LECTURE XI. RIGHTS OF CAPTURE BY LAND.
In all modern books on this subject there is more or less distinct condemnation of unauthorized pillage by the soldiers of an invading army； yet there is， unfortunately， no doubt that in all wars pillage does continue， and especially in every land war. There is a very old association between war and pillage， and pillage is generally very easy. A great deal of it， though not of the worst kind， unquestionably took place when the Germans occupied large portions of France. The English in Spain abstained from it so far as the orders of Wellington compelled them to do so. He in fact sometimes employed the severest punishments for the purpose of deterring his troops from plunder； however， he was operating in a friendly country， and would have suffered serious damage by its being converted to unfriendliness. A commander may， however， authorise pillage； but as to authorised pillage there is one considerable mitigation. Movable property captured according to the Roman principle， which International Law inherited， is res nulls； and it has been several times observed， by myself among others， that in the change of Europe from Roman to Feudal principles res nullius appeared to have become vested in the sovereign， and very often in the lord of the manor in which they were found， and lost therefore their old Roman character. The principle obtains in authorised pillage. It becomes technically the property of the Crown； it is collected together， and then equitably divided among the conquering troops as booty. It is also to be noted that modern usage authorises requisitions and forced military contributions， and， on the whole， the present theory is that these military contributions and requisitions have superseded all the older forms of capture.
Requisitions may be made in three ways. First， the inhabitants may be required to provide supplies without payment； secondly， they may be required to provide supplies at a moderate cost， without regard being had to the increased value accruing from the presence of the army； thirdly， they may be required to provide the supplies on payment of such price as they demand. Which of these three ways is to be adopted， is in the discretion of the General. Wellington disapproved of forced requisitions whenever they could be avoided； and when he entered France he sent the Spaniards back rather than be compelled to resort to requisition for the purpose of supporting his army. Both the Germans and the French have constantly exercised the right； and undoubtedly the strict rule 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 on a whole community. As an arrangement such a levy is just， as a means of maintaining an briny it is lawful， and possibly in some cases it is more equitable than requisition. The question is， whether it is expedient. It will be very generally remembered that at the close of the Franco-German war an enormous requisition was exacted from the French. The German policy was， undoubtedly， so to cripple France that it should be incapable of further attack on its neighbours. But the money requisitioned for the payment was raised by loans with surprising facility， and it is doubtful whether the enormous increase of the French National Debt —— now the largest in the world which it entailed has seriously affected the feeling of the French people towards those who invaded them.
This subject of foreign loans brings me to a question which has excited perhaps more interest than all other modes of impoverishing an enemy by capture， and one even more important than was at first supposed. Can a sovereign confiscate debts？ Can he compel his own subjects， or any community over whom he has military powers， to pay to him debts which they owe to the enemy； that is， to the hostile sovereign or his subjects？ The question has been much considered by two high authorities —— the Supreme Court of the United States， and the famous American jurist Chancellor Kent. The Supreme Court has solemnly decided that in strict law the right to confiscate debts still exists as a settled and undoubted right of war， recognized by the Law of Nations， but the Court at the same time admitted it to be the universal practice at present to forbear to seize and confiscate debts and credits even in a country on the opening of a war. The Court would not confiscate any debt without an act of the legislative power declaring its will that such property should be condemned. After a full examination of all the authorities and decisions on this question， Chancellor Kent says： 'We may， therefore， lay it down as a principle of public law， so far as the same is understood and declared by the highest judicial authorities in this country， that it rests in the discretion of the legislature of the Union by a special law for that purpose， to confiscate debts contracted by our citizens and due to the enemy；' but it is asserted by the same authority： 'This right is contrary to universal practice， and therefore it may well be considered as a naked and impolitic right， condemned by the enlightened conscience and judgment of modern limes.'[Kent， Comm. i， 64] In the modern instances in which the right has been exercised， it is worth observing that the question of belligerent right was mixed up with the question of allegiance. For example， private debts were confiscated as against the Southern States by the Northern States in the war， and by the Southern as against the Northern. And the same principle has a few times been applied in India in a case where the enemy was also a rebel.
