“It is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerentrights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and of the proceedings under it will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power.”[9]
“It is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sovereign, who is endeavoring to reduce his revolted subjects to obedience, to possess both sovereign and belligerentrights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publishes a law ordaining punishments for certain offences, which law is to be applied by courts, the nature of the law and of the proceedings under it will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power.”[9]
Here are the words of another eminent judge, Mr. Justice Johnson, in the same case:—
“But there existed a war between the parent state and her colony. It was not only a fact of the most universal notoriety, but officially notified in the gazettes of the United States.… Here, then, was notice of the existence of war, and an assertion of the rights consequent upon it. The object of the measure was … solely the reduction of an enemy.It was, therefore, not merely municipal, but belligerent, in its nature and object.”[10]
“But there existed a war between the parent state and her colony. It was not only a fact of the most universal notoriety, but officially notified in the gazettes of the United States.… Here, then, was notice of the existence of war, and an assertion of the rights consequent upon it. The object of the measure was … solely the reduction of an enemy.It was, therefore, not merely municipal, but belligerent, in its nature and object.”[10]
Although the conclusion of the Court in this case was afterwards reversed, yet nothing occurred to modify the judgment on the principles now in question; so that the case remains authority for double proceedings, municipal and belligerent.
On a similar state of facts, arising from the efforts of France to suppress the insurrection in San Domingo, the Supreme Court of Pennsylvania asserted the same principle; and here we find the eminent Chief-Justice Tilghman—one of the best authorities of the American bench—giving to it the weight of his enlightened judgment. These are his words:—
“We are not at liberty to consider the island in any otherlight than as part of the dominions of the French Republic.But supposing it to be so, the Republic is possessed of belligerent rights.…“Although the French Government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which by the Law of Nations it was entitled in the existing circumstances.… This was the course pursued by Great Britain in the Revolutionary War with the United States.… Considering the words of thearrêté, and the circumstances under which it was made, it ought not to be understood simply as a municipal regulation, but a municipal regulation connected witha state of warwith revolted subjects.”[11]
“We are not at liberty to consider the island in any otherlight than as part of the dominions of the French Republic.But supposing it to be so, the Republic is possessed of belligerent rights.…
“Although the French Government, from motives of policy, might not choose to make mention of war, yet it does not follow that it might not avail itself of all rights to which by the Law of Nations it was entitled in the existing circumstances.… This was the course pursued by Great Britain in the Revolutionary War with the United States.… Considering the words of thearrêté, and the circumstances under which it was made, it ought not to be understood simply as a municipal regulation, but a municipal regulation connected witha state of warwith revolted subjects.”[11]
The principle embodied in these cases is accurately stated by a recent text-writer as follows.
“A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sovereign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent, the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, … it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, … the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as Courts of Prize, governed by and administering the Law of Nations.”[12]
“A sovereign nation, engaged in the duty of suppressing an insurrection of its citizens, may, with entire consistency, act in the twofold capacity of sovereign and belligerent, according to the several measures resorted to for the accomplishment of its purpose. By inflicting, through its agent, the judiciary, the penalty which the law affixes to the capital crimes of treason and piracy, … it acts in its capacity as a sovereign, and its courts are but enforcing its municipal regulations. By instituting a blockade of the ports of its rebellious subjects, … the nation is exercising the right of a belligerent, and its courts, in their adjudications upon the captures made in the enforcement of this measure, are organized as Courts of Prize, governed by and administering the Law of Nations.”[12]
The same principle has received most authentic declarationin the recent judgment of an able magistrate in a case of Prize for a violation of the blockade. I refer to the case of theAmy Warwick, tried in Boston, where Judge Sprague, of the District Court, expressed himself as follows.
“The United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.”[13]
“The United States, as a nation, have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance, and have superadded the guilt of treason to that of unjust war.”[13]
Among all the judges called to consider judicially the character of this Rebellion, I know of none whose opinion is entitled to more consideration. Long experience has increased his original aptitude for such questions, and made him an authority.
There is an earlier voice, which, even if all judicial tribunals had been silent, would be decisive. I refer to Hugo Grotius, who, by his work “De Jure Belli ac Pacis,” became the lawgiver of nations. Original in conception, vast in plan, various in learning, and humane in sentiment, this effort created the science of International Law, which, since that early day, has been softened and refined, without essential change in the principles then enunciated. His master mind anticipated the true distinction, when, in definition of War, he wrote as follows.
