for itself, under the sanction of the public opinion of the world, what reasons are sufficient for embarking in war. Waiving, therefore, this preliminary question, let us attend to the rules by which war is to be conducted, and the effects which it produces upon preexisting rights.

We have before seen that, in this country, Congress has the sole power of declaring war, and making all the provisions required for prosecuting it; while the president and senate are empowered to negotiate the terms of peace. This makes it unnecessary here to inquire what amounts to a declaration of war, or whether a formal declaration must precede the commencement of hostilities; for here war exists the moment that Congress has so declared, and not before. And the theory is, that when two nations are at war, all the individuals of these two nations are personally at war, each with the other; because government speaks the voice and expresses the sentiments of the whole community. How different is the fact, I need not say; but the laws of war are framed upon this theory. Each citizen, therefore, is presumed to espouse personally the cause of his own government, right or wrong, and becomes a traitor by adhering to the other side. Hence all pre-existing contracts between citizens of the two nations are suspended, because neither can sue the other during war; and all contracts made during war are absolutely void, with the single exception of contracts of ransom to be mentioned hereafter. It has also been held, as a matter of strict right, that each nation may confiscate the debts due from its citizens to enemies, and may seize not only the property but the persons of enemies, wherever they may be found, except within neutral jurisdiction. This savage right, however, is seldom asserted in its full rigor, in modern warfare; and with respect to persons and property within each other's jurisdiction, it is not unusual to provide beforehand, by treaty, that each nation shall give to the citizens of the other a reasonable time for removal. Even without such a stipulation, our courts have decided that no seizure or confiscation can here take place without a special provision of Congress to that effect. This of itself is an important security to alien enemies in case of a war with us: and the cause of humanity is also everywhere promoted by the granting of licenses, passports, and safe-conducts, for the protection of alien enemies and their property; the violation of which is an offence against the law of nations. But with these exceptions and modifications, the theory of individual hostility and responsibility is fully carried out in the practice of war. All commercial, as well as diplomatic, intercourse is broken off; and even partnerships existing between belligerents are held to be dissolved. Nor is this all; for property may sometimes be liable to seizure as hostile, when the owner himself is not an alien enemy. Thus the produce of hostile soil is liable to capture, whoever may be the owner; and the same is true of property found in a hostile country belonging to a person having his domicile, or a commercial establishment,

there; though not a subject of that government. The test of domicile, in such cases, is residence in the hostile country, with the intention of remaining; or, in case of temporary absence, the intention of returning. Again, according to the rule asserted by some of the European nations in 1756, but not universally aquiesced in, if a neutral be engaged in the colonial or coasting trade of the enemy, which trade was not open to foreigners in time of peace, such employment takes away his neutral protection, and subjects his property to capture. Lastly, if property be found under the flag and protection of the enemy, that circumstance alone gives it a hostile character. And it may be observed generally, that where property has a hostile character at the commencement of a voyage, it cannot avoid that character by transfer during the voyage. On the whole, then, it appears, that from the moment war breaks out, as a matter of stern right, both the persons and property of the enemy are subject to seizure wherever they can be found, except within neutral jurisdiction; and that property may be seized, when it does not actually belong to an enemy, if it have either of the foregoing characteristics of hostile property. These harsh doctrines spring legitimately from the ancient spirit of war, which was to do the enemy as much harm as possible, by every means whatsoever. But the modern practice of nations, under a more humane spirit, has rendered such doctrines rather mementoes of the past than guides for the present. This will be evident by a reference to some of the prevailing usages of war.

One of the acts which frequently precedes the breaking out of hostilities is, the imposition of an embargo. This we have seen to be one of the incidental powers of Congress. An embargo may have one of two objects: either to prevent the ships of the nation declaring it from leaving the port and becoming a prey to the enemy; or to detain the ships of the enemy in pledge, until subsequent events determine whether they shall be condemned or not, as hostile property. The result, in such case, will greatly depend upon the course pursued by the enemy; for in war the rule is, not to do as you would be done by, but to do as you are done by. In other words retaliation is deemed admissible and often practised.

