NEW SERIES NO. 39 APRIL 6, 19ft 
 
 BULLETIN OF THE STATE 
 
 UNIVERSITY OF IOWA 
 
 Studies in Sociology, Economics 
 Politics and History 
 
 VOLUME IV NUMBER 1 
 
 THE L DEVELOPMENT OF BELLIGERENT 
 OCCUPATION 
 
 BY 
 
 JACOB ELON CONNER 
 
 PUBLISHED BY THE UNIVERSITY 
 
 ISSUED TWENTY-ONE TIMES DURING THE ACADEMIC YEAR; MONTHLY FROM 
 
 OCTOBER TO JANUARY. WEEKLY FROM FEBRUARY TO JUNE. ENTERED 
 
 AT THE POST OFFICE AT IOWA CITY AS SECOND CLASS MAIL MATTER
 
 IN THE SERIES OF RESEARCH BULLETINS OF THE UNIVERSITY 
 
 STUDIES 
 
 Sociology, Economics, Politics 
 and History 
 
 PROFESSOR ISAAC ALTHAUS LOOS, LL. D., 
 
 EDITOR 
 
 BY 
 
 JACOB ELON CONNER
 
 TO 
 
 THE MEMORY OF 
 MY FATHER AND MOTHER 
 THIS WORK IS DEDICATED
 
 BY JACOB ELON CONNER 
 
 INTRODUCTION 
 
 The subject which is herein treated under the title of "Bellig- 
 erent Occupation," might be roughly defined as that stage of 
 military operations which is instituted by an invading force in 
 any part of an enemy's territory when it has overcome all suc- 
 cessful resistance and established its own military authority 
 over said territory and the non-combatant population, in lieu of 
 pre-existing civil authority. As a stage of military operations 
 it must come to an end with the treaty of peace, though military 
 occupation may continue for some time thereafter. 
 
 This fact leads to a discussion of terms. For the stage of 
 military operations just mentioned, the terms "military occupa- 
 tion," "belligerent occupation," "hostile occupation," or follow- 
 ing the French usage, simply "occupation," have been indis- 
 criminately employed. During the last few years we have heard 
 much of the military occupation of Cuba, Porto Rico, and the 
 Philippines by the United States, and of China by the united 
 powers. Yet each case represents a different phase of occupation. 
 Speaking more precisely only the last mentioned is a case in 
 point throughout, such as is contemplated in our subject, though 
 the other cases are analogous up to the signing of the treaty of 
 peace with Spain. 
 
 The treaty of peace, as the final word upon the issues of the 
 conflict, determines the permanent status of occupied territory. 
 Military occupation thereafter is of an essentially different nature 
 from what it was before, and is to be determined with all pru- 
 dent expedition. Being of such a different nature it would seem 
 to be opportune in the present treatise to offer a corresponding 
 distinction in the use of terms, trusting that it is not anticipating 
 usage presumptuously. Accordingly, the term "military occu- 
 pation" when employed herein, will coincide with what is believed
 
 4 BELLIGERENT OCCUPATION 
 
 to be popular usage in designating occupation after the treaty 
 of peace, white "belligerent occupation" is reserved for occupa- 
 tion during th6 conflict. The term ' 'hostile occupation' ' is rejected 
 for the reason that non-combatant people and territory should 
 not be conceived of as hostile though still technically belligerent. 
 The French term "occupation" is rejected because of liability to 
 confusion With the concept represented by the Roman occupatio. 
 
 It might be said in further justification of this discrimination 
 that some such distinction is made necessary to fit a situation 
 so fundamental to a consideration of the subject as a part of 
 international law, where it naturally belongs; for with the con- 
 clusion of peace, military occupation becomes at once a national 
 rather than an international affair. With the period preceding 
 peace, therefore, since wars may be international, international 
 law is much concerned, whether the occupation be considered 
 as law or as comity. Hence, if military occupation be chosen 
 to designate the later period it can not in International Law be 
 consistently applied to the earlier, and thus for the reasons above 
 given, the term "belligerent occupation" will be employed to 
 designate a set of relations which partake of an international 
 character to a greater degree than does "military occupation." 
 
 Belligerent occupation, as the term has just been defined, is 
 to be considered down to 1863 from the point of approach rep- 
 resented in its historical development. It was in this year that 
 Dr. Francis Lieber, at the request of President Lincoln, formu- 
 lated the first modern manual of instructions to army officers 
 respecting their duties to a conquered territory and people. 
 Since this celebrated manual led to the issuance by other states 
 of similar manuals for their respective armies, it is evident that 
 the comparative or analytic method of approach to the subject 
 is more suitable to the modern phase of its development. 
 
 The year 1863, therefore, although but a step in a historical 
 process, is by far the most important step in that process. It 
 may not be called the beginning of belligerent occupation, for 
 this has had many beginnings, as the distinctions between com- 
 batants and non-combatants, between public and private prop- 
 erty, between movable and immovable property in their legal 
 status as affected by war, etc. Moreover, at least one manual 
 can be pointed out which had been in existence for 444 years 
 when President Lincoln took the initial and significant step which
 
 led to the codification of the rules of war under discussions i This 
 early manual is known as the War Ordinances of Henry : V'>f 
 England. Reserving a fuller discussion of this remarkable -wcnfe 
 for another place, it need only be stated here that it had no im- 
 mediate and positive results, so far as observable, upon Inter- 
 national Law, whereas, the manual of 1863 was immediately 
 followed by a series of attempts to synthesize their results into 
 an international code. Though this latter has not yet been 
 accomplished, except so far as briefly formulated by the Hague 
 Conference, yet the influence of the modern manuals is permanent 
 and authoritative, and they are fairly uniform. 
 
 It is not too much to say, therefore, that with the year 1863 
 we have the beginning of the recognition of belligerent occupa- 
 tion as a definite stage in military operations; that before this 
 year the elements of belligerent occupation existed merely as 
 the disjecta membra of a now well-established and fairly organ- 
 ized code; that it is not until 1863 that we can precisely say that 
 we have such a thing as belligerent occupation in a legal sense. 
 
 ^no^' G.-'iJ" "_'?,{ I j :.',.5S3 'A -''.lliij j-i / .'I 
 J 
 
 r T's.';r!oirrr '"iii'^wd. 
 PRIMITIVE USAGE 
 
 It will be in order, therefore, though an order neither strictly 
 chronological nor topical, to consider the principal elements in 
 the development of belligerent occupation. These principal ele- 
 ments may be stated succinctly as follows: ural 
 
 1. A distinction between combatants, or those who bear arms, 
 and non-combatants, or those who do not. TTIS 
 
 2. A distinction in the treatment of public and private property, 
 especially the exemption of the latter from the severities of war. 
 
 3. A distinction in the treatment accorded to movable and 
 immovable property. 
 
 4. The legal status of territory and people during the period 
 of occupation. 
 
 It is evident that these elements, while fundamental to our 
 subject, have a much wider significance in relation to the general 
 progress of civilization. War is a reversion to the argument of 
 barbarians. In so far as it becomes unregulated, ungoverned, 
 it is a recrudescence of the parties to the conflict, a national 
 lapse, whose effects are longer lived than the conflict itself. Mod-
 
 6 
 
 ern international law, reflecting the highest moral sentiments of 
 modern states, declares peace to be the moral condition to which 
 belligerents are bound to return as soon as the issues of the strife 
 have been decided. This is in strong -contrast to the earliest 
 usage of each separate tribe or people. But modern nations are 
 unwilling to suffer a complete relapse to barbaric methods, even 
 to accomplish the end of a deadly combat. They therefore con- 
 fine their hostile operations to the instruments of warfare, the 
 armed forces, and do not visit upon the non-combatant portion 
 of the enemy any of the rigors of war save such as may be de- 
 manded by military necessity. The primitive concept of war 
 permitted every person man, woman, and child to make war 
 upon every other person belonging to the enemy. The modern 
 concept, on the contrary, limits hostilities to properly authorized 
 Agents, who should be distinguished from their non-combatant 
 compatriots by badges or uniforms, by military organization, 
 and by authority to do all possible injury to the like forces of 
 the enemy, only under certain conditions. 
 
 It will thus be seen that the constant tendency in warfare is 
 toward intensification; the fiercest possible treatment of the 
 fighting machinery of the enemy, whether it be a weapon or a 
 man, and side by side with this the exemption of the unarmed 
 and inoffensive populace. Thus the advance of civilization may 
 be gauged and perhaps most accurately gauged, if war repre- 
 sents the minimum of advancement by the widening of the dif- 
 ference in treatment accorded to combatants and non-combat- 
 ants, between the execution aimed at the soldier in the ranks 
 and the protection of the farmer in his fields. 
 
 As to the second and third characteristics, the distinction be- 
 tween movable and immovable property, and between public 
 and private property, these will be explained more fully in their 
 proper historical connection, the first only being of particular 
 importance in connection with early usage. 
 
 It would be difficult, perhaps impossible, to say what is the 
 first recorded instance of an agreement between two belligerents 
 to spare non-combatants on either side, in life or property. One 
 authority 1 says that "the most ancient state whose records have 
 been preserved to us in a condition of fair completeness is that 
 
 *T. A. Walker, Cambridge University, in "A History of the Law of 
 Nations," p. 31 (1899).
 
 ..PRIMITIVE USAGE 7 
 
 of the Israelites." And we know that the practice of the Israelites 
 was terribly severe. It was no worse, however, than that of 
 neighboring tribes, notwithstanding the occasional voice lifted 
 in protest against the revolting practices which were tolerated. 
 This, indeed, is the most impressive feature of the subject from 
 earliest times to modern; namely the persistence of a brutal cus- 
 tom long after its reiterated condemnation. The earliest de- 
 parture from the prevailing custom of pitiless slaughter and 
 devastation after a victory was dictated, no doubt, by expediency 
 rather than by mercy. It must have been recognized from the 
 beginning of organized warfare that pillage and excessive cruelty 
 are disorganizing and destructive of military discipline; that 
 wanton devastation exhausts the land from which both belliger- 
 ents derive their support and that there is more profit in selling 
 a man into slavery than in taking his life. Such considerations 
 as these, and not mercy, are at the bottom of the Mosaic command 
 to spare all the fruit trees in the neighborhood of a besieged city. 1 
 
 Numerous instances may be cited in the warfare of the Israelites 
 where clemency was shown to prisoners, to the wounded, to 
 women and children, and where subject tribes were released from 
 the sternest treatment by promise of ransom or tribute. This, 
 indeed, may be said of other ancient nations; but recorded in- 
 stances of a stipulated exemption from the hardships of war 
 accorded by combatants to non-combatants in the presence of 
 actual hostilities are almost unknown. 
 
 One such instance 2 is recorded by Xenophon in his Cyropaedia. 
 It is the earliest that the writer has been able to find, and is of 
 sufficient importance to deserve extended notice. 
 
 "Cyrus having taken into consideration those who 
 had revolted to him, and who, being in the neighborhood 
 of Babylon, would suffer severely unless he himself were 
 always at hand to protect them, desired all of the enemy 
 whom he dismissed to tell the Assyrian king, and he him- 
 self sent a herald to him with a message to the same 
 effect, that he was ready to let the laborers employed in 
 the culture of the lands alone, and to do them no injury, 
 
 '"It would not be too much to say," says Walker, "that herein we see 
 the beginning of a definite law of War" which is attributing rather large 
 importance to it, in the opinion of the writer. (See Walker "A History of 
 the Law of Nations", p. 36). 
 
 2 Cyropaedia, V, 4, 24. The colloquial form is a favorite method of nar- 
 ration with Xenophon as with other classic writers..
 
 8 BELLIGERENT OCCUPATION 
 
 if he, orfthe other hand, would allow the laborers of such 
 as had revolted to himself to pursue their work: 'Though - .. 7 
 indeed,' he added, 'if you are able to hinder them you 
 will hinder but a few, for the land belonging to those 
 who have revolted to me is but little; while I, on the 
 other hand, would allow a large portion of the land to 
 be cultivated for you. And as to the gathering of the;-. TO 
 crop, if the war continues, he that is strongest, I suppose, 
 must needs gather it; but if there be peace, it is plain 
 that you must gather it. Be that as it may", he said, 'if 
 any of my people take up arms against you, or any of 
 yours against me, we must punish such persons to the 
 best of our ability.' 
 
 When the Assyrians heard of this proposal, they did 
 all they could to persuade the king to comply with it 
 and to leave as little war remaining as possible. The 
 Assyrian monarch accordingly, whether from being per- 
 suaded by his people, or from his own inclination, con- 
 sented; and an agreement was made that there should be 
 peace to those that were employed in labor, and war to 
 those that should bear arms. Such an agreement did 
 Cyrus make with respect to the laboring people ; but the 
 pastures of the cattle he ordered his friends to make use 
 of as. they saw fit, each within his own jurisdiction. 
 Moreover they carried off booty from the enemy wher- 
 ever they could, in order that the allies might be better 
 pleased with the service. For aside from taking the sup- 
 plies the hardships were the same, and the booty of the 
 enemy seemed to make the service lighter." 1 
 
 Let us look more narrowly at this ancient treaty, for it antici- 
 pates the modern manuals by upwards of two thousand four hun- 
 dred years upon several important points. It is to be noticed: 
 
 First, that the war is not to be universal; it was agreed that 
 "there should be peace to those who were employed in labor and 
 war to those that should bear arms." Is not this the greatest 
 step ever taken in the progress from barbarism to civilization? 
 It involves the limitation of war, as far as may be, to the 
 agents and agencies of warfare, exempting the unarmed and help- 
 less, and allowing the continuance of peaceful pursuits. In a word, 
 it makes war a contest between states a political struggle and 
 not between peoples a racial struggle, or homicidal warfare. 
 
 J Tag (ivroi vojids tcov xtrjv<5v TOW? [lev eautoO cpiXoug exeXeuae xata- 
 OeaOat, et po'jXoivto, ev xfj EOVTOJV ezuxpaTeia' TIJV 8e TUJV ji 
 Xeiav I'IYOV 6-iodev Svvaivto, oiuog etrj i\ otQuteia i]8uov 1015 
 Xoi?, ol ftev yap xiv5uvoi ol aiko'i xal avcu ioO Xaupdveiv 
 T) 5' etc TCOV aoXe^uov TQoqprj xoucpOTepav TTJV n tpateiav e56xei
 
 PRIMITIVE USAGE 9 
 
 Second, the motives for proposing the agreement were a desire 
 to spare his own allies and a willingness to make reciprocal con- 
 cessions to that end. It cannot be shown that Cyrus took higher 
 ground than this, though from the general character of his cam- 
 paigns it would not be too much to expect such clemency to the 
 non-combatant enemy, even without the like favor in return. 
 The same may be inferred likewise from the fact that the con- 
 cession which he makes is much larger than the one which he an- 
 ticipates in return. Cyrus never approved of wanton destruc- 
 tion, either of life or of property, and in permitting his soldiers 
 to plunder as he frequently, perhaps usually did, he yielded so 
 far to the universal custom which permitted much greater ex- 
 cesses. And this was done too in the interests of discipline; for 
 although "he knew well", as Xenophon testifies in another place, 
 "that in plundering, cowards are apt to be foremost," yet there 
 would have been danger of mutiny had he attempted a complete 
 suppression of plundering. 
 
 Third, it is to be noticed that this agreement is to be enforced 
 by both commanders for their mutual advantage. A non-com- 
 batant enemy, because of his supposed inoffensive character, has 
 much more opportunity for mischief than has his compatriot who 
 is under arms. One who violates a privilege granted by an enemy 
 need not expect less than the extreme penalty if he falls into the 
 enemy's hands. 
 
 Fourth, nothing is said as to the disposition to be made of 
 the non-combatants at the close of the war, nor of the lands they 
 cultivated, except that it is darkly hinted that he who is the 
 strongest in arms shall gather the crops. Plainly no jural rights 
 had as yet been dreamed of which would secure to these laborers 
 the proprietorship of their land in case of a change of sovereignty 
 and we know from contemporary usage, even till much later times, 
 that they might have reason to expect massacre, slavery, or at the 
 very best, exemption from these by a heavy annual tribute to the 
 conqueror. 
 
 Fifth, the agreement did not wholly include private property. 
 How far this was in obedience to "military necessity", which even 
 today will justify a commander in making "requisitions" or levy- 
 ing "contributions" it is impossible to say. An appropriate term- 
 inology had not yet been invented, such as would have enabled 
 the narrator to make such distinctions. It is left indefinite, too,
 
 10 BELLIGERENT OCCUPATION 
 
 as to whether each is to punish his non-combatant enemies or 
 those of his own side, though presumably it is the former; in which 
 case the punishment would be extreme, even as it is today. 
 
 Taking it altogether this is a most remarkable exhibition of 
 clemency, as well as good military judgment, and the humanity 
 of Cyrus, as herein revealed stands out in striking relief against 
 the dark background of contemporary custom. It is not to be 
 supposed that such exemption would have been granted to his 
 non-combatant enemy had it not been for the wish to save his 
 allies. But we find few commanders in ancient times who could 
 see the inexpediency of wanton destruction. 
 
