strongest terms, the absolute right of the conqueror over the persons and property of the conquered, but he recognized a surrender or capitulation as constituting an exception to this general rule of ruthlessness, and, in commenting upon its effects, he said:

But the conqueror, that he may do nothing unjustly, ought first to take care that no man be killed unless for some capital crime; so also that no man's goods be taken away unless by way of just punishment. (Grotius, De Jure Belli et Pacis, Book 3, Chap. 20, Art. L. 1.)

In this country the same rule was laid down by the courts in the earliest cases and was declared by Chancellor Kent in his Commentaries as follows:

The general usage now is not to touch private property upon land without making compensation, unless in special cases dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all overtures for a capitulation. (14th Ed., Vol. 1, p. 92.)

In the case of The Resolution (2 Dallas, 1), the earliest Federal Court of Appeal decided that a capitulation rendered the property of the capitulants exempt from capture, and the same doctrine was recognized throughout the Civil War. (See The Venice, 2 Wall. 258, and subsequent cases.)

One case, in which the court took a somewhat narrow view as to the date upon which immunity from capture attached (The Circassian, 2 Wall. 135), was subsequently examined by an international tribunal, which reached a different conclusion and held that the enemy character of rebel territory ceased for international purposes as soon as it was actually occupied by the Federal forces (Am. & Brit. Claims Commission, Moore's Int. Arbs., Vol. 4, pp. 3911-3920), thus in effect sustaining Mr. Justice Nelson's dissenting opinion. (2 Wall. 155.)

The great English admiralty lawyer, Sir William Scott, afterwards Lord Stowell, took the same view in the case of the Ships taken at Genoa, 4 Rob. Adm. Reps. 388. The question there arose concerning certain shipping seized in the harbor of Genoa, at about the time of the capitulation of the city. The court held that if the shipping was seized before the capitulation, it could be held by the captors for condemnation

'or ransom, but if the seizure was made after that time, it would be considered not as an exercise of any rights of war, but as "mere lawless rapine and plunder."

All the principal modern European authors concur in this doctrine, which is simply a corollary of the general rule that when any territory passes within the firm possession and occupation of a foreign Power, the duty of protection is co-extensive with the power of control. Personal liberty and security can be interfered with by the occupying Power only for just cause, and private property, while subject to military requisition in case of necessity, must be paid for, if taken. The payment, it is true, may be in cash or by voucher and the ultimate liability to honor the voucher may be a question to be adjusted on the conclusion of peace. But whatever the method, the underlying principle is the same, and the taking is recognized as in the nature of an act of eminent domain, not an act of war. (See United States v. Russell, 13 Wall. 623; Les Requisitions Militaires du Temps de Guerre, by Ch. Pont, Brevet Captain of Infantry and Doctor of Law, pp. 85-86; Latifi's Effect of War on Property, London, 1909, p. 30; Bernier, De l'Occupation Militaire, p. 108; Holland's Law of War on Land, London, 1908, Arts. 92, 102, 106, 112, 113, quoting from and commenting on Arts. 25, 42, 46, 52 and 53 of the Hague Regulations of 1907). A fortiori should this rule apply when the occupation is the result of a voluntary submission to the invader.

It has remained for the Supreme Court of the United States to place this country in opposition to this otherwise apparently universal doctrine. Among the by-products of the Spanish War has been a very considerable addition to the judicial declarations by that tribunal upon questions of international law. One of the most remarkable of these declarations is contained in two cases very recently decided upon appeal from the Court of Claims — Herrera v. United States, 222 U. S. 558, and Diaz v. United States, 222 U. S. 574,—in which the court held that private property was still subject to capture as an act of war after the formal capitulation of the city in which such property was situated. While it is of course true that the decisions of a national court can not make international law, they nevertheless constitute a most important source for ascertaining that nation's interpretation and application of the rules

of international law. These decisions appear to constitute so striking an exception to the generally received doctrine on this subject as to call for some special comment and discussion.

The facts involved were very briefly these:

After the great naval victory at Santiago, negotiations were immediately instituted for the capitulation of that city. These negotiations extended over a period of more than ten days, beginning on July 4, 1898. On July 13, 1898, when the terms had been substantially arranged, the President of the United States issued General Order No. 101, which was made in express contemplation of the capitulation. It declared and adopted the prevailing rule of international law as follows:

Private property whether belonging to individuals or corporations is to be respected and can be confiscated only for cause. *** Private property taken for the use of the army is to be paid for when possible in cash at a fair valuation, and when payment in cash is not possible, receipts are to be given.

