Secondly. The same broad rule with which I began may be stated touching enemy property beyond the national jurisdiction, subject, of course, to mitigation from usage, policy, and humanity, but still existing, to be employed in the discretion of the belligerent power. It may be illustrated by different classes of cases.
1. Public property of all kinds belonging to an enemy,—that is, property of the government or prince,—including lands, forests, fortresses, munitions of war, movables,—is all subject to seizure and appropriation by the conqueror, who may transfer the same by valid title, substituting himself, in this respect, for the displaced government or prince. It is obvious that in the case of immovables the title is finally assured only by the establishment of peace, while in the case of movables it is complete from the moment the property comes within the firm possession of the captor so as to be alienated indefeasibly. In harmony with the military prepossessions of ancient Rome, such title was considered the best to be had, and its symbol was a spear.
2. Private property of an enemy at sea, or afloat in port, is indiscriminately liable to capture and confiscation; but the title is assured only by condemnation in a competent court of prize.
3. While private property of an enemy on land, according to modern practice, is exempt from seizure simply as private property, yet it is exposed to seizure in certain specified cases. Indeed, it is more correct to say, with the excellent Manning, that it “is still considered as liable to seizure,” under circumstances constituting in themselves a necessity, of which the conqueror is judge.[27] It need not be added that this extraordinary power must be so used as not to assume the character of spoliation. It must have an object essential to the conduct of the war. But, with such object, it cannot be questioned. The obvious reason for exemption is, that a private individual is not personally responsible, as the government or prince. But every rebel is personally responsible.
4. Private property of an enemy on land may be taken as a penalty for the illegal acts of individuals, or of the community to which they belong. The exercise of this right is vindicated only by peculiar circumstances; but it is clearly among the recognized agencies of war, and it is easy to imagine that at times it may be important, especially in dealing with a dishonest rebellion.
5. Private property of an enemy on land may be taken for contributions to support the war. This has been done in times past on a large scale. Napoleon adopted the rule that war should support itself. Upon the invasion of Mexico by the armies of the United States, in 1846, the commanding generals were at first instructed to abstain from taking private property without purchase at a fair price; but subsequent instructions were of a severer character. It was declared by Mr. Marcy, at the time Secretary of War, that an invading army had the unquestionable right to draw supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war.[28] Such contributions are sometimes called “requisitions,” and a German writer on the Law of Nations says that it was Washington who “invented the expression and the thing.”[29] Possibly the expression; but the thing is as old as war.
6. Private property of an enemy on land may be taken on the field of battle, in operations of siege, or the storming of a place refusing to capitulate. This passes under the offensive name of “booty” or “loot.” In the late capture of the imperial palace of Pekin by the allied forces of France and England, this right was illustrated by the surrender of its contents, including silks, porcelain, and furniture, to the lawless cupidity of an excited soldiery.
7. Pretended property of an enemy in slaves may unquestionably be taken, and, when taken, will of course be at the disposal of the captor. If slaves are regarded as property, then will their confiscation come precisely within the rule already stated. But, since slaves are men, there is still another rule of public law applicable to them. It is clear, that, where there is an intestine division in an enemy country, we may take advantage of it, according to Halleck, in his recent work on International Law, “without scruple.”[30] But Slavery is more than an intestine division; it is a constant state of war. The ancient Scythians said to Alexander: “Between the master and slave no friendship exists; even in peace the Rights of War are still preserved.”[31] Giving freedom to slaves, a nation in war simply takes advantage of the actual condition of things. But there is another vindication of this right, which I prefer to present in the language of Vattel. After declaring that “in conscience and by the laws of equity” we may be obliged to restore “booty” recovered from an enemy who had taken it in unjust war, this humane publicist proceeds as follows.
“The obligation is more certain and more extensive with regard to a people whom our enemy has unjustly oppressed. For a people thus spoiled of their liberty never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued, if they have not freely aided her in the war against us, we ought certainly so to use our victory as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory; it is a valuable advantage gained thus to acquire a faithful friend.”[32]
These are not the words of a visionary, or of a speculator, or of an agitator, but of a publicist, an acknowledged authority on the Law of Nations.