But the branch of this question which has now been considered for more than one hundred years is less general than that which I have put； it is， can a city， can a sovereign， confiscate debts due from itself or himself to enemies？ This is the point raised in the famous case of the Silesian loan. The history of it is as follows： A loan of 80，000 l. had been advanced by subjects of Great Britain to the Emperor Charles VI. On the security of the Duchy of Silesia. Silesia， in course of time， was transferred to Prussia by virtue of the Treaties of Breslau and Dresden， and in consideration of this cession Prussia was to discharge the debt. The lying of Prussia， however， attached， i.e. took into his own hands， the debt by way of reprisals， but this by the terms of the treaty he had no power to do. He professed himself to be aggrieved by the decision of certain English prize courts in respect of acts of vessels belonging to his subjects， and refused to pay the British subjects the interest which he had pledged himself to pay. The English Secretary of State at once addressed to him， for Prussia was a friendly Power at the time， a letter dated February 8， 1753， in which he dwells upon the unprecedented nature of the proceeding， and states that he has the King's orders to send to the King of Prussia a report made to his Majesty by Sir George Lee， Judge of the Prerogative Court； Dr. Paul， his Majesty's Advocate-General； Sir Dudley Ryder， and Mr. Murray —— the Mr. Murray who afterwards became Lord Mansfield. The report in question is one of which British lawyers and the British Foreign Office have always been exceedingly proud. It is praised by two great foreign authorities of the time —— Vattel and Montesquieu； they both of them speak of it as admirable； it is， in fact， a most excellent example of the method of reasoning of which International Law admits； and in the end the King of Prussia gave way to its arguments， and the interest on the Silesian loan was ever afterwards punctually paid. The point which I have been describing， is not strictly raised by the facts， as Mr. W. E. Hall observes in his book； but the opinion of the law officers goes into many questions besides the main question submitted to them， and among these the trivial question whether a sovereign can confiscate debts due to himself， and argues against it. Ever since， it has been held that no sovereign can under these circumstances refuse to pay the interest on a loan which he has contracted because the recipients of the interest are for the moment his enemies. The danger introduced by the Prussian pretension was a great one. Perhaps we do not always notice sufficiently the extent to which British financial and economical interests are bound up with the sanctity of foreign loans. From the time at which this country began to grow rich till it became the richest in Europe， the difficulty of finding investment for British savings was very seriously felt. In Stuart times the surplus wealth which was not expended in land， or embarked directly in trade or manufacture， which were still in their infancy， was lent on personal or landed securities. There are plenty of allusions in the dramatic literature of the seventeenth century which might be produced in proof of this. It was scarcity of public investments which led to the violent struggle between the two companies formed for trading with India which were afterwards fused into the great East India Company， and also to the hot contest about the foundation of the Bank of England. In another way this scarcity led to the enthusiasm for mere speculative undertakings， or， as they were then called， for Bubbles， such as the South Sea and Darien Companies.
