tugal in the same year; (1) the articles in the treaties between Russia and Great Britain and Portugal, were renewed in 1797 and 1798; (2) the provision is also made in the treaty between France and the United States, in 1800; (3) between Russia and Sweden, in 1801; (4) and in several treaties with the South American States. (5) These treaties are a proof that the practice of confiscating debts was a usage that it was thought necessary to guard against; but this right has hardly ever been exercised in modern warfare, the only modern instance being that of Denmark in the last war, when debts due to the British were confiscated by the Danish government. The practice of our own courts coincides with the general usage of Europe; and it may now be regarded as established, that though debts cannot be claimed by an enemy during war, yet that the right to claim payment revives on the return of peace. In ancient warfare all the vanquished passed to the victor. CHAPTER V. OF THE RIGHTS OF A BELLIGERENT WITH REGARD TO ACCORDING to the usages of ancient warfare, all proproperty of the perty belonging to the conquered passed to the victor: even property dedicated to sacred purposes was not held exempt, and it was only gradually that spoils of this description obtained some degree of respect. The confiscation of all property whatever was not merely the practice of warriors, but philosophers and moralists approved the custom; and Plato, Aristotle, and Cicero, are quoted by Grotius, as saying that all the property of the vanquished rightfully passes to the victor. Grotius, who deduced the law of nations from the practice of nations, allows the confiscation or destruction of all property whatever belonging to an enemy. (1) Bynkershoek likewise supports the most rigorous application of the laws of war; he says, that we may rightfully take possession of whatever belongs to an enemy; (2) and subsequently adds, expressly, that by the rights of war we may justly take possession both of the movable and immovable property of an enemy. (3) Opinion of The opinion of Vattel corresponds more exactly with the dictates of right, or, in other words, with the law of ** nature: he admits that war gives a complete right to seize upon an enemy's property; but says, that this, like the other evils of war, can only be permitted as far as called for by the purposes of war, such as to obtain redress, or to take away the means of future aggression. "We have a right," he says, "to deprive our enemy of his possessions, of every thing which may augment his strength and enable him to make war. Whenever we have an opportunity, we seize on the enemy's property, and convert it to our own use." (1) It is lawful, he subsequently remarks, to appropriate an enemy's property, with a view of weakening him, of punishing him, or of obtaining compensation, and thus," according to the law of nature, which constitutes the necessary law of nations, war, founded on justice, is a lawful mode of acquisition. But that sacred law does not authorise even the acquisitions made in a just war, any further than as they are approved by justice; that is to say, no farther than is requisite to obtain complete satisfaction, in the degree necessary for accomplishing the lawful ends we have just mentioned." But though the law of nature makes consistency with justice indispensable to establish an equitable right in acquisitions taken from an enemy, yet, as no nation can erect itself into a judge of other independent nations, all acquisitions made in war must be treated as rightful, as no nation can take upon itself to question their justice, unless in some most evident and outrageous case. "By the rules of the voluntary law of nations," says Vattel, "every regular war is on both sides accounted just, as to its effects; and no one has a right to judge a nation respecting the unreasonableness of her claims, or what she thinks necessary for her own safety. Every acquisition, therefore, which has been made in regular warfare, is valid according to the voluntary law of nations, independently of the justice of (1) Droit des Gens, liv. III. ch. IX. § 161, Seizure of property for the cause, and the reasons which may have induced the conqueror to assume the property of what he has taken. Accordingly, nations have ever esteemed conquest a lawful title; and that title has seldom been disputed, unless where it was derived from a war not only unjust in itself, but even destitute of any plausible pretext." (1) These opinions of Vattel seem to me to embody the indemnification essence of the arguments regarding the right which a justifiable. belligerent has upon the property of his enemy. A nation has a complete right, by the law of nature, to take possession of the property of an enemy, as far as the purposes of equitable satisfaction or the necessities of just warfare require; so as to obtain, in the well known phrase, "indemnity for the past, and security for the future." But no nation has a right to prescribe, to another independent state, limits to the extent of its claims to satisfaction, so as to say how far one belligerent is justified in seizing upon the property of another. Thus, as a fact, the law as declared by Grotius, allowing unlimited right over the property of enemies, still applies as a general rule, where not excepted from by the usage of nations. Spoliation in a wrong cause can never be consistent with the law of nature; but, by the positive law of nations, acquisitions resulting from unjust conquest are regarded as the legitimate property of the captor. Flagrant injustice may induce one state to deny the rightful possession of property seized by another state in an unjust war; but this is a case to be settled by negotiation or hostilities, not by any tribunal engaged in considering property acquired by conquest. Spoliation in an unjust war is a most fearful violation of the laws of God; but it is a question of moral responsibility, not of human jurisdiction, as far as concerns independent states. Property captured in war must be regarded as (1) Droit des Gens. liv. III. ch. x111. § 193, 194, 195. having equally changed owners, whether the war be just or unjust, whether the seizure be exorbitant or be merely adequate for indemnity; and the general rule authorising such acquisitions is subject to no human limitation, excepting such as have been introduced by custom, and now form part of the positive law of nations. But the obligations arising from this latter source, A victorious the positive law of nations, have interfered to alter the state takes the place of the laws of war, as they once existed, in a great many par- sovereign of a ticulars. Formerly the lands of the individual subjects vanquished of a conquered state were confiscated by the victors; many such instances will immediately present themselves to the memory of the classical student, or to the reader of modern history, in the examples of the conquest of the Gauls by the Franks, and of England by the Normans. But, at the present day, landed property, and immovable property in general, is not liable to confiscation from the effects of war. A conquering state enters upon the rights of the sovereign of a vanquished state; national domain, and national revenues pass to the victor; but the immovable property of private individuals is, by the positive law of nations, not liable to be seized by the rights of war. This moderation is a great improvement upon the ancient custom; it mitigates the evils of war without interfering with its results; it was a change introduced as civilization advanced; it has been for many centuries the constant usage of European warfare, and is now firmly established as part of the European law of nations. (1) With regard to movable property, the law is not so Laws of war moderate in its treatment; movable property is still regarding (1) Vattel, Droit des Gens. liv. III. ch. XIII. § 200. De Martens, Précis, liv. VIII. ch. IV. § 280, 282. Klüber, Par II. tit. 11. § 256. movable property. |