tween the belligerents and enemy subjects, the treaty of peace usually constitutes a final settlement of grievances, even of those arising out of a violation of the laws of war to the injury of enemy persons and property. Neutrals, however, even with respect to property in hostile territory, retain the right to make diplomatic claims against the offending belligerent for violations of the laws of war.

While the general rule as to war claims is that no compensation is due to private individuals, on account of injuries to their persons or property, resulting from legitimate acts of war, it is not always easy to determine what is a legitimate act of war. The Hague Regulations, and instructions issued by nations to their own armies, have established a set or code of rules according to which warfare shall be conducted. An examination of numerous claims brought before municipal and international courts, will, in connection with the Hague Regulations, furnish an approximate guide to the general rules governing compensation for injuries sustained in war.

Compensation is not due for damages sustained during actual military operations, whether caused by one belligerent or the other. Thus injuries sustained during hostilities-in battle or siege, 33 in the track of war,34 during bombardment,35 or attacks on towns, 36 and in similar cir

33 Wilson (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3674; Blumenkron (U. S.) v. Mexico, July 4, 1868, ibid. 3669; Riggs (U. S.) v. Mexico, ibid. 3668; Castel (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3710; Padron (Spain) v. Venezuela, Feb. 13, 1903, Ralston, 923; Petrocelli (Italy) v. Venezuela, Feb. 13, 1903, ibid. 762; Bembelista (Netherlands) v. Venezuela, Feb. 28, 1903, ibid. 900; Rule 1 of the Mixed Claims Commission of Nicaragua, 1911, Managua, 1912. See also Amer. St. Pap. Claims, 199, Feb. 15, 1797.

34 Vattel, Bk. III, ch. 15, sec. 232; Oppenheim, II, sec. 151; U. S. v. Pacific R. R., 120 U. S. 233; Puerto Cabello Ry. (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 458; Bembelista (Neth.) v. Venezuela, ibid. 900; Rule 8 of Spanish Treaty Claims Commission, Final Report, May 2, 1910, pp. 4–5.

35 Dutch bombardment of Antwerp 1830, 30 St. Pap. 212 et seq. Numerous cases of bombardment, in which compensation by the bombarding belligerent was uniformly denied, are set out in Moore's Dig. VI, secs. 1168-1170. See also Dutrieux (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3702; Cleworth (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3675; Tongue, ibid. 3675; Meng (France) v. U. S., Jan. 15, 1880,

36 Schultz (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2973; Wyman (U. S.) v. Mexico, ibid. 2978; Cleworth (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3675; Volkmar (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 258.

cumstances connected with the immediate necessities of armed conflict and subserving some proper military end 37 are not subject to indemnity, ibid. 3689, 3697; Perkins (Gt. Brit.) v. Chile, Trib. Anglo-Chileno, 1891, I, 34; Strobel's report, Moore's Arb. 4930-36, parag. 1 and 18, For. Rel. 1896, 35; Amer. Elec. L. and P. Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 36; Bembelista (Neth.) v. Venezuela, Feb. 28, 1903, ibid. 901; Guerrieri (Italy) v. Venezuela, ibid. 753. See, however, the Colin case, Germany v. France, 1888, 15 Clunet, 241. For limitations of the rule, see notes 38 and 39, infra.

37 All destruction and damage to enemy property for purpose of offense and defense is considered necessary and hence lawful. Oppenheim, II, sec. 150.

Soldiers passing over land in belligerent area and injuring crops. Shattuck (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3668; Cole (U. S.) v. Mexico, ibid. 3670; Sterling (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3686.

Cutting of timber to clear away obstructions, erection of fortifications, etc., in the enemy's country. Barclay and other cases (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 50, Moore's Arb. 3678.

Seizure or destruction of property for the public welfare. Heflebower v. U. S., 21 Ct. Cl. 229, 237. See also Sen. Doc. 318, 57th Cong., 1st sess., pp. 19, 36, 37; e. g., destruction of buildings as sanitary measure, Jaragua Iron Co. v. U. S., 212 U. S. 297, 306, and Hardman (Gt. Brit.) v. U. S., Aug. 18, 1910, 7 A. J. I. L. 879. (The arbitral court suggested that voluntary payment might be made by U. S.)

Seizure and detention of private enemy vessel after occupation of enemy port, for use of army-the doctrine of immunity of private property not followed. Herrera v. U. S., 222 U. S. 558, 572; Diaz v. U. S., 222 U. S. 574; Costa (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3724.

Destruction of property useful to the enemy for military purposes. Cox (Gt. Brit.) and Smythe (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3678. See also Oppenheim, II, sec. 152; 11 Op. Atty. Gen. 378; U. S. v. Pacific R. R., 120 U. S. 227; Magoon's Rep. 345 and 615; Cotton Claims (Gt. Brit.) v. U. S., Moore's Arb. 367982. See also Sen. Doc. 2, 42nd Cong., spec. sess.; Giles (U. S.) v. France, Jan. 15, 1880, Moore's Arb. 3703 (dictum).

