It is by no means to be admitted that a conquering power may compel private debtors to pay their debts to itself, and that such payments extinguish the claims of the original creditor. The principle of international law, that a conquering state, after the conquest has subsided into Government, may exact payment from the state debtors of the conquered power, and that payments to the conqueror discharge the debt, so that when the former Government returns the debtor is not compellable to pay again, has no applicability to debts not due to the conquered state.

Ibid.

W., a resident of Memphis, purchased, on April 12, 1865, in Mobile, from B., a resident of that city, both cities being then in the occupancy of the national forces, cotton which was then in the military lines of the insurgent forces in Alabama and Mississippi, the inhabitants whereof had been declared to be in insurrection. Between June 30 and December 1 of that year, a portion of the cotton, while it was in the hands of the planters from whom it had been originally purchased by the Confederate Government, the agent of which had sold it in Mobile to B. on the 5th of April, was seized by Treasury agents of the United States and sold. The proceeds were paid into the Treasury and W. sued to recover them. It was ruled that his purchase being in violation of law no right arose therefrom which can be enforced against the United States.

Walker's Executors v. U. S., 106 U. S., 413. Supra, §§ 222 ff.; infra, §§ 352 ff. By the law of nations the debts, credits, and corporal property of an enemy, found in the country on the breaking out of war, are confiscable.

Cargo of ship Emulous, 1 Gallison, 562.

The seizure of enemy property by the United States as prize of war on land, jure belli, is not authorized by the law of nations, and can be upheld only by an act of Congress.

U. S. v. Seventeen hundred and fifty-six Shares of Capital Stock, 5 Blatch., 232 "The war of the Revolution has been sometimes appealed to as countenancing the sequestration of debts and the confiscation of property. This was denied by Mr. Hamilton, in his argument on the 10th article of the British treaty of 1794. He said, in reply to those who represent the confiscation or sequestration of debts as our best means of retaliation and coercion, as our most powerful, and sometimes as our only means of defense. So degrading an idea will be rejected with disdain by every man who feels a true and well-informed national pride; by every man who recollects and glories that, in a state of still greater immaturity we achieved independence without the aid of this dishonorable expedient. The Federal Government never resorted to it, and a few only of the State governments stained themselves with it. It may, perhaps, be said that the Federal Government had no power on the subject; but the reverse of this is truly the case. The Federal

Government alone had power. The State governments had none, though some of them undertook to exercise it. This position is founded on the solid ground that the confiscation or sequestration of the debts of an enemy.is a high act of reprisal and war, necessarily and exclusively incident to the power of making war, which was always in the Federal Government.' (Hamilton's Works, vii, 329, Camillus No. XVIII.)

"To remedy, as far as was practicable, what in this view of the case might be deemed the usurpation of the States under the old Confederation, not only was the provision in reference to debts, noticed in the text (ch. 1, § 12, of this part, p. 542 supra), introduced into the treaty of peace of 1783, but another article (V) contained an agreement on the part of Congress to recommend to the legislatures of the respective States to provide for the restitution of all estates, rights, and properties which had been confiscated, and even in cases where the property had been sold, its restoration, on refunding to the persons in possession what they had paid in purchasing it since the confiscation. (8 Stat. L., 82.)"

Lawrence's Wheaton (ed. 1863), 610. See supra, § 223.

"It has has been held that the act of Congress declaring war against Great Britain did not work such confiscation. (The Juniata, Newberry, 352.) In Brown v. U. S., ut sup., the right to confiscate debts was asserted; and Ware v. Hylton (3 Dall., 199), was relied on as authority. But the better view is that the property of the inhabitants of an invaded country should not be taken by an invading army without remuneration. (U. S. v. Stevenson, 3 Benedict, 119; Bluntschli, § 657.) In the United States Articles of War of 1863 (§ 2, art. 37) it is said: 'The United States acknowledge and protect, in hostile countries occupied by them, religion and morality, strictly private property, the persons of the inhabitants, especially those of women, and the sacredness of the domestic relations. Offenses to the contrary shall be rigorously punished.' Infra, § 349. To the effect that private property cannot be seized by an invading army, unless contraband, see 1 Kent Com., 93 f.; U. S. v. Homeyer, 2 Bond, 217; Transactions of the National Association for the Promotion of Social Science, 1860, 163, 279; ibid., 1861, 126, 748, 794; ibid., 1862, 89, 896, 899; ibid., 1863, 851, 878, 884; ibid., 1864, 596, 656; ibid., 1868, 167-187; Hautefeuille, Droits et Devoirs, i, 340-344; Martens, Essai sur les Armateurs, § 45; and other authorities given in Field, ut sup. Heffter (Völkerrecht, §§ 130, 132, 139, 140, 175, 192) holds that war gives only actual possession, but not the legal property in such captures.

