In the next place. war affects property of thee enemy. If this be- public- property situated within the territory of the other. it is occupied if realty. and administered during hostilities for the benefit of the local State: if it he public movable property, it is subject to confiscation and probably will be confiscated. Articles 31-36 of InstrIwtions are obviously intended for the guidance of a victorious army of occupation in enemy's territory. hut would certainly exempt from seizure works of art and scientifie and edu cational property of the enemy wherever found. Private property of one enemy within the terri-: tory of the other may. indeed, be confiscated by strict international law: but in the United States it may not he. unless there is a positive legisla tive act to that effect. This was clearly and ex plicitly laid down by Chief Justice Marshall in the leading case of Brown vs. U. S., 8 Cranch, 110. It is however, safe to say that the power inherent in the United States will not be exer cised. merchant vessels of the enemy lying in harbor may likewise he seized and confiscated, but this too is no longer done. They are given thirty days within which to leave port Code, Art. 15), and enemy merchant vessels which have left American ports are allowed to proceed to their destinations without fear of molestation unless engaged in carrying contra band or in the enemy's service. Indeed, enemy vessels which shall have sailed from any foreign port before the declaration of war to an Ameri can port are allowed to enter, unload their cargoes, and proceed to a port not blockaded.
Public debts due enemy citizens are never con fiscated and the interest thereon is payable even during the war; private debts, that is, debts due enemy citizens by private citizens, are. indeed, confiscable; but the weight of authority is against the exercise of this harsh right. They may not be collected during the continuation of hostilities, but may he after the termination of the war.
The conqueror is a usufructuary of the realty, but private property is commonly not liable to seizure. This is, perhaps, stating the matter too broadly, for private property may be seized by way of contribution if in money; by requisition if in kind. In both eases receipts or quittances are given by the military commander, so that the dispossessed citizen may collect the property or its equivalent from his proper sovereign upon the return of peace. (See CONTRIBUTION : REQUI SITIONS.) This appears clearly from articles 31-39 of Instructions, but receives its most re cent international formulation in the Ilague Con ference: "Art. 46. Private property cannot be confiscated. Art. 47. Pillage is formally pro hibited. Art. 4S. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, lie shall do it, so far as possible. in accordance with the rules in existence and the assessment in force„ . . . Art. 49. If . . . the occupant levies other money taxes in the occupied territory, this can only he for military necessities or the administration of such territory." Articles 50. 51, 52. provided that burdens due to military occupation shall be as equitable as possible, and that payment shall be made for contributions. "Art. 53. An army of
occupation can only take possession of the cash, funds, and property belonging strictly to the State, depots of arms, means of transport, stores, and supplies, and generally all movable prop erty of the State which may be used for military operaKells. Itailway plants, land telegraphs, telephones, steamers. and other ships, apart from eases governed by maritime law, as well as, de pots of arms, and, generally, all kinds of war material even though belonging to companies or to private persons, arc likewise material which may serve for military operations, but they must be restored at the COBVIllsion of peace, and in ies pa id for 111.111. A rt ide 55. The cupying State shall only he regarded as admin istrator and nsufruct uary of public buildings, real property, forests, and agricultural works belong ing to the hostile State, and situated in the oc eupied eountry. It must protect the capital of these properties, and administer it according to the rules of trusteeship. Artiele 56. The prop erty- of municipalities and that of religious, charitable, and educational institutions and those of arts and science, even when State property. shall be treated as private property. All seizure, destruction of. or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited. and should he made the subject of civil and criminal proceed ings." Such in brief is the international law ap plicable to public and private property on land.
"In war," said Mr. Chief Justice Waite, "the capture of property in the hands of the enemy, used or intended to he used for hostile purposes, is allowed by all civilized nations, and this whether the ownership he public or private. The title to movable property in hostile use, cap tured on land, passes to the captor as soon as the capture is complete: that is to say, as soon as the property is reduced to possession. The absolute title to immovable public property owned by the enemy does not pass until the war is ended and peace restored. Then, unless provision is made to the contrary by the treaty of peace or otherwise, the ownership is changed if the con quest is complete." (Kirk vs. Lynd, 106 U. S., 315.) A fundamental difference, however, be tween property captured on land and sea is ad mirably .stated by the late Justice Gray in Oakes vs. U. S.. 174 U. S., 778: "By the law of na tions, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hos tile purposes. is captured by land forces, the title passes to the captors as soon as they have re duced the property to firm possession; but when such property is captured by naval forces a judicial decree of condemnation is usually neces sary to complete the title of captors." Public property on the high seas, that is ves sels of war and public vessels generally—except those engaged in purely charitable or scientific pursuits. in voyages of discovery, or as hospital ships (Saral Code, Art. 13)—are always liable to capture. Enemy merchant vessels as well as enemy property thereon are likewise conliscalde; but the title thereto only passes to the individ ual captor after :oljudication in a prize court.