993

right to rob strangers, but the chiefs wink at this offence, and the stranger runs but a poor chance of obtaining justice. Of the Mandingoes Caillié observes that, whilst they do not steal from each other, "their probity with respect to others is very equivocal and in particular towards strangers, who would be very imprudent to shew them any thing that might tempt their cupidity." When an Eastern Central African is plundered by a companion, he may be heard exclaiming, "If you had stolen. from a white man, then I could have understood it, but to steal from a black man▬▬ Among the Masai the warriors and old men have a profound contempt for a thief, but "cattleraiding from neighbouring tribes they do not consider stealing.' The Wafiomi 5 and Shilluk regard theft or robbery committed on a stranger as a praiseworthy action, though they never or rarely practise it on members of their own people. The Barea and Kunáma and the inhabitants of Saraë 8 consider it honourable for a man to rob an enemy of his tribe. The Kabyles of Djurdjura, who demand strict mutual honesty from members of the same village, see nothing wrong in stealing from a stranger. Among the Bedouins "travellers passing without proper escort from or introduction to the tribes, may expect to lose their beasts, goods, clothes, and all they possess. There is no kind of shame attached to such acts of rapine. . . . By desert law, the act of passing through the desert entails forfeiture of goods to whoever can seize them." 10 Indeed, the Arab is proud of robbing his enemies, and of bringing away by stealth what he could not have taken by open force.11 The Ossetes "distinguent. . . le vol commis au préjudice d'une personne étrangère à la famille, et le vol commis au préjudice d'un parent. Le premier, à proprement parler, n'est pas un acte criminel; le second, au contraire, est tenu pour un délit." 12

Similar views prevailed among the ancient Teutons. "Robberies," says Caesar, "which are committed beyond

the boundaries of each state bear no infamy, and they avow that these are committed for the purpose of disciplining their youth and of preventing sloth." The same was the case with the Highlanders of Scotland until they were brought into subjection after the rebellion of 1745.2 Regarding every Lowlander as an alien, and his cattle as fair spoil of war," says Major-General Stewart, 'they considered no law for his protection as binding.

Yet, except against the Lowlanders, or a hostile clan, these freebooters maintained, in general, the strictest honesty towards one another, and inspired confidence in their integrity. . . . In the interior of their own society, all property was safe, without the usual security of bolts, bars, and locks." In the Commentary to the Irish Senchus Mór it is stated that, whilst an ordinary thief loses his full honour-price at once, committing theft in another territory deprives a person of only half his honour-price, until it is committed the third time. Throughout the Middle Ages all Europe seems to have tacitly agreed that foreigners were created for the purpose of being robbed. In the thirteenth century there were still several places in France in which a stranger who fixed his residence for a year and a day became the serf of the lord of the manor. In England, till upwards of two centuries after the Conquest, foreign merchants were considered only as sojourners coming to a fair or market, and were obliged to employ their landlords as brokers to buy and sell their commodities; and one stranger was often arrested for the debt, or punished for the misdemeanour, of another. In a later age the old habit of oppression was still so strong that, when the State suddenly wanted a sum of money, it seemed quite natural that foreigners should be called upon to

1 Caesar, De bello Gallico, vi. 23. 2 Tylor, in Contemporary Review, xxi. 716.

3 Stewart, Sketches of the Character, &c., of the Highlanders of Scotland, P. 42 sq.

5

Ancient Laws of Ireland, i. 57.
Cf. Marshall, International Vani-

ties, p. 285.

6 Beaumanoir, Les coutumes du Beauvoisis, xlv. 19, vol. ii. p. 226.

7 Chitty, Treatise on the Laws of Commerce and Manufactures, i. 131. Cf. Cibrario, Della economia politica del medio eve, i. 192.

provide a part of it.' The custom of seizing the goods of persons who had been shipwrecked, and of confiscating them as the property of the lord on whose manor they were thrown, seems to have been universal; 2 and in some European countries the laws even permitted the inhabitants of maritime provinces to reduce to servitude people who were shipwrecked on on their coast. The sea laws of Oléron, which probably date from the twelfth century, tell us that in many places shipwrecked sailors meet with people more inhuman, barbarous, and cruel than mad dogs, who slaughter those unhappy mariners in order to obtain possession of their money, clothes, and other property. In the latter part of the Middle Ages attempts were incessantly made by sovereigns and councils to abolish this ancient right, so far as Christian sailors were concerned, whereas the robbing of shipwrecked infidels was not prohibited. But for a long time these endeavours were far from being successful; and it was even argued that, as shipwrecks were punishments sent by God, it was impious to be merciful to the victims.8

The readiness with which wars are waged, and the destruction of property held legitimate in warfare, are other instances of the little regard felt for the proprietary rights of foreigners. Grotius maintained that "such ravage is tolerable as in a short time reduces the enemy to seek peace";" and in the practice of his time devastation was

1 See Marshall, International Vani ties, p. 291 sq.

2 Du Cange, Glossarium ad scriptores media et infimæ Latinitatis, iv. 22 sq. Robertson, History of the Reign of Charles V. i. 395.

3 Du Cange, op. cit. iv. 23 sq. Cleffelius, Antiquitates Germanorum poissimum septentrionalium, x. 4, p. 362. Dreyer, Specimen juris publici Lubecensis, p. cxcii. Potgiesser, Commentarii juris Germanici de statu servorum, i. 1. 17, p. 18 sq.

Ancient Sea-Laws of Oleron, art. 30, p. 11.

Du Cange, op. cit. iv. 24 sqq. Pardessus, Collection de lois maritimes,

von

ii. p. cxv. sqq.; iii. p. clxxix. Eicken, Geschichte und System der mittelalterlichen Weltanschauung, p. 569 sqq. Constitutiones Neapolitane sive Siculæ, i. 28. Concilium Komanum IV. A.D. 1078 (Labbe-Mansi, Sacrorum Conciliorum collectio, xx. 505 sq.).

