been held that civil wars are governed by the same rules, on the subject of the confiscation of enemy property, as international wars. 1 Our Supreme Court applied the doctrine fully to the hostile property of the citizen enemies of the rebellion." From the consolidated cases of the Amy Warwick and others, above cited, may be deduced the following settled propositions: I. That the civil war between the United States and the rebellious citizens had such character and magnitude as to give to the United States the same rights and powers which they might have exercised against a foreign enemy in a public war. II. That "all persons residing within the hostile territory, whose property may be said to increase the resources of the hostile power, were liable to be treated as enemies, though not foreigners." III. That "it is not unconstitutional to treat the property of domestic enemies as though it were the property of foreign enemies." This decision, of the consolidated cases, was upon naval captures, but there can be no difference between enemy property upon the sea, and that upon land, (in case the political department decides to proceed against the latter,) so far as concerns the constitutional right to condemn either when held or controlled by enemy citizens. In several places, in this decision, the court speak of enemy property without distinguishing between these two kinds; they say, "the right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure and destruction of his property, is a necessary result of a state of war." $284. The Doctrine Applied in Exposition of Legislation. In a later case the court, discussing legislation of Congress upon the subject, after stating the provisions of the statute which was under consideration, thus strongly reiterated the doctrine: The question, therefore, is, whether the action of Congress 66 Rose v. Himley, 4 Cr. 272; The Santissima Trinidad, 7 Wheat. 306; Martin v. Mott, 12 Wh. 29, 32. 2 The Amy Warwick, Crenshaw, Hiawatha and Brilliante, 2 Black, 636. Amy Warwick et al., 2 Black, 671. was a legitimate exercise of the war power. The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It therefore includes the right to seize and confiscate all property of any enemy, and to dispose of it at the will of the captor. This is and always has been an undoubted belligerent right. If there were any uncertainty respecting the existence of such a right it would be set at rest by the express grant of power to make rules respecting captures on land and water. * * * * * * * * * "It is sufficient that the right to confiscate the property of all public enemies is a conceded right. Now, what is that right, and why is it allowed? It may be remarked that it has no reference whatever to the personal guilt of the owner of confiscated property, and the act of confiscation is not a proceeding against him. The confiscation is not because of crime, but because of the relation of the property to the opposing belligerent -a relation in which it has been brought in consequence of its ownership. "War existing, the United States were invested with belligerent rights in addition to the sovereign powers previously held. Congress had then full power to provide for the seizure and confiscation of any property which the enemy or adherents of the enemy could use for the purpose of maintaining the war against the government. It is true the war was not between two independent nations. But because a civil war, the government was not shorn of any of those rights that belong to belligerency. "It is ever a presumption that inhabitants of an enemy's territory are enemies, even though they are not participants in the war, though they are subjects of neutral states, or even subjects or citizens of the government prosecuting the war against the state within which they reside."1 Miller v. United States, 11 Wall. 308, 313. Again, the Supreme Court said of the same statute1 that it "was designed to introduce the principle of confiscating enemy property seized on land, like that seized on water. Applying the confiscation, however, to the property of a limited class of enemies instead of to all enemies, it was conceived that the proceeding should be, in its essential features, analogous to those which the courts of admiralty were accustomed to use in property captured at sea.' 1 Act to Suppress Insurrection, etc., 12 Stat. L. 589. 2 Tyler v. Defrees, 11 Wall. 331. § 285. Property. 295 302 What are Contraband Goods?... 300 ... 305 The Hostile Status of an Owner Imputed to his It is hostile ownership only which gives the enemy character to property, as has been shown. Such ownership is predicated, in all cases where property is under the control of an enemy, without regard to the nice distinctions of title known to municipal law. Such ownership is presumed in all cases in which the person in control uses property for hostile purposes. Conversely, the use of property for hostile purposes, such as the breaking of a blockade, impresses the hostile character upon the owner though he be nominally a neutral, and renders such property confiscable by reason of its ownership. The hostility of property always rests upon the legal fiction, that it is what its owner is. This fiction attaches to all enemy property, whether confiscable after capture at sea, or after seizure upon land; whether under the ordinary operations of prize law, or the extraordinary extension of war usage by statute. The jus in re is always found in the enemy ownership. The right to the thing never vests in the capturing or seizing belligerent by reason of any act done in, with or by the thing, except on the assumption that such act imparts the hostile character to the owner, which gives the hostile character to the thing. The enemy owner, who acknowledges no allegiance to the capturer, is not an offender, nor is his property an offending thing: therefore, the question of "prize or no prize" is not an inquiry into the guilt or innocence of the res, but involves only the hostile or friendly character of it. Though the term "innocent" is sometimes used by writers on public law as antithetical with hostile, yet the term friendly is far less likely to mislead. § 286. The Domicile of the Owner Generally Indicates the Status of his Property. Domicile fixes the national character of the owner, as a general proposition. A merchant's place of permanent residence and business is his domicile in contemplation of public law, and establishes his national status as a friend or enemy, whatever may be really the country to which his personal allegiance is due. This is the presumption of public law. 2 And such presumption cannot be rebutted by proof of intent to return to a former country to which he professes allegiance, though it may be by the proof of conclusive facts.3 Caught in the enemy's country upon the sudden breaking out of war, he may remain there long enough to gather up his goods and take them out without acquiring the enemy character or imparting it to his effects; but if, while apparently preparing to leave, he should engage in new enterprises or specu 1 Wilson v. Marryatt, 8 Term, 31; The Venus, 8 Cr. 288; Bentzon v. Bogle, 9 Cr. 191; The Anne Greene, 1 Gal. 284; The Dos Hermanos, 2 Wheat. 76; The Nereide, 9 Cr. 388; The Diana, 5 Rob. 60; The Harmony, 2 Rob. 322; McConnell v. Hector, 3 Bos. & Pull. 114. 2 The Bernon, 1 Rob. 103; Elbers v. Ins. Co., 16 Johns, 128. 3 The Ann, 1 Dod. 221; The Venus, 8 Cr. 279; La Virginie, 5 Rob. 98; The Joseph, 1 Gal. 545; The St. Lawrence, 1 Gal. 467. |