 If anything were needed to confirm his reputation for clemency, 
 it is to be found in connection with the storming and capture of 
 Sardes, the capital of Lydia. Such occasions have always been 
 the scenes of the most reckless ferocity, and even down to the middle 
 of the nineteenth century it was a matter of debate among pub- 
 licists in international law whether the defenders of a gar- 
 rison or besieged city might be treated with more severity than 
 opponents in the open field. The wellnigh universal practice has 
 been to show little or no mercy, and the more stubborn the resist- 
 ance the greater the severity. The custom of the Romans was 
 to give no quarter after the head of the battering-ram had once 
 touched the walls of the besieged. But we find in the instance 
 cited 1 that Cyrus not only spared the lives of the besieged but 
 prevented the sack of the city, only desiring of the Lydian king 
 a ransom sufficient to satisfy his soldiers. 
 
 These two instances of the magnanimous treatment of a fallen 
 foe even after making sufficient allowance for the personal equation 
 of the narrator, show plainly enough that though the magnanimity 
 was not usually practiced under such circumstances it was not due 
 to lack of knowledge thereof at such an early time, but the disin- 
 clination to be influenced by it. Over and over again one is led 
 to believe that in the midst of the sternest, the most revolting 
 
 ^yropaedia VII, 2, 11 and 12. "Hear then, Croesus," said he, 
 "knowing that the soldiers after having undergone many fatigues and in- 
 curred many dangers, consider themselves now in possession of the richest 
 city in Asia, next to Babylon. I think it fit that they should receive some 
 recompense; for I am sure," continued he, "that unless they receive some 
 fruit of their labors I shall not have them long obedient to my orders. I am 
 not, however, willing to give the city up to their plunder; for I believe that 
 it would thus be destroyed; and in plundering I know very well that the 
 worst men would have the advantage." Needless to say that to this the 
 joyful Croesus assented.
 
 PRIMITIVE USAGE li 
 
 cruelties of ancient warfare, men knew better, but custom governed. 
 It governed to such a degree that the agreement between Cyrus 
 and the Babylonian king is unique. Other laws of war may be 
 discovered in the making, but with these we are not concerned. 
 Other instances of customary or stipulated limitation of hostilities 
 to combatants is the point that directly concerns us, and for this 
 we may search in vain. So far from exempting non-combatants 
 from the evils of war, war itself was defended for the very reason 
 that it afforded a means of procuring slaves; and this, too, by no 
 other than Aristotle. Polybius 1 (about 200 B. C.) condemns 
 treachery and needless cruelty and destruction: 
 
 "The taking and demolishing an enemy's forts, har- 
 bors, cities, men, ships and crops and such other things 
 by which our enemy is weakened and our own interests 
 and tactics supported, are necessary acts according to 
 the laws and rights of war." But, "to deface temples, 
 statues and such like erections, in pure wantonness and 
 without any prospect of strengthening one's self or weak- 
 ening the enemy must be regarded as an act of blind pas- 
 sion or insanity. For the purpose with which good men 
 wage war is not the destruction and annihilation of the 
 wrongdoers, but the reformation and alteration of the 
 wrongful acts. Nor is it their object to involve the in- 
 nocent in the destruction of the guilty," etc. 
 
 Accordingly Polybius points out that Philip of Macedon won his 
 victory over the Athenians not so much by the battle of Chaeronea 
 as by his justice and humanity thereafter; 
 
 "His victory in the field gave him mastery only over 
 those immediately engaged against him; while his 
 equity and moderation secured his hold upon the en- 
 tire Athenian people and their city. For he did not 
 allow his measures to be dictated by vindictive passion, 
 but laid aside his arms and warlike measures as soon as 
 he found himself in a position to display the mildness 
 of his temper and the uprightness of his motives. With 
 this view he dismissed his Athenian prisoners without ran- 
 som, and took measures for the burial of those who 
 had fallen . . . and presented most of those whom he re- 
 leased with suits of clothes The pride of the 
 
 Athenians was not proof against such magnanimity and 
 they became his zealous supporters instead of antagon- 
 ists, in all his schemes." 
 
 Polybius V, 11 and 12, translated by Shuckburgh.
 
 12 BELLIGERENT OCCUPATION 
 
 The laws of war*, however, in Polybius' time, permit the defeated 
 with their wives and children, to be sold into slavery. 
 
 It may be said in summarizing ancient usage upon the subject 
 in question that obviously there could not be international law in re- 
 gard to belligerent occupation or any part thereof, since internation- 
 al law was in no case beyond the stage of comity, and even then exist- 
 ed as an inter-tribal understanding; that the cases in which a dis- 
 tinction was observed between combatants and non-combatants 
 were sporadic, not of permanent influence, and that consequently 
 there is no continuity of development exhibited therein; but that 
 such as they are they deserve mention in a historical treatment of 
 the development of the subject under consideration. , j r- 
 
 ,^i%,;; .V. BvJOTO :;:" ."<;:" * -/-'..luT >H*O ,'K*i 
 
 II. 
 
 ;'.:: vi .^-rvv:;>fcn >.-rt--^r {\fyj 
 
 ROMAN LAW AND USAGE 
 
 It is a safe precept in legislation that law should not precede 
 public sentiment. Since international law, however, is not 
 a matter of legislation and is ratified by none but quasi sanctions, 
 it not only may precede public sentiment, but, so far as the latter 
 is -expressed in military usage, it is under the ethical necessity of 
 doing so, of marching with the van instead of the main body of 
 opinion. During the development of our modern international 
 code its basis was primarily ethics or morality, and secondarily 
 custom. It is probable that modern authorities would reverse this 
 relationship so far as it contemplates the usage of today, a nat- 
 ural result of the fact that the formative period is somewhat ad- 
 vanced and the period of codification has scarcely begun. 
 
 Keeping this statement in mind, it need not be a matter 6f sur- 
 prise if we discover that upon the particular point of our inquiry 
 Roman law outran the usage of the time. Hence, though no ad- 
 equate conception is to be discovered in their military usage of the 
 phase of warfare we know as belligerent occupation, the legal basis 
 therefor may be discovered in its incipiency in the writings of 
 Roman jurists; and hence, moreover, we are primarily concerned 
 with Roman law in its treatment of the property of the enemy, and 
 with Roman military usage in its treatment of the persons of the 
 enemy. 
 
 Primitive warfare involves the slaughter of the armed and un 
 armed indiscriminately, save as caprice may dictate, and earl-
 
 ROMAN LAW AND USAGE 13 
 
 Roman usage was certainly primitive. The distinction between 
 combatants and non-combatants remained to be made in law many 
 centuries after Rome fell. The Romans went to war with the 
 enemy as a whole nation and made peace with the whole nation, 
 and there was no intermediate stage between the declaration of war 
 and the proclamation of peace. The primitive severity of her war- 
 fare gradually relaxed as it was discovered that it was more profit- 
 able to sell captives into slavery than to slaughter them. Poly- 
 bius, the Greek historian of Rome, thought that the war practice 
 of the Romans was mild, and of such matters Polybius was a 
 severe judge ; yet in his day and for many centuries later the Ro- 
 man army was followed by the slave merchant. Not the only 
 prisoners of war but women and children as well, all were 
 sold sub jugum. "When war comes", says Tacitus, "the guilty 
 and the innocent fall alike," and Grotius, commenting upon Ro- 
 man practice at this time says that "no law spares or protects 
 a captive." 
 
 The next great step came very late in Roman history. It was 
 the commutation of slavery to ransom. The influence which was 
 probably most potent in bringing this about was Christianity. 
 By this substitution of a money loss for that of personal freedom, 
 cities and districts might profit as well as captive individuals, and 
 thus the horrors of a war were incalculably mitigated so far as the 
 persons of the unfortunate were concerned. The lateness of this 
 change, however, leaves the fact unaltered as to the severity of 
 Roman usage in general. 
 
 There are to be discovered now and then certain gratifying ex- 
 ceptions to this general severity toward the persons of the enemy, 
 as is recorded of Marcellus in the protection of the honor of women 
 at the capture of Syracuse for which instance Grotius finds par- 
 allels in Greek warfare, and more especially in that of the Hebrews. 
 Scipio says that 1 "it concerns both him and the Roman people that 
 nothing which is held sacred anywhere should be violated by them." 
 Many other quotations might be offered of noble sentiments of 
 humanity toward the fallen. The Roman writers as well as the 
 Greek seemed fond of referring to the laws of war (jus belli) and 
 to invoke their condemnation of unwonted ferocity. Just what 
 these laws were we have no means of knowing except through their 
 war customs. The Romans were accustomed to refer them for 
 
 1 Grotius III, 4, 19.
 
 14 BELLIGERENT OCCUPATION 
 
 general authenticity to the Twelve Tables; but it is improbable 
 that there was anything more definite in the concept of jus belh 
 than that it was merely a part of jus naturae, implying a senti- 
 ment to the effect that cruelty even to an enemy should have 
 bounds. Certain ceremonies 1 connected with the proclamation of 
 war, the sanctity of heralds, etc., may have been included in this 
 indefinite concept. However that may be, neither Ulpian, Gaius, 
 nor Justinian makes any mention by name of such laws. 
 
 Enough has been said to show that so far as the persons of the 
 enemy were concerned, Roman custom slowly improved with the 
 passing of the centuries, keeping, perhaps, slightly in advance of 
 contemporary usage ; but that nowhere in law or custom was there 
 a recognition of the difference between the rights of combatants 
 and non-combatants. All suffered the same fate, whether exter- 
 mination, slavery, or ransom. 
 
 Turning from the treatment of persons to that of property, it is 
 possible to record a greater elaboration both in legal theory and in 
 military usage. In the first place, public property, then as now, 
 whether movable or immovable, was liable to capture. The more 
 magnanimous commanders generally spared the temples and 
 shrines and all other objects and places of worship. Likewise 
 statues and other works of art enjoyed some such immunity, 
 though there are ancient as well as modern instances of the plun- 
 dering of Greece. There is but little difference to recojd between 
 Roman and modern usage as affecting public property. The 
 main point is that in modern times under, the development of 
 belligerent occupation the occupant is conceived to have only the 
 right of usufruct of all public immovable /property. He may not 
 destroy it nor alienate nor acquire title to it until the ratification 
 of peace; but' he may use it and derive all revenues arising from it, 
 Romans, however, raised no question as to the ownership of 
 public property either movable or immovable, when captured 
 by their : arrns s ;- arid if 'they exempted places of worship or objects 
 of art it was a3 ? a concession to- religious sentiment, or in defer- 
 ence to 'a general custom, or prompted by a spirit of magnani-' 
 mity, and not as an admitted legal right. 
 
 What has just been said of public property may just as exactly 
 be affirmed concerning private property. 2 "Aucune difference 
 
 1 I. c., portions of the jus fetiale. 
 
 2 Nys, Ernest, Les Origines du Droit International, p. 193.
 
 ROMAN LAW .AND USAGE 15 
 
 n'est faite entre la propriete privee et la propriete de 1'etat.", 
 But questions as to the possession of captured goods must neces- 
 sarily arise out of the difference in the original ownership. State, 
 property captured by another state undoubtedly belongs to the 
 victor and not to the individuals composing the army. But the 
 victorious state was not conceded so clear a title, or able to en- 
 force it, when private property was the spoil. It can easily be 
 shown as a matter of logic that as soldiers are only employees of 
 the state, which assumes all responsibility for their acts,,, the state 
 should acquire the ownership of everything they capture. But 
 such reasoning will never satisfy a patriot, who risks his life for 
 a pitiful sum per month, when food and comfort are needed; much 
 less the cupidity of those who fight for gain. In" the capture of 
 private property the individual element. is more in evidence on 
 both sides, and this accounts for the application of the doctrine of: 
 occupatio to such cases, if,. indeed; it does not account for its origin. 
 Livy, according to Grotius, 1 makes private property begin "when, 
 men took possession of what was vacant, or .won it in war." 
 
 "The Roman principle of occupancy and the rules "into which 
 the jurisconsults expanded it," 2 says Maine, ."are the sources of 
 all modern International Law on the subject of, capture in War." 
 The statement may pass unchallenged here, providing the term 
 occupatio is used in a sense broad enough to include the doctrine 
 of postliminium. Briefly stated the doctrine of occupatio, as ap- 
 plied to war was as follows : Things which have not, or never have 
 had an owner, i. e. res nullius, may be taken possession of by the 
 first comer. ~ Now the property of the enemy was in Roman law 
 res nulli us, inasmuch as it was the property of persons whom that 
 law regarded as nobodies, and who, if captured, themselves became 
 res nullius." "Those things which we take from the enemy," says . 
 Justinian, 3 "are ..also- ours- at once by. the law of nations; so much 
 so that even freemen are reduced into slavery to us." 
 
 But at this point the ..effect of the distinction between movable 
 and immovable property must be noticed. Obviously 'the latter 
 eduld not be appropriated by the first comer, as Grotius remarks, 
 for if it could the result -would- be the disintegration of the 
 
 1 Grotius, III, 6, 2, 3. 
 
 2 Maine, Sir Henry, Ancient Law, p. 239. 
 
 3 "Item ea quae ex hostibus capimuS jure gentium statim noster fiunt; 
 adeo, quidem, ut et liberi homines in servitutem nostram deducantur." Jus- 
 tinian II, 1, 17 (Emperor of Rome 527 A. D.). See also Gaius II, 69 A. D.
 
 16 BELLIGERENT OCCUPATION 
 
 army. Moreover, while the issue of the conflict is in doubt there 
 is no such thing as permanent and stable possession. From these 
 fundamental facts several important results follow: first, the title 
 to immovable property must necessarily rest in the state and not 
 in the soldier; second, while firm possession thereof is contingent 
 upon the successful termination of the war, movable property need 
 only be brought intra praesidia. As a corollary to this there is a 
 stronger presumption in favor of ownership by individual capture 
 than by the state. Third, property, whether movable or immovable, 
 which formerly belonged to Roman citizens, was then captured by 
 the enemy and finally recaptured by the Romans, gives rise to a 
 question of proprietorship between the original owner and the 
 recaptor, and hence to the doctrine of postliminium. Further, as 
 a logical, though possibly not a historical corollary to the prin- 
 ciples of occupatio and postliminium, there developed in due time 
 the doctrine of usucapio or prescription, according to which pos- 
 session was converted into ownership after the lapse of a definite 
 period of time. And here again a difference was observed as to 
 the lapse of time for movable and immovable property. For the 
 former, according to Gaius and Ulpian, 1 one year was sufficient; 
 for the latter, two years were necessary in order to insure firm 
 possession or ownership. Usur patio remains still to be noticed, 
 but it is best considered in another connection. 
 
 Going back to the statement that there is a stronger presump- 
 tion in favor of individual ownership of private movable property 
 taken in war instead of public ownership, it is by no means clear 
 that this was the recognized military custom among the Romans ; 
 if anything, the evidence seems to lead to the opposite conclusion. 
 Grotius quotes Dionysius of Halicarnassus, whom he calls a most 
 diligent observer of Roman manners, to the effect that 2 "whatever 
 is captured from the enemy the law directs to be public property, 
 so that not only private persons are not the owners of it, but even 
 the general is not. The questor takes it, sells it, and carries the 
 money to the public account." It must be added, however, grant- 
 ing that the law was all that Dionysius claimed for it, that it was 
 still within the discretion of the commander as to what extent the 
 
 1 Ulpian XIX, 8. Gaius II, 42. The latter adds that this is so laid 
 down in the Twelve Tables, which would give it great antiquity. Justinian 
 changed it to three years for the former and ten to twenty for the latter. 
 Justinian II, 6. 
 
 J Grotius III, 6, 14.
 
 ROMAN LAW AND USAGE 17 
 
 private property of the enemy was to be treated as public property 
 when captured. "They who wished to be or to be thought most 
 scrupulous did not touch the prey at all, but if the prize were money 
 they directed it to be received by the questor; or if it were other 
 objects ordered them to be sold at auction by che questor. l " Others 
 again "sold it without the aid of the questor and transferred it to 
 the treasury." Again, 2 "booty which is given up to the soldiers is 
 either divided or scrambled for. It may be divided in the propor- 
 tion of the pay or of the deserts of the individuals. Polybius ex- 
 plains accurately the whole scheme of such a division ; namely that 
 one part of the army, the lesser portion, was commonly sent to 
 collect the booty, and what each found he was ordered to bring into 
 the camp that it might be equally divided by the tribunes; those 
 being summoned to take their share who had guarded the camp." 
 "I find this proportion in Livy," continues Grotius, "one share to 
 a foot soldier, twice as much to a centurion, and three times as 
 much to a horseman or knight." On the other hand, basing his 
 opinion in that of Dionysius, "those persons," he says, ."are more 
 praised who giving up their right, took no part of the booty to them- 
 selves; like Fabricius, who in his love of glory put aside even just 
 gain"; and likewise M. Porcius Cato, who asserted that "nothing 
 should come to him from the spoils of war, except what he had 
 spent in meat and drink", and that "he would rather contend for 
 the prize of virtue with the best than for the preeminence in 
 wealth with the richest." 3 
 
 Summing up what has just been said concerning the treatment 
 of private movable property, it would appear that while plunder 
 was permitted by Roman military law, the commander could and 
 sometimes did prohibit it altogether. When he did not, the law was 
 that the plundering should be done systematically, each one for 
 the whole army and not for himself. Frequently, perhaps even in 
 the majority of cases, the commander permitted indiscriminate pil- 
 lage, regardless of the military law, for many concessions had to be 
 made, no doubt, to the cupidity of the soldiers. It must be remem- 
 bered moreover that a large part of Roman warfare was carried 
 on with peoples less civilized than themselves, and a war between 
 races of an unequal degree of civilization is apt to disregard the 
 
 1 Grotius, III, 6, 16. 
 4 Grotius, III, 6, 17. 
 1 Grotius, III, 6, 17, 4.
 
 18 BELLIGERENT OCCUPATION 
 
 laws of civilized warfare. Considering, therefore, the Roman view 
 of the rights of enemy persons, it is evident that whatever restraints 
 they placed upon their soldiers in regard to pillage must have been 
 dictated by expediency and good discipline rather than by com- 
 passion for the enemy. Cicero's dictum that "it is not contrary 
 to the laws of nature to spoil the goods of him who it is lawful to 
 kill," betrays the primitive concept of war which obtained in his 
 time, in that so little compassion is found for an enemy in the mind 
 of a naturally compassionate man. Such motives weighed little 
 in the mitigation of war until very late in the life of the empire. 
 
