International Law Part 24

-- 104. Personal Property of Enemy Subjects

The _movable property_ of the subject of one of the belligerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown _v._ United States,[312]

in 1814, the Supreme Court held that the "existence of war gave the right to confiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws."[313] The most recent practice has been to exempt personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property is liable to the taxes, etc., imposed upon others not enemy subjects.

In case of hostile occupation, the Hague Conference of 1899 summarized the rules as follows:--

"+Art. 46.+ Private property cannot be confiscated.

"+Art. 47.+ Pillage is formally prohibited.

"+Art. 48.+ If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, so far as possible, in accordance with the rules in existence and the a.s.sessment in force....

"+Art. 49.+ If ... the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory."

Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for contributions.[314]

The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity.[315]

With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the _public debt_ held by an enemy subject is wholly exempt from seizure or sequestration, and practice even demands that interest must be paid to enemy subjects during the continuance of the war.[316]

In case of belligerent occupation, contributions, requisitions, and other methods are sometimes resorted to in supplying military needs.

_Contributions_ are money exactions in excess of taxes.[317]

Contributions should be levied only by the general-in-chief.

_Requisitions_ consist in payment in kind of such articles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region.

Receipts for the value of both contributions and requisitions should be given, in order that subsequent impositions may not be made without due knowledge, and in order that the sufferers may obtain due reparation from their own state on the conclusion of peace.

In naval warfare "reasonable requisitions for provisions and supplies essential at the time"[318] is allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, cannot be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.[319]

_Foraging_ is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual process of requisition, and consists in the actual taking of provisions for men and animals by the troops themselves.

_Booty_ commonly applies to military supplies seized from the enemy. In a more general sense it applies to all property of the enemy which is susceptible of appropriation. Such property pa.s.ses to the state of the captor, and its disposition should be determined by that state.

CHAPTER XIX

STATUS OF PROPERTY AT SEA

105. +Vessels.+ (_a_) Public vessels.

(_b_) Private vessels.

106. +Goods.+

107. +Submarine Telegraphic Cables.+

-- 105. Vessels

Vessels may be cla.s.sed as public, belonging to the state, and private, belonging to citizens of the state.

(_a_) =Public vessels= of a belligerent are liable to capture in any port or sea except in territorial waters of a neutral. The following public vessels are, however, exempt from capture unless they perform some hostile act:--

(1) Cartel s.h.i.+ps commissioned for the exchange of prisoners.

(2) Vessels engaged exclusively in non-hostile scientific work and in exploration.[320]

(3) Hospital s.h.i.+ps, properly designated and engaged exclusively in the care of the sick and wounded.

(_b_) =Private vessels= of the enemy are liable to capture in any port or sea except in territorial waters of a neutral. The following private vessels are, however, exempt from capture unless they perform some hostile act:--

(1) Cartel s.h.i.+ps.

(2) Vessels engaged in explorations and scientific work.

(3) Hospital s.h.i.+ps.

(4) Small coast fis.h.i.+ng vessels. This exemption is not allowed to deep sea fis.h.i.+ng vessels.[321]

(5) Vessels of one of the belligerents in the ports of the other at the outbreak of hostilities are usually allowed a specified time in which to take cargo and depart. In the war between the United States and Spain, 1898, Spanish vessels were allowed thirty days in which to depart and were to be exempt on homeward voyage. Vessels sailing from Spain for the United States ports before the declaration of war were to be allowed to continue their voyages.[322] Spain allowed vessels of the United States five days in which to depart.[323] It did not prohibit the capture of such s.h.i.+ps after departure. No provision was made for vessels sailing from the United States for Spanish ports before the declaration of war.

In the Prize Law of j.a.pan, 1898, the following exemptions of enemy's vessels are made:--

"(1) Boats engaged in coast fisheries.

"(2) s.h.i.+ps engaged exclusively on a voyage of scientific discovery, philanthropy, or religious mission.

"(3) Vessels actually engaged in cartel service, and this even when they actually have prisoners on board.

"(4) Boats belonging to lighthouses."[324]

-- 106. Goods

In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, historical and scientific collections are sometimes held to be exempt, and probably would not be captured.

Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under -- 105, (_b_).

Contraband of war under any flag, outside of neutral territory, and destined for the enemy, is liable to capture.

Neutral goods in the act of violating an established blockade may be captured.

Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that:--

"The neutral flag covers enemy's goods, with the exception of contraband of war," and