Another measure which may either precede or accompany open war, is the authorizing of reprisals. We have seen that Congress is expressly empowered to grant letters of marque and reprisal; and the law of nations authorizes such a step, whenever the subjects of one nation have been injured by those of another, and a demand of redress has not been complied with. Reprisals may extend to the persons as well as property of the offending nation, though usually to the latter; and they are for the most part confined to the high seas. The persons seized are sometimes held by way of hostage, and the property by way of pledge, until the conduct of the offender shall determine the disposition to be made of them.

I have said that the ancient spirit of war was to do the enemy as much harm as possible. But the modern rule is to use no more violence than is necessary to accomplish the purposes of the war. Hence, even in ravaging the territory of the enemy, it is usual not to molest any persons not actually engaged in hostility, unless they be found violating some of the usages of war. To take captive or put to death the members of the municipal government, women and children, or any other persons pursuing the ordinary avocations of civil life, would, therefore, be regarded as a barbarous outrage upon the usages of modern warfare. And a similar change has taken place in the treatment of prisoners of war. Once it was deemed right to put them to death. Now this fate is reserved for spies only. Nor are prisoners now reduced to slavery as in ancient times, when slavery or death was the only alternative of capture. But, on the contrary, often during the war, and always at the termination of it, the prisoners are either exchanged or ransomed. In fact, it is a part of the discretionary power, as it must be the grateful duty, of the chief officers in command, to alleviate, as far as practicable, the evils of war, by negotiating cartels for the exchange of prisoners, truces for the suspension of hostilities, and capitulations for the surrender of posts.

With respect to hostile property, a similar, though not quite so extensive, amelioration has taken place. Property on land, whether public or private, is now seldom seized or destroyed, unless for the sustenance of the invading army, or by way of retaliation, or when such seizure is absolutely necessary to accomplish the object of the war. But with respect to hostile property at sea, the ancient spirit still prevails in full vigor; and such property is always liable to capture and confiscation. The reason alleged for this difference is, that it is the only effectual method of humbling the maritime power of the enemy, or prosecuting a maritime war to the intended issue. Yet even this right of making captures at sea is subject to several regulations tending to moderate the evils naturally resulting from licensed plunder. Private individuals who rob the enemy without authority from government, are not indeed liable to be treated as pirates; but the main inducement to commit such depredation is taken away by the doctrine that the captures so made belong not to the captors themselves, but to their government, being technically called rights of admiralty. To avoid the effect of this doctrine, and transfer the ownership from the government to the captors, a commission for making prizes is necessary from the government; and this is the case with respect to those private armed vessels called privateers, which are commissioned to cruise against the floating commerce of the enemy. In order to stimulate individual zeal against the enemy, by invoking avarice to the aid of patriotism, the owners of privateers are permitted to retain for themselves the prizes they make; but at the same time they are required to give security to government, that they will respect neutral rights, and conform to the usages of war. Under all pos

sible safeguards, however, the practice of privateering is subject to manifold abuses. It is, in fact, only one step removed from lawless depredation. Efforts have more than once been made to abolish it by treaty; and there is good reason to hope that public sentiment will ere long be too powerful against it to be resisted. We have already seen that in this country privateering is confined to our own wars; it being highly penal for any person within our jurisdiction, and for our own citizens elsewhere, to be concerned in fitting out privateers to cruise against powers with whom we are at peace. It therefore wants but one step more to rid ourselves altogether of this reproach to modern civilization.