 So far, not a hint do we find in law or in usage of that which we 
 are seeking the origins of belligerent occupation. When, how- 
 ever, we come to consider more nearly the subject of postliminium, 
 we see the initial steps in the development thereof with a certainty 
 that almost amounts to positive conviction. 
 
 Postliminium, as used by Justinian, has been thus defined: "By 
 the jus postliminii, property taken in war and retaken from the 
 enemy was restored to the original owners; and captives, on their 
 return to their own country were re-established in all their former 
 rights. When the captive returned, all the time of his captivity 
 was, in the eyes of the law, blotted out, and he was exactly in the 
 position he would have held if he had not been taken captive." 
 "Thus," says Justinian, ^'postliminium supposes that the cap- 
 tive, has never been absent." Thence comes the word postlim- 
 inium, because the prisoner returned to the same limits whence 
 he had been lost. The prisoner, also, who is retaken on the 
 defeat of the enemy is considered to have come back by postlim- 
 inium. Gaius, 2 writing about four hundred years earlier, recog- 
 nizes the right of postliminium, "whereby on escape from captivity 
 a man recovers all former rights ; accordingly if the father returns 
 he will have his children in his power; if he dies in captivity his 
 children will be independent, but whether their independence dates 
 from the death of the parent or from his capture by the enemy 
 may be disputed." The right of patria potestas remained in sus- 
 pense as long as there was doubt as to the father's return, but it 
 never came to an end until it was known that he would never re- 
 turn to claim it. To the same effect, though much more briefly, 
 speaks Ulpian (X, 4) . When it is recalled that by means of patria 
 
 1 Justinian, I, XII, 5. 
 
 2 In the reign of Antoninus Pius, A. D. 138-161.
 
 ROMAN LAW AND USAGE 19 
 
 potestas the father has the power of life and death over his children, 
 the significance of its interruption becomes apparent ; for it is no 
 less than that which a modern state exercises over its citizens, and 
 its interruption is therefore equivalent to an interrupted sovereignty . 
 But, as is well known, the law of postliminium was only partial 
 in its application, including a limited number of objects. The gen- 
 eral rule was that whatever was captured became praeda. Post- 
 liminium, therfore, appears as an exception to this rule. Just what 
 did return to its former state or what was the legal method of re- 
 return cannot be positively stated; but we know that immovable 
 property was especially so designated, and that slaves, horses, 
 mules, and ships used in war were likewise included. The title to 
 property of this class could not be so easily obtained because owner- 
 ship was either harder to establish or was likely to be longer in 
 controversy. Land could not be brought intra praesidia not even 
 constructively until the close of the conflict. Title to it must 
 therefore remain in suspense from the time that the original sover- 
 eignty was overthrown until its authority should be re-established 
 or that of the new could supersede it. This condition of suspense 
 of title bear in mind that we are considering the case from the 
 viewpoint of civil law was what Roman jurists would probably 
 have called usur -polio. It corresponds in an elementary way to 
 the status which we call belligerent occupation. However it 
 represents merely a hiatus in legality rather than a continuance 
 thereof under the authority of a foreign government; for it is a 
 long step from this primitive concept of a mere hiatus in legal 
 lations during war to that of our modern notion of belligerent oc- 
 cupation, where acts done under the sanction of hostile invaders 
 may, and even must , be legalized by the invaded state, if ever it 
 should be so fortunate as to reassert its authority over the re- 
 conquered territory. Imagine the amazement of a Roman jur- 
 ist at the idea of legalizing contracts and sales in Roman ter- 
 ritory made under Hannibal's sanction during his occupation 
 thereof! 1 Many centuries were yet to elapse before the prin- 
 ciple of equality of states made it possible and necessary that a 
 condition of legality could continue in the midst of hostilities. 
 
 1- We are told, to be sure, that at this particular time land occupied by 
 Hannibal's army sold for its customary price, so confident were the Ro- 
 mans of victory; but such a sale must needs be a matter of subsequent leg- 
 alization, as Roman law could not have recognized Hannibal's sanction 
 thereof as binding.
 
 20 BELLIGERENT OCCUPATION 
 
 Hence, at the most, we can consider in this connection only the 
 hypothesis of an invasion of Roman territory, the successful ex- 
 pulsion of the intruder, the return of the said territory to Roman 
 authority as the government bofb.de facto and de jure and the re- 
 sumption of legal relations according to postliminium. 
 
 Narrowing the case to such limits it is evident that it is totally 
 within the jurisdiction of the Civil Law. But the Civil Law very 
 greatly influenced International Law, as we call it now, through 
 its application to international relation by the -praetor peregrinus. 
 No doubt, therefore, through his functions, the principle of post- 
 liminium became international in its application though originat- 
 ing as a part of. the civil law. 
 
 In point of antiquity it is doubtful if any principle in international 
 law takes precedence of postliminium. We find no mention of it 
 in what remains to us of the Twelve Tables ; but coming down to 
 the time of Gaius, the earliest of the great jurists, we find that the 
 right is fully recognized. True, the illustration he used, that of 
 the returned captive who regains his jural capacity of patria po- 
 testas, may not at that time have contemplated property, but this, 
 at all events, was included later. Then with the extension of the 
 influence of the Civil Law to international questions through the 
 jurisdiction of the praetor peregrinus the suspension of patria po- 
 testas during the imprisonment furnished a striking analogue for 
 the supension of title in the case of usur patio in an international 
 conflict. There seems to be no good reason to doubt therefore, 
 that we have a historical sequence in these steps, leading up toward 
 the establishment of a legal status for occupied territory. We shall 
 see in subsequent chapters that in approaching the same doctrine 
 of postliminium we come the nearest to the subject of our own in- 
 quiry to that phase of warfare which regards the dispossessed 
 sovereignty as merely in abeyance and by no means defunct, while 
 on the contrary the government de facto is entitled to respect and 
 to constrained obedience from its enemy subjects, a dual re- 
 lationship both of states to citizens and of citizens to states, the 
 most complex of all political situations. 
 
 Ill 
 
 FROM JUSTINIAN TO THE PUBLICISTS 
 The political upheavals following the fall of Rome and continuing 
 with more or less severity down to the time of the publicists of the
 
 FROM JUSTINIAN TO THE PUBLICISTS 21 
 
 seventeenth century it is not our province to rehearse. The char- 
 acter of the military usage of this period shows a relapse toward 
 barbaric methods such as wholesale extermination, enslavement, 
 maltreatment of prisoners, and all sorts of indignities toward the 
 defenseless. Any number of minor causes may be adduced to ac- 
 count for this degeneracy ; but the primary causes in all probabil- 
 ity, were the destruction of that world power which had done such 
 good service as an international policeman for so many centuries 
 that people could not get rid of the idea that it must exist for sev- 
 eral more centuries after it had ceased to exist ; and second, the 
 fact that it took so long to develop a competent successor. Not 
 until the modern principle of "the balance of power" was estab- 
 lished at the Peace of Westphalia in 1648, thus securing a democ- 
 racy of states instead of a hegemony, and not until the modern 
 states had had time to emerge from the wreck of the Roman em- 
 pire, to establish their independence and to agree upon the prin- 
 ciple of equality was it possible for international order to be re- 
 stored. One is tempted to say that the long stretch of centuries 
 filling this interim constitutes an interregnum of international law, 
 but this would disregard the more or less effective service rendered 
 by the so-called Holy Roman Empire and the Roman Catholic 
 Church. 
 
 The two observations to be made upon this period with refer- 
 ence to our subject, are, first that nothing was added to the legal 
 and theoretical views of the Roman jurists, and second, the usages 
 of war, with an occasional brilliant exception reverted to the bar- 
 barity of the earliest Roman times. It will not be irrelevant to 
 point out some of these gratifying exceptions in so far as they 
 contribute to the discussion and one of them, the Ordinances of War 
 of Henry V. will receive extended notice. 
 
 An instance of the influence of late Roman usage upon less civil- 
 ized peoples is seen in the restraint which Belisarius exercised over 
 his army of "Huns, Herulians, Gepidae, Moors, Armenian and Isau- 
 rian mountaineers." It is said 1 that "when invading" the Vandal 
 kingdom as a province about to pass back to its rightful owner 
 Belisarius deemed it politic to restrain his troops from pillage; 
 the inhabitants suffered no violence, even heard no threats ; 
 
 a Walker, T. A., History of the Law of Nations, Vol. 1, p. 71, from Pro- 
 copius I, 200.
 
 22 BELLIGERENT OCCUPATION 
 
 the artificers were not interfered with; the shops remained open; 
 the soldiers were lodged in regularly assigned billets and bought 
 their supplies in the open market." 
 
 Another instance to the same effect is that given of Totila, the 
 Ostro-Gothic opponent of Belisarius, 1 "who restrained his troops 
 from the plunder of captured cities, and on the fall of Rome (546 
 A. D.) sternly forbade murder, rape or other open violence." A 
 century or more before this the Gothic leaders, yielding to the in- 
 tercession of the Pope, did what they could to spare 2 "the defence- 
 less, exempt the captives from torture, and protect the cities from 
 fire." 
 
 The Saracen war practice was probably not on a lower level than 
 that of contemporary Europe. To those who opposed them in 
 arms no mercy was shown, and extermination or slavery was apt 
 to be the fate of those who offered a prolonged resistance or refused 
 to except the faith of Islam. But it is related that their treat- 
 ment of the unresisting populace was peculiarly mild. The fol- 
 lowing charge 3 of Abu Bekr to his troops, which charge was re- 
 peated by some later caliphs, shows all the spirit of modern usage 
 and somewhat of its explicitness : 
 
 "If God should give you the victory, do not abuse your ad- 
 vantages, and beware how you stain your swords in the blood of 
 him who yields, neither touch ye the children, the women, nor 
 the infirm old men whom ye may find among your enemies. In 
 your progress through the enemy's land, cut down no palms or 
 other fruit trees ; destroy not the products of the earth ; ravage no 
 fields ; burn no dwellings ; from the stores of your enemy take only 
 \\hat you need for your wants. Let no destruction be made 
 without necessity, but occupy the cities of the enemy; and if 
 there be any that do serve as an asylum to your adversaries, 
 them do you destroy. Treat the prisoner and him who renders 
 himself to your mercy with pity, as God shall do to you in your 
 need, but trample down the proud and rebellious, nor fail to crush 
 all who have broken the conditions imposed on them Let there 
 be no perfidy nor falsehood in your treaties with your enemies; 
 be faithful in all things, proving yourselves ever upright and noble 
 and maintaining your word and promise truly. Do not disturb 
 
 'Walker, History of the Law of Nations, I, p. 65. 
 1 Hosack, The Law of Nations, I, p. 65. 
 
 *Cpnde, Arabs in Spain, I, p. 37, from Walker's History of the Law 
 of Nations, p. 76. Time, about the middle of the seventh century.
 
 FROM JUSTINIAN TO THE PUBLICISTS 23 
 
 the quiet of the monk or hermit, and destroy not their abodes, 
 but inflict the rigors of death upon all who shall refuse the condi- 
 tions you would impose on them." 
 
 What is particularly noticeable in these words of the chief Mo- 
 hammedan ruler is the sharp distinction drawn between conquered 
 and unconquered land and people, as shown in the mildness ac- 
 corded to the former. Needless to say, the Saracen practice scarce- 
 ly maintained the high level set by their chief, an observation 
 which might as truly be made of modern nations, though with less 
 justification for the latter. The usage of the Saracens of a later 
 date has often been contrasted with that of the Crusaders, much 
 to the disadvantage of the latter; and if extreme cases be taken 
 as standards of judgment, such as the taking of Jerusalem in 1099, 
 the justice of this verdict is unquestionable. 
 
 The spirit of chivalry, it is disappointing to say, was not influ- 
 ential in the development of belligerent occupation. In the words 
 of a historian, 1<( We are driven to the conclusion that the spirit 
 of chivalry, however strongly it might operate at times upon in- 
 dividuals, had but little real effect upon the policy of princes and 
 the general condition of mankind." The greater the resistance the 
 greater the punishment, seems to have been a favorite canon of 
 military usage, and the defenders of a city or a fortification .had no 
 reason to expect clemency in proportion to the stubborness of 
 the defense. 
 
 The name of Alfred the Great may well be mentioned among 
 those whose military usage was most humane in a semi-barbarous 
 age ; for even to the Danes, the conquered invaders of his own do- 
 minions, he willingly gave peace, and permission to remain and 
 become citizens. His successors, the Norman, Angevin and Plan- 
 tagenet rulers of England were but men of their times, and rarely 
 anticipated the humane usages of the present day, as did Alfred. 
 
 But the unique distinction belongs to one of the early kings of 
 England of having made the first attempt at a manual of instruc- 
 tion for his army in the territory of the enemy. This ha's already 
 been referred to as the Ordinances of War of Henry V. a most 
 extraordinary document when we consider the date of its issue, 
 the year 1419. If, however, the appearance of this document at 
 so early a date is remarkable, the circumstances of its issue will 
 in some measure account therefor. 
 
 1 Hosack, The Law of Nations, p. 80.
 
 24 BELLIGERENT OCCUPATION 
 
 Henry had just fought and won the great battle of Agincourt. 
 He was moving leisurely toward Paris, and had already opened 
 up negotiations with one of the factions of its defenders through 
 the Duke of Burgundy for its surrender. He was likewise nego- 
 tiating for the hand of the princess Catherine in marriage. He 
 had reached the town of Mantes, and had already begun to look 
 upon the French peasantry as his future subjects. It was here 
 that he caused to be prepared the Ordinances of War, designed 
 both to secure good discipline among his English, Welsh and Irish 
 supporters a task by no means easy considering the mutual dis- 
 trust and dislikes among them and to restrain his rough soldiery 
 from their customary excesses, and thus to attract the population 
 to himself. 
 
 The importance of this early manual demands extended notice. 
 It will be observed that most of it relates to "military law", that 
 body of laws which formulates discipline, and which therefore does 
 not concern us. The sections which pertain to our subject will 
 now be considered in some detail. 
 
 Sec. 3. "For Holy Church". This section secures the exemp- 
 tion of ecclesiastical persons and property from violence. Such 
 exemption was by no means unusual. Even Attila the Hun had 
 shown ^some respect to the claims of the church, and the Gothic 
 Alaric, Genseric and Totila had shown much more. It is notice- 
 able, too, that this comes first on the list, significant of the only 
 power which wielded any considerable restraining influence since 
 the decline of Rome. 
 
 The remainder of this section contains a much more remark- 
 able instance of protection, viz., that given to the honor of women. 
 To the same effect and with an added touch of chivalrous tender- 
 ness is Sec. 29. To punish with death a soldier who turns from 
 the slaughter of men to violence toward women such a penalty 
 is not to be looked for even in the manuals of the present day. 
 Penalties, to be sure, were much more severe at that time for any 
 offense, yet it remains true, judged either by earlier or by 
 later standards, that such wholesome restraints were scarcely 
 to be expected at that time. 
 
 Sec. 4 and 5. "For herbergage" (lodging). These sections, 
 which are primarily a part of military law, show that the quarter- 
 ing of troops upon the inhabitants, if done at all, must be done in 
 an orderly manner and by the proper officers. It would appear
 
 FROM JUSTINIAN TO THE PUBLICISTS 25 
 
 from the nature of the penalty that only the knights might be so 
 lodged. A later section, (Sec. 32), assigns a penalty for the rob- 
 bing and pillaging of lodgings. 
 
 Sec. 8. "For robbyng of merchaunts commyng to the market." 
 The robbing of merchants in time of peace was a mediaeval pastime 
 very much in vogue. That it should have been prohibited in time 
 of war is probably to be accounted for primarily as affording a 
 means of securing supplies without foraging. This at least seems 
 implied in the especial mention of "vitaillers," i. e. grocers, and 
 further prohibition of robbery of "horsmete" and "mannysmete" 
 (i. e. provender and foodstuff). 
 
 Sec. 16. "For the paying of thriddes." This section requires 
 every man, whether soldier or camp-follower, to pay to his "cap- 
 tain, lord, and maister" one-third of "alle manere wynning by 
 werr". This may be understood as applying to earnings only, in- 
 cluding the ransom money for prisoners ; for it would scarcely agree 
 with Sec. 26, (to be considered later) to suppose that it could mean 
 a permission to pillage upon the payment of a third of the spoil 
 to the general exchequer. 
 