The owner of property seized and destroyed to prevent its falling into the hands of the enemy is not entitled to compensation if the danger was immediate and impending, and its capture by the enemy be reasonably certain. Sparhawk v. Respublica, 1 Dallas, 362; 1 Op. Atty. Gen. 255; Final Report of Spanish Treaty Cl. Com. May 2, 1910, p. 12; Cotton Claims (Gt. Brit.) v. U. S., Moore's Arb. 3679. See H. Rep. 262, 43rd Cong., 1st sess., pp. 44 et seq. Cotton was seized in the Southern states during the Civil War by the Union troops, as constituting resources of the enemy, and liability denied. Moore's Dig., VI, 895 and cases cited at p. 901. But where the danger does not appear immediate, the destruction is regarded merely as the appropriation of private property for public use for which an indemnity is due. Infra, note 50. The State may and often does waive its exemption from liability.

Seizure of money belonging to enemies on deposit in occupied territory in 1863 (probably unlawful to-day, except as legal contributions). New Orleans v. S. S. Co., 20 Wall. 394.

Other acts of military necessity. Killing of animals, opinion of Dec. 22, 1905 of

the necessary condition being that such act shall have been in accordance with the rules of war.

For example, in the matter of bombardment, definite regulations have been established which limit the principle of non-liability. If the bombardment is directed against an unfortified and undefended part of the town, or if it may be regarded as a wanton or unnecessary act liability is incurred.38 The legal presumption, however, is in favor of the regularity and necessity of governmental acts. The Hague Regulations and Convention IV of the Second Hague Conference have established important limitations on the justification, legitimacy, and conduct of bombardment.39 Among other limitations, the bombardment of undefended towns is prohibited; the commander must endeavor to notify his intention to bombard; hospitals, churches, schools, etc., must so far as possible be spared; and bombardment for non-payment of contributions by coast towns is prohibited. In like manner, submarine mines should be laid according to certain rules. 40

Judge Advocate Gen. of the Army. Howland's Digest, 250. See also ibid. 251, 253, 254 and paragraph 15, Gen. Orders 100. Burning of cane by Spanish forces in Cuba, Casanova (No. 33), Spanish Tr. Cl. Com. Ibid., burning of buildings when a legitimate war measure, Sen. Ex. Doc. 85, 42nd Cong., 2nd sess.; Bacigalupi (U. S.) v. Chile, No. 42, May 24, 1897, Rep. of Commission, 1901, 151.

Property destroyed in preparation for attack or defense. Jardel (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3199; opinion of Judge Adv. Gen. May 1, 1906, Howland, 252; Parham v. Justices, 9 Georgia, 341.

Barletta (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 754; Cuneo (Italy) v. Chile, Jan. 4, 1883, Moore's Arb. 4929. See also obiter remarks in De Lemos (Gt. Brit.) v. Venezuela, Ralston, 304, 314 (counsel), 319, and in Guerrieri, ibid. 753 and Bembelista, ibid. 901; Perrin v. U. S., 12 Wall. 315, 4 Ct. Cl. 543; Hall, 532; Samoan claims arising out of unlawful bombardment of Apia by Great Britain and United States, H. Doc. 1257, 62nd Cong., 3rd sess.

* These rules are set out in Oppenheim, II, secs. 158, 212, 213. See also Rules of the Institute of International Law, adopted at Oxford, 1913, Arts. 25 and 27, 15 R. D. I. n. s. (1913), 677.

40 Failure of Turkey properly to notify neutral shipping of the laying of certain contact mines in the harbor of Smyrna is the principal ground of claim in the case of the Nevada (U. S.) and Senegal (France) v. Turkey. Most of the Powers have not yet agreed upon rules for the laying of submarine mines. It is reported that Austria has consented to compensate certain Italian subjects whose vessels were blown up recently by floating mines in the Adriatic. Neutral vessels injured by floating mines probably have just claims against powers which may be proved to have sowed mines in the open sea.

The same principle which exempts the State from liability for injuries to private property caused by military necessity, extends to the incidental and consequential results of a state of war. Thus, interference with business, prohibitions of trade between enemy subjects and the limitations upon the trade of neutrals with belligerents in the matter of contraband, etc., the accidental destruction of innocent property by misdirected shots, arrests and detentions on suspicion, and similar injuries incidental to a state of war must be borne by the individuals sustaining the loss without a right to compensation.41