When property has been lawfully captured from the enemy, the title, strictly speaking, is changed the moment the capture is completed. It remains, however, subject to recapture or rescue by the former owner or his countrymen. And in the latter case, the right of postliminy intervenes, and the property recaptured, instead of being a new prize belonging to the recapturer, is restored to its original owner, that fellow-countrymen may not thrive upon the misfortunes of each other. But this right of postliminy is subject to many qualifications. In case of captures on land, it does not exist, if the property has been in possession of the captor for twentyfour hours, or has been transferred in good faith to a neutral; and in cases of maritime captures, it does not exist after a regular sentence of condemnation by a prize court. In fact, by the modern usage of nations, there can be no security of title to maritime captures, until such sentence has been pronounced; this being considered the only sure way of furnishing satisfactory proof that the capture was lawful, and not an infringement of neutral rights. By the law of nations, the prize court must be constituted by the government of the captor, and must sit within the dominions of that government or of its ally, and not within the dominions of a neutral power. But it is now held that the condemnation may take place while the prize itself is in a neutral port, and out of the jurisdiction of the court. Further than this, a neutral port cannot be made the theatre of hostile operations. In this country, the district court, by virtue of its admiralty jurisdiction, discharges the functions of a prize court. Such courts professedly administer the law of nations, and their decision is conclusive upon the question of property. If neutral rights be thereby violated, the nation be comes responsible for the injury, but the property passes pursuant to the sentence. A purchaser, therefore, of condemned property is secure in his title against everything but a recapture by the enemy; and a neutral purchaser is secure even against that. The recaptor is secure against the claim of postliminy, unless there be some internal regulation of his government to the contrary. But it sometimes happens that a prize cannot be sent into port; in which case, the captor may either destroy it or permit the former owner to ransom it. Contracts of ransom are highly favored by the law of nations, and the ransom is held equivalent to a safe-con

duct of the ransomer. But the ransom bill is as liable to recapture as the prize itself would have been. With respect to real property in the hands of the captor, the title by conquest is not conclusive, until the treaty of peace. In the event of reconquest, it returns again to the original proprietor by the right of postliminy, notwithstanding intermediate transfers. But if ultimately ceded to the conqueror, the transfers are valid. Finally, with respect to all captures, if the treaty of peace makes no provision concerning them, the right of postliminy is at an end, and the title remains confirmed in the possessor.

§ 253. Neutral Rights. A neutral nation, as the term imports, is one that takes neither side in an impending war. Our natural position with respect to other nations has been eminently favorable to the observance of a strict neutrality; and this has accordingly been our steadfast policy from the commencement of our national existence. Thus far we have entirely avoided those entangling alliances so common among the nations of Europe, which would have required us to embark in war, at the will of others, in order to redeem a pledge. To us, therefore, attached to neutrality both from principle and expediency, the subject of neutral rights is especially interesting.

The grand principle of neutrality is neither to aid nor hinder either of the belligerents, but to stand entirely indifferent between them; and in return for this strict impartiality, not to be in any way molested by them. With some slight exceptions, which will be adverted to, this principle forms the basis of all neutral rights and obligations.

In the first place, neutral territory is not to be made the theatre of hostile operations. This operates as well for the protection of belligerents as neutrals. But the persons and property of each of the belligerents on neutral ground are exempt from liability to seizure by the other; and if a neutral permit such seizure, he is bound to make restitution. But it is no departure from neutrality to permit belligerent forces to pass through neutral territory, provided no acts of hostility be allowed; though a neutral is under no obligation to grant this privilege. When prizes are brought within neutral jurisdiction, which were made in violation of neutral rights, the neutral government may reverse the sentence of condemnation and restore the property for the purpose of vindicating its neutrality; and still more may it reclaim the property of its own citizens, illegally captured. We have already seen that prize courts may not sit within neutral jurisdiction, though the prizes themselves may be brought there to await the adjudication of the proper tribunal. Public ships of war may also be received into a neutral port, provided there be no hostile object, and the same favor be granted to both belligerents; but they may not be built, armed, or equipped there, for the purposes of war. (a) And to

(a) This was the principle at issue in the Alabama case, lately settled by arbitration, between the United States and England.