During the eighteenth century British savings were invested in foreign loans wherever they could be found， as this case of the Silesian loan shows， and probably a good deal of British wealth was embarked in the constant loans raised by the King of France， who however， was at all times a very unpunctual debtor. But the favourite fields， no doubt， during that century for British investment were the tropical colonies which were gradually acquired in the West Indies and more southerly parts of North America. At the end of that century and in the beginning of the present the English National Debt grew to such proportions as to swallow up all other fickle of investment； but at the close of the great war loans to foreign states became commoner， and much British wealth was drawn to them. In early days they had to encounter many dangers. The various American States had borrowed largely， but also repudiated largely their liability on technical grounds. But if a sovereign could have got rid of indebtedness by going to war with the country in which he had most creditors， the risk would have been so great that probably few or no foreign loans could have been negotiated， and the economic history of England and Europe would have been quite different. The method of distributing the surplus capital of the richest countries， to which the civilised world is greatly indebted， owes its existence to this report of the English law officers in this deservedly famous case of the Silesian loan
In all modern books on this subject there is more or less distinct condemnation of unauthorized pillage by the soldiers of an invading army； yet there is， unfortunately， no doubt that in all wars pillage does continue， and especially in every land war. There is a very old association between war and pillage， and pillage is generally very easy. A great deal of it， though not of the worst kind， unquestionably took place when the Germans occupied large portions of France. The English in Spain abstained from it so far as the orders of Wellington compelled them to do so. He in fact sometimes employed the severest punishments for the purpose of deterring his troops from plunder； however， he was operating in a friendly country， and would have suffered serious damage by its being converted to unfriendliness. A commander may， however， authorise pillage； but as to authorised pillage there is one considerable mitigation. Movable property captured according to the Roman principle， which International Law inherited， is res nulls； and it has been several times observed， by myself among others， that in the change of Europe from Roman to Feudal principles res nullius appeared to have become vested in the sovereign， and very often in the lord of the manor in which they were found， and lost therefore their old Roman character. The principle obtains in authorised pillage. It becomes technically the property of the Crown； it is collected together， and then equitably divided among the conquering troops as booty. It is also to be noted that modern usage authorises requisitions and forced military contributions， and， on the whole， the present theory is that these military contributions and requisitions have superseded all the older forms of capture.
Requisitions may be made in three ways. First， the inhabitants may be required to provide supplies without payment； secondly， they may be required to provide supplies at a moderate cost， without regard being had to the increased value accruing from the presence of the army； thirdly， they may be required to provide the supplies on payment of such price as they demand. Which of these three ways is to be adopted， is in the discretion of the General. Wellington disapproved of forced requisitions whenever they could be avoided； and when he entered France he sent the Spaniards back rather than be compelled to resort to requisition for the purpose of supporting his army. Both the Germans and the French have constantly exercised the right； and undoubtedly the strict rule 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 on a whole community. As an arrangement such a levy is just， as a means of maintaining an briny it is lawful， and possibly in some cases it is more equitable than requisition. The question is， whether it is expedient. It will be very generally remembered that at the close of the Franco-German war an enormous requisition was exacted from the French. The German policy was， undoubtedly， so to cripple France that it should be incapable of further attack on its neighbours. But the money requisitioned for the payment was raised by loans with surprising facility， and it is doubtful whether the enormous increase of the French National Debt —— now the largest in the world which it entailed has seriously affected the feeling of the French people towards those who invaded them.
This subject of foreign loans brings me to a question which has excited perhaps more interest than all other modes of impoverishing an enemy by capture， and one even more important than was at first supposed. Can a sovereign confiscate debts？ Can he compel his own subjects， or any community over whom he has military powers， to pay to him debts which they owe to the enemy； that is， to the hostile sovereign or his subjects？ The question has been much considered by two high authorities —— the Supreme Court of the United States， and the famous American jurist Chancellor Kent. The Supreme Court has solemnly decided that in strict law the right to confiscate debts still exists as a settled and undoubted right of war， recognized by the Law of Nations， but the Court at the same time admitted it to be the universal practice at present to forbear to seize and confiscate debts and credits even in a country on the opening of a war. The Court would not confiscate any debt without an act of the legislative power declaring its will that such property should be condemned. After a full examination of all the authorities and decisions on this question， Chancellor Kent says： 'We may， therefore， lay it down as a principle of public law， so far as the same is understood and declared by the highest judicial authorities in this country， that it rests in the discretion of the legislature of the Union by a special law for that purpose， to confiscate debts contracted by our citizens and due to the enemy；' but it is asserted by the same authority： 'This right is contrary to universal practice， and therefore it may well be considered as a naked and impolitic right， condemned by the enlightened conscience and judgment of modern limes.'[Kent， Comm. i， 64] In the modern instances in which the right has been exercised， it is worth observing that the question of belligerent right was mixed up with the question of allegiance. For example， private debts were confiscated as against the Southern States by the Northern States in the war， and by the Southern as against the Northern. And the same principle has a few times been applied in India in a case where the enemy was also a rebel.
