§ 5. Enemy's property, how far subject to capture and confiscation. from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war by which they forfeit their immunity.4 The application of the same principle has also limited and restrained the operations of war against the territory and other property of the enemy. From the moment one state is at war with another, it has, on general principles, a right to seize on all the enemy's property, of whatsoever kind and wheresoever found, and to appropriate the property thus taken to its own use or to that of the captors. By the ancient law of nations, even what were called res sacre were not exempt from capture and confiscation. Cicero has conveyed this idea in his expressive metaphorical language, in the fourth Oration against Verres, where he says that “Victory made all the sacred things of the Syracusans profane." But by the modern usage of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country. In ancient times, both the moveable and immoveable property of the vanquished passed to the conqueror. Such was the Roman law of war, often asserted with unrelenting severity, and such was the fate of the Roman provinces subdued by the northern barbarians on the decline and fall of the western empire. A large portion, from one-third to two-thirds of the lands belonging to the vanquished provincials, was confiscated and partitioned among 4 Rutherforth's Inst. b. ii. ch. 9, § 15. 8, §§ 145—147, 159. Kluber, Droit des tit. 2, sect. 2, ch. 1, §§ 245–247. Vattel, Droit des Gens, liv. iii. ch. their conquerors. The last example in Europe of such a conquest was that of England by William of Normandy. Since that period, among the civilized nations of Christendom, conquest, even when confirmed by a treaty of peace, has been followed by no general or partial transmutation of landed property. The property belonging to the government of the vanquished nation passes to the victorious state, which also takes the place of the former sovereign in respect to the eminent domain. In other respects, private rights are unaffected by conquest. $ 6. The exceptions to these general mitigations of the extreme rights of war, considered as a contest of force, all grow the eneRavaging out of the same original principle of natural law which au- my's territory, when thorizes us to use against an enemy such a degree of violence, lawful. - and such only, as may be necessary to secure the object of hostilities. The same general rule which determines how far it is lawful to destroy the persons of enemies will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If this be necessary in order to accomplish the just ends of war, it may be lawfully done, but not otherwise. Thus, if the progress of an enemy cannot be stopped, nor our own frontier secured, or if the approaches to a town intended to be attacked cannot be made without laying wastę the intermediate territory, the extreme case may justify a resort to measures not warranted by the ordinary purposes of war. If modern usage has sanctioned any other exceptions, they will be found in the right of reprisals or vindictive retaliation. The whole international code is founded upon reciprocity. The rules it prescribes are observed by one nation in confidence that they will be so by others. Where, then, the established usages of war are violated by an enemy, and there are no other means of restraining his excesses, retaliation may be justly resorted to by the suffering nation, in order 5 Vattel, Droit des Gens, liv. iii. ch. 9, 13. Kluber, Droit des Gens Moderne de l'Europe, pt. ii. tit. 2, sect: 2, ch. 1, §§ 250-253: Martens, Pré, cis, &c. liv. viii. ch. 4, §§ 279–282. § 8. sons are to compel the enemy to return to the observance of the law which he has violated." The progress of civilization has slowly but constantly tended to soften the extreme severity of the operations of war by land; but 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 objects 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 or have been his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas the object of maritime wars is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power-which object can only be attained by the capture and confiscation of private property. The effect of a state of war, lawfully declared to exist, is What per to place all the subjects of each belligerent power in a state authorized of mutual hostility. The usage of nations has modified this to engage maxim by legalizing such acts of hostility only as are comties against mitted by those who are authorized by the express or implied the enemy. command of the state. Such are the regularly commissioned in hostili naval and military forces of the nation, and all others called out in its defence, or spontaneously defending themselves in case of urgent necessity, without any express authority for that purpose. Cicero tells us, in his Offices, that by the Roman 6 Vattel, liv. iii. ch. 8, § 142; ch. 9, §§ 166–173. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. viii. ch. 4, §§ 272–280. Kluber, pt. ii. tit. 2, sect. 2, ch. 1, §§ 292-265. fecial law, no person could lawfully engage in battle with the public enemy, without being regularly enrolled and taking the military oath. This was a regulation sanctioned both by policy and religion. The horrors of war would indeed be greatly aggravated, if every individual of the belligerent states was allowed to plunder and slay indiscriminately the enemy's subjects without being in any manner accountable for his conduct. Hence it is that in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practised by civilized nations." $ 9. Non-commissioned It must probably be considered as a remnant of the barbarous practices of those when maritime war and piracy ages were synonymous, that captures made by private armed ves- captors. sels without a commission, not merely in self-defence, but even by attacking the enemy, are considered lawful, not indeed for the purpose of vesting the enemy's property thus seized in the captors, but to prevent their conduct from being regarded as piratical, either by their own government or by the other belligerent state. Property thus seized is condemned to the government as prize of war, or, as these captures are technically called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, where war breaks out with another: the captures made from that other are condemned, not to the captors, but to the government. 8 § 10. The practice of cruising with private armed vessels commissioned by the state has been hitherto sanctioned by the Privateers. laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. This practice has been 7 Vattel, Droit des Gens, liv. iii. ch. 15, §§ 223-228. Kluber, Droit des Gens Moderne de l'Europe, § 267. 8 Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. Robinson's Adm. Rep. vol. iv. p. 72. The Abigail. Dodson's Adm. Rep. p. 397. The Georgiana. Sparks's Diplomatic Correspondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7. § 11. Title to property in war. justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlightened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin between the United States and Prussia, in 1785, by which it was stipulated that, in case of war, neither power should commission privateers to depredate upon the commerce of the other, furnishes an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty in 1799; and it is much to be feared that so long as maritime captures of private property are tolerated, this particular mode of injuring the enemy's commerce will continue to be practised, especially where it affords the means of countervailing the superiority of the public marine of an enemy. The title to property lawfully taken in war may, upon general principles, be considered as immediately divested from captured the original owner, and transferred to the captor. This general principle is modified by the positive law of nations, in its application both to personal and real property. As to personal property or moveables, the title is, in general, considered as lost to the former proprietor as soon as the enemy has acquired a firm possession; which, as a general rule, is considered as taking place after the lapse of twenty-four hours. The established usage of maritime nations has excepted from the operation of this rule the case of ships and goods captured at sea, the original title to which is not generally considered as completely divested until carried infra præsidia, and regularly condemned in a competent court of prize. To such nations as do not acknowledge this rule, the principle of reciprocity or amicable retaliation is applied, by restoring the re 9 Vattel, liv. iii. ch. 15, § 229. Franklin's Works, vol. ii. pp. 447, 530. Edinburgh Review, vol. viii. pp. 13-15. North American Review, vol. ii. (N. S.) pp. 166–196. |