Until the Hague laws were drawn up, the soldiery preserved the right to take as booty any property which they could capture from the combatant enemy, and the State used to divide the proceeds of such captured goods equally among the army. Now, however, they are prohibited from doing this,1 so that they may have no taint of fighting for private gain; and all the personal belongings of prisoners of war, except horses and military papers, remain their property. Further protections for private property are provided in the general prohibitions "to destroy or seize the enemy's property unless its destruction and seizure be imperatively demanded by the necessities of war; and to attack or bombard towns, villages, habitations, or buildings which are not defended."2 This article, of course, does not prejudice the right of the belligerent to destroy buildings for military reasons; and no right to compensation from his own State can be set up in this case by the private owner, as was pointed out by Sir Edward Thornton, the arbitrator in a Commission established by the United States and Mexico in 1868 to settle differences arising out of the war between them. Wherever armies are present, and more particularly when hostile armies are face to face, the sovereign of the invaded land, as well as the sovereign invading, imposes martial law upon the inhabitants in the place of the law of the land, and applies it to all persons and all property in the district over which it is in force. The ordinary law of the land is thereby suspended, or at least subject to be overruled, by military requirements. 3 Martial law was well described by the Duke of Wellington as "neither more nor less than the will of the general who commands the army"; and such a law or absence of law involves a disregard of the rights of private property whenever they conflict, or are deemed to conflict, in the slightest degree with military needs. The commander who administers it is subject only to the customs of war. The rights of the invader are supreme over all rights of 1 Cf. Hague Laws, 7. 2 Ibid. 23, 25. private contract. In the words of the United States army instructions (art. 32), "A victorious army, by the martial power inherent in it, may suspend, change, or abolish the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen subject or native of the same to another." And the army of the invaded country has corresponding powers over the rights of peaceful citizens. When the preservation of the whole State is at stake, the rights of individual members of it must give way. The State at war may seize or destroy any property whatsoever if necessary, and its officers are the judges of that necessity. Nor, when the war is over, are the actions of the military authorities, however violent, justiciable by the ordinary tribunals. In England this was decided in a case which arose out of the Boer war (Ex parte Marais1), which dealt with the liberty of the subject. A fortiori, the principle of non-liability will apply to cases of property. Nevertheless, a belligerent sovereign to-day could hardly demand of his own subjects such sacrifices as William the Silent in 1573, when he flooded part of the Netherlands to drive off the Spaniards; or, again, such a devastation as the Tsar Alexander imposed in 1812, when he made his country a desert and fired Moscow for the reception of Napoleon. Vattel held that there should be a limit to the rights of a belligerent Government in this way,2 and even the plea of imperious necessity would not allow such wholesale destruction of private property to-day. Certain States retain by statute or the articles of the Constitution a right to commandeer in preparation for war any private property of its subjects which may be of service to it. The Transvaal Constitution included such a right, and the Government applied it in 1900 to quantities of gold belonging to companies registered and working on the land. The Government really forms a contract with the person or corporation from which the property is seized, but it may not be in a position to honour that contract at the end of the war; and its successor 1 (1902) A. C. 109. 2 Droit des Gens, Book III. Chap. IX. may not think itself bound by it, so that a loss will result to private citizens or domiciled neutrals. Similarly, a belligerent Government often levies forced loans of money from its subjects immediately before and during the war, and it enforces payment from resident neutrals as well as from its own subjects. Englishmen residing in the Southern States were much affected by the exactions of the Confederate Government during the war with the Federal States; but Lord Russell refused to interfere on their behalf in cases where they were genuinely settled for purposes of trade. The United States Government itself protested against the usage when it pressed upon its own subjects resident in Peru in 1869. But it seems equitable that domicile should determine the disabilities of neutrals in regard to contributions, just as it does in regard to trade or destruction of property. Apart from the damage to property induced by the necessities of war and the substitution of civil by martial law, it is further menaced by a survival in a modified form of the old usages of spoliation and confiscation. They pass now under the fairer names of requisitions and contributions, and they apply particularly to territory in military occupation; but the former, at any rate, are imposed also on any