41 On war claims arising out of direct and indirect injuries to private property, see Lawrence's Report on War Claims, etc., H. Rep. 262, 43rd Cong., 1st sess., and Feraud-Giraud, Recours à raison des dommages causés par la guerre, Paris, 1881, 85 p. Reprinted from La France Judiciaire, Pamphlets, Dept. of State, V. I; Rule 2 of Nicaraguan Mixed Claims Commission, 1911, MS. Dept. of State. Thus the following claims were disallowed as being accidents due to a state of war: burning of buildings as a ruse to deceive the enemy (Opin. of Judge Adv.-Gen., H. Rep. 262, supra, p. 57); private liens destroyed by capture of public movables Barrett (Gt. Brit.) v. U. S., May 8, 1871, Howard's Rep. 60, Moore's Arb. 2900; firing guns across private land (Peabody v. U. S., 43 Ct. Cl. 5); accidental destruction of innocent property involved in the destruction of public stores and works of the enemy. Various claims (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3677; claims before Anglo-Chilean Tribunal, 1893, Duncan, Recl. pres. al. Trib. Anglo-Chileno I, 536; Hübner, ibid. III, 20; Club Inglés, ibid. III, 47; Dawson, ibid. III, 55; Cesarino (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 770.

Arrests and detentions on suspicion. Hannum (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3243; Cramer (U. S.) v. Mexico, ibid. 3250; Forwood (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 84; Gatter (U. S.) v. Mexico, Moore's Arb. 3267; Jarman et al. (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3308. Thus a state may temporarily restrain the departure of merchant vessels, to insure the secrecy of naval operations. But see Bailey (The Labuan), Gt. Brit. v. U. S., May 8, 1871, Hale's Rep. 171, Moore's Arb. 3791. Where the military detention is unnecessarily long or harsh, awards have been made. Berron (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3960; Story (U. S.) v. Spain, Feb. 12, 1871, ibid. 3269; Bigland (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 161.

Interference with business gives no right to compensation. Grant (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 162; Kerford and Jenkins (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 3788; Money (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 168; Heny (U. S.) v. Venezuela, Feb. 17, 1903, Ralston 14, 25; Dix (U. S.) v. Venezuela, ibid. 7; Genovese (U. S.) v. Venezuela, ibid. 174; Martini (Italy) v. Venezuela, Feb. 13, 1903, ibid. 819. Workmen of claimants compelled to serve in national guard. Siempre Viva (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3784; Cole (U. S.) v. Mexico, ibid. 3785, and similar awards there cited. Government may order suspension of traffic on railroad in war area. Great Venezuelan R. R. (Germany) v. Venezuela, Feb. 13,

Unauthorized pillage by uncontrollable soldiery has been almost uniformly considered to be a hazard of war and to relieve the government from liability.42 A similar principle governs the wanton destruction of private property by unofficered soldiers.43 The claimant has the burden of proving that the injury was committed by authority of commanding officers.44

Pillage is now formally prohibited by Article 47 of the Hague Regulations, 45 and under a broad interpretation of Article 3 of Convention IV of the Second Hague Conference, it is not improbable that pillage by unofficered soldiers of a regular army may be held to cast responsibility upon the State. Even property of enemies found on the battlefield may no longer be indiscriminately confiscated as booty.46 Only military papers, arms, horses, carts, etc., may be appropriated as booty, although experience has shown that it is difficult to hold soldiers in check and carry out this regulation to the letter.

While the belligerent necessity for a particular destruction of private property is usually within the discretion of the commanding officer, international commissions may pass upon the legitimacy of war measures in a given case. 47 Thus awards have been made on numerous occasions for wanton and manifestly unnecessary acts of destruction and pillage by the military forces of the government.48 The destruction of private 1903, Ralston, 640. And prohibit traffic of certain residents with towns in insurrection. Longstroth (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3784.

42 Antrey (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 3672; Dresch (U. S.) v. Mexico, ibid. 3669; Weil, ibid. 3671; Schlinger, ibid. 3671; Buentello (Mexico) v. U. S., ibid. 3670; Cole (U. S.) v. Mexico, ibid. 3670; Claims of Great Britain v. Chile, Sept. 26, 1893, La Fontaine, 455. Sen. Rep. 544, 55th Cong., 2nd sess. 6.

43 Rule 3 of Nicaraguan Mixed Claims Com. 1911; Barclay (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3678; burning of Columbia (Gt. Brit.) v. U. S., ibid. 3675. “ Weil (U. S.) v. Mexico, Moore's Arb. 3671; Michel, ibid. 3670.

45 Oppenheim, II, sec. 143, sec. 213. See also Art. 7 of Convention IX of Second Hague Conference.

See Art. 14 of Hague Regulations and Oppenheim, II, sec. 181.

"Rule 6 of Spanish Treaty Claims Commission. In Rules 7 and 8 the Commission prescribed definite limitations to concentration and devastation as legitimate war measures. Final Rep., p. 4. Award of the Commission in Tuinicú v. U. S., No. 240. The opinion of the military authorities as to the necessity of a destruction is not ordinarily justiciable by the regular courts. Ex parte Marais (1902), A. C. 109. See also Wentworth v. U. S., 5 Ct. Cl. 309.

48 ❝ Usually with respect to neutral's property. Quotations from publicists and state