第50章 RIGHTS OF CAPTURE BY LAND.(1)

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 whichtries to regulate incidents of belligerency that cause sometimes as muchsuffering and very constantly more irritation than actual hostilitiesThisis the law of the capture of property in land warI said in a former lecturethat a war by land resembles a maritime war in the principles which are appliedto the capture of propertybut there is a great practical difference betweenthe twoif neutrals do not happen to be interested in the same way in warsby land in which they have interest as in wars by seasince there are noprize courts to insist on regularity and moderationThe principle of captureis that movable propertycaptured either on land or at seais acquiredby reduction into firm possessionLeavinghowevermovable property forthe momentand passing to immovableI begin by stating that there is agreat deal on this subject in the older law books'A complete title to theland of a country,says the leading rule'is usually acquired by treatyor 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 sometimescalled dominium eminensthe right in the sovereignwhether corporate orsingleto affect property by legislationIn some rare cases the proprietaryrightgenerally in private handscannot be separated from the eminent domain.

This occurs in Indiaand more or lessprobablyall over the EastThesovereign is the universal proprietorbut in our day the quasi-proprietaryrights which a conquered sovereign has created or respectedwould in practicebe maintained by a successful invaderSuchin factwas the case in therecent British conquest of Burmah properBut in the older InternationalLaw books another kind of acquisition by capture of private property in landseems to be chiefly contemplatedThe writers appear to be thinking of theseizure of land which is private property by the soldiers of the conqueringand invading armymuch in the same way in which the provinces of the RomanEmpire are supposed to have been taken possession of by the Teutonic barbarians.

Nowadays that is a case which never practically occursbut if it happened,the occupant of the land would hold it subject to the Roman principle ofpost-liminyIf the former owner returned he would ret vert to his old rights,and the new owner would be oustedA more conceivable case is one in whichan occupying civilian should sell for value a portion of the land of whichhe has taken possessionHeretooin theory the principle of post-liminywould intervenebut the result would be that every sale of captured privateproperty would produce a title to it so bad that one can hardly conceiveits being effectedThe modern usage is that the use of public land and publicbuildingsand the rents and other profits accruing from such lands and buildings,form part of the spoils of warAs regards private property in landbelligerentsin modern times usually abstainso far as is consistent with the exigenciesof operations of warfrom exercising the extreme right conferred by warof seizing or injuring private property or landThis custom obtains onlyso long as not only the ownersbut also the community to which they belong,abstain from all acts of hostilityas it is not unusual for an invader totake or destroy the property of individuals by way of punishment for anyinjury indicted by them or by the community of which they are members onthe property which he ownsIn such cases the innocent must necessarily sufferfor the guiltybut a humane General will notexcept 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 bodyof maraudersFrom the powers which a successful enemy enjoys to appropriateland and buildingsit is to be observed that the modern usages of war exceptmuseumschurchesand other monuments of artand by some it is contendedthat no public building can be destroyed unless used for belligerent purposes.

If we now turn back to movable propertyit is held that the armsimplementsof warand every description of movable property belonging to tile Statemay be taken possession of by an invaderAn exception to the right of seizureof movables of the enemy is madeindeedin the case of archiveshistoricaldocumentsand judicial and legal recordsAn invader can hold them so longas he remains in the country and requires their usebut to take them awaywith him is an act of barbarism prohibited by the customs of warfor theretention 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 theybelongand specially to those countriesnow numerouswhichunlike England,have complete registration of titles to landThe seizure of scientific objects,of picturessculpturesand other works of art and science belonging tothe publichas derived some sanction from the repeated practice of civilisednationsbut would seem incompatible with the admitted restrictions of therights of warwhich deprive an enemy of such things only as enable him tomake resistanceand therefore can only be justified as a measure of retaliation.