"Dr. Woolsey (Int. Law, § 118, note), after noticing Hamilton's argument against confiscation (Hamilton's Works, vol. vii, 19th Letter of 'Camillus'), adds, speaking of the confiscation of the private property of the subject of an enemy, The foreigner brought his property here, it can at once be said, knowing the risk he might run in the event of a war. Why should he not incur the risk? He should incur it, say the older practice and the older authorities. He should not, says the modern practice, although international law in its rigor involves him in it. He should not, according to the true principles of justice, because his relation the state at war is not the same with the relation of his sovereign or Government; because, in short, he is not in the full sense an enemy. To this it may be added that whan a foreigner invests property in a country with the permission of its Government, there is an im

[CHAP. XVII. plied understanding that his title thereto will be respected unless divested by his personal act.

"As sustaining the right of seizure of private property in an enemy's country, see The Venus, 8 Cranch, 253; The Ann Green, 1 Gall., 274; The Lilla, 2 Sprague, 177; The Friendschaft, 3 Wheat., 15; 4 ibid., 105. That this does not impress with belligerency a neutral on motion to leave bona fide belligerent territory, see The Venus, ut supra; The St. Lawrence, 1 Gall., 467. That neutrals and citizens are to be allowed a reasonable time, after breaking out of war, to withdraw from a belligerent country, see The Sarah Starr, Blatch. Pr. Ca., 650; The General Pinckney, ibid., 668."

Whart. Com. Am. Law, § 216.

As to liability to seizure of neutral property in enemy's lines, see infra, § 352.
As to wanton destruction of property, see infra, § 349.

"The emancipation of an enemy's slaves is not among the acts of legitimate war. As relates to the owners, it is a destruction of private property not warranted by the usages of war."

Mr. Adams, Sec. of State, to Mr. Rush, July 7, 1820. MSS. Inst., Ministers. It is otherwise when such slaves are a matèrial part of the enemy's resources, in which case they become contraband and may be emancipated.

President Lincoln's Emancipation Proclamation.

As to ravages of British forces in war of 1812, see 1 Ingersoll's Late War, 1st series, 184 ff.

For a discussion of the action of the United States with reference to the rights of a sovereign over the private property of subjects of a sovereign with whom he is at war, see 3 Phill. Int. Law (3d ed.), 133 ff.

For an account of the action of the United States in reference to the seizure of
the private property of non-combatant subjects of enemy States, see 3
Phill. Int. Law (3 ed.), 366.

As to seizure of private property in war, see Judge Holmes' note, 1 Kent
Com., 91.

"The Supreme Court of the United States, in Brown v. U. S., 8 Cranch, 110, decided primarily and unequivocally that, by the law of nations, the right exists to seize and confiscate any property of an enemy found in the country on the happening of war. On that point the court was unanimous. The case is so treated by all the American commentators. Kent says (i, 59) that the point seems no longer open for discussion in this country, and has become definitively settled in favor of the ancient and sterner rule.' Halleck (p. 365) says: "The Supreme Court of the United States has decided that the right, stricti juris, still exists, as a settled and undoubted right of war, recognized by the law of nations.' Woolsey (§ 118) says, The Supreme Court of the United States has decided, in accordance with the body of earlier and later text-writers, that by strict right such property is confiscable.'

"Earl Russell, in a dispatch of the 6th December, 1861, to the British consul at Richmond, Va., speaking of an act of the so-called Confederate Congress confiscating the property of all alien enemies (in which class were included all residents in the loyal States, whether Americans or domiciled foreigners), says, 'Whatever may have been the abstract rule of the law of nations on this point in former times, the instances of its application in the manner contemplated by the act

of the Confederate Congress, in modern and more civilized times, are so rare, and have been so generally condemned, that it may be said to have become obsolete.' (Parliamentary Papers, 1862, 108. See note 157, infra, on Confiscation of Private Debts, and note 169, infra, on Conquest and Belligerent Occupation.)"