“The first and most necessary partition of war is this: that war isprivate,public, ormixed. Public war is that which is carried on under the authority of him who has jurisdiction; private, that which is otherwise;mixed, that which is public on one side and private on the other.”[14]
“The first and most necessary partition of war is this: that war isprivate,public, ormixed. Public war is that which is carried on under the authority of him who has jurisdiction; private, that which is otherwise;mixed, that which is public on one side and private on the other.”[14]
In these few words of this great authority is found the very discrimination which enters into the present discussion. The war in which we are now engaged is not precisely “public,” because on one side there is no Government; nor is it “private,” because on one side there is a Government; but it is “mixed,”—that is, public on one side and private on the other. On the side of the United States, it is under authority of the Government, and therefore “public”; on the other side, it is without the sanction of any recognized Government, and therefore “private.” In other words, the Government of the United States may claim for itself all belligerent rights, while it refuses them to the other side. And Grotius, in his reasoning, sustains his definition by showing that war becomes the essential agency, where public justice ends,—that it is the justifiable mode of dealing with those who are not kept in order by judicial proceedings,—and that, as a natural consequence, where war prevails, the Municipal Law is silent. And here, with that largess of quotation which is one of his peculiarities, he adduces the weighty words of Demosthenes: “Against enemies, who cannot be coerced by our laws, it is proper and necessary to maintain armies, to send out fleets, and to pay taxes; but against our own citizens, a decree, an indictment, the state vessel are sufficient.”[15]But when citizens array themselves in multitudes, they come within the declared condition of enemies. There is so much intrinsic reason in this distinction that I am ashamed to take time upon it. And yet it has been constantly neglected in this debate. Let it be accepted, and the constitutionalscruples which play such a part will be out of place.
Senators seem to feel the importance of being able to treat the Rebels as “alien enemies,” on account of penalties which would then attach. The Senator from Kentucky [Mr.Davis], in his bill, proposes to declare them so, and the Senator from Wisconsin [Mr.Doolittle] has made a similar proposition with regard to a particular class. But all this is superfluous. Rebels in arms are “enemies,” exposed to all the penalties of war, as much as if they were alien enemies. No legislation is required to make them so. They are so in fact. It only remains that they should be treated so, or, according to the Declaration of Independence, that we “hold them, as we hold the rest of mankind,enemies in war, in peace friends.”
Mark now the stages of the discussion. We have seen, first, that, in point offact, we are in the midst of rebellion and in the midst of a war,—and, secondly, that, in point oflaw, we are at liberty to act under powers incident to either or both of these conditions, treat the people engaged against us as criminals, or as enemies, or, if we please, as both. Pardon me, if I repeat these propositions; but it is essential that they should not be forgotten.
Therefore, Sir, in determining our course, we may banish all question of power. The power is ample and indubitable, being regulated in the one case by the Constitution, and in the other case by the Rights of War. Treating them as criminals, then are we under the restraints of the Constitution; treating them as enemies, we have all the latitude sanctioned by theRights of War; treating them as both, then may we combine our penalties from the double source. What is done against them merely ascriminalswill naturally be in conformity with the Constitution; but what is done against them asenemieswill have no limitation except the Rights of War.
The difference between these two systems, represented by two opposite propositions now pending, may be seen in the motive which is the starting-point of each. Treating those arrayed in arms against us as criminals, we assume sovereignty, and seek to punish for violation of existing law. Treating them as enemies, we assume no sovereignty, but simply employ the means known to war in overcoming an enemy, and in obtaining security against him. In the one case our cause is founded in Municipal Law under the Constitution, and in the other case in the Rights of War under International Law. In the one case our object is simply punishment; in the other case it is assured victory.
Having determined the existence of these two sources of power, we are next led to consider the character and extent of each under the National Government: first,Rights against Criminals, founded on sovereignty, with their limitations under the Constitution; and, secondly,Rights against Enemies, founded on war, which are absolutely without constitutional limitation. Having passed these in review, the way will then be open to consider which class of rights Congress shall exercise.
I begin, of course, withRights against Criminals, founded on sovereignty, with their limitations under the Constitution.
