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.""

1

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.2 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

1 Manning, Commentaries on the Law of Nations, p. 127. 2 Vattel, Book III. ch. 5, sec. 76.

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,1 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.2 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

1 8 Cranch, S. C. R., 110.

2 Wheaton, Elements of International Law, Part IV. ch. 1, § 11.

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.

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. 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 exer

1 Law of Nations, p. 136.

cise 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. 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."2 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

1 Halleck, International Law, p. 460.

2" Washington, dans la guerre de l'Amérique, inventa l'expression et la chose." - KLÜBER, Droit des Gens Moderne de l'Europe, (Paris, 1881,) Tom. II. p. 33, sec. 251, note.