"It is not alone upon his decisions on questions of constitutional law that Marshall's fame as a judge rests. So marked was his supremacy in that domain, and so profoundly did his opinions affect the course of the national development, that we are accustomed to think of him in the United States only as the expounder of the Constitution. This is not, however, his sole title to fame. He is known in other lands as the author of important opinions on questions which deeply concern the welfare and intercourse of all nations. In the treatment of questions of international law he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering and the same certainty in applying fundamental principles, that distinguished him in the realm of constitutional discussions; and it was his lot in more than one case to blaze the way in the establishment of rules of international conduct "It is not, however, by any means essential to Marshall's preeminence as a judge, to show that his numerous opinions are altogether free from error or inconsistency. In one interesting series of cases, relating to the power of a nation to enforce prohibitions of commerce by the seizure of foreign vessels outside territorial waters, the views which he originally expressed, in favor of the existence of such a right (Church v. Hubbart, 2 Cranch, 187), appear to have undergone a marked, if not radical, change in favor of the wise and salutary exemption of ships from visitation and search on the high seas in time of peace (Rose v. Himely, 4 Cranch, 241)-a principle which he affirmed on more than one occasion. (The Antelope, 10 Wheaton, 66.) In the reasoning of another case, though not in its result, we may perhaps discern traces of the preconceptions formed by the advocate in the argument concerning the British debts. (Supra, § 1150.) This was the case of Brown v. United States, 8 Cranch, 110, which involved the question of the confiscability of the private property of an enemy on land, by judicial proceedings, in the absence of an act of Congress expressly authorizing such proceedings. On the theory that war renders all property of the enemy liable to confiscation, Mr. Justice Story, with the concurrence of one other member of the court, maintained that the act of Congress declaring war of itself gave ample authority for the purpose. The majority held otherwise, and Marshall delivered the opinion. Referring to the practice of nations and the writings of publicists, he declared that, according to the modern rule,’ 'tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated; that this rule' seemed to be totally incompatible with the idea that war does of itself vest the property in the belligerent 6 government; and, consequently, that the declaration of war did not authorize the confiscation. Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found,' and that the 'mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice,' though they will more or less affect the exercise of this right,' can not impair the right itself.' Nor were the two declararations quite consistent. The supposition that usage may render unlawful the exercise of a right, but can not impair the right itself, is at variance with sound theory. Between the effect of usage on rights and on the exercise of rights, the law draws no precise distinction. A right derived from custom acquires no immutability or immunity from the fact that the practices out of which it grew were ancient and barbarous. We may, therefore, ascribe the dictum in question to the influence of preconceptions, and turn for the true theory of the law to an opinion of the same great judge, delivered twenty years later, in which he denied the right of the conqueror to confiscate private property, on the ground that it would violate the modern usage of nations, which has become law.' (United States v. Percheman, 7 Peters, 51.)" John Marshall, an address, by J. B. Moore, 16 Political Science Quarterly (Sept., 1901), 400-402, 404-405, 408-410. See, as to the development of law, The Paquete Habana, 175 U'. S. 677, supra, § 1, I. 7-8. Debts due by one belligerent state to the citizens of the other are not extinguished by the war. 72 Stanbery, At. Gen., 1866, 12 Op. 72. 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. Planter's Bank v. Union Bank, 16 Wall. 483. "When a rebellion becomes organized, and attains such proportions as to be able to put a formidable military force in the field, it is usual for the established government to concede to it some belligerent rights. This concession is made in the interests of humanity, to prevent the cruelties which would inevitably follow mutual reprisals and retaliations. But belligerent rights, as the terms import, are rights which exist only during war; and to what extent they shall be accorded to insurgents depends upon the considerations of justice, humanity, and policy controlling the government. The rule stated by Vattel, that the justice of the cause between two enemies being by the law of nations reputed to be equal, whatsoever is permitted to the one in virtue of war is also permitted to the other, applies only to cases of regular war between independent nations. It has no application to the case of a war between an established government and insurgents seeking to withdraw themselves from its jurisdiction or to overthrow its authority. Halleck's Inter. Law, c. 14, sect. 9. The concession made to the Confederate government in its military character was shown in the treatment of captives as prisoners of war, the exchange of prisoners, the recognition of flags of truce, the release of officers on parole, and other arrangements having a tendency to mitigate the evils of the contest. The concession placed its soldiers and military