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Newark, Saint David's, and a few other settlements were destroyed, and to that extent real provocation was given. But it is alleged that orders were misunderstood or disobeyed by the troops concerned, and it is certain that the government of the United States had not refused to make reparation. The least that can be said of the British proceedings is that the punishment was out of all proportion to the offence. Even Napoleon, who made war with an unscrupulousness shared by few great generals of modern times, respected the public buildings of the capitals he occupied. All the modern Manuals and Military Codes forbid wilful damage to the real property of the enemy state in districts which pass under the power of an invader, and it is not likely that this prohibition will be disregarded in future warfare between civilized powers. It does not, however, apply absolutely to the public edifices of a place which is defended against the attacks of an enemy. Those of them which are used for military purposes must take the risks of war. They may be injured or destroyed by bombardment, or in any other way. But hospitals and buildings "devoted to religion, arts, sciences and charity" should be spared as far as possible. It is the duty of the defender to indicate them by visible signs and to refrain from using them for warlike purposes.2

The rule that an invader acquires, not the ownership, but only the right to use the public immovables he finds in the occupied territory, carries with it as a necessary consequence the further rule that he may not sell any portion of the state domain which he succeeds in bringing under his control. He may compel the tenants to pay their rents into his military chest, he may lop the forests and work the mines, he may appropriate to himself all ordinary profits; but he may not injure or destroy the corpus of the property in question, nor may he attempt to transfer it. Whatever may be

1 Wharton, International Law of the United States, §§ 318, 349.
2 Brussels Code, Arts. 16-18.

expressed on the face of any document, he can but make over his own chance of retaining by a good title what he now holds by the sword. Such a transaction would not be valid against the sovereign of the country, if his authority were restored during or after the war, but it would bind the occupying sovereign if he afterwards obtained the district by cession or completed conquest. Purchase during the war by a neutral state amounts to an abandonment of neutrality, which the dispossessed belligerent may lawfully resent by any means known to International Law. If the excluded sovereign sells, he simply parts with his chance of regaining the property, and the conveyance, though valid as against him, would have no force to bind the invading state should its occupation ripen into full ownership. Even its right of user is subject to exceptions, for the income derived from lands set apart for the support of "establishments devoted to religion, charity, education, arts and sciences" should not be diverted from its beneficent purposes to swell the resources of the occupying army.1

With certain exceptions, movables belonging to the invaded state may be appropriated by the invader. By the laws of war firm possession gives him a title to the things themselves, and not merely to the use of them. This rule applies not only to instruments and munitions of war, means of transport, and military stores and supplies, but also to the taxes, the funds and marketable securities of the state, and, in short, to all its revenues except any that may have been pledged before the war for the satisfaction of neutral creditors. The expenses of administration in the occupied districts should be the first charge upon the revenues received from them, and the local officials should be retained if they are willing to act; but the invader may appropriate any surplus that remains after order and efficient government have been provided for. Legal documents and state archives are exempt from confiscation, the former as being useless 1 Brussels Code, Art. 8.

for belligerent purposes but important for the definition of private rights, and the latter as being possessed of a purely historical value. Modern usage extends the practice of exemption to objects exclusively useful for scientific and humane purposes, libraries and works of art. About these last a great controversy arose after the final downfall of the first Napoleon. During the wars of the revolutionary period, and especially during the Italian campaigns of 1796 and the following year, the French had carried off a large number of artistic masterpieces from other countries and deposited them in the Louvre at Paris. In 1815 the victorious allies insisted on the restitution of these works of art to the cities and galleries from which they had been taken, and ever since publicists have been divided in opinion upon the legality and policy of the act. Halleck sums up the case in the words, "We think the impartial judge must conclude, either that such works of art are legitimate trophies of war, or that the conduct of the allied powers in 1815 was in direct violation of the law of nations."1 His argument proceeds upon the assumption that the pictures, marbles and bronzes in question were regarded by the various sovereigns as spoil which had come into their hands by the occupation of the capital of their foe. But this is an entirely mistaken view. The theory of the allies was that the captures were void ab initio, and that when the superior force of the captor was overcome the true owners came into possession again. They regarded themselves simply as undoers of the wrong France had done.2 The question resolves itself into an examination of the lawfulness of the original seizures. And in dealing with this it is necessary to bring out in bold relief a fact which Sir Samuel Romilly emphasized in his famous speech on the Peace of Vienna in the House of Commons on February 16, 1816.3 His remarks have been quoted again and

1 International Law, Ch. XXI., § 10.

2 Note of Lord Castlereagh quoted by Wheaton, International Law, § 352-353. 8 Hansard, XXXII., 759, 760.

again, but few writers on the subject appreciate their full significance. He points out that many of the masterpieces under consideration had not been seized as spoil of war, but had become the property of the French state by the provisions of various treaties negotiated with their original owners. Though Sir Henry Maine takes note of this distinction, he does not seem to see its bearing upon the solution of the legal problem, and, following the example of other writers, deals with the restitutions in the mass instead of in detail.1 His conclusion that the allies followed the rule of reprisal is not borne out by the facts of the case; for they confined their operations to the works of art taken by the French from other countries, and scrupulously refrained from laying hands on anything of the kind which had belonged to France before she started on her career of conquest. Clearly it is impossible to treat what had been acquired by virtue of belligerent occupation only, as on the same legal footing with what had been obtained by cession, such as the hundred pictures which were part of the price paid by the Pope for a truce and armistice in June, 1796, or the bronze horses which Venice surrendered by a secret article of the treaty of May, 1797.2 It is absurd to argue that a victorious. belligerent may lawfully enforce the transfer of a province, but not a picture, or that peace may be purchased by an indemnity of millions, but not by mosaics and marbles. What France had acquired in this way she held by a title known to International Law. To take it away from her was no act of police jurisdiction, but a high-handed proceeding which must rest for its justification upon considerations of public policy. The welfare of the world demanded that she should be deprived of Belgium and the Rhenish provinces. It might also demand that the galleries of the Louvre should disgorge the accumulated glories of the art of Western Europe. But in each case the cession was a forced transfer

1 Maine, International Law, pp. 197, 198.

2 Fyffe, Modern Europe, I., 118, 132.

to the conquerors of what was legally the property of the conquered. Possibly the conditions imposed by the victorious sovereigns were wise and just. We must judge them as we would the terms of any other peace; but we cannot say that in the matter of the restoration of the ceded pictures they enforced the restitution of property unlawfully in the possession of the vanquished. Very different considerations, however, apply to the works of art which had never been the subjects of any legal transfer, but were taken by the French during their belligerent occupation of territories they had overrun. This was sheer robbery. The laws of war then, as now, protected the contents of galleries and museums from seizure and confiscation.1 Frederick the Great of Prussia made war with terrible severity, yet even he had been content with copies of the famous Dresden masterpieces. The French had introduced a new and barbarous practice into European warfare, and when they were made to refund their ill-gotten artistic gains, a useful lesson was read to all who might in future be disposed to imitate them.

Rights over private
property gained
by occupation.

§ 203.

We now come to the rights of the occupying state over private property in the occupied districts. Dealing first with immovables, we may lay down that as a general rule they may not be seized or destroyed, nor may they be used except so far as the necessities of war compel. The profits arising from them are to be free from confiscation, and the inhabitants are to be unmolested in all lawful use of them. Immovable property is bound up with the territory. As soon, therefore, as men recognized that invasion and temporary possession were widely different from completed conquest, it was clear that an invader could not acquire a firm title to lands and houses, or sell a title to a purchaser. Real property possessed by Acollas, Droit de la Guerre, p. 63.

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