Distinction between private property § 355. The progress of civilization has slowly, but constantly, tended to soften the extreme severity of the operations of war by land; but it still remains unrelaxed in taken at sea respect to maritime warfare, in which the private property or on land. of the enemy taken at sea or afloat in port is indiscriminately liable to capture and confiscation. This inequality in the operation of the laws of war, by land and by sea, has been justified by alleging the usage of considering private property, when captured in cities taken by storm, as booty; and the well-known fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be or have been his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas, the object of maritime wars is the destruction of the enemy's com sovereignty is not obliterated, gives the right to the conqueror to take and carry away to his own dominions public works of art, either by direct seizure, or through the compulsion of military requisitions and forced contributions. Anglican and Gallican bias has disturbed this question with neutrals, as well as between the parties. It cannot but be hoped, however, that such works will be ever treated as out of the category of trophies of war. They are not necessary nor useful for military operations; nor are they taken bonâ fide in lieu of money contributions, to be turned into money; nor does their capture coerce or restrict the military power of the enemy; and whatever is not so necessary, and does not so coerce, should be spared to the telligerent nationality, if possible. It is not a justifiable object in making war, nor a justifiable object in concluding terms of peace with a conquered nation, to enrich ourselves and impoverish our neighbor. Indemnity and security are the tests. To strip a conquered belligerent, whose sovereignty we recognize and permit to continue, of works of art, — the instructors and civilizers, as well as the just pride, of the nation, simply to transfer those advantages to ourselves, clear of all political question of indemnity or security, and of the avowed objects and purposes of the war, is a course which the enlightened and liberal civilization of modern times ought to denounce. Whether all the allies were blameless in their own action in similar cases, and whether the sovereigns to whom those works of art were restored were entitled to sympathy, or, indeed, the fit representatives of the nations to whom the works belonged, - these are not questions of international law, but of history. The proposition of international law is this: when a nation has conquered in a war, which must be presumed to have had justifiable political purposes, and has secured those purposes, together with indemnity for the past and security for the future, and is about to leave the conquered nation an independent sovereign, on its former territory, can it also, as mere trophies or spoils of war, carry away all the public and national works of art? Is that one of its rights, which it may assert without treaty to that effect? It seems as if the fair statement of the proposition carried the inevitable answer ]—D. merce and navigation, the sources and sinews of his naval power - which object can only be attained by the capture and confiscation of private property." 171 What per authorized hostilities § 356. The effect of a state of war, lawfully declared to exist, is to place all the subjects of each belligerent sons are power in a state of mutual hostility. The usage of na- to engage in tions has modified this maxim, by legalizing such acts of against the hostility only as are committed by those who are author- enemy. ized by the express or implied command of the State. Such are [171 Distinction between Enemy's Property at Sea and on Land. - The text does not present the principal argument for the distinction observed in practice between private property on land and at sea; nor, indeed, has this subject been adequately treated upon principle, if that has even been attempted, by most text-writers. War is the exercise of force by bodies politic, for the purpose of coercion. Modern civilization has recognized certain modes of coercion as justifiable. Their exercise upon material interests is preferable to acts of force upon the person. Where private property is taken, it is because it is of such a character or so situated as to make its capture a justifiable means of coercing the power with which we are at war. If the hostile power has an interest in the property which is available to him for the purposes of war, that fact makes it primâ facie a subject of capture. The enemy has such an interest in all convertible and mercantile property within his control, or belonging to persons who are living under his control, whether it be on land or at sea; for it is a subject of taxation, contribution, and confiscation. The humanity and policy of modern times have abstained from the taking of private property, not liable to direct use in war, when on land. Some of the reasons for this are the infinite varieties of the character of such property, - from things almost sacred, to those purely merchantable; the difficulty of discriminating among these varieties; the need of much of it to support the life of non-combatant persons and of animals; the unlimited range of places and objects that would be opened to the military; and the moral dangers attending searches