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“ARTICLE LII. Neither requisition in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations gainst their country.

"These requisitions and services shall only be demanded on the authority of the Commander in the locality occupied.

"The contributions in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged.

"ARTICLE LIII. An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for military operations.

Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depôts 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 indemnities paid for them.

“ARTICLE LIV. The plant of railways coming from neutral States, whether the property of those States, or of Companies, or of private persons, shall be sent back to them as soon as possible."

Convention respecting the Laws and Customs of War on Land, The
Hague, July 29, 1899, 32 Stat. II. 1823.

Private property may be taken by a military commander for public use, in cases of necessity, or to prevent it from falling into the hands of the enemy, but the necessity must be urgent, such as will admit of no delay, or the danger must be immediate and impending. But in such cases the government is bound to make full compensation to the

owner.

Mitchell e. Harmony, 13 How. 115.

Where private property is impressed into public use during an emergency, such as a war, a contract is implied on the part of the government to make compensation to the owner.

United States r. Russell, 13 Wall. 623.

(2) CONFISCATION.

§ 1150.

When the British evacuated Philadelphia, Congress decided that public property left by the British should belong to the United

States, and that private property belonging to British subjects should belong to the State of Pennsylvania.

Wilcox r. Henry, 1 Dallas, 69, supreme court of Pennsylvania, 1782. British subjects adhering to the British Government during the war of American independence "became personally answerable for the conduct of that Government, of which they remained a part; and their property, wherever found (on land or water) became liable to confiscation. On this ground Congress, on the 24th of July, 1776, confiscated any British property taken on the seas. See 2 Ruth. Inst. lib. 2, c. 9, s. 13, p. 531, 559. Vatt. lib. 2, c. 7, s. 81, & c. 18, s. 344; lib. 3, c. 5, s. 74, & c. 9, s. 161 & 193."

Ware v. Hylton (1796), 3 Dallas, 199, 225, opinion of Chace, J.

By the law of nations the debts, credits, and corporal property of an enemy, found in the country on the breaking out of war, are confiscable.

Cargo of ship Emulous, 1 Gallison, 562.

British property found in the United States, on land, at the commencement of hostilities with Great Britain, can not be condemned as enemy's property without a legislative act authorizing its confiscation. The act of the legislature declaring war is not such an act. Timber floating into a salt-water creek which is not navigable, but where the tide ebbs and flows, leaving the ends of the timber resting on the mud at low water, and secured and prevented from floating away at high tide by booms and stakes, is to be considered as landed.

Brown v. United States (1814), 8 Cranch, 110.

Dana, in a note to Wheaton, says that, in the case just cited, it was “decided primarily and unequivocally that, by the law of nations, the right exists to seize and confiscate any property of an enemy found in the country on the happening of war." This statement, though it is of the same import as the commentary made by many other writers, is not justified by the facts. If it should be said that the court expressed an opinion, or uttered a dictum, to the effect alleged, the statement would be quite correct; but the only point decided by the court was that the property before it was not subject to confiscation.

See Dana's Wheaton, § 304, note 156.

See, also, Wharton's Com. on Am. Law, § 216.

As to the actual practice of the United States, as illustrated in the civil war, see the subject of the abandoned and captured property act, infra,

1152.

The seizure of enemy property by the United States as prize of war on land, jure belli, is not authorized by the law of nations, and can be upheld only by an act of Congress.

United States r. Seventeen hundred and fifty-six Shares of Capital Stock, 5 Blatchf. 231.

The humane maxims of the modern law of nations, which exempt private property of noncombatant enemies from capture as booty of war, found expression in the abandoned and captured property act of March 12, 1863. "No titles were divested in the insurgent States unless in pursuance of a judgment rendered after due legal proceedings. The government recognized to the fullest extent the humane. maxims of the modern law of nations, which exempt private property of noncombatant enemies from capture as booty of war."

Chase, C. J., United States, r. Klein, 13 Wall. 128, 137. See, to same general effect, Lamar r. Browne, 92 U. S. 194.

See the abandoned and captured property cases, and particularly the letter of the Secretary of the Treasury to Chief Justice Nott, infra, § 1152.

After the surrender of New Orleans to General Butler, and the issuing of his proclamation of May 1, 1862, declaring that " all rights of property of whatever kind will be held inviolate, subject only to the laws of the United States," private property in the district under his command was not subject to military seizure as booty of war, though not exempt from confiscation under the acts of Congress as enemies' property, if in truth it was such.

