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public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others.

"Chitty, after stating the general right of seizure, says, 'but, in strict justice, that right can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities.'

"The modern rule, then, would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property.

"This rule seems to be totally incompatible with the idea that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not itself consficate the property of the enemy; and their rules go to the exercise of this right."

Having thus decided that war gives the right, in accordance with international law, to confiscate enemy's property in the situation of this cargo, but not of its own force, the court next proceeded to inquire whether the constitution or laws of the United States had authorized such confiscation. "The constitution confers upon congress the power 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' It is evident then that the power to confiscate is vested in congress, and that it is not included in the power to declare war. The declaration of war, therefore, did

Vol. XII.-5.

not authorize confiscation; and congress had enacted no other law to that effect.

"Neither is it admitted that the executive, in executing the laws of war, may seize and the courts condemn all property which according to the modern law of nations is subject to condemnation. The rule is in its nature flexible. It is subject to infinite modifications; it is not an immutable rule of law, but depends on political considerations which may continually vary. It is a question rather of policy than of law; and like all other questions of policy, is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, and not of the executive or judiciary.

"The court is therefore of opinion that there is error in the sentence of condemnation pronounced in the circuit court in this case, and both direct that the same be reversed and annulled, and that the sentence of the district court be affirmed."

Mr. Justice Story with a minority of the court, held that, "the right of confiscation existing, it was within the power of the executive to enforce confiscation, in the same manner that the executive established blockades, and authorized the capture of the enemy's property at sea, and contraband goods."


Attempts to modify the harshness of the rules relative to capture of private property on water have been made from time to time, but all the progress yet made has been the abolition of privateering and greater protection for the rights of neutrals.

The law on this point at the present time is found in the declaration of Paris (1856), which was as follows: "The plenipotentiaries who signed the treaty of Paris of the 30th of March, 1856, assembled in conference considering:

"That maritime law, in time of war, has long been the subject of deplorable disputes.

"That the uncertainty of the law, and of the duties in such a matter, give rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts.

"That it is consequently advantageous to establish a uniform doctrine on so important a point.

"That the plenipotentiaries assembled in congress at Paris cannot better respond to the intentions by which their governments are animated than by seeking to introduce into international relations fixed principles in this respect.

"The above mentioned Plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of attaining this object, and, having come to an agreement, have adopted the following solemn declaration:

"1. Privateering is, and remains abolished.

"2. The neutral flag covers enemy's goods, with the exception of contraband of war.

"3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.

"4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.

"The governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the

knowledge of the states which have not taken part in the Congress of Paris, and to invite them to accede to it. "Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain the general adoption thereof will be crowned with full


"The present Declaration is not and shall not be binding except between those Powers who have acceded or shall accede to it."

"This Declaration of the six powers of the Paris conference was communicated to other states, and it was stated, in a memorandum of the French Minister of Foreign Affairs to the Emporer, dated June 12, 1858, that the following powers had signified their full allegiance to the four principles-viz.: Baden, Bavaria, Bremen, Brazil, the Duchy of Brunswick, Chili, the Argentine Republic, the German Confederation, Denmark, the two Sicilies, Ecuador, the Roman states, Greece, Guatemala, Hayti, Hamburg, Hanover, the two Hesses, Lubeck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg-Parma, the Netherlands, Peru, Portugal, Saxony, Saxe-Altenburg, SaxeCoburg-Gotha, Saxe-Meiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany and Wurtemberg. The executive government of Uruguay also gave its full consent to all the four principles subject to the ratification of the legislature. Spain and Mexico adopted the last three as their own, but, on account of the first article, declined acceding to the entire Declaration. The United States adopted the second, third and fourth propositions, independently of the first, offering, however, to adopt that also with the following amend

ment, or additional clause, 'and the private property of subjects or citizens of a belligerent on the high seas, shall be exempt from seizure by the public armed vessels of the other belligerent except it be contraband.' The proposition thus extended has been accepted by Russia, and some other states have signified their approbation of it."

Both the United States and Spain abided by the provisions of the declaration of Paris, during their recent war.


"The interruption or suspension of neutral commerce which results from the forcible closing of a belligerent's ports or harbors is called a blockade."

"The most extensive, and in some respects the most effective, restraint which the law of nations permits a belligerent to impose upon neutral commerce is that involved in the exercise of the right of blackade. The rules of maritime capture permit him to seize upon the high seas certain contraband articles, which are destined to the enemy's use, or are calculated to aid that enemy in his military operations. But non-contraband articles are exempt from seizure, even though they have a belligerent destination, and the ship incurs no liability whatever. By the establishment of a blackade, however, he may not only prevent the introduction of contraband articles, but may absolutely prohibit access to his enemy's coast, and so, for the time, interrupt all commercial intercourse with the outside world." •

In order to render a blockade binding it must be effective.10 A "paper" blockade is no longer recog≫ See provisions of Declaration of

• Davis on International Law, page


• Davis on International Law, p.



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