Rebellion is in itself the crime of treason, which is usually called the greatest crime known to the law, containing all other crimes, as the greater contains the less. But neither the magnitude of the crime nor the detestation it inspires can properly move us from duty to the Constitution. Howsoever important it may be to punish rebels, this must not be done at the expense of the Constitution. On that point I agree with the Senator from Pennsylvania [Mr.Cowan], and the Senator from Vermont [Mr.Collamer]; nor will I yield to either in determination to uphold the Constitution, which is the shield of the citizen. Show me that any proposition is without support in the Constitution, or that it offends against any constitutional safeguard, and it cannot receive my vote. Sir, I shall not allow Senators to be more careful on this head than myself. They shall not have a monopoly of this proper caution.
In proceedings against criminals there are provisions or principles of the Constitution which cannot be disregarded. I will enumerate them, and endeavor to explain their true character.
1. Congress, it is said, has no power under the Constitution over Slavery in the States. This popular principle of Constitutional Law, which is without foundation in the positive text of the Constitution, is adduced against all propositions to free the slaves of Rebels. But this is an obvious misapplication of the alleged principle, which simply means that Congresshas no direct power over Slavery in the States, so as to abolish or limit it. For no careful person, whose opinion is of any value, ever attributed to the pretended property in slaves an immunity from forfeiture or confiscation not accorded to other property; and this is a complete answer to the argument on this head. Even in prohibiting Slavery, as in the Jeffersonian ordinance, there is a declared exception of the penalty of crime; and so in upholding Slavery in the States, there must be a tacit, but unquestionable, exception of this penalty.
2. There must be noex post factolaw; which means that there can be no law against crime retrospective in its effect. This is clear.
3. There must be no bill of attainder; which means that there can be no special legislation, where Congress, undertaking the double function of legislature and judge, shall inflict the punishment of death without conviction by due process of law. And there is authority for assuming that this prohibition includes a bill of pains and penalties, which is a milder form of legislative attainder, where the punishment inflicted is less than death.[16]And surely no constitutional principle is more worthy of recognition.
4. No person shall be deprived of life, liberty, or property, without due process of law; which means, without presentment, or other judicial proceeding. This provision, borrowed from Magna Charta, constitutes a safeguard for all: nor can it be invoked by the criminal more than by the slave; for in our Constitution it is applicable to every “person,” without distinction of condition or color. But the criminal is entitled to its protection.
5. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which District shall have been previously ascertained by law. This is the sixth amendment to the Constitution, and is not to be lost sight of now. The accused, whoever he may be, though his guilt be open as noonday, can be reachedcriminallyonly in the way described. When we consider the deep and wide-spread prejudices which must exist throughout the whole Rebel territory, it is difficult to suppose that any jury could be found within the State and District where the treason was committed who would unite in the necessary verdict of Guilty. For myself, I do not expect it; and I renounce the idea of justice in this way. Jefferson Davis himself, whose crime has culminated in Virginia, could not be convicted by a jury of that State. But it is the duty of the statesman to consider how justice, impossible in one way, may be made possible in another way.
6. No attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Perhaps no provision of the Constitution, supposed pertinent to the present debate, has been more considered; nor is there any with regard to which there is greater difference of opinion. Learned lawyers in this body insist broadly that it forbids forfeiture of real estate, although not of personal, as a penalty of treason; while others insist that all the real as well as personal estate belonging to the offender may be forfeited. The words of the Constitution are technical, so as to require interpretation; and as they are derived from the Common Law, we must look to this law fortheir meaning. By “attainder of treason” is meantjudgment of deathfor treason,—that is, the judgment of court on conviction of treason. “Upon judgment of death for treason or felony,” says Blackstone, “a man shall be said to be attainted.”[17]Such judgment, which is, of course, a criminal proceeding, cannot, under our Constitution, work corruption of blood; which means that it cannot create obstruction or incapacity in the blood to prevent an innocent heir from tracing title through the criminal, as was cruelly done by the Common Law.
Nor shall such attainder work “forfeiture except during the life of the person attainted.” If there be any question, it arises under these words, which, it will be observed, are peculiarly technical. As the term “attainder” is confined to “judgment of death,” this prohibition is limited precisely to where that judgment is awarded; so that, if the person is not adjudged to death, there is nothing in the Constitution to forbid absolute forfeiture. This conclusion is irresistible. If accepted, it disposes of the objection in all cases where there is no judgment of death.