 Sec. 39. "For theim that be wastours of vitaille." This is the 
 only section which seems to permit pillage. "If any man fynde 
 wyne or any other vitaill, that he take himself thereof as moche 
 as hym nedes, and that he save the remenaunt to other of the oste 
 withoute any distruccion upon peyn", etc. But the thing which 
 might be taken was regarded as a necessity and wanton destruction 
 thereof was prohibited. This may be reconciled with paragraph 
 26 upon the supposition that it applies to a country not yet com- 
 pletely occupied. Or, if so occupied, it might be construed as a 
 military necessity supplementary to the regular commisariat, 
 according to the policy that a country should support the invad- 
 ing army, a policy not now sanctioned. 
 
 Sec. 37. "For brennyng." "Also withoutyn commandement 
 speciall of the Kyng that noman brenne (burn) upon peyn off 
 death." The purpose of this is apparent without comment; viz, 
 to secure the country from devastation by fire. 
 
 Sec. 33. "A statute for theim that lette labourers and men gayng 
 to plough." Industry was to be left undisturbed. Not even the 
 needs of the army for horses might be satisfied by pillage as good 
 proof as could be given of an invader's intention to disturb the 
 country as little as possible.
 
 26 BELLIGERENT OCCUPATION 
 
 Sec. 28. "A statut for children within the age of XIIII years." 
 Children under fourteen years of age were to be unmolested; but 
 "if (unless) he be a lordes son or elles a worshipfull gentilmans 
 son, or a capne, etc.," in which case he might beheld for ransom. 
 
 Sec. 34. "For theint that gyve men reproche." It is worth noticing 
 that this section, whose chief design was probably to secure good 
 discipline among his own troops mentions also the "Frenshe" as 
 well as the "Englissh, Walsh, or Irissh." Nothing is easier than 
 for trouble to arise out of a taunt or a jest when the passions of 
 men are inflamed, and nothing is more tempting to a soldier of the 
 victorious invading army than to indulge a natural propensity to 
 exchange a jeer or a jest with their late opponents. The weight 
 of the argument of force being on the side of the invaders the re- 
 straint of speech that, "no vilony" be said, should be placed es- 
 pecially upon them. 
 
 Sec. 26. Comment upon this section has been reserved till the 
 last; for, more than any other, this section recognizes the differ- 
 ence between surrendered territory and that which is still hostile. 
 We know in this that the king had in mind a concept of territory 
 which, while subject to his own arms and authority owed alleg- 
 iance to a former sovereignty, which allegiance could only be 
 broken by subsequent agreement between sovereignties. The 
 passage should be quoted verbatim : 
 
 "For kepyng of the cuntre." "Also if any cuntre or lordship 
 be wonne other by fre wille offerd unto the Kynges obeissaunce, 
 that noman be so hardy to robbe nor pile therin aftyr that the 
 peas is proclaimed, upon peyn of deth. And if eny man of what 
 degre soever he bee, come unto our saide lordes obeissaunce, that 
 noman take hym, robbe hym nor pile hym upon the same peyn, 
 so that he or thay that this wolle obbeye, here a token of our sover- 
 ayn lorde the king." 
 
 Let us dwell for a moment upon the significance of this passage 
 to the development of belligerent occupation. 
 
 The Romans, it will be remembered, never conceived in their 
 legal theories of a distinct stage in military operations wherein the 
 land and the people were exempt from the harsh conditions of war, 
 except as an act of grace on the part of the commander. A nation 
 at war with them was at war as a whole, and as long as the war 
 lasted, and no part was entitled to exemption on the ground of its 
 being quasi subject to them. The doctrine of postliminium was a
 
 FROM JUSTINIAN 'TO THE PUBLICISTS 27 
 
 part of their civil code and its application, as a matter of right 
 belonged to Roman citizens or property, returning to Roman sover- 
 eignty. As to what would happen the case being reversed, the 
 law was silent ; for it had no authority to speak. Contrasting with 
 the case under consideration, we see in the latter an approach to 
 the modern international status of occupation from another stand- 
 point, with a distinct gain in certain particulars. 
 
 In the first place, the standpoint is that of the commander in 
 his actual experience. It rests upon no previous legislation and 
 is not meant to conform to an existing jurisprudence. In this it is 
 thoroughly English, and in harmony with the English attitude to- 
 ward international law as a thing purely occasional in origin. It 
 was not announced as a national policy to which England would be 
 willing to be bound in the future, for it was intended, so far as we 
 know, to apply to this one war only. It therefore lacks continuity 
 both as a legal theory and as a national policy. Does it therefore 
 lack permanence and value ? On the contrary, both as an instance 
 of humanitarian usage, and as an approach to the actual status of 
 occupation in the international law of today, it surpasses, not only 
 Roman usage, but the revived Roman legal concepts of the time 
 of Grotius, two centuries later. It is but reasonable to suppose 
 that such a document would have an appropriate degree of in- 
 fluence upon English war practice, though upon this point we can 
 offer nothing stronger than inferential evidence. l While we do not 
 find it quoted or reaffirmed specifically by later sovereigns or com- 
 manders it is worthy of notice that in the Hundred Years War 
 just prior to this, the triumph of the arms of Edward II. in France 
 was marked by the slaughter of the unarmed and the wasting of 
 the country as an ordinary occurrence. Still further back the war 
 practice of Edward I. presents the acme of cruelty. On the other 
 hand, following the time of Henry V., such instances of indiscrim- 
 inate and inhuman warfare are sporadic rather than customary. 
 
 Now while it would probably be too much to attribute the milder 
 usage following Henry V.'s time to the influence of the "Ordi- 
 nances", it is not too much to claim that a rapidly improving usage 
 found its highest expression in them, the like.of which continental 
 Europe had never known. England's geographical and political 
 isolation gave opportunity for the advancement in military usage 
 which the Ordinances indicate, to the extent, at least, of three 
 hundred years. 
 
 J The writer follows Twiss in rejecting the ordinances credited to Rich- 
 ard II. and to Henry IV.
 
 28 BELLIGERENT OCCUPATION 
 
 Whether, then as cause or effect of the advanced development 
 of English military usage, it is evident that the Ordinances are in- 
 dicative of such development, and that if we are debtors to the 
 Romans for the origin of the legal status we are debtors to the 
 English for the first specific instances of occupation antedating 
 by several centuries the completed legal development and for the 
 milder measures of warfare introduced at so early a date. 
 
 Lest it be thought that we are forgetting, it should be added 
 that in carrying on actual hostilities Henry resorted to the savage 
 measures of his time. The memorable siege of Rouen (1417) in 
 the year before the Ordinances were issued, where the most pitiful 
 scenes of war were enacted in the starvation of the non-combatant 
 population outside the walls between besiegers and besieged ; like- 
 wise the siege of Monteran only the year afterward (1420), bear 
 abundant testimony to the severity of war when it was open war 
 rather than occupation. But this, it is superfluous to say, only 
 emphasizes the distinction he drew between occupied and unoc- 
 cupied territory a distinction in fact, for which he had no term. 
 Moreover, he might possibly have justified his extreme measures 
 upon the ground of military "necessity" that dangerously ex- 
 pansive term just as much more modern commanders would 
 have done. After all, the chief point of interest is that he was 
 humane enough and had soldierly common sense enough to issue 
 the Ordinances long before usages had grown mild to such a de- 
 gree as to abandon the harsh measures of actual warfare dis- 
 played at the siege of Rouen. 
 
 It remains to notice one other instance which approaches in 
 some particulars the status of occupation, and which brings us 
 down to the close of this period. It is that of the conduct of 
 Gustavus Adolphus during the Thirty Years War. Previous to 
 setting out on this memorable campaign he caused to be prepared 
 (1621) a series of military regulations called "Articles of War". 1 
 The purpose of these articles was to cultivate a good morale among 
 the troops, by the regulation of attendance upon devotional ex- 
 ercises, the prohibition of drinking, swearing, carousing and the 
 "worship of false gods" (images, crucifixes, etc.), the punishment 
 of cowardice, and the establishment of a court corresponding to 
 
 "Many of the best principles thus put together are to be found in the 
 Swedish Army Regulations of Gustavus Adolphus". See Taylor, Internat- 
 ional Law, p. 471. This is incorrect, as an examination of those Regulations 
 will show.
 
 FROM JUSTINIAN TO THE PUBLICISTS 29 
 
 that of the modern judge advocate. It will be observed that this 
 has nothing to do with the personal and property rights of non- 
 combatants, and therefore, strictly speaking, has nothing to do 
 with belligerent occupation. Moreover, the country in which 
 these operations were conducted was not always hostile not the 
 territory of the enemy. The case is deserving of mention, how- 
 ever, both in justice to the commander because it contrasts so 
 vividly with contemporary usage, and because it is an instance of 
 the mildest usage, at the close of the period under consideration. 
 What Gustavus thought of the rights of non-combatants we get 
 from a speech he is reported to have made at Nuremberg, where 
 he found it necessary to rebuke with great severity his marauding 
 German allies. Thus it runs: 1 
 
 "You princes, lords and gentlemen, and you, my generals, lieu- 
 tenant generals, and all you my inferior officers, I have ever es- 
 teemed you for brave cavaliers, and I bear you witness that upon 
 all occasions of service offered you have in battle given me suffi- 
 cient demonstration of your valor. But whe^n, having you all here 
 before me, I am' put in remembrance of your ravages, robberies 
 and plunderings, and that you yourselves are guilty of these 
 atrocities, my hair stands up on end with horror. Let yourselves 
 be judges. Is it not a doleful and lamentable case, yea, most odious 
 in the sight of Almighty God, that one Christian should pillage 
 another ? one friend, nay one brother should ransack, spoil and 
 undo another ? The very devils in hell are more loving and trusting 
 one to another, than you Christians are among those of your own 
 country." 
 
 After thus expressing his horror at their conduct he next excul- 
 pates the Swedes and brings the charge directly home to the Ger- 
 mans, then continuing: 
 
 "You will say, perchance, that you want money. But when 
 I have the means to satisfy you, and you by pillaging, robbing 
 and plundering deprive me of those means, whose, I ask you, is 
 the fault that you are not satisfied? What share have. I at any 
 time received out of all your plunder? I do protest before God 
 that I have not by all this war enriched myself to the value of a 
 pair of boots, and I declare withal that I would rather ride with- 
 out boots than make myself the richer by the plunder and the ruin 
 of these poor people This is all that 
 
 ^osack, Law of Nations, p. 205. 
 
 \
 
 30 BELLIGERENT OCCUPATION 
 
 henceforth I shall desire at your hands, that you spoil not others 
 of their goods, but leave to every man his own possessions. The 
 choler and the manhood that you have, score it, in God's name, 
 upon the fronts of your enemies, but stain not the honor of a 
 soldier by outraging unarmed innocence. Live upon your means 
 like soldiers and not by pilfering and spoiling like highway robbers. 
 This if you do not you shall ever be infamous and I with such 
 help shall never be victorious." 1 
 
 Needless to say that as long as Gustavus lived the Swedish army 
 was a model of discipline, but after his fall at the battle of Lutzen 
 it rapidly sank to the level of its marauding allies and enemies. 
 It was in the midst of the terrible carnage and devastation of the 
 Thirty Years War that the work df Grotius appeared, a copy of 
 which Gustavus is said to have carried with him in the later years 
 of his campaigns. It is the work of Grotius, his predecessors and 
 his successors, that we have next to consider. 
 
 IV 
 
 "No more novel or difficult problem was ever presented for solu- 
 tion, "says a recent writer, 2 "than that which confronted the pub- 
 licists of the sixteenth and seventeenth centuries, when they were 
 called upon to furnish rules adequate, by virtue of their intrinsic 
 weight and dignity, to compel the obedience of the freshly eman- 
 cipated European nationalities, without the coercive force of any 
 recognized central authority." This could be true only in an an- 
 ticipatory sense, for the "emancipation" cannot be said to have 
 been accomplished until the close of the Thirty Years War (1648) 
 while the work of the publicists the earlier ones, at least had 
 already been summed up in the great work of Grotius which ap- 
 peared in 1625. Yet the statement is to be credited in spite of 
 the apparent "hysteron proteron," for thinking men had long per- 
 ceived that no Roman Empire, real or imaginary, temporal or 
 spiritual, could ever again govern the, destinies of Europe. An 
 appeal to reason, to virtue, to Christian sentiment, to supposed 
 "natural laws" of right conduct, and especially to the laws of an- 
 
 1 Gustavus not only protected the people from violence, but he gave or- 
 ders that the full market price should be paid for all provisions that were 
 brought into his camp." Hosack, Law of Nations, p. 195. 
 
 Taylor in North American Review, March 1902.
 
 THE PUBLICISTS 31 
 
 cient Rome, furnished the basis of the new modus vivendi for the 
 states of Europe. This was undoubtedly the controlling purpose 
 with Grotius if not with his predecessors, and the success of his 
 effort is seen in the influence he exerted at the Peace of West- 
 phalia, in the recognition of the principle of equality of states. 
 
 But there was another purpose, which was more immediate if 
 not so comprehensive. Europe was at this time witnessing a war 
 which for savage ferocity and heedless destruction of life and prop- 
 erty is unsurpassed by any within the range of .definite knowledge. 
 It is difficult to speak of the cruelty of the Thirty Years War ex- 
 cept in superlatives. The military usage was so sickening by the 
 excess of its malignity that it produced a revulsion of feeling, a 
 satiety of suffering, and men cast about for reasons for restraining 
 the cruelties of war. As the publicists appealed to Roman law 
 for other international purposes, so they appealed to Roman mil- 
 itary usage, stern as it was compared with modern standards, 
 but gentle and humane compared with that which they saw. 
 
 Hence, in taking up the work of the publicists we are resuming 
 the line of development of our subject where the Romans left it 
 some eleven hundred years before. True, the "canonists" had in 
 the meantime appealed to the same source, and the body of the 
 Roman law as it left their hands comprised the courses in law as 
 taught in the mediaeval universities. But whatever may have 
 been the attitude of the earlier publicists toward the canonists, 
 Grotius said of them quite significantly, "While they are good au- 
 thorities for making new laws they are bad interpreters of laws 
 already made." 1 Hence he goes back to the Codex of Theodo- 
 sius and the Pandects of Justinian sources for which he confesses 
 "great deference". It is no injustice to the other publicists 2 to 
 
 Grotius Prolegomena (p. LXXV) to De Jure Belli et Pacis. 
 
 2 The most distinguished of the publicists (for others see Grotius, Pro- 
 legomena) were as follows: 
 
 Franciscus a Victoria (1480-84) born at Navarre, educated at Paris, 
 Professor at the University of Salamanca, one of the foremost of the pre- 
 decessors of Grotius. 
 
 Balthazer Ayala (1548-84) Judge Advocate of the Spanish, army in the 
 Netherlands. 
 
 Suarez (1584-1617) Professor at Alcala and Salamanca. 
 
 Albericus Gentilis (1552-1608) born in Italy, educated at Perugia, fled 
 to England to escape religious persecution, became Professor of Civil Law 
 at Oxford University in 1582. 
 
 Richard Zouch (1590-1660) successor to Gentilis at Oxford. 
 
 Hugo Grotius (1553-1645) born at Delft in Holland, educated at Leyden 
 and Orleans, involved in the fall of the Grand Pensionary, condemned to life 
 imprisonment and confiscation of his goods, escaped to Paris where he wrote 
 his great treatise.
 
 32 BELLIGERENT OCCUPATION 
 
 allow Grotius to be the spokesman for them and their times, first, 
 because of the comprehensiveness and completeness of his work, 
 De Jure Belli et Pacis, a work which procured for him the title of 
 "Father of International Law," and second, because coming after 
 them in point of time there was opportunity for him to summar- 
 ize all that was of value in the earlier works. It will be quite 
 sufficient therefore to examine this treatment of our subject in the 
 work mentioned, with incidental notice of the contributions of his 
 predecessors. 
 
 Before taking up this examination, however, it seems necessary 
 to pause and consider a matter which might have been treated in 
 the introduction, but has been reserved until the present for reas- 
 ons which will appear later. 
 
 In treating belligerent occupation as a development several as- 
 pects thereof are to be distinguished. Two of these have already 
 been mentioned, namely, military usage and legal status. Two 
 more may be distinguished at this point, regarding the matter 
 sociologically; namely, first the social attitude, which .changes as 
 a rule so very, very slowly, or else spasmodically in a revolution, 
 whose voice, when it has a voice, is what we call public opinion; 
 and second, the enlightened convictions of the solitary leaders and 
 thinkers among men, such as Cyrus, Cato, Belisarius, Abu Bekr, 
 Alfred, Henry V., Grotius, Gustavus Adolphus, and Lincoln. Of 
 these it can scarcely be said that there is a development. The 
 great man is not so much dependent upon his social environment 
 for his moral concepts as society is indebted to him ; wherefore he 
 seems to appear indifferently in any age. Social advancement, on 
 the other hand, is a tardy and a painful progress, but it is seldom 
 either fitful or retrogressive. Military usage, again, does not nec- 
 essarily conform to social advancement. Indeed it is apt to follow 
 the latter rather tardily, as it did in the Thirty Years War, since 
 they who customarily formulate it are of military profession and 
 naturally have military necessity uppermost in mind. One has 
 but to compare the works of jurists, publicists, and soldiers of the 
 present day to see how persistently the professional point of view 
 thrusts itself forward. 
 
 It is evident from the foregoing that these several aspects of de- 
 velopment do not proceed pari passu ; no more do they present a 
 continuity in an upward direction, nor in any direction. Never- 
 theless, that the direction, though discontinuous, is upward, both
 
 THE PUBLICISTS 33 
 
 severally and collectively, does not admit the shadow of a doubt. 
 If an order of advancement may be assigned it would be as follows, 
 first the publicist, then the jurist, then the soldier. That this is 
 not always true is seen in the case of the Ordinances of War of 
 Henry V. , where undoubtedly the soldier established a military 
 usage which quite put the rest in the rear. 
 