6 Laurent, Études sur l'histoire de l'humanité, vii. 323, 413 n. 3. von Eicken, op. cit. p. 570.

Pardessus, op. cit. ii. p. cxv. Laurent, op. cit. vii. 314. Marshall, International Vanities, pp. 287, 295. 8 von Eicken, op. cit. p. 570 sq. 9 Grotius, De jure belli et pacis, iii. 12. I. 3.

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constantly used independently of any immediate military advantage accruing from it. In the eighteenth century the alliance of devastation with strategical objects became more close, but it was still regarded as an independent means of attack by Wolff, Vattel, and others; and even at the beginning of the nineteenth century instances of devastation of a not necessary kind occasionally occurred. In later days opinion has decisively laid down that the measure of permissible devastation is to be found in the strict necessities of war. Yet there is an exception to this rule: during the siege of a fortified town custom still permits the houses of the town itself to be bombarded, with a view to inducing the commandant to surrender on account of the misery suffered by the inhabitants. Under the old customs of war a belligerent possessed a right to seize and appropriate all property belonging to a hostile state or its subjects, of whatever kind it might be and in any place where acts of war were permissible. Subsequently this extreme right has been tempered by usage, and in a few directions it has disappeared. Thus the principle proclaimed, but not always acted on, by the Revolutionary Government of France, that private property should be respected on a hostile as on a friendly soil, is favoured by present opinion and usage," and pillage by the soldiers of an invading army is expressly forbidden.12 At the same time there is unfortunately no doubt

10

1 Hall, Treatise on International Law, p. 533.

2 Wolff, Jus Gentium, §823, p. 300. 3 Vattel, Le droit des gens, iii. 9. 167, vol. ii. 76 sq.

Hall, op. cit. p. 533 sq. 5 Ibid. p. 534 sq.

Ibid. p. 535. Bluntschli, Le droit international, § 663, p. 385. Heffter, Das europäische Völkerrecht, § 125, p. 262. Wheaton, Elements of International Law, p. 473. Conférence de Bruxelles, art. 13, g. Conférence internationale de la paix, La Haye 1899, Règlement concernant les lois et coutumes de la guerre sur terre,' art. 23 g, pt. i. 245.

7 Hall, op. cit. p. 536 sq.
8 Grotius, op. cit. iii. 6. 2.

Hall,

op. cit. pp. 417, 438.

9 Hall, op. cit. p. 419 sqq.

10 Bernard, Growth of Laws and Usages of War,' in Oxford Essays, 1856, p. 109.

Conférence de Bruxelles, art. 38. Instructions for the Government of Armies of the United States in the Field, art. 37. Conférence de La Haye, 'Règlement concernant la guerre sur terre,' art. 46, pt. i. 248. Hall, op. cit. p. 441. Geffken, in Heffter, op. cit. § 140, p. 297, n. 5.

12 Conférence de Bruxelles, art. 39. Instructions of the United States, art. 44. Conférence de La Haye, Règlement concernant la guerre sur terre,' art. 28, 47, pt. i. 246, 2.48.

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that in all wars pillage does continue with impunity;1 and we sometimes hear of a captured town being sacked, and the houses of the inhabitants being plundered, on the plea that it was impossible for the general to restrain his soldiers. Moreover, private property taken from the enemy on the field of battle, in the operations of a siege, or in the storming of a place which refuses to capitulate, is usually regarded as legitimate spoils of war. Military contributions and requisitions are levied upon the inhabitants of the hostile territory. And whilst the And whilst the progress of civilisation has slowly tended to soften the extreme severity of the operations of war by land, it still remains unrelaxed in respect to maritime warfare, the private property of the enemy taken at sea or afloat in port being indiscriminately liable to capture and confiscation. In justification of this it is said that the object of maritime wars is the destruction of the enemy's commerce and navigation, and that this object can only be attained by the seizure of private property."

Not only does the respect in which the right of property is held vary according to the status of the owner, but in many instances certain persons are deemed incapable of possessing such a right.

The father's power over his children may imply that the latter, even when grown-up, have no property of their own, the father having a right to the disposal of their earnings. This is the case among some African peoples," and the

1 Maine, International Law, p. 199. Halleck, International Law, ii. 73,

note.

2 Halleck, op. cit. ii. 32. If we may believe Garcilasso de la Vega (First Part of the Royal Commentaries of the Yncas, i. 151) the officers of the Incas in ancient Peru were more humane, never allowing the pillage of a captured town.

3 Halleck, op. cit. ii. 73 sq. Wheaton, op. cit. p. 467.

Wheaton, op. cit. p. 467. Hall, op. cit. p. 427 sqq. Conférence de La Haye, Règlement concernant la guerre sur terre,' art. 49, 52, pt. i. 248.

Wheaton, op. cit. p. 483. Twiss,

Law of Nations, p. 141. Heffter, op. cit. § 137, p. 287. Hall, op. cit. p. 443 sqq.

Sarbah, Fanti Customary Laws, p. 51. Kraft, in Steinmetz, Rechtsverhältnisse, p. 285 (Wapokomo). Munzinger, Ueber die Sitten und das Recht der Bogos, p. 36. Among the Barea and Kunáma a man's earnings belong to his father until he builds a house for himself, that is, until he marries (Munzinger, Ostafrikanische Studien, p. 477). Among the Basutos parents can deprive their sons of their earnings at pleasure (Endemann, Mittheilungen über die Sotho-Neger,' in Zeitschr. f. Ethnol. vi. 39).