Even where the traitor is adjudged to death, there is good reason to doubt if his estate in fee-simple, which is absolutely his own, and alienable at his mere pleasure, may not be forfeited. It is admitted by Senators that the words of the Constitution do not forbid the forfeiture of the personal estate, which in the present days of commerce is usually much larger than the real estate, although to an unprofessional mind these words are as applicable to one as to the other; so that a person attainted of treason would forfeit all his personal estate, ofevery name and nature, no matter what its amount, even if he did not forfeit his real estate. But since an estate in fee-simple belongs absolutely to the owner, and is in all respects subject to his disposition, there seems no reason for its exemption which is not equally applicable to personal property. The claim of the family is as strong in one case as in the other. And if we take counsel of analogy, we find ourselves led in the same direction. It is difficult to say, that, in a case of treason, there can be any limitation to the amount of fine imposed; so that in sweeping extent it may take from the criminal all his estate, real and personal. And, secondly, it is very clear that the prohibition in the Constitution, whatever it be, is confined to “attainder of treason,” and not, therefore, applicable to a judgment for felony, which at the Common Law worked forfeiture of all estate, real and personal; so that under the Constitution such forfeiture for felony can be now maintained. But assuming the Constitution applicable to treason where there is no judgment of death, it is only reasonable to suppose that this prohibition is applicableexclusively to that posthumous forfeiture depending upon corruption of blood; and here the rule is sustained by intrinsic justice. But all present estate, real as well as personal, actually belonging to the traitor, is forfeited.
Not doubting the intrinsic justice of this rule, I am sustained by the authority of Mr. Hallam, who, in a note to his invaluable History of Literature, after declaring, that, according to the principle of Grotius, the English law of forfeiture in high treason is just, being part of the direct punishment of the guilty, but that of attainder or corruption of blood is unjust, being an infliction on the innocent alone, stops to say:—
“I incline to concur in this distinction, and think it at least plausible, though it was seldom or never taken in the discussions concerning those two laws. Confiscation is no more unjust towards the posterity of an offender than fine, from which, of course, it only differs in degree.”[18]
“I incline to concur in this distinction, and think it at least plausible, though it was seldom or never taken in the discussions concerning those two laws. Confiscation is no more unjust towards the posterity of an offender than fine, from which, of course, it only differs in degree.”[18]
An opinion from such an authority is entitled to much weight in determining the proper signification of doubtful words.
This interpretation is helped by another suggestion, which supposes the comma in the text of the Constitution misplaced, and that, instead of being after “corruption of blood,” it should be after “forfeiture,” separating it from the words “except during the life of the person attainted,” and making them refer to the time when the attainder takes place, rather than to the length of time for which the estate is forfeited. Thus does this much debated clause simply operate to forbid forfeiture when not pronounced “during the life of the person attainted.” In other words, the forfeiture cannot be pronounced against a dead man, or the children of a dead man, and this is all.
Amidst the confusion in which this clause is involved, you cannot expect that it will be a strong restraint upon any exercise of power under the Constitution which otherwise seems rational and just. But, whatever its signification, it has no bearing on our rights against enemies. Bear this in mind. Criminals only, and not enemies, can take advantage of it.
Such, Mr. President, are the provisions or principles of Constitutional Law controlling us in the exercise ofrights against criminals. If any bill or proposition, penal in character, having for its object simply punishment, and ancillary to the administration of justice, violates any of these safeguards, it is not constitutional. Therefore do I admit that the bill of the Committee, and every other bill now before the Senate, so far as they assume to exercise the Rights of Sovereignty in contradistinction to the Rights of War, must be in conformity with these provisions or principles.
But the Senator from Vermont [Mr.Collamer], in his ingenious speech, to which we all listened with so much interest, was truly festive in allusion to certain proceedings much discussed in this debate. The Senator did not like proceedingsin rem, although I do not know that he positively objected to them as unconstitutional. It is difficult to imagine any such objection. Assuming that criminals cannot be reached to be punishedpersonally, or that they have fled, the Senator from Illinois [Mr.Trumbull], and also the Senator from New York [Mr.Harris], propose to reach them through their property,—or, adopting technical language, instead of proceedingsin personam, which must fail from want of jurisdiction, propose proceedingsin rem. Such proceedings may not be of familiar resort, since, happily, an occasion like the present has never before occurred among us; but they are strictly in conformity with established precedents, and also with the principles by which these precedents are sustained.
