Chief-Justice Marshall (in U. S. v. Percheman, 7 Peters 86) says: It is unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country; and that the modern usage of nations, which has become law, would be violated; that sense of justice and 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.
Justice Sprague (Amy Warwick, 2 Sprague 150) says: Confiscations of property, not for any use that has been made of it, which go not against an offending thing, but are inflicted for the personal delinquency of the owner, are punitive, and punishment should be inflicted only upon due conviction of personal guilt.
The communities whose rights are now invaded and whose property is confiscated, ought to be protected under the law of nations. For, by this law is understood that code of public instruction which defines the rights and prescribes the duties of nations in their intercourse with each other. The faithful observance of this law is essential to national character and the happiness of mankind. According to Montesquieu, it is founded on the principle that different nations ought to do each other as much good in peace, and as little harm in war, as possible. The most useful and practical part of the law of nations is instituted or positive law, founded on usage, consent, and agreement. It is impossible to separate this law from natural jurisprudence, or to consider that it does not derive much of its force and dignity from the same principle of right reason, the same views of the nature and constitution of man, and the same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state in its relations with other states is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience.
That eminent jurist, Chancellor Kent, says that the science of public law should not be separated from that of ethics, nor encourage the dangerous suggestion that governments are not strictly bound by the obligations of truth, justice, and humanity in relation to other powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life.
The law of nations consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality and to the relations and conduct of nations; the conduct of nations should be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligation; and we have the authority of lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligations of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.
The law of nations, as far as it is founded upon the principles of natural law, is equally binding in every age, and upon all mankind.
The law of nature, by the obligations of which individuals and states are bound, is identical with the will of God, and that will is ascertained by consulting divine revelation, where that is declaratory, or by the application of human reason where revelation is silent. Christianity is an authoritative publication of natural religion, and it is from the sanction which revelation gives to natural law that we must expect respect to be paid to justice between nations. Christianity reveals to us a general system of morality, but the application to the details of practice is often left to be discovered by human reason.
Justice is of perpetual obligation, and is essential to the well-being of every society. The great commonwealth of nations stands in need of law, and observance of faith, and the practice of justice.
If the question was one to be decided by the civil courts according to the American rules concerning rights to property held by ecclesiastical bodies, the points involved might be presented as follows:
1. Where the property which is the subject of controversy is, by the express terms of the deed or will of the donor or other instrument under which it is held, devoted to the teaching, support, or spread of a specific form of religious doctrine and belief.