Laying waste a country operations of the enemy, or to insure our own success, it is justifiable. Thus, if we cannot bring off a captured vessel, we may sink or burn it in order to prevent its falling into the enemy's hands; but we cannot do this in mere wantonness. We may destroy provisions and forage, in order to cut off the enemy's subsistence; but we cannot destroy vines and cut down fruit trees, without being looked upon as savage barbarians. We may demolish fortresses, ramparts, and all structures solely devoted to the purposes of war; but, as already stated, we cannot destroy public or private edifices of a civil character, temples of religion, and monuments of art, unless their destruction should become necessary in the operations of a siege, or in order to prevent their affording a lodgment or protection to the enemy.1 § 23. There are numerous instances in military history where whole districts of country have been totally ravaged and laid waste. Such operations have sometimes been defended on the ground of necessity, or as a means of preventing greater evils. It was on this ground that Italy and Spain justified their destruction of the maritime towns on the coast of Africa, which had become mere nests of pirates. But the sacking of towns and villages, and delivering them up to a prey to fire and the sword, are terrible remedies, which are often worse than the evil to be removed. 'Dreadful extremities,' says Vattel, 'even when we are forced into them; savage and monstrous excesses, when committed without necessity.' Another excuse for ravaging a district of country, is to render it a barrier against the advance of an enemy. Thus, the Czar, Peter the Great, laid waste an extent of fourscore leagues of his own territory, to check the advance of Charles XII., of Sweden. The victory of Pultowa was claimed as the result of this sacrifice. Again, in 1812, the Russians laid waste a vast extent of country, and burnt their capital, to prevent its affording a shelter to the French from the rigours of a Polar winter. The disastrous retreat from Moscow was claimed as the fruit of this circum Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vii.; Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. xii. In 1799 General Brune declared to the Duke of York that it would be contrary to the laws of war for the latter to destroy the dykes in Holland and inundate that country, if such act would not be beneficial to his own forces or detrimental to those of the enemy. spection. Such violent remedies are to be sparingly applied; there must be reasons of suitable importance to justify the use of them. A prince who should, without necessity, imitate the Czar's conduct, would be guilty of a crime against his people; and he who does the like in an enemy's country, when impelled by no necessity, or induced by feeble reasons, becomes the scourge of mankind. Cicero condemns the conduct of his countrymen in destroying Corinth, to avenge the unworthy treatment offered to the Roman ambassadors, because Rome was able to assert the dignity of her ministers, without proceeding to such extreme rigour.' Admiral's § 24. An English court of admiralty does not, merely of The its own inherent powers, exercise jurisdiction of questions of Court booty, or of captures made on land by military forces, without the presence and co-operation of ships or their crews. The Federal courts of the United States have never decided directly upon their jurisdiction of such a question, but from the similarity of English and American admiralty and prize jurisdictions, and the opinion of the court in the case of the 'Emulous,' there is little doubt but that their prize courts are limited, in this respect, the same as those of England. It has also been decided in England that a municipal court has no jurisdiction of cases of hostile seizure; moreover, that the circumstance of the place where the seizure was made, being in the undisputed possession of British power, with a provisional government and organised courts of justice, did not alter the character of the transaction. Wildman remarks: 'There is no instance in history or law, ancient or modern, of any question, before any legal judicature, ever having existed about it [booty] in this kingdom. It is often given to the soldiers on the spot, or wrongfully taken by them, contrary to discipline. If there is any dispute it is regulated by the commander-in-chief.' As such questions do not come within the jurisdiction of either courts of Admiralty or of law, they must be taken cognisance of by the military tribunals, and be governed by military laws and regulations, and by the laws of war.2 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 142; ch. ix. §§ 166–72; Martens, Précis du Droit des Gens, § 280; Kluber, Droit des Gens Mod., $ 262-65; Phillimore, On Int. Law, vol. iii. § 50; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 6. 