Page:The New International Encyclopædia 1st ed. v. 20.djvu/338

* WAB. 282 WAB. plicitly laid down by Chief Justice Marshall in the leading case of 'Brown vs. V. S.. 8 Cranch, 110. It is^ however, safe to say that the power inherent in the United States will not be exer- cised. Merchant vessels of the enemy lying in harbor may likewise be seized and confiscated, but this too is no longer done. They are given thirty days within which to leave port (Naval Code, Art. 15), and enemy merchant vessels which have left American ports are allowed to proceed to their destinations w'ithout fear of molestation unless engaged in carrying contra- band or in the enemy^s service. Indeed, enemy vessels which shall have sailed from any foreign port before the declaration of war to an Ameri- can port are allowed to enter, unload their cargoes, and proceed to a port not blockaded. Public debts due enemy citizens are never con- fiscated and the interest thereon is payable even during the war; private debts, that is, debts due enemy citizens by private citizens, are. indeed, confiscable; but the weight of authority is against the exercise of this harsh right. They may not be collected during the continuation of hostilities, but may be after the termination of the war. The conqueror is a usufructuary of the realty, but private property is commonly not liable to seizure. This is, perhaps, stating the matter too broadly, for private property may be .seized by way of contribution if in money; by requisition if in kind. In both cases receipts or quittances are given by the military commander, so that the dispossessed citizen may collect the property or its equivalent from his proper sovereign upon the return of peace. (See Contribitiox ; Requi- sitions.) This appears clearly from articles 31-39 of Instructions, but receives its most re- cent international formilation in the Hague Con- ference: "Art. 46. Private property cannot be confiscated. Art. 47. Pillage is formally pro- hibited. 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 as.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. provided that burdens due to military occupation shall be as equitable as possible, and that payment .shall be made for contributions. "Art. 53. An army of occupation can only take pos.session of the cash, funds, and property belonging strictly to the State, depots of arms, means of transport, stores, and supjilies. and generally all niovahle prop- erty of the State which may be used for military operations. Railway plants, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as de- pots of arms, and, generally, all kinds of war material even though belonging to companies or to private persons, are likewise material which may .serve for military operations, but they must be restored at the conclusion of peace, and in- demnities paid for theui. .rtiele 55. The oc- cupying State shall cmly be regarded as admin- istrator and usufructuary of piii)lic Iniildings. real property, forests, and agricultural works belong- ing to the hostile State, and situated in the oc- cupied country. It must protect the capital of the.se properties, and administer it according to the rules of trusteeship. Article 56. The prop- erty of municipalities and that of religious, charitable, and educational institutions and those of arts and science, even when State property, shall be treated as private property. All seizure, destruction of, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of civil and criminal proceed- ings." Such in brief is the international law ap- plicable to pul)lic and private property on land. "In war," said Mr. Chief Justice Waite, "the capture of property in the hands of the enemy, used or intended to be used for hostile purposes, is allowed by all civilized nations, and this whether the ownership be public or private. The title to movable property in hostile u.se, cap- tured on land, passes to the captor as soon as the capture is complete; that is to say. as soon as the property is reduced to possession. The absolute title to immovable public property owned by the enemy does not pass until the war is ended and peace restored. Then, unless provision is made to the contrary by the treaty of peace or otherwise, the ownership is changed if the con- quest is complete." {Kirk vs. hynd, 106 U. S., 315.) A fundamental ditference, however, be- tween property captured on land and sea is ad- mirably stated by the late Justice Gray in Oakes vs. V.' S.. 174 U. S.. 778: "By the law of na- tions, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hos- tile purposes, is captured by land forces, the title passes to the captors as soon as they have re- ■ duced the property to firm possession ; but when such property is captured by naval forces a judicial decree of condemnation is usually neces- sary to complete the title of captors." Public pro])rrty on the high seas, that is ves- sels of war and public vessels generally — except those engaged in purely charitable or scientific pursuits, in voyages of discovery, or as hospital ships CSoval Code, Art. 13) — are always liable to capture. Enemy merchant vessels as well as enemy property thereon are likewise confi.scable; but the title thereto only passes to the individ- ual captor after adjiidication in a prize court. (Xaval Code, Art.' 9-11; 14; 46-50.) (See Prize.) Knemy merchant vessels engaged in coast fishing 'innocently employed' are exempt from capture (.Yon;/ Code, Art. 14"). but tliis ex- emjition does not a)iply to deep-sea fisheries. ( The 'I'miticttc lldharifi.' 175 T*. S.. (i77.) It should be said in passing that the decisions of prize courts of the Confederacy were curiously not recognized bv Federal courts. {Tlic lAUn. 2 Spracue. 177.) On the outbreak of war trade of all kinds stops between enemies, that is to say trade acro.ss the lines, for an enemy residing withip enemy lines may trade with the citizen untram- meled by any regulation. If he is permitted to stay — and eiistom if not positive law allows this — he owes temporary allegiance, and in conse- quence has the rights and lu'ivile'jes of ntlicr alien residents not ineomjiatiblc with his enemy character. That is to say. he may carry on busi- ness; may sue and be siwd as if war did not exist, for his enemy character is merged in that