In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by the locality of the property; and this consideration makes it proper to consider them under two heads: first, rights with regard to enemy property actually within the national jurisdiction; and, secondly, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that, in the present war, rights against enemy property actually outside the national jurisdiction must exist a fortiori against such property actually within the jurisdiction. But, for the sake of clearness, I shall speak of them separately.
First. I begin with the Rights of War over enemy property actually within the national jurisdiction. In stating the general rule, I adopt the language of a recent English authority.
“Although there have been so many conventions granting exemption from the liabilities resulting from a state of war, the right to seize the property of enemies found in our territory when war breaks out remains indisputable, according to the Law of Nations, wherever there is no such special convention. All jurists, including the most recent, such as De Martens and Klüber, agree in this decision.”[23]
This statement is general, but unquestionable even in its rigor. For the sake of clearness and accuracy it must be considered in its application to different kinds of property.
1. It is undeniable, that, in generality, the rule must embrace real property, or, as termed by the Roman Law and the Continental systems of jurisprudence, immovables; but so important an authority as Vattel excepts this species of property, for the reason, that, being acquired by consent of the sovereign, it is as if it belonged to his own subjects.[24] But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason for the exception of real property, it loses all applicability where the property belongs to an enemy who began by breaking faith on his side. Surely, whatever the immunity of an ordinary enemy, it is difficult to see how a rebel enemy, whose hostility is bad faith in arms, can plead any safeguard. Cessante ratione, cessat et ipsa lex, is an approved maxim of the law; and since with us the reason of Vattel does not exist, the exception which he propounds need not be recognized, to the disparagement of the general rule.
2. The rule is necessarily applicable to all personal property, or, as it is otherwise called, movables. On this head there is hardly a dissenting voice, while the Supreme Court of the United States, in a case constantly cited in this debate, has solemnly affirmed it. I refer to Brown v. United States,[25] where the broad principle is assumed that war gives to the sovereign full right to confiscate the property of the enemy, wherever found, and that the mitigations of the rule, derived from modern civilization, may affect the exercise of the right, but cannot impair the right itself. Goods of the enemy actually in the country, and all vessels and cargoes afloat in our ports, at the commencement of hostilities, were declared liable to confiscation. In England, it is the constant usage, under the name of “Droits of Admiralty,” to seize and condemn property of an enemy in its ports at the breaking out of hostilities.[26] But this was not followed in the Crimean War, although the claim itself has never been abandoned.
3. The rule, in strictness, also embraces private debts due to an enemy. Although justly obnoxious to the charge of harshness, and uncongenial with an age of universal commerce, this application is recognized by the judicial authorities of the United States. Between debts contracted under faith of laws and property acquired under faith of the same laws reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property within the country on the breaking out of war. Both, it is said, require some special act expressing the sovereign will, and both depend less on any flexible rule of International Law than on paramount political considerations, which International Law will not control. Of course, just so far as slaves are regarded as property, or as bound to service or labor, they cannot constitute an exception to this rule, while the political considerations entering so largely into its application have with regard to them commanding force. In their case, by natural metamorphosis, confiscation becomes emancipation.
Such are recognized Rights of War touching enemy property within the national jurisdiction.