2 Le Caux v. Eden, 2 Doug. Rep., p. 594; 'The Two Friends,' 1 Rob. Rep., p. 225; the 'Emulous,' 1 Gallis Rep., p. 563. The Prize Court § 25. In speaking of the constitution, authority, and English functions of the English prize court, and of the wisely formed and admirably developed code of Admiralty jurisdiction and rules of procedure, Sir Robert Phillimore remarks: 'It is not surprising that, in great maritime kingdoms, the jurisdiction of the Admiral's court should have thrown into the shade the tribunal of the general. But, that the latter should have left such faint traces of its origin and mode of procedure, and should so soon have fallen into desuetude, is a very remarkable fact in the history of jurisprudence.' Mr. Knapp, in a learned note to his report of the great case of the Army of the Deccan, argued before the Privy Council, in 1833, has shown the error of the dicta of Lord Mansfield, in Lindo v. Rodney, repeated in the foregoing extract from Wildman, that, 'there is no instance in history or law, ancient or modern, of any question ever having existed respecting booty taken in a continental land war, before any legal judicature in this kingdom.' It appears from this note of Mr. Knapp, that in very early times, in England, causes respecting booty were determined in the court of chivalry, before the constable and marshal.1 English law respecting booty § 26. As no action can be maintained in an English court of municipal law with respect to booty, and as courts of admiralty had no jurisdiction of the matter, the inquiry arises, what became of this jurisdiction when it ceased to be exercised by the court of the constable and marshal ? 2 All booty, as 1 Phillimore, On Int. Law, vol. iii. § 127; Lindo v. Rodney, Douglas Rep., p. 593; Army of the Deccan, 2 Knapp Rep., pp. 149-51; Oldis v. Donmille, Show. Parl. Cas., p. 58; Banda and Kirwee Booty, 1 Law R. (Adm.), 109; Sir James Scarlett, Attorney-General, 1 Knapp Rep., P. 357; Elphinstone v. Bedreechund, 1 Knapp Rep., pp. 360-1; the Buenos Aires,' 1 Dod. Rep., p. 29; and see suprà, vol. i. p. 546. 2 Lord Hale says 'that there is no evidence on record of any Admiralty jurisdiction till the time of Edward III., and asks where the jurisdiction in matters maritime was exercised during all this intermission of Admiralty courts. He answers to this question, 'A very great part thereof, especially touching capture of ships and goods arrested and taken by way of reprisal, was transacted coram consilio regis and in Chancery' (Hargrave Manuscripts, No. 137, ff. 118-26). It is certain that original jurisdiction was exercised by the Privy Council in a case which arose out of the captures at Toulon by land and sea forces in 1793; a grant had been made to the navy, but the army concerned in the expedition presented a memorial to the king that the warrant might be recalled, and another issued granting them a share for their co-operation. This memorial was referred to a committee of the Privy Council, who heard the case argued before them by counsel for the army and navy, and finally advised the King not to recall his warrant. Similar jurisdiction was exercised by the Privy Council in the case of the captures at Seringapatam. before remarked, belongs to the Crown, and is captured under the authority of the Crown. The Crown must, therefore, ultimately decide upon the legality of the capture and the distribution of the booty. The mode in which it now exercises this jurisdiction is to refer the claims of those who petition for a share in the distribution to the Lords of the Treasury, who lay down the principles which are to govern the case, and a board of trustees are appointed under the royal sign-manual warrant to ascertain, collect, and distribute the booty according to the scheme which has been approved and sanctioned by the Crown.' By 3 and 4 Will. IV., c. 41 (1833), the Privy Council are authorised to hear or consider any matter referred to them by the Crown, and to advise thereon; and 3 and 4 Vict., c. 65 (1840), and 24 and 25 Vict., c. 10, extend the jurisdiction of the High Court of Admiralty to all matters and questions concerning booty of war, or the distribution thereof, which it shall please the Crown, by the advice of the Privy Council, to refer to the judgment of the said court, and in all matters so referred the court shall proceed as in the case of prize of war, and the judgment of the court shall be binding upon all parties concerned. It therefore appears that, although an English prize court, as such, has no jurisdiction of cases of booty, the High Court of Admiralty may decide such matters and questions concerning booty as shall be referred to it by the Crown with the advice of the Privy Council. 1 The 'Elsebe,' 5 Rob., 173; Nicholl v. Goodhall, 10 Ves., 156; Alexander v. Duke of Wellington, 2 Russ. and Mylne, 35. The warrant for distribution is a mere direction from the Crown, like the order from a customer to his banker; it vests no property in the objects of the Crown's bounty until the money has been actually paid to them under it. No relaxa- ancient maritime captures CHAPTER XXII ENEMY'S PROPERTY ON THE HIGH SEAS I. Distinction between enemy's property on land and on the high seas- § 1. WHILE the progress of civilisation has slowly but constantly tended to soften the extreme severity of the operations rules as to of war by land,' says Wheaton, 'it still remains unrelaxed in respect to maritime warfare, in which the private property of the enemy, taken at sea or afloat in port, is indiscriminately liable to capture and confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering private property, when captured in cities taken by storm, as booty; and the well-known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas the object of |