 In the work of Grotius we see these several phases of the question 
 at war with each other, as it were, in the attempt of a great mind 
 to reconcile legal status, belated military usage, awakened public 
 opinion, and high moral ideas of his own, and to evolve in the 
 process a standard which would win its way to international ac- 
 ceptance by not being too much estranged from the usage of the 
 day nor too severe for the immediate future. It is now in order 
 to examine it as far as it concerns our subject. 
 
 As might, be supposed, the nearest approach which Grotius 
 makes to a perception of that which we call belligerent occupation, 
 is in dealing with postliminium. Having discussed the rights of 
 individuals in this connection he turns to the rights of a people. 
 Unfortunately the distinction between people and state had not 
 yet been clearly drawn, or at least as but vaguely perceived by him. 
 This distinction is vital to the subject. A state which is unable 
 to exert its authority over all its territory, due to the presence 
 of the enemy, is not to be confounded with the people, some of 
 whom are still subject to its authority and some to that of its ad- 
 versary. Again, a war is a contest between states, not peoples, 
 and for the prosecution of the war, the two arms. of the service, 
 the army and the navy, are employed by the state. A state guar- 
 antees its citizens in their civil and political rights, including the 
 possession of property, in return for the allegiance of the citizen. 
 That part of a people which has been cut off from the authority 
 of the state by means of occupation still owes allegiance to the 
 state to which it belongs, though unable to obey it. Conversely 
 the state continues to guarantee the property rights of such citizens, 
 and this relationship between the state and the conquered part 
 of the nation is recognized and sanctioned by the invading state. 
 In modern usage the civil law of the parent state, or government 
 de jure is permitted to remain in full operation, the invader de- 
 claring himself the administrator thereof. Needless to say he is 
 an administrator with large powers of discretion, but the import-
 
 34 BELLIGERENT OCCUPATION 
 
 ant point is that he does not seek to substitute the law^ of his own 
 country for those of the government de jure not until the treaty 
 of peace. 
 
 Let us see how near Grotius came to a realization of such a sit- 
 uation. The passage above referred to is as follows: 1 "Quod de 
 si:ij,ulis personis diximus, idem et in populis locum habere arbitror, 
 jit qui liberi fuemnt suam reciperant libertatem si forti eos, 
 vis sociorum eximat, hostili imperio. At si ipsa multitude quae 
 civitatcm constitucrat dissoluta sit, verius puto non eundem po- 
 pulum censeri, nee postliminio res restitui ipso gentium jure, quia 
 populus, ut navis, partium dissolutione plane interit, eo quod tota 
 ejus natura in ilia perpetua conjunctione consistit. Non ergo quae 
 fuerat Sagunti ci vitas eadem exstitit, cum veteribus cultoribus 
 ea sedes octavo post anno restituta est", etc. 
 
 In another passage to a similar effect (III, IX, 12) he says: 2 
 
 "Ilia quaestio magis ad nos pertinet, an et populi qui subjecti 
 alieno imperio fuerunt in veteram causem recedant quod tractari 
 potest si non is cujus imperium fuerat, sed sociorum aliquis eos 
 hosti eripuisset; puto hie idem dicendum quod in servis, nisi sociali 
 federe aliter convenerit." 
 
 In the first of the above passages the illustration of the ship is 
 a correct analogue for the state as opposed to the people, and it 
 exemplifies the confusion arising from a want of terminology. In 
 such a case it is the state which perishes outright, and the will of 
 the invader becomes paramount. Conversely, if they are able of 
 themselves or with the help of their allies to drive out the invader 
 the people regain their former status. In the latter case, however, 
 
 'What we have said of individuals, I conceive, holds also for people; so 
 that they who have been free recover their liberty if it happen that the force 
 of their friends extricate them from the power of their enemies. But if the 
 multitude which had constituted the state or city be dissolved, I conceive it 
 to be more true that it is not to be reckoned the same people, and that their 
 condition is not restored by postliminium, by the law of nations; for a people, 
 like a ship, by the dissolution of its parts, perishes outright, since its whole 
 nature consists in the continuity of its composition. 
 
 Grotius, De Jure Belli et Pacis, Vol. Ill, ch. ix, p. 9. Whewell's trans- 
 lation. 
 
 2 "Another matter belongs more to us; whether a people which has been 
 subject to another authority returns to its former condition (by postlim- 
 ium). This may be so construed if they were rescued from the enemy 
 by some of their allies but not if by that power to- which they owed alleg- 
 iance. I think the same is to be said here as in the case of slaves, unless 
 there is something otherwise in the bond of allegiance." (What was said in 
 the case of slaves was that "they are recovered, not captured; the soldier is 
 their defender, not their owner.")
 
 THE PUBLICISTS 35 
 
 as is implied seemingly in the second passage quoted, the help of 
 the allies may involve the question of salvage. The fact that they 
 do regain their former status involves the continuance of their 
 rights of possession even while the state to which they owed al- 
 legiance was unable to guarantee those rights. But is this any- 
 thing more than a restatement of the Roman jus civile? It is, in 
 just this way : that whereas the jus civile was laid down for Roman 
 citizens, and, as was said before, drawn upon by the praetor fere- 
 grinus, this principle may have been employed in other cases than 
 those concerning Roman citizens in late Roman times. But here 
 we find it avowedly set forth as a principle to be followed in law 
 and usage by all states internationally. The amount of it is the 
 recognition of the obligation of the state to the citizen, and the 
 continuance thereof under hostile occupation. It is significant to 
 notice also that this has been done notwithstanding a lack of 
 terminology, which would have greatly simplified the reasoning. 
 Turning next to property rights, and first of all to land, Grotius 
 puts the recovery of title to the original possessor at the time of 
 expulsion of the enemy, which might mean at the treaty of peace 
 closing the war, as he seems to imply in his illustrations. That 
 this is not a necessary conclusion is supported by another passage, 
 which because of its importance to the subject must be quoted 
 verbatim. It runs as follows: "At agri non statim capti intel- 
 liguntur simul atque insessi sunt ; nam quam-quam verum est earn 
 agri partem quam cum magna vi ingressus est exercitus ab eo in- 
 terim possideri, ut a Celsu notatum est; tamen a^um quern tract- 
 amus effectum non sufficit qualiscunque possessio, sed firma re- 
 quiritur. Itaque Romani agrum extra portam, quam Annibal 
 castris insidebat, adeo non amissum judicabant, ut eo ipso tempore 
 nihilo minoris venierit quam ante venisset. Is ergo demum ager 
 captus censebitur, qui mansuris munitionibus ita includitur, ut 
 nisi iis expugnatis parti alteri palam aditus non sit." 1 
 
 x De Jure Belli et Pacis III, iv, 4. "But the lands are not understood 
 to be captured as soon as they are occupied. For though it is true that the 
 part of the land which an army has entered upon with a great force is for the 
 time in its possession, as Celcus notes; yet for the effect of which we speak, 
 possession of every kind is not sufficient, but firm possession is required. 
 Thus the Romans were so far from judging the land on which Hannibal had 
 planted his camp to be lost that at that very time it sold for no less than it had 
 sold before. That land, then, is to be conceived as captured, and no other 
 which is included in permanent defenses, so that it is very evident there is 
 no access to it till these are carried." Whewell's translation, Vol. Ill, 
 p. 112.
 
 36 BELLIGERENT OCCUPATION 
 
 This shows very clearly that an intermediate condition was re- 
 cognized between firm possession and mere occupation; between 
 the sovereignty of the government de jure and the tentative pos- 
 session by the government de facto. The development of the idea 
 of occupation had proceeded, so far as the territory was concerned, 
 almost to its present condition. The outlines of the whole sub- 
 ject, it might be said, were dimly perceived and presented, the de- 
 tails were yet to be filled in. But it is a case where the details 
 outweigh the importance of the outline, for they involve, first, the 
 distinction between combatants and non-combatants a distinc- 
 tion that had not yet been made in international law and second, 
 the exemption of private movable property from capture. The 
 first of these follows very shortly after Grotius, and the second is 
 yet to be secured in military usage, though sanctioned already by 
 international law and public sentiment. The further exemption 
 of non-combatants from the severities of war and the reasons there- 
 for will be considered later; but it is necessary to consider next the 
 treatment of private movable property. 
 
 ^'Concerning movables, on the other hand," says Grotius, 
 "the contrary rule in general holds; that they do not return by 
 postliminium, but become prize. Hence objects of traffic where- 
 ever bought, become the property of him who buys them; and 
 if found among neutrals or brought home, cannot be claimed by 
 the old owner. But from this rule were excepted formerly mun- 
 itions of war, the reason being, apparently, that men might be 
 more active in recovering these." 
 
 Here we go back to ancient usage indeed. It has been stated 
 before that public property, movable or immovable, comes 
 at once into possession of the captor and remains as long as he 
 can make good his claim by force. This has always been true and 
 doubtless always will be, the only modification being that such 
 property is not to be abused or wantonly destroyed; that places 
 of public worship are to be respected, and that works of art 
 should be unmolested. Again, private immovable property, 
 i. e. lands, real estate, "returns," according to Grotius, "to the 
 original possessor when the enemy is expelled." That is to say 
 the annullment of the rights of ownership of the inhabitants 
 does not take place immediatly. This is not because such pro- 
 perty rights are regarded as more sacred than those of mov- 
 J De Jure Belli et Pads III, ix, 14.
 
 THE PUBLICISTS 37 
 
 able or personal property, but rather because the capture of 
 immovable property is the act of the whole force and not indi- 
 vidual soldiers. Contrasting this with the modern view we 
 have only to add that real estate never leaves the possession of 
 the original owner because of a change of sovereignty. It is 
 the sovereignty of the state and not the ownership of the individ- 
 ual which returns when the enemy is driven out, or perishes 
 when he succeeds. Farmers continue to own their fields, there- 
 fore, and business contracts are binding, though the power which 
 guarantees these civil relations succumbs and another takes its 
 place. 
 
 But when we come to private movable property that which 
 is most easily appropriated and least easily defended we have 
 to do with the severest sufferer from the hardships of war 
 aside from the agencies of the combat. Today the word of the 
 Hague Conference is explicit and mandatory 1 "Pillage is express- 
 ly prohibited," a prohibition which does not necessarily extend 
 to firearms and ammunition; but when Grotius wrote, pillage 
 was one of the recognized processes of war. The right to plun- 
 der was unquestioned, no matter how humane a Gustavus 
 Adolphus might be. Grotius admits that it is justified by Nat- 
 ural Law and by the Laws of Nations, and he backs it up further 
 with numerous Scriptural and classical illustrations. "Not only 
 he who for just cause carries on a war, but anyone, in a regular 
 war, may without limit or measure, take and appropriate what 
 belongs to the enemy." 2 
 
 This was Grotius, the scholar, .dealing with the facts of history 
 and of contemporary usage. These he could not state otherwise 
 than as he found them. But when we turn to his "temperament- 
 um circa vastationem et similia" we hear Grotius, the man, plead- 
 ing for a clemency which he dared not put forth as law or usage. 
 "Although," he says, 3 "it is not a part of our purpose to speak of 
 the advantages of any course of conduct, but rather to restrain the 
 loose license of war to that which is lawful by nature, or among 
 the lawful ways, the better; yet even Virtue in this age little es- 
 teemed of her own account, ought to pardon me, if I try to make 
 
 *It should be added, however, that this is another instance where public 
 sentiment and legal precept are ahead of military usage. A case in point is 
 that of the pillaging by the soldiers of the united powers in China in 1900. 
 
 a De Jure Belli et Pacis, III, vi, 2. 
 
 3 Ibid, III, xn, 8.
 
 38 BELLIGERENT OCCUPATION 
 
 her value apparent by her utility." Then he points out that "this 
 moderation in preserving things which do not effect the course of 
 war, takes away from the enemy that great weapon, despair," since 
 the enemy will fight with the greater determination when they see 
 that their all depends upon it. Again, "that course (moderation) 
 presents the appearance of a great confidence in victory ; and that 
 clemency is apt to bend and conciliate men's minds." This again 
 he supports by numerous historical instances and by the moral 
 teaching of the theologians. He commands in particular a number 
 of cited cases where the country was spared because the conqueror 
 expected it to become a part of his own domain. In a word, if we 
 may follow the opinion of many in ascribing the greatly amelior- 
 ated conditions of warfare a century later to the influence of Gro- 
 tius, that influence is to be looked for in his "temperamenta." 
 
 Taking usage as he found it, he was glad enough to revert to 
 later Roman times, assume that plunder was a necessary concom- 
 itant of war, and discuss the methods of capture and distribution. 
 l "By land", he says, "the common use everywhere now is, that in 
 pillage of towns, and in battles, everyone makes his own what he 
 takes; but in expeditions for booty the captures are common to 
 those who are in the company, and are divided, according to their 
 rank." A somewhat similar distinction he points out as having 
 been observed by the Greeks, >.a<pupoc, or public spoil, and cxuXa, 
 or private spoil, the latter implying 2 "what was taken from the 
 enemy during the contest; the former, what was taken afterwards." 
 Continuing he says that 3 "what soldiers capture when not on duty 
 or on service to which they are ordered, but in the course of what 
 they do by promiscuous right or by permission, is forthwith their 
 own ; for they do this not as public servants. Such are spoils which 
 they win from an enemy in single combat, and such as they take 
 in free excursions not made by order, at a distance from the 
 enemy (the Roman rule was ten miles^ . This kind of capture the 
 Italians at present call correria, plunder, and distinguish it from 
 butina, booty." And it might be added, it is this kind of maraud- 
 ing which is most subversive of discipline, exasperating to noncom- 
 batants, and foreign to the idea of belligerent occupation. 
 
 'De Jure Belli et Pads III, vi, 24. 
 *De Jure Belli et Pads III, vi, 24. 
 2 <jKi~/.na despoiling a slain enemy. 
 *De Jure Belli et Pads, III, vi, 12.
 
 THE PUBLICISTS 39 
 
 It has been said that neither in form nor in matter did Grotius 
 contribute anything new to the discussion of what is now called 
 international law. It is something, however, to be a judicious 
 compiler and editor. But Grotius was much more than this. A 
 common theme with that of his immediate predecessors shows a 
 commonality of ideas, the inception of which is not to be credited 
 to him in every case or perhaps in the majority of cases. A few of 
 these it may be well to notice. 
 
 Victoria had maintained that it never was lawful to slay the in- 
 nocent intentionally, or to spoil them of their property if it could 
 be avoided. "A prince .... ought not to wage war for the 
 destruction of the people against whom the war is made, but for 
 the obtaining of his rights." 1 More's Utopians "do not waste nor 
 destroy theire enemies lande in forraginges, nor they burne not up 
 theire come. ' ' "They hurt no man that is unarmed, onless he be an 
 espiale . " " None of themself es taketh any e portion of the praye . ' ' 
 Gentilis, to whom Grotius confesses himself to be particularly in- 
 debted, in dealing with the treatment of the persons of noncom- 
 batant enemies, evidently follows the legal, that is to say, the Ro- 
 man view in regarding them all as enemies, to be made prisoners 
 of war and otherwise dealt with much as those under arms. He 
 advises clemency, especially to young boys and women. "A 
 long line of famous commanders unite in condemnation of attacks 
 upon female honor." As to the treatment of property he gives 
 only a qualified approval to the exemption of temples, porticoes, 
 statues, etc., for this, he thinks, is modified too much by changing 
 circumstances. Concerning private property, ' 'the victor may take 
 to himself lands and other property of the enemy. But let him 
 remember that he exercises all these rights pro arbitrio boni viri." 
 "When a state passes in its entirety from prince to prince, it passes 
 cum omnibus suis qualitatibus ." One cannot but think that if a 
 sharper distinction had been drawn between sovereignty and own- 
 ership, Gentilis would have assigned only the former to states, 
 though this conviction is not so positive as in the case of Grotius. 
 Further, private movable property is subject to capture, though 
 the exercise of the full legal right in this respect should be restrained. 
 Indeed 2 "policy may well induce a victor to leave to the con- 
 quered complete liberty In all cases of the exercise of the 
 
 *T. A. Walker, p. 234, History of the Law of Nations 
 
 * Ibid, p. 289.
 
 40 B3LLIJERENT OCCUPATION 
 
 victor's rights, equity is to be preferred to strict law, honor to bare 
 utility." It is the spirit of the teaching of Gentilis, undoubtedly, 
 as much as the content of his work, which had its appropriate in- 
 fluence upon Grotius. 
 
