I rejoice to believe that civilization has already done much to mitigate the Rights of War; and it is among long cherished visions, which present events cannot make me renounce, that the time is coming when all these rights will be further softened to the mood of permanent peace. Though in the lapse of generations changed in many things, especially as regards non-combatants and private property on land, these rights still exist under the sanction of the Law of Nations, to be claimed whenever war prevails. It is absurd to accord the right to do a thing without according the means necessary to the end. And since war, which is nothing less than organized force, is permitted, all the means to its effective prosecution are permitted also, tempered always by that humanity which strengthens while it charms.
I begin this inquiry by putting aside all Rights of War against persons. In battle, persons are slain or captured, and, if captured, detained as prisoners till the close of the war, unless previously released by exchange or clemency. But these rights do not enter into the present discussion, which concerns property only, and not persons. From the nature of the case, it is only against property, or what is claimed as such, that confiscation is directed. Therefore I say nothing of persons, nor shall I consider any question of personal rights. According to the Rights of War, property, although inanimate, shares the guilt of its owner. Like him, it is criminal, and may be prosecuted to condemnation in tribunals constituted for the purpose, without any of those immunities claimed by persons accused of crime. It is Rights of War against the property of an enemy which I now consider.
If we resort to the earlier authorities, not excepting Grotius himself, we find these rights stated most austerely. I shall not go back to any such statement, but content myself with one of later date. You may find it harsh; but here it is.
“Since this is the very condition of war, that enemies are despoiled of all right and proscribed, it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury. It is customary, moreover, in almost every declaration of war, to ordain that goods of the enemy, as well those found among us as those taken in war, be confiscated.… Pursuant to the mere Right of War, even immovables could be sold and their price turned into the treasury, as is the practice in regard to movables; but throughout almost all Europe only a register is made of immovables, in order that during the war the treasury may receive their rents and profits, but at the termination of the war the immovables themselves are by treaty restored to the former owners.”[20]
These are the words of the eminent Dutch publicist, Bynkershoek, in the first half of the last century. In adducing them now I present them as adopted by Mr. Jefferson, in his remarkable answer to the note of the British minister at Philadelphia on the confiscations of the American Revolution. There are no words of greater weight in any writer on the Law of Nations. But Mr. Jefferson did not content himself with quotation. In the same state paper he thus declares unquestionable rights:—
“It cannot be denied that the state of war strictly permits a nation to seize the property of its enemies found within its own limits or taken in war, and in whatever form it exists, whether in action or possession.”[21]
This sententious statement is under date of 1792, and, when we consider the circumstances which called it forth, may be accepted as American doctrine. But even in our own day, since the beginning of the present war, the same principle has been stated yet more sententiously in another quarter. The Lord Advocate of Scotland, in the British House of Commons, as late as 17th March of the present year, declared:—
“The honorable gentleman spoke as if it was no principle of war that private rights should suffer at the hands of the adverse belligerent. But that was the true principle of war. If war was not to be defined—as it very nearly might be—as a denial of the rights of private property to the enemy, that denial was certainly one of the essential ingredients in it.”[22]