territory through which an invading army is marching. The requisitions, contributions and fines of the French kings, and later of Napoleon, represented a systematising of the earlier practices of plunder, and in the course of the last century a more careful limitation of these rights was gradually reached, while, finally, the Hague laws endeavour to confine the appropriation within the limits of military necessity. Still, these practices remain a real, if not a formal, violation of the modern theory of the immunity of private property on land, and they call for stricter regulation than is at present enjoined. It will be convenient to treat them in relation to the general rights of the military occupant over property, with which they are most frequently associated. The careful distinction between such occupation and conquest is one of the great improvements in modern warfare, and prevents the premature disturbance of property and legal relations which resulted from the old con ception that the invader had conquered the territory as soon as he was in occupation of it. To-day conquest does not result until there has been the complete subjugation or extinction of one of the belligerents. A treaty may not always be necessary to perfect the condition; e.g., Lower Burmah was annexed to India without any formal cession; but there must be, de facto, a complete subjugation and cessation of resistance. Until this occurs there is only occupation. A territory is held to be occupied when it is placed, as a matter of fact, under the authority of the hostile army which has exclusive possession. The national Government is provisionally driven out, and the invader must set up some authority in its place; and according to the Hague rule, "he shall take all steps in his power to re-establish and ensure as far as possible public order and safety, while respecting, unless absolutely prevented, the laws of the country." This stipulation, which prevents him from interfering with private law as to property or contracts, is supported by another which says that "the private property of individuals must be respected and cannot be confiscated." 2 The duty of the occupier to respect the existing political order in his provisional Government is further marked by the rule which directs the assessment and incidence of taxes and customs to be carried on by the occupant according to existing practice. The Hague laws, having thus provided for the general security of property, go on, however, to legitimise the imposition of requisitions and contributions by the occupant without requiring payment for them. It may be argued that requisitions, at any rate, are only rights of the sovereign State, exercised provisionally by its substitute in occupation, and even that contributions are only a special war tax, such as either the regular sovereign or his deputy has a right to enforce during hostilities. The hardship upon the subject is that he has often to pay both Governments, the temporary and the permanent, the first in order to supply it with the means of fighting his own country, the second in order to enable it to procure peace. A requisition is defined by Littré as "la demande faite par l'autorité pour avoir à sa disposition des hommes et des choses." Nys quotes a definition of Lewal which is more illuminating of present practice: "Requérir, c'est militairement demander, exiger non à vertu d'un droit mais au nom de l'obligation de vivre." There is in fact no jural foundation to requisitions, but they are justified by that necessity, the instinctive right of selfpreservation, which is anterior to, and paramount over, all civil law. And only so far as they are justified in this way are they permitted to the invader by the modern laws of war. The national Government may, of course, by its municipal law have special rights of requisitioning from its citizens which go beyond what is demanded by necessity. In England, indeed, the State has no right to billet soldiers in private houses or demand supplies for them from private owners, though it may do so for a proper (statutory) payment in the case of innkeepers and licensed victuallers. But on the Continent the State maintains wide rights of this character in times of peace in order to provide shelter and food for its vast conscript armies. And these rights it extends in war. The French law of 1877 empowers the French commanders to make requisitions in times of war not only on French soil but also abroad, and prescribes payment or State liability only in the former case. The requisitions which a belligerent makes in the country of its enemy are considered commonly to be a proper burden upon its enemy. But they may not in future, as they have been in the past, be used as an indirect means of spoliation. Thus, during the Franco-Prussian war, when the practice was most systematically carried out, in spite of their fine proclamations that they made war only on the State and not on the citizens, the Germans organised the whole of AlsaceLorraine and, in fact, the whole of France as far west as Paris, as a vast requisitioning ground. It has been reckoned that property to the value of 16,000,0007. was thus seized. Each commandant had the right of ordering from the inhabitants lodging and the necessary supplies for his army. And the inhabitants had either to meet these specific demands made upon them, or they could redeem the obligation of keeping the soldiers who were billeted proportionately among them for two |