LECTURE XI. RIGHTS OF CAPTURE BY LAND.
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 which tries to regulate incidents of belligerency that cause sometimes as much suffering and very constantly more irritation than actual hostilities. This is the law of the capture of property in land war. I said in a former lecture that a war by land resembles a maritime war in the principles which are applied to the capture of property； but there is a great practical difference between the two， if neutrals do not happen to be interested in the same way in wars by land in which they have interest as in wars by sea， since there are no prize courts to insist on regularity and moderation. The principle of capture is that movable property， captured either on land or at sea， is acquired by reduction into firm possession. Leaving， however， movable property for the moment， and passing to immovable， I begin by stating that there is a great deal on this subject in the older law books. 'A complete title to the land of a country，' says the leading rule， 'is usually acquired by treaty or 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 sometimes called dominium eminens， the right in the sovereign， whether corporate or single， to affect property by legislation. In some rare cases the proprietary right， generally in private hands， cannot be separated from the eminent domain. This occurs in India， and more or less， probably， all over the East. The sovereign is the universal proprietor； but in our day the quasi-proprietary rights which a conquered sovereign has created or respected， would in practice be maintained by a successful invader. Such， in fact， was the case in the recent British conquest of Burmah proper. But in the older International Law books another kind of acquisition by capture of private property in land seems to be chiefly contemplated. The writers appear to be thinking of the seizure of land which is private property by the soldiers of the conquering and invading army， much in the same way in which the provinces of the Roman Empire are supposed to have been taken possession of by the Teutonic barbarians. Nowadays that is a case which never practically occurs； but if it happened， the occupant of the land would hold it subject to the Roman principle of post-liminy. If the former owner returned he would ret vert to his old rights， and the new owner would be ousted. A more conceivable case is one in which an occupying civilian should sell for value a portion of the land of which he has taken possession.
Here， too， in theory the principle of post-liminy would intervene， but the result would be that every sale of captured private property would produce a title to it so bad that one can hardly conceive its being effected. The modern usage is that the use of public land and public buildings， and the rents and other profits accruing from such lands and buildings， form part of the spoils of war. As regards private property in land， belligerents in modern times usually abstain， so far as is consistent with the exigencies of operations of war， from exercising the extreme right conferred by war of seizing or injuring private property or land. This custom obtains only so long as not only the owners， but also the community to which they belong， abstain from all acts of hostility， as it is not unusual for an invader to take or destroy the property of individuals by way of punishment for any injury indicted by them or by the community of which they are members on the property which he owns. In such cases the innocent must necessarily suffer for the guilty， but a humane General will not， except 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 body of marauders. From the powers which a successful enemy enjoys to appropriate land and buildings， it is to be observed that the modern usages of war except museums， churches， and other monuments of art； and by some it is contended that no public building can be destroyed unless used for belligerent purposes. If we now turn back to movable property， it is held that the arms， implements of war， and every description of movable property belonging to the State may be taken possession of by an invader. An exception to the right of seizure of movables of the enemy is made， indeed， in the case of archives， historical documents， and judicial and legal records. An invader can hold them so long as he remains in the country and requires their use； but to take them away with him is an act of barbarism prohibited by the customs of war， for the retention 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 they belong， and specially to those countries， now numerous， which， unlike England， have complete registration of titles to land. The seizure of scientific objects， of pictures， sculptures， and other works of art and science belonging to the public， has derived some sanction from the repeated practice of civilised nations， but would seem incompatible with the admitted restrictions of the rights of war， which deprive an enemy of such things only as enable him to make resistance， and therefore can only be justified as a measure of retaliation. Seventy years ago the question of the right of a successful enemy to carry away with him works of art was a matter of violent controversy in this country and in the whole of Europe， and the subject was several times debated in the British Parliament. It is a fact very generally known that after the early and astonishing successes of Napoleon Bonaparte in 1796， and afterwards in 1797， there was only one of the small Italian States which was not compelled to give up to the conquering French Government the works of art that were the glory of its chief cities.