Nobody can forget that smuggled goods are liable to confiscation by proceedingsin rem. This is a familiar instance. The calendar of our District Courts is crowded with these cases, where the United States areplaintiff, and some inanimate thing, an article of property, is defendant. Such, also, are proceedings against a ship engaged in the slave-trade. Of course, by principles of the Common Law, a conviction is necessary to divest the offender’s title; but this rule is never applied to forfeitures created by statute. It is clear that the same sovereignty which creates the forfeiture may determine the proceedings by which it shall be ascertained. If, therefore, it be constitutional to direct the forfeiture of rebel property, it is constitutional to authorize proceedingsin remagainst it, according to established practice. Such proceedings constitute “due process of law,” well known in our courts, familiar to the English Exchequer, and having the sanction of the ancient Roman jurisprudence. If any authority were needed for this statement, it is found in the judgment of the Supreme Court of the United States in the case of thePalmyra, where it is said:—
“Many cases exist where there is both a forfeiturein remand a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other; but the practice has been, and so this Court understand the law to be, that the proceedingin remstands independent of, and wholly unaffected by, any criminal proceedingin personam.”[19]
“Many cases exist where there is both a forfeiturein remand a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other; but the practice has been, and so this Court understand the law to be, that the proceedingin remstands independent of, and wholly unaffected by, any criminal proceedingin personam.”[19]
The reason for proceedingsin remis, doubtless, thatthe thingis in a certain sense an offender, or at least has coöperated with the offender,—as a ship in the slave-trade. But the same reason prevails, although perhaps to less extent, in proceedings against rebel property, which, if not an offender, has at least coöperated withthe offender hardly less than the ship in the slave-trade. Through his property the traitor is enabled to devote himself to treason, and to follow its accursed trade, waging war against his country; so that his property may be considered guilty also. But the condemnation of the property cannot be a bar to proceedings against the traitor himself, should he fall within our power. The two are distinct, although identical in their primary object, which is punishment.
Pardon me, Sir, if, dwelling on these things, I feel humbled that the course of the debate imposes such necessity. Standing, as we do, face to face with enemies striking at the life of the Republic, it is painful to find ourselves subjected to all the embarrassments of a criminal proceeding, as if this war were an indictment, and the army and navy of the United States, now mustered on land and sea, were only aposse comitatus. It should not be so. The Rebels have gone outside of the Constitution to make war upon their country. It is for us to pursue them as enemies outside of the Constitution, where they wickedly place themselves, and where the Constitution concurs in placing them also. So doing, we simply obey the Constitution, and act in all respects constitutionally.
And this brings me to the second chief head of inquiry, not less important than the first:What are the Rights against Enemies which Congress may exercise in War?
Clearly the United States may exercise all the Rightsof War which according to International Law belong to independent states. In affirming this proposition, I waive for the present all question whether these rights are to be exercised by Congress or by the President. It is sufficient that every nation has in this respect perfect equality; nor can any Rights of War accorded to other nations be denied to the United States. Harsh and repulsive as these rights unquestionably are, they are derived from the overruling, instinctive laws of self-defence, common to nations as to individuals. Every community having the form and character of sovereignty has a right to national life, and in defence of such life may put forth all its energies. Any other principle would leave it the wretched prey of wicked men, abroad or at home. In vain you accord the rights of sovereignty, if you despoil it of other rights without which sovereignty is only a name. “I think, therefore I am,” was the sententious utterance by which the first of modern philosophers demonstrated personal existence. “I am, therefore I have rights,” is the declaration of every sovereignty, when its existence is assailed.
Pardon me, if I interpose again to remind you of the essential difference between these rights and those others just considered. Though incident to sovereignty, they are not to be confounded with those peaceful rights which are all exhausted in a penal statute within the limitations of the Constitution. The difference between a judge and a general, between the halter of the executioner and the sword of the soldier, between the open palm and the clenched fist, is not greater than that between these two classes of rights. They are different in origin, different in extent, and different in object.
