the Union could reach the city the Confederates had time to evacuate it, after setting fire to the government stores and thus causing the destruction which their victorious foes endeavored to prevent. And while both the temptations to excess and the opportunities for it are less than before, the sentiments which have caused the general improvement in the laws of war have not left untouched the department of them which deals with sieges and assaults. The Brussels Conference of 1874 laid down that "A town taken by storm shall not be given up to the victorious troops to plunder; and we may be allowed to hope that the military codes of all civilized states will soon make such proceedings penal.

§ 194.

The last point to notice in connection with non-combatants is that

Special protection is granted to those who tend the sick and

The special protection granted

the sick and

wounded.

wounded.

This was the work of the Geneva Convention of 1864. Till then it was doubtful whether army surgeons captured by the enemy would be held as prisoners of war. to those who tend In the eighteenth century they were captured, but on an exchange were returned without equivalent or ransom. In the present century practice has not been uniform and text-writers have been unable to agree. The Instructions issued to the armies of the United States in the American Civil War forbade their detention unless the captors had need of their services. But the Geneva Convention went further and neutralized them altogether, along with nurses, chaplains, and all attendants upon the sick and wounded. They may not, therefore, be held as prisoners of war, and though they are expected to remain who are under their charge when taken

and care for those

1 British State Papers, Miscellaneous No. 1 (1875), p. 321. 2 See § 188.

3 In the recent Boer war the doctors on each side sometimes went and returned unmolested between the opposing camps to attend to wounded who would otherwise have been without surgical aid.

The

by the enemy, they are free to depart at any moment. Convention contains further stipulations in favor of inhabitants of an occupied district who receive the sick and wounded into their houses and tend them there. No troops are to be quartered upon them, and they are to be indulgently treated in the matter of war contributions. The Additional Articles of 1868 imposed upon the staff of a captured hospital or ambulance the obligation of remaining with those under their care till their services were no longer needed, and qualified to some extent the absolute immunity from the quartering of troops granted by the original convention to houses where wounded men were cared for. But as these supplementary provisions have not been ratified by the contracting parties, they can hardly be considered binding, though no doubt some of them will be acted upon from motives of humanity in future wars between civilized powers.1

1 Treaties of the United States, pp. 1150-1156.

CHAPTER IV.

THE LAWS OF WAR WITH REGARD TO ENEMY PROPERTY

ON LAND.

§ 195.

UNDER the above head we will first consider the case of

Property of the enemy government found within a state at the outbreak of war.

Enemy property found within a state at the outbreak of war. Such property may belong to the enemy state or to its subjects. The first case is exceedingly unlikely to arise; for a state does not in its corporate capacity own real property in its neighbors' territories, and if it should possess personal property so situated, it would take care to withdraw any of its goods and chattels that were in the power of a probable foe as soon as relations became so strained that war was likely to break out. It is, however, just possible that the commencement of hostilities might find public ships, or treasure, or arms and military stores belonging to one belligerent, still remaining within the territories of the other. In that case they would undoubtedly be confiscated; but such things as books, pictures, statues, curios and ancient manuscripts would probably be regarded as exempt from the operations of warfare and restored accordingly.

§ 196.

At the outbreak of war a state frequently discovers within its borders a considerable amount of private property belonging to subjects of the enemy. In dealing with such a case

enemy subjects

state at the out

we shall find it convenient to give separate consideration to real and personal property, and to take first the case of real property or immovables. The medieval Real property of rule was to confiscate such property as soon as found within a hostilities began, and not till the commencement break of war. of the eighteenth century do we find germs of the contrary practice. In 1713, at the Peace of Utrecht, France, Savoy, the Netherlands and the Empire covenanted to restore to enemy subjects all immovables confiscated during the war. Opinion and practice moved rapidly in the direction of lenience, and by the middle of the century Vattel1 was able to limit the right of a belligerent to the sequestration during the war of the income derived from such lands and houses within his territory as belonged to subjects of the hostile state. During the latter half of the last century general custom followed the rule indicated by the great French publicist; but towards the close of it we find in treaties of peace provisions for the removal of the sequestrations, a sure sign that even the less severe mode of dealing with the property in question was beginning to be condemned. by enlightened opinion. The growth of the practice of allowing enemy subjects resident in a country to continue there unmolested during the war 2 carried with it permission for them to retain their property; and in modern times the real property of enemy subjects has not been interfered with by the belligerent states in whose territory it was situated, even when the owners resided in their own or neutral states, the one exception being an Act of the Confederate Congress passed in 1861 for the appropriation of all enemy property found within the Confederacy, except public stocks and securities. This proceeding was deemed unwarrantably severe, and contrary usage has been so uniform that we may safely regard the old right to confiscate or sequestrate as having become obsolete through disuse.

1 Droit des Gens, III., v., § 76.

2 See § 184.

3 Halleck, International Law (Baker's ed.), I., 489, note.

§ 197.

Personal property or movables remained subject to confiscation if found in an enemy's country at the outbreak of war for some time after mitigations of the old severity began to be applied in the case of real

Personal property of enemy subjects found within a state at the outbreak of war.

property. But we find indications of a change of sentiment in numerous treaties negotiated during the eighteenth century, whereby each of the contracting parties agreed to grant to subjects of the other a fixed period for the withdrawal of mercantile property, should war break out between them. These stipulations have been followed by others extending up to the present time. They mark a considerable advance; but some of them refer only to movables connected with commerce, and leave other kinds of personal property unprotected. Moreover till the end of the Napoleonic wars the medieval rule of confiscation was often applied in the absence of special stipulations overriding it. But it was too severe for public opinion; and in the treaties of the time there are a number of provisions for mutual restoration at the conclusion of peace. Since the Treaties of Vienna of 1815 the only instance of confiscation is to be found in the Act of the Confederate Congress alluded to in the previous section.

This being the state of the facts, what are we to say as to the state of the law? The doctrine of the British and American courts, that war renders confiscable enemy property found within the state at the outbreak of war, but does not ipso facto confiscate it, was regarded as correct at the beginning of the present century. It was laid down by the Supreme Court in the case of Brown v. the United States,1 when it was further decided that by the Constitution an Act of Congress was necessary to effect confiscation, whereas in Great Britain a Royal Proclamation was sufficient. But it may be questioned whether the old law is still in existence.

1 Cranch, Reports of U. S. Supreme Court, VIII., 110