Three men once governed the mighty Roman world. Three facts govern the present case, with the power of a triumvirate,—the domicile of the petitioner, the situation of the property, and the exigency of war. If I dwell on these three facts, it is because I am unwilling that either should drop out of sight; each is important. Together they present a case which it is easy to decide, however painful the conclusion. And this brings me to the principle which I said at the beginning was so simple. Indeed, let the facts be admitted, and it is difficult to see how there can be any question in the present case. But the facts, as I have stated them, are indubitable.
On these facts two questions arise: first, as to the rule of International Law applicable to property of persons domiciled in an enemy country; and, secondly, as to the applicability of this rule to the present case. Of the rule there can be no question; its applicability is sustained by reason, and also by authority from which there can be no appeal.
In stating and enforcing the rule I might array writers, precedents, and courts; but I content myself with a paragraph from a writer who in expounding the Laws of War is perhaps the highest authority. I refer to the Dutch publicist of the last century, Bynkershoek, whose work is always quoted in the final resort on these questions. This great writer expresses himself as follows:—
“Could it be doubted whether under the name of enemies may be understood also our friends who having been conquered are with the enemy, their city perhaps being occupied by him?… I should think that they also were to be so understood, certainly as regards goods which they have under the government of the enemy.… I know upon what ground others say the contrary,—namely, that our friends, although they are with the enemy, have no spirit of hostility to us; for that it is not of their free will that they are there, and that it is only from the animus that the case is to be judged. But the case does not depend upon the animus alone; because neither are all the rest of our enemy’s subjects, at any rate very few of them, carried away by a spirit of hostility to us; but it depends upon the right by which those goods are with the enemy, and upon the advantage which they afford him for our destruction.”[5]
Nothing could be stronger in determining the liability from domicile. Its sweeping extent, under the exigency of war, is proclaimed by this same writer in words of peculiar weight:—
“Since it is the condition of war that enemies are despoiled and proscribed as to every right, it stands to reason that everything found with the enemy changes its owner and goes to the Treasury.… If we follow the mere Law of War, even immovable property may be sold and its price turned into the Treasury, as in the case of movable property.”[6]
Here is an austere statement; but it was adopted by Mr. Jefferson as a fundamental principle in his elaborate letter to the British Minister, vindicating the confiscation of the property of Loyalists during the Revolution.[7] It was the corner-stone of his argument, as it has since been the corner-stone of judicial decisions. To cite texts and precedents in its support is superfluous. It must be accepted as the rule of International Law.
The rule, as succinctly expressed, is simply this,—that the property of persons domiciled in an enemy country is liable to seizure and capture without regard to the alleged friendly or loyal character of the owner.