But the branch of this question which has now been considered for more than one hundred years is less general than that which I have put； it is， can a city， can a sovereign， confiscate debts due from itself or himself to enemies？ This is the point raised in the famous case of the Silesian loan. The history of it is as follows： A loan of 80，000 l. had been advanced by subjects of Great Britain to the Emperor Charles VI. On the security of the Duchy of Silesia. Silesia， in course of time， was transferred to Prussia by virtue of the Treaties of Breslau and Dresden， and in consideration of this cession Prussia was to discharge the debt. The lying of Prussia， however， attached， i.e. took into his own hands， the debt by way of reprisals， but this by the terms of the treaty he had no power to do. He professed himself to be aggrieved by the decision of certain English prize courts in respect of acts of vessels belonging to his subjects， and refused to pay the British subjects the interest which he had pledged himself to pay. The English Secretary of State at once addressed to him， for Prussia was a friendly Power at the time， a letter dated February 8， 1753， in which he dwells upon the unprecedented nature of the proceeding， and states that he has the King's orders to send to the King of Prussia a report made to his Majesty by Sir George Lee， Judge of the Prerogative Court； Dr. Paul， his Majesty's Advocate-General； Sir Dudley Ryder， and Mr. Murray —— the Mr. Murray who afterwards became Lord Mansfield. The report in question is one of which British lawyers and the British Foreign Office have always been exceedingly proud. It is praised by two great foreign authorities of the time —— Vattel and Montesquieu； they both of them speak of it as admirable； it is， in fact， a most excellent example of the method of reasoning of which International Law admits； and in the end the King of Prussia gave way to its arguments， and the interest on the Silesian loan was ever afterwards punctually paid. The point which I have been describing， is not strictly raised by the facts， as Mr. W. E. Hall observes in his book； but the opinion of the law officers goes into many questions besides the main question submitted to them， and among these the trivial question whether a sovereign can confiscate debts due to himself， and argues against it. Ever since， it has been held that no sovereign can under these circumstances refuse to pay the interest on a loan which he has contracted because the recipients of the interest are for the moment his enemies. The danger introduced by the Prussian pretension was a great one. Perhaps we do not always notice sufficiently the extent to which British financial and economical interests are bound up with the sanctity of foreign loans. From the time at which this country began to grow rich till it became the richest in Europe， the difficulty of finding investment for British savings was very seriously felt. In Stuart times the surplus wealth which was not expended in land， or embarked directly in trade or manufacture， which were still in their infancy， was lent on personal or landed securities. There are plenty of allusions in the dramatic literature of the seventeenth century which might be produced in proof of this. It was scarcity of public investments which led to the violent struggle between the two companies formed for trading with India which were afterwards fused into the great East India Company， and also to the hot contest about the foundation of the Bank of England. In another way this scarcity led to the enthusiasm for mere speculative undertakings， or， as they were then called， for Bubbles， such as the South Sea and Darien Companies.
During the eighteenth century British savings were invested in foreign loans wherever they could be found， as this case of the Silesian loan shows， and probably a good deal of British wealth was embarked in the constant loans raised by the King of France， who however， was at all times a very unpunctual debtor. But the favourite fields， no doubt， during that century for British investment were the tropical colonies which were gradually acquired in the West Indies and more southerly parts of North America. At the end of that century and in the beginning of the present the English National Debt grew to such proportions as to swallow up all other fickle of investment； but at the close of the great war loans to foreign states became commoner， and much British wealth was drawn to them. In early days they had to encounter many dangers. The various American States had borrowed largely， but also repudiated largely their liability on technical grounds. But if a sovereign could have got rid of indebtedness by going to war with the country in which he had most creditors， the risk would have been so great that probably few or no foreign loans could have been negotiated， and the economic history of England and Europe would have been quite different. The method of distributing the surplus capital of the richest countries， to which the civilised world is greatly indebted， owes its existence to this report of the English law officers in this deservedly famous case of the Silesian loan