International Law

by

Henry Maine

LECTURE XI.
RIGHTS OF CAPTURE BY LAND.

Before I leave the group of subjects discussed in the more recent lectures, it may be well to say something on a branch of the law of war by land which tries to regulate incidents of belligerency that cause sometimes as much suffering and very constantly more irritation than actual hostilities. This is the law of the capture of property in land war. I said in a former lecture that a war by land resembles a maritime war in the principles which are applied to the capture of property; but there is a great practical difference between the two, if neutrals do not happen to be interested in the same way in wars by land in which they have interest as in wars by sea, since there are no prize courts to insist on regularity and moderation. The principle of capture is that movable property captured either on land or at sea, is acquired by reduction into firm possession. Leaving, however, movable property for the moment, and passing to immovable, I begin by stating that there is a great deal on this subject in the older law books. 'A complete title to the land of a country,' says the leading rule, 'is usually acquired by treaty or by the entire submission or destruction of the state to which it belongs.' Here what is meant is the sovereignty or supreme right over property sometimes called dominium eminens, the right in the sovereign, whether corporate or single, to affect property by legislation. In some rare cases the proprietary right, generally in private hands, cannot be separated from the eminent domain. This occurs in India, and more or less, probably, all over the East. The sovereign is the universal proprietor; but in our day the quasi-proprietary rights which a conquered sovereign has created or respected, would in practice be maintained by a successful invader. Such, in fact, was the case in the recent British conquest of Burmah proper. But in the older International Law books another kind of acquisition by capture of private property in land seems to be chiefly contemplated. The writers appear to be thinking of the seizure of land which is private property by the soldiers of the conquering and invading army, much in the same way in which the provinces of the Roman Empire are supposed to have been taken possession of by the Teutonic barbarians. Nowadays that is a case which never practically occurs; but if it happened, the occupant of the land would hold it subject to the Roman principle of post-liminy. If the former owner returned he would ret vert to his old rights, and the new owner would be ousted. A more conceivable case is one in which an occupying civilian should sell for value a portion of the land of which he has taken possession. Here, too, in theory the principle of post-liminy would intervene, but the result would be that every sale of captured private property would produce a title to it so bad that one can hardly conceive its being effected. The modern usage is that the use of public land and public buildings, and the rents and other profits accruing from such lands and buildings, form part of the spoils of war. As regards private property in land, belligerents in modern times usually abstain, so far as is consistent with the exigencies of operations of war, from exercising the extreme right conferred by war of seizing or injuring private property or land. This custom obtains only so long as not only the owners, but also the community to which they belong, abstain from all acts of hostility, as it is not unusual for an invader to take or destroy the property of individuals by way of punishment for any injury indicted by them or by the community of which they are members on the property which he owns. In such cases the innocent must necessarily suffer for the guilty, but a humane General will not, except in a very extreme case, destroy a village for an outrage committed by an inhabitant of that village, or ravage a district to punish an attack made within its limits by a body of marauders. From the powers which a successful enemy enjoys to appropriate land and buildings, it is to be observed that the modern usages of war except museums, churches, and other monuments of art; and by some it is contended that no public building can be destroyed unless used for belligerent purposes.