On July 16, 1898, the formal articles of capitulation were signed. They provided among other things that the officers and men of the Spanish forces should retain their private property. On July 17, 1898, the American forces entered and took possession of Santiago. They found there and took possession of a vessel, the San Juan, belonging to the claimants in the Herrera Case; another vessel, the Thomas Brooks, certain smaller vessels and lighters, and certain wharves, belonging to the claimants in the Diaz Case. The two larger vessels were used for military purposes for a considerable time, and were finally returned to the owners, no compensation being paid for their use. A claim therefor was rejected by the War Department on the ground that it was unliquidated. The smaller vessels and lighters were eventually returned and compensation for their use was agreed upon and paid. An offer of compensation was made for the use of the wharves, but no agreement was ever reached as to its amount, and no payment was made. Suits were then instituted in the Court of Claims, and judgments were given against the claimants, on the express ground that the taking of the vessels and wharves was a capture as an act of war, involving no liability for compensation. Other questions of jurisdiction and procedure were involved, but as these have no international significance they will

not be here discussed. On appeal to the Supreme Court, the judgments of the Court of Claims were affirmed, and the Supreme Court held squarely that the seizure must be regarded as "an exertion of the war power," and rejected "the view contended for by claimants that with the surrender of Santiago, and the cessation of active operations in the Santiago District, enemy property lost such character and was not subject to such right of capture." (222 U. S. at p. 572.) The court further held that it was "not possible to hold that the proclamation of the President was intended to supersede the laws of war and attach to every appropriation by the military officers conducting operations of war the obligations and remedies of contracts. It could not have been the intention of the President to prevent the seizure of property when necessary for military uses, or to prevent its confiscation or destruction." (222 U. S. at p. 578). The court declared that there was a distinction between "military seizure as booty of war," and "seizure for immediate use of the army" and held that the latter was a right that could be exercised even after a capitulation and without any liability for compensation. The United States thus stand committed through their highest court to the doctrine that after a capitulation the non-combatant inhabitants of the capitulated territory, while immune from mere indiscriminate plunder for the sake of gain, may lawfully be deprived of their private property for the use of the army without compensation. If this can be done in the case of vessels and wharves, there seems no reason why it may not also be done in the case of private residences, and supplies of all kinds. Undoubtedly private property in occupied territory is subject to military requisition for the necessities of the occupying force, but to allow this right to be exercised without liability for compensation seems wholly inconsistent with modern civilized usage. It is also inconsistent with logic. The seizure is recognized as constituting an act of war. The capitulation is necessarily an agreement for the cessation of war in a particular locality. It is equally difficult to find any legal, any logical or any moral justification for the occupying forces to continue to wage war in this manner upon the private non-combatant inhabitants of a city or district which has expressly submitted to their power and put itself under their protection.

The "necessities" of the army do not justify confiscation. Necessity

is a dangerously elastic term; it is the "mother of invention " of sophistical excuses, and it may be stretched to cover more sins than charity. Doubtless to the lusty men at arms of the medieval condottieri, the shrieking women of a captured town seemed just as "necessary" as did the San Juan and the Thomas Brooks to the American quartermasters. Capitulation, which protected the first in the darkness of the Middle Ages, should not be shorn of its efficacy to protect the second in these latter days of supposed enlightenment and humanity.

The court's declaration that the President's instructions could not operate to "supersede the laws of war" seems to indicate a misapprehension on the part of the court as to what the laws of war on the subject actually are, and thus to emphasize the importance of having the modern civilized usages in this respect expressly adopted by the United States by executive regulation, statute or treaties, as may be practicable and convenient.

The court's decision was largely based upon two recent decisions in other cases arising out of the Spanish War, Hijo v. United States, 194 U. S. 315, and Juragua Iron Co. v. United States, 212 U. S. 297. In the Hijo Case, however, the seizure of the vessel there in question was actually a capture as an act of war, and as an incident to the capture of the city and port of Ponce in Porto Rico. There was no capitulation of Ponce, and no executive instructions in regard to the immunity of its inhabitants. There was on the contrary a military demonstration in force, as a result of which the Spanish troops were compelled to evacuate the city, and the seizure of the vessel was thus a mere incident to hostile military operations forming part of an active campaign against an armed enemy actually in the field.

It is immaterial that the Porto Rican campaign involved a maximum of conquest with a minimum of carnage; the military operations were none the less an actual waging of war, with all its legal, if not all its physical, incidents. In the Herrera Case the Supreme Court took into consideration the distinction contended for by the claimants between the capture of Porto Rico and the capitulation of Santiago, but held in express terms that this did not give any greater immunities in this respect to the inhabitants of the capitulated district.

In the Juragua Iron Company Case the act complained of was the