion, therefore, will be confined to a comparative treatment of various phases of the municipal responsibility of the state-on the one hand, remedies available to the individual through judicial control over the administration, particularly recourse for the annulment or prevention of unlawful acts of officials; and on the other hand, remedies in the form of actions for damages, against the state or against officers, for the injuries sustained by individuals through governmental acts. In the course of the discussion, the legal system prevailing in France, Germany, Great Britain and the United States will be primarily drawn. upon for purposes of comparison. § 48. Distinction between Governmental and Corporate Functions. Attention may first be directed to certain broad distinctions made in the administrative law of the civil law countries and manifested as well (although unconsciously, except in the case of municipal corporations) in the Anglo-American system. This is a division of the activity of the state into two separate aspects, the one governmental, or what Europeans call the state as a public power (puissance publique, öffentliche Gewalt), the other proprietary, or the state as a civil person. In its capacity as a governmental power or as a sovereign, jure imperii, the state is in principle immune from liability for its acts causing injury to private individuals. In a broad way this activity involves those functions which look to the external and internal security of the state-through army, navy, police, etc. By statute, as will be seen, this sphere of immunity is being gradually narrowed. On the other hand, the state, as a corporation, enters into legal relations with individuals and even engages in various enterprises, jure gestionis. In Europe such activity is even greater than in the United States. It involves such services as the operation of a railroad system, the carrying on of industrial monopolies, e. g., the manufacture of matches and tobacco products, and the ownership of land, buildings and other property. The state in these activities is considered as a private person, subject to the same liabilities and generally to the same principles of law as are applied to the individual. In Germany, the state viewed from this proprietary aspect is called the fiskus; in France these activities are known as actes de gestion. In the United States and Great Britain the admission of contractual liability is a manifestation of the distinction. While the federal government and the commonwealths of the United States have in no other way given expression to the distinction of governmental and private or corporate activities of the state, the distinction is clearly recognized in the law of our cities and other municipal corporations. $49. Judicial Control over Acts of Administration. Systems of judicial control over acts of the administration differ very much from country to country. Laferrière divides the important countries into three separate groups: 1 First, the group adopting the French system, which is characterized by the principle of the separation of powers with separate administrative tribunals having jurisdiction of litigation between the administration and individuals, and a tribunal of conflicts to determine what are acts of administration. This system in general has been adopted by Spain, Portugal, Italy, the German Empire and many of the important German states, Austria-Hungary, and some of the cantons of Switzerland. The second group is characterized by the absence of administrative tribunals, the administrative function nevertheless remaining distinct and separate from the judicial. The ordinary judicial tribunals pass upon all claims having a contentious character, but they cannot interfere in the powers of the administration or annul its acts. The independence of the administrative function from the courts may be asserted by raising the conflict, jurisdiction of which matter resides in one of the higher judicial courts. This system is followed by Belgium, Sweden, Norway, Denmark, Greece, the majority of the Swiss cantons and some of the smaller German states. With various modifications it has been adopted by several of the states of Latin-America. The third group includes Great Britain and the United States. Here the judicial tribunals have full jurisdiction between the administration and individuals, and by means of the extraordinary legal remedies, particularly injunction, mandamus and certiorari, have the power to delimit the sphere of administrative competence and exercise a powerful control over administrative acts. The system is characterized by a decentralized administration, its elective nature, and the absence of an administrative hierarchy, so that the powers exercised in a large part of Europe by superior administrative authorities are in the AngloAmerican system exercised by the judicial authorities.2 The law of 1 Laferrière, E.. Traité de la juridiction administrative et des recours contentieux, 2nd ed., Paris, 1896, I, p. 26 et seq. Cf. Goodnow, F. J., Comparative administrative law, New York, 1893, II, 144 et seq., for Great Britain, the United States, France and Germany. 2 For general works on the administrative systems of the more important coun |