defined by all municipal systems; and in recognising these systems the law of nations recognises this distinction. It is this distinction, as we have seen, which marks the limits of private international law, or, in other words, determines the rights and duties which, when recognised municipally, shall receive international recognition. If a man is a hus

band or a father, a debtor or a creditor, in his own State, these characteristics cling to him wherever he goes; but he is a voter, a magistrate, a tax-payer, or a tax-gatherer only at home.1 Everything that belongs to him as a man is juris gentium, everything that belongs to him as a citizen is juris gentis.

Nor are his rights as an individual invalidated by war; for during its continuance, and up to the point at which one municipal system gives place to another, if that point should be reached, the courts of the one belligerent will recognise and vindicate the private rights of the individual members of the other, as in time of peace. Belligerency, as we have seen, is a public or State right, which involves only the political life of the State, and it is consequently with the public rights of the opposite belligerent alone that it has to do.2

Whatever the municipal law of either of the contending States, as that law existed at the commencement of the war, withdraws from the sphere of public, and assigns to that of private rights, thus falls beyond the scope of belligerency. The jura privata which are exempted from belligerency are thus determined not by the law of nations directly, but by the municipal laws which the law of nations recognises. 2 Ante, p. 62.

VOL. II.

1 Ante, vol. i. p. 326.

F

Suppose France and Germany to be at war, the private rights and duties of Frenchmen and Frenchwomen, as defined by the law of France, are exempted from the belligerent rights of Germany, and vice versa. Their public rights and duties, on the other hand, as similarly defined, fall within their belligerent rights respectively. Nor is this relation affected by a belligerent occupation, however complete. Alsace and Lorraine, up to the conclusion of the treaty of peace and their final transference to Germany, were in the same position in this respect as the other provinces of France, and Germany was bound by the law of nations to administer French law to them.

CHAPTER XIV.

OF THE DISTINCTION BETWEEN INALIENABLE PRIVATE RIGHTS

AND THOSE WHICH ARE ALIENABLE.

At this point another distinction, capable I believe of far more important practical uses than have hitherto been derived from it in the conduct of war, falls to be taken. The distinction. to which I now refer is that between private rights which are inalienable and those which are alienable by the individual will, and the alienation of which may or may not be imposed by the general or State will. To the former class of rights belong, as a rule, all strictly personal rights, or rights of status; to the latter belong all proprietary and possessory rights.

1. Of inalienable private rights.

The simplest test of the alienability or inalienability of a right, or of its object, will be found in the consideration whether or not it can be bought and sold in accordance with the municipal law of the State in which it is locally situated. Applying this test, the following objects may be declared inalienable :—

1st, Life; 2d, Liberty; 3d, Domestic and family relations; 4th, Religious and moral convictions.

A man cannot sell his life or his liberty, or the life or liberty of his fellow-creature, seeing that slavery, even where municipally recognised, is now forbidden by the law of nations. He cannot sell his wife, or his child, or his creed, or his conscience. His own State cannot jurally compel him to do so; and if it did so formally, the law of nations would repudiate the transaction. All such private rights are incapable of being converted into public rights by the exercise either of public or private will, and are thus unconditionally and permanently removed from the sphere of belligerency. They are rights which are inseparable from rational and responsible existence; and in dealing with them we may still regard ourselves as in the region of those jura universalia of which we formerly spoke. Even when the action of the State is in abeyance, humanity steps in to protect the hearth and the home, and declares the sacrifice of the humblest life, and the violation of the poorest household, a breach of the law of nations. So long as the non-combatant character is strictly maintained, no extremity of warlike necessity can justify interference with personal rights or domestic relations. The sack of a town, the laying waste of a district for strategic purposes,

a bombardment directed against private dwellings, and similar acts, though by no means unknown, I fear, to the practice of modern warfare, are unquestionably anti-jural, and are strictly forbidden by the laws of war as professed by all civilised States. 2. Of alienable private rights.

All private rights, whilst they continue to be such, we have seen to be removed from the sphere of belligerency. But all private rights are not inalienable. Private property, of whatever kind, real or personal, animate or inanimate, which may be bought or sold, is held by its possessor, subject to what may be called the dominium eminens of the State of which he is a citizen. The State may appropriate it to its uses, and it is consequently dependent on the fortunes of the State. As potentially though not actually public, all property of this class falls, or may fall, within the scope of belligerency. The principle of economy no doubt continues to limit the form of its application; the minimum alone must be taken. But within the limits of jural war, this principle places no absolute limitation on the extent to which it may be ultimately applied. War on commerce is no more forbidden by the law of nations than war on life; on the contrary, if the ends of war can be attained by the former, it is the latter, as we have seen, which the law of nations forbids. Whilst the one belligerent levies requisitions and seizes public property, the other imposes taxes to any extent that really contributes to secure victory or to avert defeat. Beyond this point the war itself, as we have seen, becomes anti-jural, and the law of nations forbids its farther prosecution.

Now mark the practical results which logically follow from

these indisputable principles. The belligerent State which seizes the property is liable to the proprietor in the first instance, and must either pay him in ready money, or by an acknowledgment which it will ultimately make good. But on the cessation of belligerency, the vanquished State becomes the debtor to the private persons whose property has been consumed by a war for which, ex hypothesi, it was to blame, and the victorious State only as cautioner for the vanquished State1

Be the issue of the conflict what it may, the individual noncombatant is entitled to be indemnified in his private capacity, however great may be his losses in his citizen capacity, in consequence of the share of the indemnity which he may be called upon by his own State to contribute.

I have here sketched the theory on which all honest warfare is professedly conducted, and which is in accordance with the absolute or natural law of belligerency with reference to

1 Bluntschli, so far as he goes (§ 653), puts this matter on its true footing: “Il faut dédommager les propriétaires, et d'après les principes du droit naturel, cette tâche incombe en première ligne à l'état que saisit ces biens et les emploie à son profit. Si les réclamations dirigées contre cet état n'aboutissaient pas, l'équité exigerait que l'état sur le territoire duquel la réquisition a eu lieu fut rendu subsidiairement responsable." But he fails to explain that in the event of the State on the territory of which the requisition was made proving victorious, it will hand over the responsibility to the vanquished State, and acknowledge its own liability only as its cautioner.

Hall, who quotes the above passage, recognises the justice of the principle, though he does not attach to it what I conceive to be its full importance, and does not follow it out into its results. "It is often impracticable to provide subsistence and articles of primary necessity for an army without drawing by force upon the resources of an enemy's country; labour is often urgently wanted, and when wanted it must be obtained; but there is nothing to prevent a belligerent from paying on the spot, or giving acknowledgments of indebtedness binding himself to future payment."-International Law, p. 367.