第52章 RIGHTS OF CAPTURE BY LAND.(3)

Movable property captured according to the Roman principlewhich InternationalLaw inheritedis res nullsand it has been several times observedby myselfamong othersthat in the change of Europe from Roman to Feudal principlesres nullius appeared to have become vested in the sovereignand very oftenin the lord of the manor in which they were foundand lost therefore theirold Roman characterThe principle obtains in authorised pillageIt becomestechnically the property of the Crownit is collected togetherand thenequitably divided among the conquering troops as bootyIt is also to benoted that modern usage authorises requisitions and forced military contributions,andon the wholethe present theory is that these military contributionsand requisitions have superseded all the older forms of capture.

Requisitions may be made in three waysFirstthe inhabitants may berequired to provide supplies without paymentsecondlythey may be requiredto provide supplies at a moderate costwithout regard being had to the increasedvalue accruing from the presence of the armythirdlythey may be requiredto provide the supplies on payment of such price as they demandWhich ofthese three ways is to be adoptedis in the discretion of the GeneralWellingtondisapproved of forced requisitions whenever they could be avoidedand whenhe entered France he sent the Spaniards back rather than be compelled toresort to requisition for the purpose of supporting his armyBoth the Germansand the French have constantly exercised the rightand undoubtedly the strictrule admitted by the customs of war is that war may be made to supply itself.

The same principles apply to contributions of money levied on a town or ona whole communityAs an arrangement such a levy is justas a means of maintainingan briny it is lawfuland possibly in some cases it is more equitable thanrequisitionThe question iswhether it is expedientIt will be very generallyremembered that at the close of the Franco-German war an enormous requisitionwas exacted from the FrenchThe German policy wasundoubtedlyso to crippleFrance that it should be incapable of further attack on its neighboursButthe money requisitioned for the payment was raised by loans with surprisingfacilityand it is doubtful whether the enormous increase of the FrenchNational Debt -now the largest in the world which it entailed has seriouslyaffected the feeling of the French people towards those who invaded them.

This subject of foreign loans brings me to a question which has excitedperhaps more interest than all other modes of impoverishing an enemy by capture,and one even more important than was at first supposedCan a sovereign confiscatedebtsCan he compel his own subjectsor any community over whom he hasmilitary powersto pay to him debts which they owe to the enemythat is,to the hostile sovereign or his subjectsThe question has icon much consideredby two high authorities -the Supreme Court of the United Statesand thefamous American jurist Chancellor KentThe Supreme Court has solemnly decidedthat in strict law the right to confiscate debts still exists as a settledand undoubted right of warrecognized by the Law of Nationsbut the Courtat the same time admitted it to be the universal practice at present to forbearto seize and confiscate debts and credits even in a country on the openingof a warThe Court would not confiscate any debt without an act of the legislativepower declaring its will that such property should be condemnedAfter afull examination of all the authorities and decisions on this questionChancellorKent says'We maythereforelay it down as a principle of public law,so far as the same is understood and declared by the highest judicial authoritiesin this countrythat it rests in the discretion of the legislature of theUnion by a special law for that purposeto confiscate debts contracted byour citizens and due to the enemy;but it is asserted by the same authority:

'This right is contrary to universal practiceand therefore it may wellbe considered as a naked and impolitic rightcondemned by the enlightenedconscience and judgment of modern limes.'[KentCommi64In the moderninstances in which the right has been exercisedit is worth observing thatthe question of belligerent right was mixed up with the question of allegiance.

For exampleprivate debts were confiscated as against the Southern Statesby the Northern States in the warand by the Southern as against the Northern.

And the same principle has a few times been applied in India in a case wherethe enemy was also a rebel.