This is the grant of power under which the Government of the United States makes war upon a foreign nation. If it had not been given in the Constitution, there would not have been any power under which to conduct a foreign war, such as that of 1812 against Great Britain or that of 1846 against Mexico. In such conflicts the nations engaged recognize each other as separate sovereignties and as public enemies, and use against each other all the powers granted by the law of nations. One of these powers is the confiscation of the property of the enemy. Under the law of nations of modern days this confiscation is limited in extent, made under a certain form, and for a defined object.
For the modern laws of war one must look to the usages of civilized states and to the publicists who have explained and enforced them. These usages constitute themselves the laws of war.
In relation to the capture and confiscation of private property on land, in addition to what has been said in previous pages, it may be added that the whole matter has never been better stated than by our great American publicist, Mr. Wheaton, in these words:
"By the modern usages of nations, which have 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,"—("Elements of International Law," p. 421.)
Mr. John Quincy Adams, in a letter to the Secretary of State, dated
August 22, 1815, says:
"Our object is the restoration of all the property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken. All private property on shore was of that description. It was entitled by the laws of war to exemption from capture."—(4 "American State Papers," 116, etc.)
Again, Mr. William L. Marcy, Secretary of State, in a letter to the
Count de Sartiges, dated July 28, 1856, says:
"The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities. . . . It is a generally received rule of modern warfare, so far at least as operations upon land are concerned, that the persons and effects of non-combatants are to be respected. The wanton pillage or uncompensated appropriation of individual, property by an army even in possession of an enemy's country is against the usage of modern times. Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circumstances."
The words of the late Chief-Justice Marshall on the capture and confiscation of private property should not be omitted:
"It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed."—("United States vs. Percheman," 7 Peters, 51.)