 It is a matter of regret that none of the publicists seem to have 
 known of the War Ordinances of Henry V. A concrete case, such 
 as this would not only have been eminently worthy of quotation 
 along with the multitude to be found in De Jure Belli et Pacis; more 
 than this, it would have thrown a great deal of light upon the prac- 
 tical problems of a commander who has the will to put into op- 
 eration the reforms they so much desired. Consider for a moment 
 his situation. A general at the head of a victorious army march- 
 ing into the enemy's territory, that enemy fleeing before him and 
 powerless to oppose his approach, the country with its defenseless 
 population and tempting wealth all about him, with skulking foes 
 waylaying his pickets, with the necessity of providing for thousands 
 of armed men who may have the will, as they have the power to 
 supply their own wants if permitted to do so such a general needs 
 all the support of public opinion, the established military usage of 
 the most humane, the guidance of enlightened authorities, the re- 
 straints imposed by judicial decisions and legal enactments, in a 
 word, needs the authority of international law to prescribe the lim- 
 its for the use of force. This, moreover, is further emphasized by 
 the large measure of discretionary power that must unavoidably be 
 conceded to him, the opinion of the mass of uninformed which 
 would make him a dictator rather than an administrator, the weight 
 of historical precedents which he might choose according to his 
 liking and especially the inexpediency of taking him to task for 
 acting unwisely in an emergency, in a word, his irresponsibility. 
 It is an easy matter for a publicist to say what ought to be as a 
 matter of justice; it is comparatively easy for the public which is 
 interested to prescribe its own exemption; it should not be difficult 
 for the jurist and legislator to derive a legal status in conforming 
 wi'ch the national jurisprudence; but it needs a commander of the 
 type of Gustavus Adolphus or Henry V. to meet such an emergency 
 as is implied in a situation of absolute power united with utter 
 irresponsibility. On the other hand, to frame a definite program 
 of action needs just such a contingency as a commander must face; 
 for it must necessarily be the outgrowth of circumstances and not 
 of theorizing. That such a rudimentary manual was already in
 
 FROM GROTIUS TO VATTEL 41 
 
 existence, and had been for two hundred years, might have been 
 pointed out by Grotius, much to the support of his own contentions, 
 even though he could not have maintained that it was established 
 usage. And much more than this, it would have exemplified for 
 him a status far beyond that which he derived from Roman Law. 
 Gentilis at Oxford (1585) "lays it down", says Ward, 1 "that all 
 Sovereign Princes are bound to be governed by it (Roman Civil 
 Law) in the disputes which arise between them." But, it is sub- 
 mitted, in this instance they followed their Roman teachers too 
 closely, when a better was at hand. For this, Gentilis could scarce- 
 ly be excused. As to Grotius, possibly the conflicting interests of 
 his own country and England, at this time, may have prejudiced 
 his judgment slightly, or prevented his looking to English sources 
 with the same assiduity that he bestowed elsewhere ; for it will be 
 remembered that in defending the maritime rights of Holland 
 against the claims of England just before his great work appeared, 
 his services were characterized by zealous patriotism as well as by 
 his unusual ability. 
 
 It does not follow, however, granting that this specific case was 
 unknown to the publicists, that the mildness of the later English 
 military usage was without its influence upon them. Gentilis, it 
 will be remembered, was at Oxford during Elizabeth's reign 
 than whom no sovereign, perhaps, ever had a greater abhorrence 
 for war and he was frequently consulted upon matters of interna- 
 tional policy. From the mildness of his counsel and the readiness 
 with which it was accepted we are warranted in inferring a harmony 
 of views upon such subjects in general, whether or not those of 
 Gentilis may be understood as cause or effect. This comes a long 
 way short of proof ; but it is sufficiently probable to be mentioned 
 along with that of a previous chapter as indicative of our special 
 indebtedness to English usage along with Roman, and in contrast 
 with continental European. 
 
 V 
 FROM GROTIUS TO VATTEL 
 
 The century following Grotius witnessed the greatest degree of 
 amelioration of military usage the world has ever known. When 
 we compare the Thirty Years War with what Vattel says of the 
 
 Robert Ward, An Enquiry into the Foundation and History of the 
 Laws of Nations in Europe, p. 609.
 
 42 BELLIGERENT OCCUPATION 
 
 wars of his times about the middle of the eighteenth century 
 the change is scarcely believable. 1 The changes were such in gen- 
 eral, as affected the rights of persons rather than those of property, 
 the former naturally winning recognition sometime in advance of 
 the latter. 
 
 It needs no debate to show that in all the steps in the develop- 
 ment of belligerent occupation, the greatest, as affecting persons, 
 is the distinction between combatants and noncombatants, a dis- 
 tinction which came about during this period. 2 "Till the distinc- 
 tion between combatants and noncombatants was clearly and def- 
 initely embodied in the laws of war in the latter half of the seven- 
 teenth century," says Lawrence, "the unarmed inhabitants of an 
 invaded country were liable to be slaughtered at the will of the in- 
 vader, and were almost always exposed to shameful indignities." 
 This exposure of the unarmed to the same fate as that of the armed 
 is a corollary to that ancient theory which regards a war as waged 
 between peoples rather than between states. But how did such 
 a change come about? 
 
 The answer is not far to seek. Nationalism, the chief political 
 outcome of the middle Ages, was necessarily accompanied by the 
 growth of standing armies to add the sanction of force to the author- 
 ity of the state. Says Taylor, 3 " During the Middle Ages war be- 
 came a trade, carried on by highly trained mercenaries, who sold 
 their services wherever required. Upon the formation of large 
 states, however, that plan became unreliable and unsatisfactory. 
 The growth of Spanish power in the fifteenth century was accom- 
 panied by that of a disciplined national army under Ferdinand, 
 Charles, and Philip. Thus was necessitated similar organizations 
 in France under Francis I and Louis XIV, and in Prussia under 
 Frederick II." Now a regular army acts under military law and 
 is subject to vigorous discipline, its aim being to become the most 
 efficient fighting machine possible. In this specialization of func- 
 tion we have the growing differentiation between combatants and 
 non-combatants which has resulted so beneficially upon the usages 
 of war. Obviously, the differentiation had to be made within the 
 
 'Vattel . . . tells us that what struck him most in the wars of his day 
 was their extreme gentleness; and of the standard of gentleness proper to be 
 followed in war Vattel was a severe judge. Maine, Sir H., in International 
 Law. 
 
 *T. J. Lawrence, The Principles of International Law, p. 342. 
 'Hannis Taylor, p. 472, International Public Law.
 
 FROM GROTIUS TO VATTEL 43 
 
 state before it could be observed internationally. Along with this 
 distinction there naturally grew up also a differentiation between 
 people and state, the latter being the organism which governs, 
 while one further concept, the nation, is equivalent to the people 
 plus the state. A still further result of nationalism was the idea of 
 territoriality; that is to say, that a state's jurisdiction extended 
 over a certain definite territory as well as over a particular people. 
 Summing up the results of the upgrowth of nationalism they are 
 chiefly as follows: 
 
 1. The distinction between people, state and nation; 
 
 2. The idea of territoriality, the coterminous limits of the jur- 
 isdiction of the state with a certain geographical area; 
 
 3. The distinction between the agencies which the state uses to 
 enforce its will, i. e., combatants, and those for whom these agen- 
 cies are used, i. e., non-combatants. 
 
 Of these three the first and second are fundamental and there- 
 fore important ; but it is the third which goes farthest in correcting 
 a notoriously antiquated and infamous usage. In the whole range 
 of race development it seems hardly possible that any other step 
 could equal the importance of this. 1 "Chaos would come again 
 on land and sea if the old theory dominated the modern practice ; 
 if all the citizens of one country engaged in actual hostilities 
 with all those of the other." 2 
 
 But it may be said, the distinction between combatants and non- 
 combatants did not wait upon the development of nationalism. 
 Even in ancient times the same distinction was sometimes drawn, 
 and the Roman citizen had a right to exemption from the hardships 
 that the legionaries endured, for the latter were paid for just that 
 service to the public. True, but *while the Roman had procured 
 this exemption for himself he had no idea of attributing the same 
 degree of advancement to other peoples It was not until there 
 were many nations professing adherence to the same principles 
 that the changes above outlined could occur. It was not until 
 then that the distinction took on a legal aspect, whereas it had 
 formerly been mainly optional with the commander. 
 
 How far these changes were due to the teachings of the publi- 
 
 'Those who with Tolstoi see nothing but evil in the nationalism of today 
 with all its burdensome militarism, must both take account of the importance 
 of this step, and show that there is no danger of a necessity of its recurrence 
 in case their views were to prevail and disarmament follow. 
 
 J Hannis Taylor, International Public Law, p. 473.
 
 41 BELLIGERENT OCCUPATION 
 
 cists, it is not a part of our purpose to inquire. Of Grotius we need 
 but add the words of Hallam "It is acknowledged by everyone 
 that the publication of this treatise (De Jure Belli et Pacis) , made 
 an epoch in the philosophical and we might almost say in the po- 
 litical history of Europe." Suffice it to say that the change came in 
 the due course of historical development after a long period of qui- 
 escent preparation, and that they came promptly after the Peace of 
 Westphalia where the influence of Grotius was unprecedented. 
 Some notice remains to be taken of the views of his successors down 
 to the time of Vattel, since when the course of international regu- 
 lations has been more a matter for world's congresses and for ad- 
 miralty and prizecourt decisions. 
 
 Richard Zouch, the successor of Gentilis at Oxford, shows noth- 
 ing of the imminent departure from the older usages. He recog- 
 nizes the right of complete mastery of the victor over conquered 
 territory. 1 Samuel von Pufendorf (1631-1694) follows so closely 
 in the steps of Grotius that his work might almost be called an edi- 
 tion thereof. 2 "How far the liberties of war may be extended upon 
 the goods of an enemy and things we call sacred we are informed by 
 Grotius, I, III, C. 5." Thus he refers us to the same authority in 
 respect to the treatment of the persons of the enemy. He thinks 
 that mercenary soldiers have no right to plunder, but "it is no more 
 than a good prince that hath a love for his subjects would yield 
 to, that the subjects should be allowed in return to make some 
 advantage to themselves by the war ; which may be done either by 
 assigning to them a certain pay from the public when they go out 
 upon any expedition or by sharing the booty among them, or by 
 giving everyone leave to keep the plunder he gets himself, 3 " etc. 
 This is following Grotius by forgetting his "temperamenta". In 
 one particular, however, he takes advanced ground beyond that of 
 his master, and therein speaks the conviction born of the new move- 
 ment. Grotius had tolerated private war; Pufendorf shows that 
 "this is also part of the right of war, to appoint what persons are 
 to act in a hostile manner against the enemy, and how far." In 
 other words, it is the distinction between combatants and non- 
 combatants and the exclusion of the latter from hostile acts. "No 
 
 'Deinde universum Dominum in res et personas, regiones scilicet & 
 populas, acquiritur Deditione & victoria." See Juris et Judicii Fecialis, p. 
 80, Richard Zouch, (1590-1660). 
 
 2 Samuel von Pufendorf, De Jure Naturae et Gentium Sec. 19. 
 
 'De Jure Naturae et Gentium Sec. 21.
 
 FROM GROTIUS TO VATTEL 45 
 
 private person," he says, "hath power to make devastations in 
 an enemy's country, or to carry off spoil or plunder, without per- 
 mission from his sovereign." 1 This same idea is brought out 
 and emphasized again in connection with the subject of postli- 
 minium, in that all property recaptured by soldiers returns to the 
 former owners, since the soldiers are public servants and it is no 
 more than their duty to defend the property rights of their 
 countrymen. 
 
 It is disappointing to find that this advanced ground was not 
 taken by the able jurist Van Bynkershoek. As already pointed out 
 by Wheaton, both he and Wolf 3 "assert the broad principle that 
 everything d/>ne against an enemy is lawful ; that he may be destroy- 
 ed though unarmed and defenseless ; .... that an unlimited right 
 is acquired by the victor to his person and property." As to post- 
 liminium he simply quotes Grotius, gives a few contemporary ap- 
 plications and illustrations, especially its application to ships ; but 
 his influence upon the amelioration of war, notwithstanding his ser- 
 vices in behalf of neutrality, was decided reactionary. 
 
 The work of Vattel 4 , though appearing but a few days later fur- 
 nishes an agreeable contrast to what has just been said. At last 
 we have reached an authority who has distinctly the modern point 
 of view. Grotius had chosen his illustrations from the remote past, 
 and looked to the same sources for the principles which he wished 
 to prevail. Thus also it had been with his followers. Vattel, on 
 the other hand, searched for his principles just as he tells us he 
 did for his illustrations, in the usages of his own times. Thus he 
 did well not only to forget a great deal of the old but to profit by 
 much that was new. We detect no echo of scholasticism, for all 
 is concrete and recent. 
 
 It is important to notice first his distinction between the different 
 classes of enemies. Thus he says, 5 " Whilst a man continues a 
 citizen of his own country, he is the enemy of all those with whom 
 his nation is at war. But we must not hence conclude that these 
 
 'Ibid, Sec. 21. 
 
 2 Cornelius Jan van Bynkershoek (1673-1743) Quaestiones Juris Publici, 
 1737. 
 
 3 Dixi per vim, non per vim justam, omnis enim vis in bello justa est, si 
 me audias, & ideo justa, cum liceat hostem opprimere, etiam inermem, cum 
 liceat veneno, cum liceat percussore immisso . . ut uno verbo dicam quomodo 
 cumque libuerit. Quaestiones Juris Pub. I, I, 3. 
 
 4 Emmerich de Vattel (1714) The Law of Nations, 1758. 
 
 'Vattel, The Law of Nations, III, M71-2.
 
 46 BELLIGERENT OCCUPATION 
 
 enemies may treat each other as such, wherever they happen to 
 
 meet Since women and children are subjects of the state, 
 
 and members of the nation, they are to be ranked in the class of 
 enemies. But it does not thence follow that we are justifiable in 
 treating them like men who bear arms, or are capable of bearing 
 them. It will appear in the sequel that we have not the same rights 
 against all classes of enemies." The phrase "or are capable of 
 bearing arms", shows that he had not quite reached the modern dis- 
 tinction between combatants and non-combatants. Though the 
 term "enemy" admits of gradations of meaning it is evident that 
 men unarmed but capable of bearing arms would not be granted ex- 
 emption upon the same terms as women and children, as would now 
 be the case. The further significance of this is seen in the treat- 
 ment of private property, since it necessarily shares the fortunes of 
 its owners. 1(< It is not the place where a thing is which determines 
 the nature of that thing, but the character of the person to whom it 
 belongs." This is true of movable property. Immovable proper- 
 ty, however, belongs in some measure to the state, is a part of its 
 domain. Hence property of this kind does not cease to be enemy's 
 property though possessed by a neutral foreigner. ' ' But while this 
 gives us some idea of the distinctions following upon the recognition 
 of classes of enemies, we are not yet in a position to say what was 
 the nature of the legal status of occupation in Vattel's system. This 
 we find again in connection with his treatment of postliminium. 
 2 " Prisoners of war, who have given their parole territories and 
 towns which have submitted to the enemy, and have sworn or prom- 
 ised allegiance to him can not of themselves return to their for- 
 mer condition by the right of postliminium ; for faith is to be kept 
 even with enemies. ' ' This passage is full of significance to our sub- 
 ject. It is significant that "territories and towns which have sub- 
 mitted to the enemy and have 3 sworn or promised allegiance to him' ' 
 are placed along with "prisoners of war who have given their pa- 
 role." This implies an obligation on the part of the territories and 
 towns similar to that of the prisoner who gives his word of honor, 
 as required, in return for the sparing of his life or the release of! his 
 person. And just as the released prisoner should observe the terms 
 
 "Ibid Sec. 75, 76. 
 
 2 Ibid, III, xiv, Sec. 210. 
 
 'Inhabitants of an area 'of occupation are not now required to promise 
 or swear allegiance to the invader. They merely promise obedience to his 
 authority so long as he is able to maintain himself as the occupant.
 
 FROM GROTIUS TO VATTEL 47 
 
 of his parole, so the inhabitants of the occupied area, in return for 
 the protection which the commander gives them from the violence 
 of marauders, should render obedience to the government de facto. 
 But why can they not return to their former condition by postli- 
 minium ? It will be remembered that according to the Roman law, 
 as Gaius expressly states, a captive upon escaping to his own coun- 
 try returns to his former condition, and his absence is in the eyes of 
 the law as if it had not been. The word of Regulus in promise of 
 return to his Carthaginian captors, however, was not to be broken 
 even with the permission of the law. This high sense of personal 
 honor when Vattel wrote had come to the point of recognition as 
 international law, in that a paroled prisoner did not enjoy the right 
 of postliminium while a recaptured prisoner did; and along with the 
 paroled prisoners he classes what we would call occupied territory. 
 On the contrary as to recovered prisoners or territory, if the' sov- 
 ereign retakes them ^'he recovers all his former rights over them, 
 and is bound to restore them in their pristine condition . In this case 
 they enjoy the right of postliminium without any breach of their 
 word, any violation of their plighted faith. The enemy loses by the 
 chance of war a right which the chance of war had before given 
 him." 
 
 After considering the fundamental questions of sovereignty and 
 allegiance Vattel speculates briefly upon a few specific sub-topics. 
 He asks, for instance, whether a town having been reduced by the 
 enemy's arms and then retaken, recovers such part of her prop- 
 erty as had been alienated by the enemy. Replying to this he 
 says that movable property "belongs to the enemy who gets it 
 into his hands, and he may irrecoverably alienate it." Immovable 
 property, on the other hand, enjoys the right of postliminium, 
 whether public or private. If public, the invader enjoys only the 
 right of usufruct, and that, too, only for the purposes already em- 
 ployed thereon. "The acquisition of a town taken in war is not 
 fully consummated till confirmed by the treaty of peace, or by the 
 entire submission or destruction of the state to which it belonged." 
 Likewise a person who should be so "prematurely forward" as to 
 purchase immovable property from the occupant would deserve 
 to lose his title thereto. 
 
 Under the general term of "booty" he includes all movable prop- 
 
 J Ibid M211. 
 