If we now turn back to movable property, it is held that the arms, implements of war, and every description of movable property belonging to the State may be taken possession of by an invader. An exception to the right of seizure of movables of the enemy is made, indeed, in the case of archives, historical documents, and judicial and legal records. An invader can hold them so long as he remains in the country and requires their use; but to take them away with him is an act of barbarism prohibited by the customs of war, for the retention of such documents can by no means tend to put an end to a war, while it indicts a great and useless injury on the country to which they belong, and specially to those countries, now numerous, which, unlike England, have complete registration of titles to land. The seizure of scientific objects, of pictures, sculptures, and other works of art and science belonging to the public, has derived some sanction from the repeated practice of civilised nations, but would seem incompatible with the admitted restrictions of the rights of war, which deprive an enemy of such things only as enable him to make resistance, and therefore can only be justified as a measure of retaliation. Seventy years ago the question of the right of a successful enemy to carry away with him works of art was a matter of violent controversy in this country and in the whole of Europe, and the subject was several times debated in the British Parliament. It is a fact very generally known that after the early and astonishing successes of Napoleon Bonaparte in 1796, and afterwards in 1797, there was only one of the small Italian States which was not compelled to give up to the conquering French Government the works of art that were the glory of its chief cities. The Apollo Belvedere, the Dying Gladiator, the Medicean Venus, the Laocoon, the Bronze Horses, were conveyed to Paris and deposited in the Louvre, in which they remained until the overthrow of the first French Empire. On the overthrow of that Empire, when the allies, entering Paris for the second time, gained possession of the whole city, they restored most of these famous masterpieces to their original owners. The French expressed, and no doubt genuinely felt, the greatest indignation, which was, however, manifestly treated with much scorn by the English writers of that day, who seemed to look upon the anger of the French or Parisian population as amounting to an absurd refusal to have a rule applied to themselves which they had freely applied to others; but if we are to suppose that strict law applied to the case there was something to say against the international validity of the restorations in the way in which they were actually accomplished. Arguments, founded on this, were submitted to the British House of Commons, especially by the great lawyer Romilly. It was a fact that some of these works of art had formed part of forced military contributions, which a conqueror may always levy, and some were given up under express conventions to which the surrendering state had no power of resistance. In some other cases the state to which the return was made had been absorbed in another state during the long war with France. For example, Venice, which had surrendered some of the most beautiful works of art in the Louvre, had now become absorbed in the Austrian Empire. It was further argued that it was for the advantage of civilization that these works of art should not be dispersed over a number of small cities in Italy which were not then, all of them, easily accessible, but that they should remain in a place which on the whole was so easily reached as Paris. The fact seems to be that the carrying off of these works of art from their old Italian homes had been a new rule of war. For example, Frederick the Great, who more than once occupied Dresden, always spared the famous gallery and its contents. The new rule was introduced by Napoleon Bonaparte as conqueror of Italy, and what the allies in occupation of Paris applied seems to have been the rule of reprisal. There was, no doubt, if we throw the technical rule aside, a great deal to be urged on behalf of giving back these sculptures and paintings to the Italian cities. They were valued by them more than any mere property. Some of these cities before the war were hardly ever visited except by persons desirous of seeing some famous work. As I say, the one tenable argument against their restoration was the greater convenience to the civilized world of their being left in Paris; but in an age of railways their distance in Italy is no appreciable inconvenience, and the Manuals published recently by civilized states generally condemn the capture of works of art. Our own Manual says that the seizure of scientific objects and works of art can only be justified as a measure of retaliation. Here I may observe that an act attributable to a British commander of British troops, which is almost universally condemned in the numerous American works on International Law, can always be justified in the same way. Undoubtedly, at first sight, the destruction of the Capitol at Washington in 1814 is not an act of which an Englishman can be proud; but on examining the history of that war, it will appear that the British troops in Washington had been fired at from the arsenal; and that also, a short time before, the chief city of Lower Canada, then called York, had been burnt with all its public buildings by the American troops who occupied it. Hence this act, which at first sight deserves unqualified condemnation, may be to a certain extent justified as a measure of reprisal.

In all modern books on this subject there is more or less distinct condemnation of unauthorized pillage by the soldiers of an invading army; yet there is, unfortunately, no doubt that in all wars pillage does continue, and especially in every land war. There is a very old association between war and pillage, and pillage is generally very easy. A great deal of it, though not of the worst kind, unquestionably took place when the Germans occupied large portions of France. The English in Spain abstained from it so far as the orders of Wellington compelled them to do so. He in fact sometimes employed the severest punishments for the purpose of deterring his troops from plunder; however, he was operating in a friendly country, and would have suffered serious damage by its being converted to unfriendliness. A commander may, however, authorize pillage; but as to authorized pillage there is one considerable mitigation. Movable property captured according to the Roman principle, which International Law inherited, is res nulls; and it has been several times observed, by myself among others, that in the change of Europe from Roman to Feudal principles res nullius appeared to have become vested in the sovereign, and very often in the lord of the manor in which they were found, and lost therefore their old Roman character. The principle obtains in authorized pillage. It becomes technically the property of the Crown; it is collected together, and then equitably divided among the conquering troops as booty. It is also to be noted that modern usage authorises requisitions and forced military contributions, and, on the whole, the present theory is that these military contributions and requisitions have superseded all the older forms of capture.

Requisitions may be made in three ways. First, the inhabitants may be required to provide supplies without payment; secondly, they may be required to provide supplies at a moderate cost, without regard being had to the increased value accruing from the presence of the army; thirdly, they may be required to provide the supplies on payment of such price as they demand. Which of these three ways is to be adopted, is in the discretion of the General. Wellington disapproved of forced requisitions whenever they could be avoided; and when he entered France he sent the Spaniards back rather than be compelled to resort to requisition for the purpose of supporting his army. Both the Germans and the French have constantly exercised the right; and undoubtedly the strict rule admitted by the customs of war is that war may be made to supply itself. The same principles apply to contributions of money levied on a town or on a whole community. As an arrangement such a levy is just, as a means of maintaining an briny it is lawful, and possibly in some cases it is more equitable than requisition. The question is, whether it is expedient. It will be very generally remembered that at the close of the Franco-German war an enormous requisition was exacted from the French. The German policy was, undoubtedly, so to cripple France that it should be incapable of further attack on its neighbors. But the money requisitioned for the payment was raised by loans with surprising facility, and it is doubtful whether the enormous increase of the French National Debt -- now the largest in the world which it entailed has seriously affected the feeling of the French people towards those who invaded them.

