Booty.
In section 1, the inhabitant of the enemy’s territory was described as a subject of legal rights and duties, who, so far as the nature of war allows, may continue to live protected as in time of peace by the course of law; further, in section 2, property, whether it be public or private, was likewise, so far as war allows it, declared to be inviolable—it therefore follows logically that there can exist no right to the appropriation of the property, i.e., a right to booty or plundering. Opinions as to this have, in the course of the last century, undergone a complete change; the earlier unlimited right of appropriation in war is to-day recognized in regard to public property as existing only in defined circumstances.
In the development of the principles recognized to-day we have to distinguish.
1. State property and unquestionably:
(a) immovable,[97]
(b) movable.[97]
(a) immovable,
(b) movable.
Immovable State property is now no longer forfeited as booty; it may, however, be used if such use is in the interests of military operation, and even destroyed, or temporarily administered. While in the wars of the First French Empire, Napoleon, in numerous cases, even during the war itself, disposed of the public property of the enemy (domains, castles, mines, salt-works) in favor of his Marshals and diplomatists, to-day an appropriation of this kind is considered by international opinion to be unjustified and, in order to be valid, requires a formal treaty between the conqueror and the conquered.
The State realty may be used but must not be wasted.
The Military Government by the army of occupation is only a Usufructuary pro tempore. It must, therefore, avoid every purposeless injury, it has no right to sell or dispose of the property. According to this juristic view the military administration of the conqueror disposes of the public revenue and taxes which are raised in the occupied territory, with the understanding, however, that the regular and unavoidable expenses of administration continue to be defrayed. The military authority controls the railways and telegraphs of the enemy’s State, but here also it possesses only the right of use and has to give back the material after the end of the war. In the administration of the State forests, it is not bound to follow the mode of administration of the enemy’s Forest authorities, but it must not damage the woods by excessive cutting, still less may it cut them down altogether.