and captures in households and among non-combatants. But, on the high seas, these reasons do not apply. Strictly personal effects are not taken. Cargoes are usually purely merchandise. Merchandise sent to sea is sent voluntarily; embarked by merchants on an enterprise of profit, taking the risks of war; its value is usually capable of compensation in money, and may be protected by insurance; it is in the custody of men trained and paid for the purpose; and the sea, upon which it is sent, is res omnium, the common field of war as well as of commerce. The purpose of maritime commerce is the enriching of the owner by the transit over this common field; and it is the usual object of revenue to the power under whose government the owner resides. The matter may, then, be summed up thus: Merchandise, whether embarked upon the sea or found on land, in which the hostile power has some interest for purposes of war, is prima facie a subject of capture. Vessels and their cargoes are usually of that character. Of the infinite varieties of property on shore, some are of this character, and some not. There are very serious objections, of a moral and economical nature, to subjecting all property on land to military seizure. These objections have been thought sufficient to reverse the primâ facie right of capture. To merchandise at sea, these objections apply with so little force that the primâ facie right of capture remains.] - D. the regularly commissioned naval and military forces of the nation, and all others called out in its defence, or spontaneously defending themselves in case of urgent necessity, without any express authority for that purpose. Cicero tells us, in his Offices, that by the Roman fecial law no person could lawfully engage in battle with the public enemy, without being regularly enrolled and taking the military oath. This was a regulation sanctioned both by policy and religion. The horrors of war would indeed be greatly aggravated, if every individual of the belligerent States was allowed to plunder and slay indiscriminately the enemy's subjects, without being in any manner accountable for his conduct. Hence it is that in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practised by civilized nations. (a) missioned captors. 172 Non-com- § 357. It must probably be considered as a remnant of the barbarous practices of those ages when maritime war and piracy were synonymous, that captures made by private armed vessels, without a commission, not merely in self-defence, but even by attacking the enemy, are considered lawful, not indeed for the purpose of vesting the enemy's property thus seized in the captors, but to prevent their conduct from being regarded as piratical, either by their own government or by the other belligerent State. Property thus seized is condemned to the government as prize of war, or, as these captures are technically called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, when war breaks out with another; the captures made from that other are condemned, not to the captors, but to the government. (a) Priva teers. § 358. The practice of cruising with private armed vessels commissioned by the State, has been hitherto sanctioned, by the laws of every maritime nation, as a legitimate means (a) Vattel, Droit des Gens, liv. iii. ch. 15, §§ 223-228. Klüber, Droit des Gens Moderne de l'Europe, § 267. [172 In modern warfare, partisan and guerilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and murderers. Halleck, 386-7. Heffter, § 126. Phillimore, iii. § 96. General Scott's General Orders, 1847, No. 372. Instructions for the Government of the United States Armies, April 24, 1863, § 4.] -D. (a) Brown's Civ. and Adm. Law, ii. 526, Appendix. Robinson's Adm. Rep. iv. 72, The Abigail. Dodson's Adm. Rep. 397, The Georgiana. Sparks's Diplomatic Correspondence, i. 443. Wheaton's Rep. ii.; Appendix, Note I. p. 7. of destroying the commerce of an enemy. This practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlightened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin, between the United States and Prussia, in 1785, by which it was stipulated that, in case of war, neither power should commission privateers to depredate upon the commerce of the other, furnishes an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty, in 1799; and it is much to be feared that, so long as maritime captures of private property are tolerated, this particular mode of injuring the enemy's commerce will continue to be practised, especially where it affords the means of countervailing. the superiority of the public marine of an enemy. (a)173 (a) Vattel, liv. iii. ch. 15, § 229. Franklin's Works, ii. 447, 530. Edinburgh Review, viii. 13-15. North American Review, ii. (N. s.) 166–196. Wheaton's Hist. Law of Nations, 308. [178 Privateering. — The first unequivocal effort to break up privateering by a permanent treaty stipulation, was that by Dr. Franklin, in the celebrated twenty-third article in the treaty with Prussia of 1785, in which the two contracting powers agree to grant no commissions to private armed vessels. The National Assembly of France, by a decree in 1792, requested the executive authorities to enter into treaties to suppress privateering; but this had no result in the action of any large maritime power. (Ortolan, tom. ii. p. 51.) The United States Government, in 1823, sent instructions to its ministers in Great