CONGKESS, U. S. 



363 



stincts it outrages, I deny it. Such is not the 

 law of nations. 



" To give a plausible aspect to the proposition, 

 the advocates of this bill have gone back to 

 Grotius and to Bynkershoek for the rules of 

 war, and even then have omitted to give what 

 Grotius calls the temperamenta, or restraints 

 upon the rules. You might as well attempt to 

 substitute the code of Moses for the beatitudes 

 of the gospel. Anything can be established by 

 such resort to the authorities. 



"But what then, Mr. Speaker? Does any 

 man suppose that these writers give us the laws 

 of war as upheld, sanctioned, and used by the 

 Christian and civilized states of to-day ? Noth- 

 ing would be further from the fact. Commerce, 

 civilization, Christian culture, have tempered 

 and softened the rigor of the ancient rules ; and 

 the state which should to-day assume to put 

 them in practice would be an outcast from the 

 society of nations. Nay, more, they would 

 combine, and rightfully combine, to stay its 

 hand. For the modern law of war, you must 

 look to the usages of civilized states, and to the 

 publicists who have explained and enforced 

 them. Those usages constitute themselves the 

 laws of war. 



" In relation to the capture and confiscation 

 of private property on the land, I venture to 

 say, with great confidence, and after careful 

 examination, that the result of the whole mat- 

 ter has never been better stated than by our 

 own great publicist, Mr. Wheaton : 



But by the modern usages of nations, which has now 

 acquired the force of law, temples of religion, public 

 edifices devoted to civil purposes only, monuments of 

 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 cas3 of an absolute and unqualified conquest of the 

 enemy's country. Elements of International Law, p. 

 421. 



" It is not too much to say that no careful 

 student of international law will deny that this 

 passage from Mr. Wheaton fairly expresses the 

 modern usage and law upon the subject ; but 

 you will permit me to refer for a moment to 

 the doctrine stated by my illustrious predeces- 

 sor, whose name has been so often invoked in 

 this debate, John Quincy Adams. ' Our ob- 

 ject.' he says, in a letter to the Secretary of 

 State, ' is the restoration of all the 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.' (Mr. 

 Adams to the Secretary of State, August 22, 

 1815.) 



"Again, he says, in a letter to Lord Castle- 

 reagh, February 17, 1816 : 



But as by the same usages of civilized nations private 

 property is not the subject of lawful capture in war 

 upon the land, it is perfectly clear that in every stipu- 



lation private property shall be respected, or that upon 

 the restoration of places during the war, it shall not be 

 carried away. i American State Papers, pp. 116, 117, 

 122, 123. 



" A volume might be filled with like citations 

 from modern writers. I will content myself 

 with perhaps the latest expression, and from a 

 great statesman, a native of Massachusetts, and 

 of my own county of Worcester : 



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 respect- 

 ed. The wanton pillage or uncompensated appropri- 

 ation of individual property by an army even in posses- 

 sion of an enemy's country, is against the usage of mod- 

 ern times. Such a proceeding at this day would be 

 condemned by the enlightened judgment of the world, 

 unless warranted by particular circumstances. Every 

 consideration which upholds this conduct in regard to 

 a war on land favors the application of the same rule 

 to the persons and property of citizens of the belliger- 

 ents found upon the ocean. Mr. Marcy to the Count 

 de Sartiges, July 28, 1856. 



" Such I believe to be the settled law and 

 usage of nations. A careful examination of the 

 arguments made on this subject has served but 

 to strengthen and deepen this conviction. 



"I do not forget, Mr. Speaker, that the case 

 of Brown vs. The United States (8 Cranch, 

 110), has been often referred to in this debate 

 as affirming the contrary rule. The points de- 

 cided in that case I have before stated to the 

 House. The points, the only points, decided 

 were that British property found in the United 

 States on land, at the commencement of hostil- 

 ities (war of 1812), could not be condemned as 

 enemy's property without an act of Congress 

 for that purpose, and that the declarp.tion of 

 war was not sufficient. Gentlemen have refer- 

 red to the obiter dicta, the discussions of the 

 judges, as the decision of the court. The dis- 

 tinction is familiar and vital, but has been lost 

 sight of in this debate. Only the points neces- 

 sarily involved in the result constitute the de- 

 cision. 



" But I return from this digression to say, 

 Mr. Speaker, that the distinction sought to be 

 established by the passages cited from the dis- 

 cussions, in the case of Brown vs. The United 

 States, between the law of war and the miti- 

 gations of that law which the usages of modern 

 nations have introduced, has no foundation in 

 principle. It is in the usages of civilized and 

 Christian nations that we are to seek the law 

 of nations. As the law merchant has grown 

 up from the usages of trade and commerce, so 

 has the modern law of nations grown up from 

 the usages of enlightened states. The ancient 

 barbarous rules of war have been tempered and 

 softened by commerce, by the arts, by diffused 

 culture, and, more than all, by the spirit of the 

 gospel ; and all Christian states recognize with 

 joy and with obedience the milder law. In 

 the jurisprudence of nations, as in our own, 

 there is one law felt above all others, the law 

 of progress. Apparently at rest, it is ever si- 