Planters' Bank r. Union Bank, 16 Wallace, 483.

It is no bar to the recovery of a claim that it was confiscated during the rebellion by a Confederate court because due to a loyal citizen.

Stevens r. Griffith, 111 U. S. 48.

The funds of the Treasury derived from the property captured anterior to the abandoned or captured property act have never been treated as booty coming within the rule of international warfare by either the executive or legislative branches of the Government.

Goodman r. United States, 14 Ct. Cl. 547.

Land forces which make captures on land can not be considered as making maritime captures merely because they are transported a part of the way to their destination by vessels in the service of the Government.

United States r. 2694 Bales of Cotton, Woolworth, 236, cited with approval in Oakes r. United States (1899), 174 U. S. 778, 787.

"45. All captures and booty belong, according to the modern law of war, primarily to the government of the captor.

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Prize money, whether on sea or land, can now only be claimed under local law.

"46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 153.

The question of the right of the United States to confiscate the property of enemies in the Philippine Islands is discussed in a report of Mr. Magoon, law officer, Division of Insular Affairs, War Department, February 1, 1901, Magoon's Reports, 264.

By a decree of January 30, 1891, President Balmaceda, of Chile, issued a decree forbidding registrars of real estate in the Republic to inscribe sales or mortgages of property belonging to certain specified persons. The decree recited as the reason for its issuance that the participation of some persons in the disturbance of public order, begun by the rising of the navy, rendered it necessary to provide for the indemnification of the losses caused to the State and private persons by that disturbance.

Blue Book, Chile, No. 1 (1892), 43. This decree became brutum fulmen by the fall of the government that issued it.

(3) CONFISCATION ACTS, 1861, 1862.

§ 1151.

The only acts of Congress providing for the confiscation of property belonging to persons in rebellion were the act of August 6, 1861. which applied only to property acquired with intent to use or employ it, or to suffer it to be used or employed, in aiding or abetting the insurrection or in resisting the laws; and the act of July 17, 1862, 12 Stat. 589, which authorized seizure and confiscation only for future acts.

Conrad r. Waples (1877), 96 U. S. 279.

The declaration that all sales, transfers, and conveyances" of property of certain classes of persons, which by the act was made subject to seizure, should be null and void, invalidated such trans

actions only as against the United States, and not as against any other party.

Conrad v. Waples (1877), 96 U. S. 279, 288, citing Corbett v. Nutt, 10
Wallace.

Where, under act of Congress, August 6, 1861, ch. 60, entitled " An act to confiscate property used for insurrectionary purposes," lands were seized and condemned, it was held that the purchaser of them under a decree took an estate in fee.

Kirk v. Lynd, 106 U. S. 315.

See. also, Kirk v. Lewis, 4 Woods C. C. 100.

If a bank holds on general deposit collections made for another bank, the relations of the banks are those of debtor and creditor, and an assignment of the debt by the creditor bank vests in the assignee a right to the amount assigned paramount to that given by confiscation proceedings instituted under the acts of 1861 and 1862, after the execution of the assignment; and especially is this so where the confiscation proceedings were irregular for want of proper process upon the debtor bank.

Phoenix Bank r. Risley (1884), 111 U. S. 125. The conclusions of the Supreme Court rested on the grounds (1) that the money against which the confiscation proceedings were directed was the money of the debtor, and not of the creditor, bank, and (2) that no such seizure or attachment was made of the debt, if any existed, as gave the court, by which the decree of confiscation was entered, jurisdiction of the debt.

The act of August 6, 1861, was passed by Congress in the exercise of its power" to make rules concerning captures on land and water," and was aimed exclusively at the seizure and confiscation of property used in aid of the insurrection. The act of July 17, 1862, proceeded upon the entirely different principle of confiscating property without regard to its use, by way of punishing the owner for being engaged in rebellion and not returning to his allegiance.

Oakes r. United States (1899), 174 U. S. 778, 790–791.

The fact that, prior to the passage of the act of 1862, a person was "engaged in the rebellion, as a member of the Confederate Congress, and giving constant aid and comfort to the insurrectionary government," did not affect his title to or power to dispose of his property. Until some provision was made by law, the courts of the United States could not decree a confiscation of his property, and direct its sale. This follows from the doctrine declared in Browne. The United States, reported in the 8th of Cranch."

Conrad r. Waples (1877), 96 U. S. 279, 284.

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