Britain, France, and Russia to propose treaties for abstaining from the use of privateers; but no such treaties were effected. (Annual Register, 1823, p. 185.) In the war between France and Spain, in 1823, the two belligerents set out with declarations against the commissioning of privateers and the capture of private property at sea; but it is supposed that the declarations, at least on the latter point, were not strictly adhered to. The result of the correspondence of the American ministers with the governments of France, England, and Russia, from 1823 to 1830, showed that those powers were not willing to enter into separate agreements with one nation to disuse privateering, while expressing a desire to see a general agreement of the chief maritime powers to that effect. (See instructions of Mr. J. Q. Adams, in 1823; and the correspondence between Mr. Rush and Messrs. Huskisson and Canning, Mr. Sheldon and M. Chateaubriand, and Mr. Middleton and Count Nesselrode, in 18234.) But, in all these negotiations, the question of privateering was complicated with the proposal to abandon capture of all private property at sea. Afterwards, the United States Government ceased from its efforts to secure these objects, mainly from a change of policy. It was thought that the United States, with its small navy, might be obliged to avail itself of privateers against the formidable navies of the great European powers. (Mr. Buchanan to Count Nesselrode, 18th May, 1832; and Mr. Van Buren's instructions to Mr. Randolph, June 18, 1830.) In the Crimean war, neither of the belligerent powers issued letters of marque. Title to property war. § 359. The title to property lawfully taken in war may, captured in upon general principles, be considered as immediately divested from the original owner, and transferred to the captor. This general principle is modified by the positive law of nations, in its application both to personal and real property. As France and England were anxious lest privateers should be fitted out in the United States, or vessels or citizens of the United States should be commissioned by Russia; and proposals were made to the United States to enter into treaties, or special agreements, prohibiting the employment of privateers, and permitting neutral citizens and vessels so engaged to be treated as pirates. The United States Government declined to enter into any such engagement, thinking it necessary to reserve to itself the right to use privateers in aid of its small navy. But these powers were referred to the fact that the laws of the United States prohibit any citizen, under criminal penalties, from taking a commission or cruising against citizens or property of a nation with which we are at peace. At the same time, the United States was willing and desirous to enter into negotiations which should combine the renunciation of capture of all private property at sea with the prohibition of privateering. (Message of President Pierce, 1854, Ex. Doc. No. 103, 33d Cong. Annual Register, 1854, p. 413. Paris Moniteur, 9th June, 1854.) The first article of the celebrated Declaration of Paris of 1856 is in these words: "Privateering is and remains abolished." The declaration is, however, only a compact between the parties in their relations with each other, and does not attempt to alter the international law on that subject. Consequently, neither of the nations who are parties to the declaration is authorized to treat as pirates the privateers of nations not parties to it, nor prohibited from itself using privateers in a war with such nations. The original parties to the declaration were Great Britain, France, Russia, Prussia, Austria, Sardinia, and Turkey. Some forty other powers gave in their adhesion to the declaration, embracing nearly all the States of Europe and South America. It is one of the terms of the declaration, that the nations which accede to it shall enter into no treaty with a nation not a party to it, on any of the subjects it embraces, which does not adopt the four points of the declaration. Proposals were made to the United States to accede to the declaration. Mr. Marcy, then Secretary of State, declined to become party to it as an entirety, unless with additions. The United States would not preclude itself from the use of privateers, in wars with powers which maintained large navies; and, even in wars with smaller maritime powers, its large and wide-spread commerce and extended seacoast would put its commerce to a disadvantage; and it was the policy of the United States not to maintain large standing armies or navies in time of peace. But the United States would accede to the declaration, if an article should be added protecting from capture all private property at sea not contraband. This proposal is often called the Marcy Amendment, or American Amendment. (Mr. Marcy to M. Sartiges, 28th July, 1856. Message and Documents of 1856, p. 35. Same to Mr. Mason of Dec. 8, 1856. Message of President Pierce of December, 1856, pp. 22-35.) Russia made known to the other parties to the declaration her readiness and desire to support the American Amendment, if its adoption should be taken into consideration by the other parties. The French, Prussian, Italian, and Netherlands governments likewise expressed to the American ministers their desire to have the American Amendment adopted. It is understood that the defeat of the amendment was caused |