The Apollo Belvedere， the Dying Gladiator， the Medicean Venus， the Laocoon， the Bronze Horses， were conveyed to Paris and deposited in the Louvre， in which they remained until the overthrow of the first French Empire. On the overthrow of that Empire， when the allies， entering Paris for the second time， gained possession of the whole city， they restored most of these famous masterpieces to their original owners. The French expressed， and no doubt genuinely felt， the greatest indignation， which was， however， manifestly treated with much scorn by the English writers of that day， who seemed to look upon the anger of the French or Parisian population as amounting to an absurd refusal to have a rule applied to themselves which they had freely applied to others； but if we are to suppose that strict law applied to the case there was something to say against the international validity of the restorations in the way in which they were actually accomplished. Arguments， founded on this， were submitted to the British House of Commons， especially by the great lawyer Romilly. It was a fact that some of these works of art had formed part of forced military contributions， which a conqueror may always levy， and some were given up under express conventions to which the surrendering state had no power of resistance. In some other cases the state to which the return was made had been absorbed in another state during the long war with France. For example， Venice， which had surrendered some of the most beautiful works of art in the Louvre， had now become absorbed in the Austrian Empire. It was further argued that it was for the advantage of civilization that these works of art should not be dispersed over a number of small cities in Italy which were not then， all of them， easily accessible， but that they should remain in a place which on the whole was so easily reached as Paris. The fact seems to be that the carrying off of these works of art from their old Italian homes had been a new rule of war. For example， Frederick the Great， who more than once occupied Dresden， always spared the famous gallery and its contents. The new rule was introduced by Napoleon Bonaparte as conqueror of Italy， and what the allies in occupation of Paris applied seems to have been the rule of reprisal. There was， no doubt， if we throw the technical rule aside， a great deal to be urged on behalf of giving back these sculptures and paintings to the Italian cities.
They were valued by them more than any mere property. Some of these cities before the war were hardly ever visited except by persons desirous of seeing some famous work. As I say， the one tenable argument against their restoration was the greater convenience to the civilised world of their being left in Paris； but in an age of railways their distance in Italy is no appreciable inconvenience， and the Manuals published recently by civilised states generally condemn the capture of works of art. Our own Manual says that the seizure of scientific objects and works of art can only be justified as a measure of retaliation. Here I may observe that an act attributable to a British commander of British troops， which is almost universally condemned in the numerous American works on International Law， can always be justified in the same way. Undoubtedly， at first sight， the destruction of the Capitol at Washington in 1814 is not an act of which an Englishman can be proud； but on examining the history of that war， it will appear that the British troops in Washington had been fired at from the arsenal； and that also， a short time before， the chief city of Lower Canada， then called York， had been burnt with all its public buildings by the American troops who occupied it. Hence this act， which at first sight deserves unqualified condemnation， may be to a certain extent justified as a measure of reprisal.
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 which tries to regulate incidents of belligerency that cause sometimes as much suffering and very constantly more irritation than actual hostilities. This is the law of the capture of property in land war. I said in a former lecture that a war by land resembles a maritime war in the principles which are applied to the capture of property； but there is a great practical difference between the two， if neutrals do not happen to be interested in the same way in wars by land in which they have interest as in wars by sea， since there are no prize courts to insist on regularity and moderation. The principle of capture is that movable property， captured either on land or at sea， is acquired by reduction into firm possession. Leaving， however， movable property for the moment， and passing to immovable， I begin by stating that there is a great deal on this subject in the older law books. 'A complete title to the land of a country，' says the leading rule， 'is usually acquired by treaty or 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 sometimes called dominium eminens， the right in the sovereign， whether corporate or single， to affect property by legislation. In some rare cases the proprietary right， generally in private hands， cannot be separated from the eminent domain. This occurs in India， and more or less， probably， all over the East. The sovereign is the universal proprietor； but in our day the quasi-proprietary rights which a conquered sovereign has created or respected， would in practice be maintained by a successful invader. Such， in fact， was the case in the recent British conquest of Burmah proper. But in the older International Law books another kind of acquisition by capture of private property in land seems to be chiefly contemplated. The writers appear to be thinking of the seizure of land which is private property by the soldiers of the conquering and invading army， much in the same way in which the provinces of the Roman Empire are supposed to have been taken possession of by the Teutonic barbarians. Nowadays that is a case which never practically occurs； but if it happened， the occupant of the land would hold it subject to the Roman principle of post-liminy. If the former owner returned he would ret vert to his old rights， and the new owner would be ousted. A more conceivable case is one in which an occupying civilian should sell for value a portion of the land of which he has taken possession.