Dana's Wheaton, § 304, note 156.

The subject of seizure of aliens' cotton during the late civil war is discussed supra, §§ 203, 224, 228; infra, §§ 343, 373.

As to wasting of enemy's property, see infra, § 349.

(2) CONTRIBUTIONS MAY BE IMPOSED.

§339.

"No principle is better established than that a nation at war has the right of shifting the burden off itself and imposing it on the enemy by exacting military contributions. The mode of making such exactions must be left to the discretion of the conqueror, but it should be exercised in a manner conformable to the rules of civilized warfare.

"The right to levy these contributions is essential to the successful prosecution of war in an enemy's country, and the practice of nations has been in accordance with this principle. It is as clearly necessary as the right to fight battles, and its exercise is often essential to the sabsistence of the army.

"Entertaining no doubt that the military right to exclude commerce altogether from the ports of the enemy in our military occupation included the minor right of admitting it under prescribed conditions, it became an important question, at the date of the order, whether there should be a discrimination between vessels and cargoes belonging to neutral nations.

"Had the vessels and cargoes belonging to the United States been admitted without the payment of any duty, while a duty was levied on foreign vessels and cargoes, the object of the order would have been defeated. The whole commerce would have been conducted in American vessels; no contributions could have been collected, and the enemy would have been furnished with goods without the exaction from him of any contribution whatever, and would have been thus benefited by our military occupation, instead of being made to feel the evils of the war. In order to levy these contributions, and to make them available for the support of the army, it became, therefore, absolutely necessary that they should be collected upon imports into Mexican ports, whether in vessels belonging to citizens of the United States or to foreigners.

"It was deemed proper to extend the privilege to vessels and their cargoes belonging to neutral nations. It has been my policy, since the commencement of the war with Mexico, to act justly and liberally toward all neutral nations, and to afford to them no just cause of complaint; and we have seen the good consequences of this policy by the general satisfaction which it has given."

President Polk, Special Message, Feb. 10, 1848.

"It is doubted, in the last edition of Kent's Commentaries that was published during the author's life, as to the validity of the powers claimed by the President in his official letter of March 31, 1847, to the Secretary of the Navy. He exercised, as being charged by the Constitution with the prosecution of the war, the right of levying military contributions upon the enemy for the purposes of war, and of opening the Mexican ports to neutral trade, the whole execution of these commercial regulations being placed under the control of the military and naval forces. These fiscal and commercial regulations would, it is said, 'seem to press strongly upon the constitutional powers of Congress to raise and support armies, to lay and collect taxes, and to regulate commerce with fereign nations, and to declare war and make rules for the government and regulation of the land and naval forces, and concerning captures on land and water, and to define offenses against the law of nations. Though the Constitution vests the executive power in the President and declares him Commander-in-Chief of the Army and Navy of the United States, these powers must necessarily be subordi nate to the legislative power in Congress. It would appear to me to be the policy or true construction of this simple and general grant of power to the President, not to suffer it to interfere with those specific powers of Congress which are more safely deposited in the legislative department, and that the powers thus assumed by the President do not belong to him but to Congress.' 1 Kent Com., 292, note b.)"

Lawrence's Wheaton (ed. 1863), 1014.

(3) STATE MOVABLE PROPERTY MAY BE SEIZED.

§ 340.

Whatever conduces to the support of either belligerent may be seized by the other belligerent on land or sea.

See infra, §§ 368 ff.

In U. S. v. McRae (L. R., 8 Eq., 69), it was held that the Government of the United States was entitled, as of right, to receive from a Confederate agent all moueys, goods, and treasure which were public property of the United States at the breaking out of the war, and that it was entitled to all other such property of the Confederate Government in England which it could claim as successor to the Confederate Government, subject to all prior claims against such Government. But this does not limit the full right to seize an enemy's public treasure in an invasion of such enemy's territory.

As to the burning of Washington in 1815, see infra, § 349; 2 Ingersoll's Hist.
Late War, 1st series, ch. viii.

(4) So of PROPERTY IN ENEMIES' TERRITORIAL WATERS.

§ 341.

. Property on an enemy's territorial waters rests, on principle, in this relation, on the same basis as property on his land.

Supra, §§ 27 ff.; infra, §§ 342 ff.

As to rights on territorial waters, see Mr. Gallatin's report, Feb. 1, 1810. 3 Am.
St. Pap. (For. Rel.), 338.