I rejoice to believe that civilization has already done much to mitigate the Rights of War; and it is among long cherished visions, which present events cannot make me renounce, that the time is coming when all these rights will be further softened to the mood of permanent peace. Though in the lapse of generations changed in many things, especially as regards non-combatants and private property on land, these rights still exist under the sanction of the Law of Nations, to be claimed whenever war prevails. It is absurd to accord the right to do a thing without according the means necessary to the end. And since war, which is nothing less than organized force, is permitted, all the means to its effective prosecution are permitted also, tempered always by that humanity which strengthens while it charms.
I begin this inquiry by putting aside all Rights of War against persons. In battle, persons are slain or captured, and, if captured, detained as prisoners till the close of the war, unless previously released by exchange or clemency. But these rights do not enter into the present discussion, which concerns property only, and not persons. From the nature of the case, it is only against property, or what is claimed as such, that confiscation is directed. Therefore I say nothing of persons, nor shall I consider any question of personal rights. According to the Rights of War, property, although inanimate, shares the guilt of its owner. Like him, it is criminal, and may be prosecuted to condemnation in tribunals constituted for the purpose, without any of those immunities claimed by persons accused of crime. It isRights of War against the property of an enemywhich I now consider.
If we resort to the earlier authorities, not excepting Grotius himself, we find these rights stated most austerely. I shall not go back to any such statement, but content myself with one of later date. You may find it harsh; but here it is.
“Since this is the very condition of war, that enemies are despoiled of all right and proscribed, it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury. It is customary, moreover, in almost every declaration of war, to ordain that goods of the enemy, as well those found among us as those taken in war, be confiscated.… Pursuant to the mere Right of War, even immovables could be sold and their price turned into the treasury, as is the practice in regard to movables; but throughout almost all Europe only a register is made of immovables, in order that during the war the treasury may receive their rents and profits, but at the termination of the war the immovables themselves are by treaty restored to the former owners.”[20]
“Since this is the very condition of war, that enemies are despoiled of all right and proscribed, it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury. It is customary, moreover, in almost every declaration of war, to ordain that goods of the enemy, as well those found among us as those taken in war, be confiscated.… Pursuant to the mere Right of War, even immovables could be sold and their price turned into the treasury, as is the practice in regard to movables; but throughout almost all Europe only a register is made of immovables, in order that during the war the treasury may receive their rents and profits, but at the termination of the war the immovables themselves are by treaty restored to the former owners.”[20]
These are the words of the eminent Dutch publicist, Bynkershoek, in the first half of the last century. In adducing them now I present them as adopted by Mr. Jefferson, in his remarkable answer to the note of the British minister at Philadelphia on the confiscations of the American Revolution. There are no words of greater weight in any writer on the Law of Nations. But Mr. Jefferson did not content himself with quotation. In the same state paper he thus declares unquestionable rights:—
“It cannot be denied that the state of war strictly permits a nation to seize the property of its enemiesfound within itsown limits or taken in war, and in whatever form it exists, whether in action or possession.”[21]
“It cannot be denied that the state of war strictly permits a nation to seize the property of its enemiesfound within itsown limits or taken in war, and in whatever form it exists, whether in action or possession.”[21]
This sententious statement is under date of 1792, and, when we consider the circumstances which called it forth, may be accepted as American doctrine. But even in our own day, since the beginning of the present war, the same principle has been stated yet more sententiously in another quarter. The Lord Advocate of Scotland, in the British House of Commons, as late as 17th March of the present year, declared:—
“The honorable gentleman spoke as if it was no principle of war that private rights should suffer at the hands of the adverse belligerent. But that was the true principle of war. If war was not to be defined—as it very nearly might be—as a denial of the rights of private property to the enemy, that denial was certainly one of the essential ingredients in it.”[22]
“The honorable gentleman spoke as if it was no principle of war that private rights should suffer at the hands of the adverse belligerent. But that was the true principle of war. If war was not to be defined—as it very nearly might be—as a denial of the rights of private property to the enemy, that denial was certainly one of the essential ingredients in it.”[22]
In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by thelocalityof the property; and this consideration makes it proper to consider them under two heads:first, rights with regard to enemy property actually within the national jurisdiction; and,secondly, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that,in the present war, rights against enemy property actually outside the national jurisdiction must exista fortioriagainst 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.”[23]
“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.”[23]
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.[24]But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason forthe 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 toBrownv.United States,[25]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.[26]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 thecharge 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 validtitle, 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 exerciseof 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, includingsilks, 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.