Here， too， in theory the principle of post-liminy would intervene， but the result would be that every sale of captured private property would produce a title to it so bad that one can hardly conceive its being effected. The modern usage is that the use of public land and public buildings， and the rents and other profits accruing from such lands and buildings， form part of the spoils of war. As regards private property in land， belligerents in modern times usually abstain， so far as is consistent with the exigencies of operations of war， from exercising the extreme right conferred by war of seizing or injuring private property or land. This custom obtains only so long as not only the owners， but also the community to which they belong， abstain from all acts of hostility， as it is not unusual for an invader to take or destroy the property of individuals by way of punishment for any injury indicted by them or by the community of which they are members on the property which he owns. In such cases the innocent must necessarily suffer for the guilty， but a humane General will not， except 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 body of marauders. From the powers which a successful enemy enjoys to appropriate land and buildings， it is to be observed that the modern usages of war except museums， churches， and other monuments of art； and by some it is contended that no public building can be destroyed unless used for belligerent purposes. If we now turn back to movable property， it is held that the arms， implements of war， and every description of movable property belonging to the State may be taken possession of by an invader. An exception to the right of seizure of movables of the enemy is made， indeed， in the case of archives， historical documents， and judicial and legal records. An invader can hold them so long as he remains in the country and requires their use； but to take them away with him is an act of barbarism prohibited by the customs of war， for the retention 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 they belong， and specially to those countries， now numerous， which， unlike England， have complete registration of titles to land. The seizure of scientific objects， of pictures， sculptures， and other works of art and science belonging to the public， has derived some sanction from the repeated practice of civilised nations， but would seem incompatible with the admitted restrictions of the rights of war， which deprive an enemy of such things only as enable him to make resistance， and therefore can only be justified as a measure of retaliation. Seventy years ago the question of the right of a successful enemy to carry away with him works of art was a matter of violent controversy in this country and in the whole of Europe， and the subject was several times debated in the British Parliament. It is a fact very generally known that after the early and astonishing successes of Napoleon Bonaparte in 1796， and afterwards in 1797， there was only one of the small Italian States which was not compelled to give up to the conquering French Government the works of art that were the glory of its chief cities.
The Apollo Belvedere， the Dying Gladiator， the Medicean Venus， the Laocoon， the Bronze Horses， were conveyed to Paris and deposited in the Louvre， in which they remained until the overthrow of the first French Empire. On the overthrow of that Empire， when the allies， entering Paris for the second time， gained possession of the whole city， they restored most of these famous masterpieces to their original owners. The French expressed， and no doubt genuinely felt， the greatest indignation， which was， however， manifestly treated with much scorn by the English writers of that day， who seemed to look upon the anger of the French or Parisian population as amounting to an absurd refusal to have a rule applied to themselves which they had freely applied to others； but if we are to suppose that strict law applied to the case there was something to say against the international validity of the restorations in the way in which they were actually accomplished. Arguments， founded on this， were submitted to the British House of Commons， especially by the great lawyer Romilly. It was a fact that some of these works of art had formed part of forced military contributions， which a conqueror may always levy， and some were given up under express conventions to which the surrendering state had no power of resistance. In some other cases the state to which the return was made had been absorbed in another state during the long war with France. For example， Venice， which had surrendered some of the most beautiful works of art in the Louvre， had now become absorbed in the Austrian Empire. It was further argued that it was for the advantage of civilization that these works of art should not be dispersed over a number of small cities in Italy which were not then， all of them， easily accessible， but that they should remain in a place which on the whole was so easily reached as Paris. The fact seems to be that the carrying off of these works of art from their old Italian homes had been a new rule of war. For example， Frederick the Great， who more than once occupied Dresden， always spared the famous gallery and its contents. The new rule was introduced by Napoleon Bonaparte as conqueror of Italy， and what the allies in occupation of Paris applied seems to have been the rule of reprisal. There was， no doubt， if we throw the technical rule aside， a great deal to be urged on behalf of giving back these sculptures and paintings to the Italian cities.
They were valued by them more than any mere property. Some of these cities before the war were hardly ever visited except by persons desirous of seeing some famous work. As I say， the one tenable argument against their restoration was the greater convenience to the civilised world of their being left in Paris； but in an age of railways their distance in Italy is no appreciable inconvenience， and the Manuals published recently by civilised states generally condemn the capture of works of art. Our own Manual says that the seizure of scientific objects and works of art can only be justified as a measure of retaliation. Here I may observe that an act attributable to a British commander of British troops， which is almost universally condemned in the numerous American works on International Law， can always be justified in the same way. Undoubtedly， at first sight， the destruction of the Capitol at Washington in 1814 is not an act of which an Englishman can be proud； but on examining the history of that war， it will appear that the British troops in Washington had been fired at from the arsenal； and that also， a short time before， the chief city of Lower Canada， then called York， had been burnt with all its public buildings by the American troops who occupied it. Hence this act， which at first sight deserves unqualified condemnation， may be to a certain extent justified as a measure of reprisal.