[139]
art, and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory.
This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country.1
John Quincy Adams, in a letter to the
Secretary of State dated August 22, 1815, says:
Our object is the restoration of all property, including slaves, which, by the usages of war among civilized nations, ought not to have been taken.
All private property on shore was of that description.
It was entitled by the laws of war to exemption from capture.2
Again,
William L. Marcy,
Secretary of State, in a letter to the
Count de Sartiges dated July 28, 1856, says:
The prevalence of Christianity and the progress of civilization have greatly mitigated the severity of the ancient mode of prosecuting hostilities. . . . It is a generally received rule of modern warfare, so far at least as operations upon land are concerned, that the persons and effects of non-combatants are to be respected.
The wanton pillage or uncompensated appropriation of individual property by an army even in possession of an enemy's country is against the usage of modern times.
Such a proceeding at this day would be condemned by the enlightened judgment of the world, unless warranted by particular circumstances.
The words of the late
Chief Justice Marshall on the capture and confiscation of private property should not be omitted:
It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign, and assume dominion over the country.
The modern usage of nations, which has become law, would be violated; that sense of justice and of 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.
The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed.3
The government of the
United States recognized us as under the law of nations by attempting to use against us one of the powers of that law. Yet, if we were subject to this power, we were most certainly entitled to its protection.
This was refused.
That government exercised against us all the severities of the law, and outraged that sense of justice and of right which is acknowledged and felt by the whole civilized world by rejecting the observance of its ameliorations.
The act of confiscation is a power exercised under the laws of war for the purpose of indemnifying