 "Ibid, III, xiv, Sec. 212.
 
 48 BELLIGERENT OCCUPATION 
 
 erty taken from the enemy. ' ' This, ' ' he says, ' ' naturally belongs to 
 the sovereign making war. ' ' His soldiers and auxiliaries are only his 
 instruments and all that they do is in his name. He ^'may grant 
 the troops what share of the booty he pleases. At present most 
 nations allow them whatever they can make on certain occasions 
 when the general allows plundering, such as the spoil of the en- 
 emy's fallen in the field of battle, a camp which has been forced, 
 and sometimes that of a town taken by assault." 
 
 Here we find for the first time the use of the word "contribut- 
 tions" together with an account of the origin of the custom for 
 which it stands. 
 
 2 " Instead of the custom of pillaging the open country," he says, 
 "another mode has been substituted, which is at once more humane 
 and more advantageous to the belligerent sovereign I mean that of 
 contributions. Whoever carries on a just war has a right to make 
 the enemy's country contribute to the support of his army, and 
 towards defraying all the charges of the war. Thus he obtains a 
 part of what is due to him; and the enemy's subjects, by consenting 
 to pay the sum demanded, have their property secured from pillage 
 and the country is preserved." .... "Instances of humanity and 
 moderation can not be too often quoted. A very commendable 
 one occurred during those long wars which France carried on in the 
 reign of Louis XIV. The sovereigns seeing it was their mutual 
 interest as well as duty to prevent ravage, made it a practice on the 
 commencement of hostilities to enter into treaties for regulating 
 the contributions on a supportable footing; they determined the 
 extent of hostile territory in which each might demand contribu- 
 tions, the amount of them and the manner in which the parties sent 
 
 to levy them were to behave By such steps they prevented a 
 
 multitude of disorders and enormities which entail ruin on the peo- 
 ple and generally without the least advantage to the belligerent sov- 
 ereigns. Whence comes it that so noble an example is not universal- 
 ly imitated?" It is scarcely necessary to add that it is now almost 
 universally imitated. However students of history will recall that 
 the above instance is by no means typical of all the warfare of Louis 
 XIV. An instance to the contrary is seen in the devastation of the 
 palatinate in 1688; which was such, according to one writer 3 that 
 
 'Ibid, III, ix, Sec. 164. 
 
 2 Ibid, Sec. 165. 
 
 3 Hqsack, The Law of Nations, p. 240,
 
 FROM GROTIUS TO VATTEL 49 
 
 "even the dismal records of the Thirty Years War afford no paral- 
 lel." This language may be a little extreme. Certain it is, how- 
 ever, that the usage in the latter half of the seventeenth century was 
 much milder in general than in the first half, and it was no less 
 certain that it furnished several examples of savagery which would 
 by no means justify the rather roseate view of war which Vattel en- 
 tertained . No doubt he had most in mind the orderly campaigns of 
 Marlborough and Eugene with which the eighteenth century 
 opened. 
 
 One point further in connection with private movable property, 
 which had been much in controversy with Bynkershoek and others, 
 was the right to confiscate debts due to the enemy. Upon this 
 point Vattel agrees with modern practice in that public debts are 
 confiscable, and he cites the classic instance of Alexander's per- 
 mission to the Thessalians of a debt due to the Thebans whom he 
 had just conquered. As to private debts, he grants the right of a 
 sovereign to confiscate them if the term of payment happen during 
 the war ; or he has the right to prohibit his own subjects from 
 paying a debt to the enemy during the war, though as to the latter 
 he thinks that the sovereigns of Europe in the interests of com- 
 merce act with less rigor than they formerly did. 
 
 We may summarize the development of our subject as treated 
 by Vattel thus: 
 
 1. The distinction between combatants and non-combatants, 
 though not quite as it is drawn today. 
 
 2. The distinction between sovereignty and ownership, follow- 
 ing upon the distinction between state and people. 
 
 3. Denial of the right of an invader to alienate or abuse public 
 immovable property, and concession of his right to the usufruct 
 thereof. 
 
 4. Concession of his right to confiscate all public movable 
 property, including debts and securities. 
 
 5. Denial of invader's right to dispossess the owners of private 
 immovable property. 
 
 6. The recognition of the right to seize all private movable prop- 
 erty. 
 
 7. The origin of the system of contributions as a substitute for 
 confiscation and pillage. 
 
 "As far as consistent with prudence it is glorious to obey the 
 voice of clemency" 1 such is Vattel throughout. 
 'Ibid, III, ix, Sec. 142.
 
 50 BELLIGERENT OCCUPATION 
 
 VI 
 FROM VATTEL TO THE PRESENT 
 
 The last of the publicists of commanding influence speaks in the 
 paj.es of Vattel ; for though there have been treatises in abundance 
 since his time, no other has arisen, or seems likely to arise, who 
 can be in a position to command the attention of statesmen and 
 uilers to the same degree. International law as now understood 
 : pings out of comity, and ccmity is not accustomed to listen to 
 authority. In its earlier days while it was in the making inter- 
 national law needed to be moulded and shaped into a system, and 
 given the stamp of individual minds. Those were the days, and 
 that was the opportunity of the publicists, the schoolmasters as 
 it were; for comity does not systematize, does not humanize the 
 law of nations. 
 
 "Vattel," says Lawrence, writing in 1758, "was the first jurist 
 to scout the theory that a military possessor might perform acts 
 of sovereignty." 1 The consequence of such a theory, as we have 
 seen, is to make the military possessor utterly irresponsible a 
 military despot. This theory "seems to have been acted upon," to 
 quote again frcm Lawrence, "down to the middle of the eighteenth 
 century", (and then a few instances are added by way of illustra- 
 tion, such as the settling of occupied territory by the King of 
 Denmark in 1712, and the impressment of the Saxons against their 
 own country by Frederick the Great). As a matter of fact the 
 theory has been acted upon, though with a different purpose, at 
 a much later time, and is still upheld by some military writers of 
 the present day. In the Napoleonic wars, if we are to believe 
 the testimony of the Duke of Wellington concerning himself, the 
 ancient theory prevailed, though it was benignly interpreted. 
 2 "Martial law," said the Duke, "is neither more nor less than the 
 will of the General who commands the army ; in fact martial law 
 is no law at all (!) Therefore, the General who declares martial 
 law and commands that it shall be carried into execution is bound 
 to lay down distinctly the regulations and rules according to which 
 his will is to be carried out. Now I have in no country carried 
 out martial law; that is to say, I have not governed a large pro- 
 portion of a country by my own will. But then what did I do? 
 
 1 T. J. Lawrence, Principles of International Law, p. 364. 
 *Sir Henry Maine, International Law, p. 182.
 
 FROM VATTEL TO THE PRESENT 51 
 
 I declared that the country should be governed by its own national 
 law, and I carried into execution my so declared will." 1 It need 
 only be said that at the present day the Duke would have no choice 
 in the matter, notwithstanding what military writers may say, for 
 the authority of international law is supported by that of national 
 law as embodied in the military manuals of the various nations and 
 as confirmed by the Hague Conference. No commander in a civil- 
 ized land today would make the mistake of supposing that "mar- 
 tial law means no law at all." 
 
 Comparing the military usage of the two wars between Great 
 Britian and America, the second shows no advancement over the 
 first toward present day usage, but rather the reverse. The reason 
 for this is not far to seek. In the Revolution the Colonies were 
 still regarded as British posesssions, and the least possible injury 
 was done by the British forces to the country which they expected 
 to regain. Again it is well known that the British, and even the 
 French allies, paid in coin for the needed supplies; so that while 
 the national government was bankrupted by the war and its worth- 
 less fiscal and currency system, there was at the end of the war a 
 super-abundance of coin in the country. Moreover the persons of 
 the colonists were protected for there were many British sympa- 
 thizers among them. On the other hand in the War of 1812 the 
 contrary- conditions prevailed. The treatment accorded to the in- 
 vaded country was not merely such as would be shown to any for- 
 eign nation, but was tinctured, no doubt, with some asperity 
 because of its having successfully revolted; besides there were 
 no tories then. Consequently the ravages along the Atlantic 
 coast, the burning of the national Capitol and the employment of 
 Indians places the usages of this war on a plane considerably 
 below that of the first. 
 
 It will be remembered that Vattel speaks of the custom of de- 
 manding contributions as a substitute for pillaging the open coun- 
 try, the advantage being that it is less wasteful and less abusive than 
 the ancient practice. We are now to see that the further develop- 
 ment of belligerent occupation since his day has been almost ex- 
 clusively in this direction; and thus that private movable property 
 is at last winning its right to protection. 
 
 "This language can hardly be explained, as Sir Henry Maine attempts to 
 do, as a confusion of military law with martial law. The intention plainly 
 enough is that the Duke of Wellington meant to state his utter irresponsi- 
 bility in governing the occupied territory.
 
 52 BELLIGERENT OCCUPATION 
 
 Contributions soon came to be differentiated into two classes; 
 contributions in money and contributions "in kind", i. e. articles 
 for consumption. Both, of course, were "forced" contributions. 
 The first is still called by the original term, but contributions in 
 kind, though probably the earlier form, is now more precisely 
 called "requisitions". What is called a "fine" is really a kind of 
 contribution demanded for some offense. It is uncertain how early 
 the distinction arose between contributions and requisitions, though 
 Lawrence says, speaking perhaps untechnically, that requisitions 
 took the place of indiscriminate plunder "during the campaigns of 
 Marlborough and Eugene". 1 As to the earliest use of the word in 
 this connection, Taylor 2 says, "By the irony of history the origin 
 of the word 'requisition' has been attributed to that most consider- 
 ate of generals, Washington, although the practice is as old as war 
 itself." As we have just seen, however, the practice could have 
 originated but a short time before Washington, and coming as an 
 amelioration of existing practice the irony at once disappears. 
 From what was said above concerning the Revolutionary War it 
 is evident that the distinction had been made in practice at that 
 time, and moreover that requisitions were not always "forced" 
 since commodities w r ere paid for at the market price. 
 
 The courses o*pen to an invading officer in provisioning his troops 
 may be summarized as follows: 
 
 1. 3 He may compel the inhabitants to furnish them without 
 payment and if they refuse, send out detachments to collect them. 
 This is superior to indiscriminate pillage in that it is orderly, and 
 limited to specific objects. In such case he should always give 
 a receipt for the articles. 
 
 2. He may take them at prices fixed by himself. While this is 
 a forced contribution, like the first, it may be necessitated by the 
 rise in prices due to the increased demand. 
 
 3. He may purchase them in the open market. 
 
 4. He may obtain the money for the purchase in the form of 
 ransom or extortion enforced by threats. 
 
 5. He may obtain it by levying taxes upon the district according 
 to laws already in force but at increased rates. 
 
 Lawrence, Principles of International Law, p. 360 
 2 Taylor, Hannis International Public Law, p. 550. 
 
 3 The first three are quoted from Lawrence, Principles of International 
 Law, p. 361.
 
 FROM VATTSL TO THE PRESENT 53 
 
 6. He may employ the ordinary revenues of the district for the 
 ordinary expenditures, appropriating the residue thereof to the 
 needs of his force. 
 
 7. He may obtain all funds from the home government, awaiting 
 the issue of the war to settle all expense accounts in indemnity 
 claims. 
 
 No two commanders have to face exactly the same set of con- 
 ditions ; hence it is impracticable to prescribe either of the above 
 courses as always the best for all occasions. The commander may 
 find an insolent and insulting population to deal with ; he may dis- 
 trust the competency of his force for the area occupied ; he may have 
 guerilla bands, "war rebels" and "war traitors" to contend with; 
 he may be assigned the unpleasant duty, under "military necessity" 
 of burning a city, or devastating a fair region ; he may be confronted 
 with such a contingency as meeting a levee en masse, for certainly 
 the population cannot be blamed for throwing off the burden of 
 constrained obedience whenever they feel themselves competent to 
 do so, nor can the commander, on the other hand, if they fail in 
 their undertaking, be blamed for treating them with much more 
 rigor than he treats his prisoners of war. All such conditions and 
 many more, so diversify the problem in each particular case that 
 we can only say what is the ideal course in a hypothetically ideal 
 war that is, a war between states, not individuals. 
 
 It may be stated in general terms that down to the time of 
 Vattel the progress of amelioration of military usage tended to 
 eliminate the individual element on the side of the invader. Con- 
 tributions and requisitions mark the diminishing freedom of the 
 soldier to pillage. Since his time the tendency has been and still 
 is to set limits to the rights, even of the invading state, to the con- 
 fiscation of private property. One exception that must always 
 be made to this statement is that of contraband of war. If we grant 
 the right of a state to make its adversary pay the bills, as inter- 
 national law of today maintains, it is evident that payment must 
 be exacted from the enemy state rather than its subjects. What- 
 ever loss the subjects suffer should be as part of that state, in order, 
 as a matter of justice, that the loss may be distributed equally, 
 and that the person primarily responsible, i. e. the state, may be 
 primarily accountable 
 
 The conclusion necessarily follows that in an ideally conducted 
 war, first, all supplies should be purchased in the open market,
 
 54 BELLIGERENT OCCUPATION 
 
 and second, the expense, in so far as it falls upon the enemy state, 
 should fall upon the whole state, and should therefore be an item 
 for adjustment at the close of the war. Such a conclusion elim- 
 inates all confiscation, granting that the war itself is justifiable, 
 not only by the individual soldier, but by the state. In such a case, 
 non-combatants suffer only in the increase of taxes, and this is the 
 fullest realization of the aim and the development of belligerent 
 occupation. 
 
 It may be said that this is Utopian; it is not to be expected that 
 warfare will ever be so mild for non-combatants while every pos- 
 sible means is used to annihilate those who are under arms. In 
 reply it can be positively asserted that this is certainly the logical 
 outcome of the historical tendencies in the matter. Moreover, if 
 instances are wanted, Lawrence points out that "Wellington pur- 
 chased the supplies he did not carry with him when he overran 
 southern France in 1813 and 1814, and General Scott followed his 
 example during the invasion of Mexico by the forces of the United 
 States in 1846 and 1847. ' ' 1 Again, ' ' In the Crimean War the Brit- 
 ish bargained with the country people for what they bought, but 
 the French fixed their own prices." Such cases come very near 
 realizing the hypothetical war we have supposed. 
 
 But it is not so far short of this when contributions are levied 
 in an orderly way, as is required by modern international law. 
 The commander collects the taxes, retains the civil officers so far 
 as practicable, administers the laws already in force, and main- 
 tains his own troops, if he can, by means of the local revenues as 
 a part of the local government. From such an undisturbed con- 
 dition to that of great turbulence and possible desolation of the 
 land there are many gradations, each of which must be met as cir- 
 cumstances may determine. 
 
 The military usage of the American Civil War concerns us chiefly 
 as affording the occasion which produced the first military manual 
 ever compiled, if we except the comparatively rudimentary at- 
 tempt of Henry V. Being a civil war, it had no international 
 character, except such as was voluntarily accorded to it by the con- 
 testants. The position taken by the Federal administration was 
 that the seceding states were never out of the union. In occupying 
 a part of the seceded territory the Federal army was occupying a 
 part of the national domain subject to the Federal Constitution. 
 'Ibid, p. 362.
 
 FROM VATTEL TO THE PRESENT 55 
 
 It was simply restored by occupation to its true allegiance as soon 
 as it was wrested from the hostile forces. So much for the legal 
 status of the invaded territory. 
 
 But while the international character was thus denied to the 
 invaded district, the magnitude and importance of the struggle 
 stamped it with the international character, and the usages of in- 
 ternational warfare were observed as to the contestants. Hence 
 we have a duality of relationship, such as must necessarily be the 
 case in civil wars generally, where the condition of warfare af- 
 fecting the territory are more favorable than those affecting the 
 forces in rebellion. 
 
 It may be wondered at that the usages in the Civil War were 
 less mild than those of any other civilized contest in which the 
 United States has been engaged. Certainly the ideals of General 
 Scott in the Mexican War were not always realized in the occupa- 
 tion of a hostile territory in the Civil War ; on the contrary even the 
 defenceless conduct of Admiral Cockburn in the War of 1812 could 
 be paralleled in Sherman's march to the sea, unless the latter can. 
 be defended as a "military necessity." What the Confederate sol- 
 diers would have done, the case being reversed, it is fair to infer 
 from what they didtlo in their brief invasion of the North, the 
 burning of Chambersburg 1 and the wasting of the country on the 
 
 x The attitude of General Lee in regard to military usage is to be seen 
 from the following: 
 
 Headquarters A. N. V. 
 Chambersburg, Pa., June 27, 1863. 
 General orders No. 73. 
 
 The commanding general has marked with satisfaction the conduct of ths 
 troops on the march and confidently anticipates results commensurate with 
 the high spirit they have manifested. No troops could have displayed 
 greater fortitude or better performed the arduous marches of the first ten 
 days. Their conduct in other respects has, with few exceptions, been in 
 keeping with their character as soldiers and entitles them to approbation 
 and praise. 
 