This subject of foreign loans brings me to a question which has excited perhaps more interest than all other modes of impoverishing an enemy by capture, and one even more important than was at first supposed. Can a sovereign confiscate debts? Can he compel his own subjects, or any community over whom he has military powers, to pay to him debts which they owe to the enemy; that is, to the hostile sovereign or his subjects? The question has been much considered by two high authorities -- the Supreme Court of the United States, and the famous American jurist Chancellor Kent. The Supreme Court has solemnly decided that in strict law the right to confiscate debts still exists as a settled and undoubted right of war, recognized by the Law of Nations, but the Court at the same time admitted it to be the universal practice at present to forbear to seize and confiscate debts and credits even in a country on the opening of a war. The Court would not confiscate any debt without an act of the legislative power declaring its will that such property should be condemned. After a full examination of all the authorities and decisions on this question, Chancellor Kent says: 'We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in this country, that it rests in the discretion of the legislature of the Union by a special law for that purpose, to confiscate debts contracted by our citizens and due to the enemy;' but it is asserted by the same authority: 'This right is contrary to universal practice, and therefore it may well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern limes.'[Kent, Comm. i, 64] In the modern instances in which the right has been exercised, it is worth observing that the question of belligerent right was mixed up with the question of allegiance. For example, private debts were confiscated as against the Southern States by the Northern States in the war, and by the Southern as against the Northern. And the same principle has a few times been applied in India in a case where the enemy was also a rebel.

But the branch of this question which has now been considered for more than one hundred years is less general than that which I have put; it is, can a city, can a sovereign, confiscate debts due from itself or himself to enemies? This is the point raised in the famous case of the Silesian loan. The history of it is as follows: A loan of 80,000 l. had been advanced by subjects of Great Britain to the Emperor Charles VI. On the security of the Duchy of Silesia. Silesia, in course of time, was transferred to Prussia by virtue of the Treaties of Breslau and Dresden, and in consideration of this cession Prussia was to discharge the debt. The lying of Prussia, however, attached, i.e. took into his own hands, the debt by way of reprisals, but this by the terms of the treaty he had no power to do. He professed himself to be aggrieved by the decision of certain English prize courts in respect of acts of vessels belonging to his subjects, and refused to pay the British subjects the interest which he had pledged himself to pay. The English Secretary of State at once addressed to him, for Prussia was a friendly Power at the time, a letter dated February 8, 1753, in which he dwells upon the unprecedented nature of the proceeding, and states that he has the King's orders to send to the King of Prussia a report made to his Majesty by Sir George Lee, Judge of the Prerogative Court; Dr. Paul, his Majesty's Advocate-General; Sir Dudley Ryder, and Mr. Murray -- the Mr. Murray who afterwards became Lord Mansfield. The report in question is one of which British lawyers and the British Foreign Office have always been exceedingly proud. It is praised by two great foreign authorities of the time -- Vattel and Montesquieu; they both of them speak of it as admirable; it is, in fact, a most excellent example of the method of reasoning of which International Law admits; and in the end the King of Prussia gave way to its arguments, and the interest on the Silesian loan was ever afterwards punctually paid. The point which I have been describing, is not strictly raised by the facts, as Mr. W. E. Hall observes in his book; but the opinion of the law officers goes into many questions besides the main question submitted to them, and among these the trivial question whether a sovereign can confiscate debts due to himself, and argues against it. Ever since, it has been held that no sovereign can under these circumstances refuse to pay the interest on a loan which he has contracted because the recipients of the interest are for the moment his enemies. The danger introduced by the Prussian pretension was a great one. Perhaps we do not always notice sufficiently the extent to which British financial and economical interests are bound up with the sanctity of foreign loans. From the time at which this country began to grow rich till it became the richest in Europe, the difficulty of finding investment for British savings was very seriously felt. In Stuart times the surplus wealth which was not expended in land, or embarked directly in trade or manufacture, which were still in their infancy, was lent on personal or landed securities. There are plenty of allusions in the dramatic literature of the seventeenth century which might be produced in proof of this. It was scarcity of public investments which led to the violent struggle between the two companies formed for trading with India which were afterwards fused into the great East India Company, and also to the hot contest about the foundation of the Bank of England. In another way this scarcity led to the enthusiasm for mere speculative undertakings, or, as they were then called, for Bubbles, such as the South Sea and Darien Companies. During the eighteenth century British savings were invested in foreign loans wherever they could be found, as this case of the Silesian loan shows, and probably a good deal of British wealth was embarked in the constant loans raised by the King of France, who however, was at all times a very unpunctual debtor. But the favorite fields, no doubt, during that century for British investment were the tropical colonies which were gradually acquired in the West Indies and more southerly parts of North America. At the end of that century and in the beginning of the present the English National Debt grew to such proportions as to swallow up all other fickle of investment; but at the close of the great war loans to foreign states became commoner, and much British wealth was drawn to them. In early days they had to encounter many dangers. The various American States had borrowed largely, but also repudiated largely their liability on technical grounds. But if a sovereign could have got rid of indebtedness by going to war with the country in which he had most creditors, the risk would have been so great that probably few or no foreign loans could have been negotiated, and the economic history of England and Europe would have been quite different. The method of distributing the surplus capital of the richest countries, to which the civilized world is greatly indebted, owes its existence to this report of the English law officers in this deservedly famous case of the Silesian loan.