 There have, however, been instances of forgetfulness on the part of soTie 
 that they have in keeping the yet unsullied reputation of the army, and the 
 duties exacted of us by civilization and Christianity are no less obligatory in 
 the country of the enemy than in our own. The commanding general con- 
 siders that no greater disgrace could befall an army, and through it to our 
 whole people, than the perpetration of the barbarous outrages upon the in- 
 nocent and defenseless and the wanton destruction of private property that 
 has marked the course of the enemy in our own country. Such proceedings 
 not only disgrace the perpetrators and all connected with them but are sub- 
 versive of discipline and efficiency of the army and destructive of the ends 
 of our present movements. It must be remembered that we make war only 
 on armed men, and that we cannot take vengeance for the wrongs our people 
 have suffered without lowering ourselves* in the eyes of all whose abhorrence 
 has been excited by the atrocities of our enemy, and offending against Him
 
 56 BELLIGERENT OCCUPATION 
 
 line of march. The treatment of the population of the occupied 
 areas was certainly not harsher, however, than military usage in 
 other respects on both sides. The reasons for recrudescence are 
 sufficiently numerous and cogent, even when briefly examined, to 
 account for the departures from the best usuage preceding, and 
 they incriminate both sides equally. 
 
 Not to go too far into so vast a subject, let it suffice to point 
 out the following: 
 
 1. The war was at first conducted mildly enough to satisfy 
 modern usage. 
 
 2. The bitterness of a political and economic antagonism of 
 many years duration broke forth as the struggle narrowed and 
 intensified, and the time approached when it must come to a 
 decisive issue. 
 
 3. A large part of the harshness shown to the inhabitants of 
 the occupied area was due to the provocations which they gave 
 to the occupant. The tolerance of guerilla bands, the ambush 
 of sentries, the contumely openly shown to troops and officers 
 the conduct of "war-traitors" and "war rebels", the treatment 
 of prisoners all these causes called down upon guilty and inno- 
 cent alike the penalty which only the former would suffer. 
 
 4. Americans North and South are not so much accustomed to 
 associate authority with the state as with themselves. A state 
 is only an instrumentality for political ends. Consequently 
 when the will of a hostile state is imposed upon them it is not 
 easy to bow to the consequences and yield obedience, as, in the 
 case of superior force, they manifestly should. A citizen in an 
 occupied area enjoys peace and security only upon terms of non- 
 resistance. To resist is worse than to join his comrades in 
 arms, and the usual penalty is not imprisonment upon capture, 
 as with the latter, but death. It would be hard to point in any 
 war to as many instances of defiance on the part of subject non-com- 
 batants, or of tolerance upon the part of the invader where harsh 
 measures would have been justifiable. 
 
 to whom vengeance belongeth, without whose favor and support our efforts 
 must all prove in vain. The commanding general therefore earnestly exorts 
 the troops to abstain, with most scrupulous care, from unnecessary or 
 wanton injury to private property; and he enjoins upon all officers to arrest 
 and bring to summary punishment all who shall in any way offend against 
 the orders on this subject. R. E. LEE, General." 
 
 (Quoted from the Official Report of the History Committee of the Grand 
 Camp, C. V. Department of Virginia, October 25th, 1901).
 
 FROM VATTEL TO THE PRESENT 57 
 
 5. It is extremely difficult to make an army of citizen-soldiers 
 such as those in the armies of the North and South, realize fully 
 the vast difference between a man as a citizen and the same man 
 when he becomes a soldier. His private nature ceases, and he 
 becomes an instrument of the state to be hurled against similar 
 instruments of the opposing state, not against the private citi- 
 zens thereof. In invading the enemy's territory it is very easy 
 to forget these abstractions when he sees what he wants and has 
 the power to get it without being found out. It takes a great 
 deal of discipline to get him accustomed to the self-restraint which 
 should come as a part of professional training. The initiative of 
 the American soldier showed its regrettable side on many a for- 
 aging expedition when the rights of private property as now ac- 
 corded by international law were totally ignored. 
 
 6. All such rights of international law, to borrow an expression 
 from positive law, were in an uncodified state. There was no 
 knowing, at least by the officer in the field, to say nothing of the 
 private soldier, where the disjecta membra of this law were to be 
 found, and when found and fitted together into codified form, it 
 needed the sanction of national authority to make it valid. 
 
 7. Even when promulgated upon national authority, coming 
 as a new law it was difficult, if not impossible, to enforce it strictly. 
 
 8. As to the Confederate troops, after having seen their own 
 country endure the ravages of war, it was but human that as 
 soon as they invaded the North, retaliation should be uppermost 
 in their minds and the "general orders" of their commander 
 which followed those of President Lincoln b'y a few months, were 
 not sufficient to prevent it. 
 
 To meet the need for such instruction, President Lincoln as- 
 signed to Dr. Francis Lieber 1 the difficult and responsible task 
 of preparing a manual for the Federal armies, covering chiefly 
 the subject of military occupation, and also such other usages of 
 war as were necessary. The manual 2 was duly prepared, passed 
 upon by a board of army officers, authorized by the President, 
 
 *Dr. Francis Lieber, born in Berlin, March 18, 1800, fought in the 
 Napoleonic wars, came to America in 1827, lived successively in Boston, 
 New York, and Philadelphia, Professor of Political Economy in South Caro- 
 lina University, 1835-56, Professor of Political Science, Columbia College, 
 New York City, until his death in 1872. 
 
 2 For the full text of this manual see Rebellion Records, Series III, Vol. 
 Ill, p. 148.
 
 5S BELLIGERENT OCCUPATION 
 
 and published by the War Department, April 24th, 1863. 1 This 
 date therefore, ushers in a new period of development, the period 
 of codification; for following its advent many others have 
 appeared in the various civilized states, and these in turn, have 
 been partially harmonized into a world's manual by the various 
 congresses, especially the Hague Conference. 2 
 
 The difficulty of the undertaking may readily be conceived. 
 In a letter to General Halleck concerning this work Lieber wrote : 
 "I have earnestly endeavored to treat these grave topics conscien- 
 tiously and comprehensively; and you, well read in the literature 
 on this branch of international law, know that nothing of the 
 kind exists in any language. I had no guide, no ground-work, 
 no text-book. I can assure you, as a friend, that no counsellor 
 of Justinian sat down to his task of the Digest with a deeper feel- 
 ing of the gravity of his labor than filled my breast in the laying 
 down for the first time such a code, where nearly everything 
 was floating. Usage, history, reason and conscientiousness, a 
 sincere love of truth, justice, and civilization, have been my guides 
 but of course the whole must be still imperfect." It was, in fact, 
 an attempt similar to that of Henry V. though carried out with 
 much greater detail, formulated by a civilian who had already 
 won a reputation as a writer upon such topics, ratified by soldiers 
 put to the test of practical experience in current usage, and 
 imitated in a measure by all civilized nations. 
 
 It is evident from the above that the War Ordinances of Henry 
 V. were unknown to Dr. Lieber. In the four hundred and forty- 
 four years intervening, usage had advanced to such a degree that 
 we might expect that the earlier one would be of little assistance 
 in framing the later one. Such, indeed, would be the case, save 
 in the personal element, the mildness and humanitarian senti- 
 ment running through it. Abundant justification for restricting 
 the rigor of usage in any particular may well be found in the fact 
 that the same purpose had successfully taken shape so many years 
 ago. On the other hand, the great political changes intervening 
 made it possible for the American manual to provide for such a politi- 
 
 says (International Law p. 129) that this manual was prepared 
 "Just at the close of the American War of Secession" not the only mistake 
 he has made concerning it. 
 
 2 See appendix B for that of the Hague Conference. That of Dr. Lieber 
 was reissued by the United States without modification for the government 
 of its armies during the war with Spain in 1898.
 
 FROM VATTEL TO THE PRESENT 59 
 
 cal stage as the military occupation of today, whereby an extempor- 
 ized state is secured to the occupied area, and thus the chasm is 
 bridged over between the preceding and succeeding stages of peace, 
 and a quasi legality given to all legal acts that occurred during the 
 interregnum. 
 
 A knowledge of this manual, moreover, would have made it 
 easier to dogmatize upon disputed points for dogmatize he must 
 who culls from the usage of the times and the opinions of accepted 
 authorities, gives it the stamp of his personality and formulates 
 it in the shape of authoritative rules of conduct. The wonder 
 grows that a scholar, such as Dr. Lieber was, could have the hard- 
 ihood to do so; and that he did, is all the more eloquent in its 
 testimony to the great need which called it forth. 
 
 However, we are not to suppose that Dr. Lieber relied alone 
 upon "usage, history, reason, conscientiousness, a sincere love of 
 truth, justice and civilization." The task was not simply that of a 
 humanitarian, nor primarily so, but of one having the necessary 
 erudition and technical training. Moreover, the points upon which 
 it was necessary to dogmatize were almost exclusively those re- 
 lating to the treatment of private property. The treatment of 
 public property, movable and immovable, had been settled long 
 ago. The treatment of persons, public and private, had likewise 
 become a matter of established usage. But the status of occupied 
 territory had not yet been clearly set forth, and the rights and 
 usages relating to private property these were chief points still 
 presenting ambiguity. 
 
 In regard to private property in occupied territory it will be 
 of interest to notice the opinions of various writers just prior to 
 the appearance of the Manual in question. 
 
 "All movable property which belongs to Enemy-Subjects," says 
 Twiss 1 , writing in the same year that the manual appeared, "is 
 booty of war, and passes with the territory into the hands of 
 the belligerent." Nevertheless he regards this as merely a matter 
 of "strict right", which is only enforced "where the Right of Re- 
 sistance has been maintained to the uttermost." Woolsey 2 , writ- 
 ing but three years earlier, lays it down as a rule of war, that the 
 "movable as well as immovable property of private persons in an 
 invaded country is to remain uninjured." Contributions and re- 
 
 J Sir Travers Twiss, "The Law of Nations," p. 122. 
 
 "Theodore Dwight Woolsey, Introduction to International Law, p. 219.
 
 60 BELLIGERENT OCCUPATION 
 
 quisitions, however, "are still permissible." Wheaton, 1 in 1836, 
 admits the right of the belligerent "on general principles .... 
 to seize on all the enemy's property of whatsoever kind and where- 
 soever found." But by the modern usage of nations private 
 property on land "is exempt from confiscation." 
 
 Perhaps the most important writer to quote in this connection 
 is General H. W. Halleck. 2 This happens because of his well 
 known ability and competence as an authority on international 
 law as relating to war, because of his position and influence in 
 the Federal Army at the opening of the Civil War, and because 
 the author of the Manual was especially considerate of his coun- 
 sel. "Private property on land is now", said Halleck (1861) 
 "as a general rule of jwar, exempt from seizure or confiscation; 
 and this general rule extends even to cases of absolute and un- 
 qualified conquest." "Private rights and private property, both 
 movable and immovable, are in general unaffected by the opera- 
 tions of a war." "Some modern text writers Hautefeuille, for 
 example contend for the ancient rule that private property on 
 land is subject to seizure and confiscation. They are undoubtedly 
 correct with respect to the general abstract right as deduced from 
 the laws of nature and practice; but while the general right con- 
 tinues, modern usage and the opinions of modern text-writers of 
 the highest authority, have limited .this right by establishing the 
 rule of general exemption." 
 
 Most of the writers above quoted agree upon these points: first, 
 that the abstract right still remains to the conqueror of confiscat- 
 ing private property, second, that as a matter of fact, he does not 
 exercise this right that usage is to the contrary; third, that this 
 usage is subject to such modifications as may be imposed by mil- 
 itary necessity; and fourth, that thjs military necessity must not 
 be exercised except by command, the object being to maintain 
 the troops by means of contributions and requisitions, or to weaken 
 the enemy, in extreme cases, by the devastation of his source of 
 supply. This is likewise the usage at the end of the nineteenth 
 century with the possible exemption of the first; for the "natural 
 rights" are very little in evidence in political philosophy, and an 
 "abstract right" which is admittedly contrary to usage enjoys but 
 a shadowy existence. 
 
 3 Henry Wheaton, International Law (1861) p. 456-7. 
 'Henry W. Halleck, International Law (1861) p. 456-7.
 
 FROM VATTEL TO THE PRESENT 61 
 
 The influence of this manual upon the codification of the rules 
 of war has been most remarkable. Practically all of the Euro- 
 pean states have followed the example, and issued manuals of sim- 
 ilar purpose and design. How far they are indebted to that of 
 the United States it would be impossible to say without a close 
 analysis and comparison of them all, and this is out of the ques- 
 tion as long as they are not all obtainable. The German manual, 
 for instance, exists only in the form of confidential instructions to 
 the army officers. It has been said that 1 "perhaps the most sing- 
 ular feature of these (later) manuals is the number of rules adopted 
 in them which have been literally borrowed from the De Jure Belli 
 et Pacis." This seems quite improbable from what we know of 
 the crudity of the subject at the time that Grotius wrote. It is 
 much more probable, indeed, that Lieber's manual was still more 
 influential upon the later ones, both as a national source and as 
 an authoritative utterance in regard to usage. As an incentive to 
 action there is no occasion for argument; 2 
 
 Since the appearance of all these manuals, however, an event 
 has occurred which promised much and fulfilled little in the mat- 
 ter of affording a concrete illustration of modern usage, namely 
 the Pekin Expedition of 1900. Here we have a joint invasion of 
 hostile territory by several great military powers, or rather a 
 series of parallel invasions executed conjointly, and the occasion 
 would seem to be instructive. But unfortunately for purposes of 
 study the country invaded was one of the few which does not as yet 
 come within the pale of international law upon terms of equality. 
 It is unaware of the gravity of the violation of the right of lega- 
 tion, and could only be treated as an inferior nation. From time 
 immemorial a contest between states of an unequal degree of civil- 
 ization, has always been on the plane of the lower civilization, and 
 necessarily so. It mattered nothing in the present instance that 
 the people of the invaded territory are naturally of a peace-loving 
 disposition. There was but one category in which to put them 
 under the circumstances and that was with barbarians. More- 
 over the expedition was punitive in purpose, calling for retalia- 
 tion upon the country and people. Taking these facts into con- 
 
 'Sir Henry Maine, International Law, p. 24. 
 
 2 Those interested in studying the subsequent efforts to synthesize the 
 various manuals, except the work of the Hague Conference, will find the sub- 
 ject treated in Holland's "Studies in International Law."
 
 62 BELLIGERENT OCCUPATION 
 
 sideration it is easy to see that the only possible contribution it 
 affords to our subject must be by way of comparison of the usages 
 of the different armies. Here again the data are not all available, 
 and the testimony of eyewitnesses is too conflicting to.be reliable. 
 There is no doubt that innocent Chinese suffered many indignities, 
 both in person and property, and there is no doubt too that every 
 nation involved would be glad to believe its own troops the least 
 culpable. The report of the Lieutenant General commanding the 
 American army of invasion shows several cases of violence which 
 were properly tried and the offenders severely punished, and ser- 
 ious attempts at restraint were very generally adopted. The 
 whole matter, however, awaits the historian. 
 
 It is fitting to close this study with an examination of the legal 
 status of belligerent occupation in connection with the right of 
 postliminium. 
 
 Occupation, as we have seen, is but a temporary condition which 
 ceases with the close of the war. It can have one or the other of 
 two possible outcomes neglecting for the present the discussion 
 of the results of aid by allies namely restoration or conquest; 
 either result is expressed or implied in the treaty of peace at the 
 close of hostilities. If it is the latter, the conquering state makes 
 such political adjustment as may be necessary to fit the acquired 
 territory to its new allegiance. Owners of immovable property 
 on their part are not dispossessed but may alienate their pos- 
 sessions and return to their former allegiance. In case of conquest 
 the right of postliminium perishes with the treaty of peace so far 
 as it affects property. 1 Undoubtedly the same right as affecting 
 the jural capacity of persons returning to the land of their former 
 allegiance, could not be denied; and in such a case we would have 
 practically an exact analogy to the ancient Roman origin of the 
 right ; namely, by the return of a Roman prisoner from captivity. 
 All this is well illustrated in the treaty of peace concluding the 
 Franco-Prussian War wherein the liberties of the inhabitants of 
 Alsace-Lorraine in the choice of their allegiance were properly 
 safeguarded. 
 
 'Upon this point the writer respectfully begs leave to differ with the 
 opinion expressed in the Manual of the "United States Naval War College, 
 p. 115. True, "the right of postliminium, so far as international law is con- 
 cerned refers now to the restoration of things and less to movable things 
 
 than to real property and territory." But it is also true that there are per- 
 sonal and political rights which have nothing to do with property, and these 
 must be resumed, in the case supposed, by postliminium.
 
 FROM VATTEL TO THE PRESENT 63 
 
 The other outcome of occupation previously referred to, namely 
 restoration, is clearly contingent upon the right of postliminium. 
 Without it, the occupied territory must either be in a state of 
 unorganized and desultory resistance, much to the detriment of 
 both contestants, or of submission and allegiance to the conqueror, 
 whereby it would innocently inctir the displeasure of its own gov- 
 ernment, to say nothing of the duplicity it must resort to in order 
 to win a dishonorable peace. Its importance, therefore, not as 
 affecting private movable property, but of territory, immovable 
 property, and personal rights other than those referring to property, 
 can not be overestimated. Whatever one might say of the treat- 
 ment of private movable property, no one now would be willing 
 to say with Halleck: "We think, therefore, that by the just rules 
 of war, the conqueror has the same right to use or alienate the pub- 
 lic domain of 'the conquered or displaced government as he has to 
 use or alienate its movable property." 
 
 ir The importance of postliminium has been much underrated by recent 
 textbook writers because of its decadence as applied to private movable 
 property ships being the only article of this category now covered by it. 
 But it must be apparent from the foregoing that while in an unimportant 
 particular it has decayed, in these fundamental particulars it has gained a 
 new and enlarged significance.
 
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