officers in its service on the footing of those engaged in lawful war, and exempted them from liability for acts of legitimate warfare. But it conferred no further immunity or any other rights. It in no respect condoned acts against the government not committed by armed force in the military service of the rebellious organization; it sanctioned no hostile legislation; it gave validity to no contracts for military stores; and it impaired in no respect the rights of loyal citizens as they had existed at the commencement of hostilities. Parties residing in the insurrectionary territory, having property in their possession as trustees or bailees of loyal citizens, may in some instances have had such property taken from them by force; and in that event they may perhaps be released from liability. Their release will depend upon the same principles which control in ordinary cases of violence by an unlawful combination too powerful to be successfully resisted. "But, debts not being tangible things subject to physical seizure and removal, the debtors can not claim release from liability to their creditors by reason of the coerced payment of equivalent sums to an unlawful combination. The debts can only be satisfied when paid to the creditors to whom they are due, or to others by direction of lawful authority. Any sum which the unlawful combination may have compelled the debtors to pay to its agents on account of debts to loyal citizens can not have any effect upon their obligations; they remain subsisting and unimpaired. The concession of belligerent rights to the rebellious organization yielded nothing to its pretensions of legality. If it had succeeded in its contest, it would have protected the debtor from further claim for the debt; but, as it failed, the creditor may have recourse to the courts of the country as prior to the rebel lion. It would be a strange thing if the nation, after succeeding in suppressing the rebellion and reestablishing its authority over the insurrectionary district, should, by any of its tribunals, recognize as valid the attempt of the rebellious organization to confiscate a debt due to a loyal citizen as a penalty for his loyalty." Williams r. Bruffy (1877), 96 U. S. 176, 186–188. XI. CONQUEST. § 1156. "Conquest gives only an inchoate right, which does not become perfect till confirmed by the treaty of peace, and by a renunciation or abandonment by the former proprietor." Opinion of Mr. Jefferson, Sec. of State, to the President, Mar. 18, 1792, As to the question of conquest, see the case of the Georgiana and the See Heimweh, Droit de conquête et plebiscite. In the International American conference at Washington, in 18891890, an interesting discussion took place of the subject of conquest, which bore, in its final disposition, a vital relation to the plan of arbitration adopted by that body. The delegates of the Argentine Republic and Brazil offered, January 15, 1890, a series of resolutions, the eighth article of which reads as follows: "Acts of conquest, whether the object or the consequence of the war, shall be considered to be in violation of the public law of America." The resolutions were referred to the committee on general welfare, which, April 18, 1890, recommended the adoption of the following declarations: 1. That the principle of conquest shall never hereafter be recognized as admissible under American public law. 2. That all cessions of territory made subsequent to the present declaration shall be absolutely void if made under threats of war or the presence of an armed force. 3. Any nation from which such cessions shall have been exacted may always demand that the question of the validity of the cessions so made shall be submitted to arbitration. 4. Any renunciation of the right to have recourse to arbitration shall be null and void whatever the time, circumstances, and conditions under which such renunciation shall have been made." These declarations were subscribed by three members of the committee, respectively, representing the Argentine Republic, Bolivia, and Venezuela. Three other members, representing Colombia, Brazil, and Guatemala, stated that they adopted only the first of the declarations. Mr. Varas, a delegate from Chile, stated that the delegation from that country would abstain from voting or taking part in the debate on the resolutions. Mr. Henderson, a delegate from the United States, offered, as expressing the views of the United States delegation, the following resolution: 66 WHEREAS, In the opinion of this conference, wars waged in the spirit of aggression or for the purpose of conquest should receive the condemnation of the civilized world; therefore, "Resolved, That if any one of the nations signing the treaty of arbitration proposed by the conference shall wrongfully and in disregard of the provisions of said treaty prosecute war against another party thereto, such nation shall have no right to seize or hold property by way of conquest from its adversary." After a long discussion, in which the delegate from Peru supported the recommendation of the committee as a whole, the report was adopted by a majority of 15 to 1. The delegations voting affirmatively were Hayti, Nicaragua, Peru, Guatemala, Colombia, Argentine Republic, Costa Rica, Paraguay, Brazil, Honduras, Mexico, Bolivia, Venezuela, Salvador, and Ecuador. The United States voted in the negative, while Chile abstained from voting. Further discussion then took place, after which a recess was held in order that an agreement might be arrived at which would secure the vote of the United States delegation. On the session being resumed Mr. Blaine presented the following plan: "1. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law. "2. That all cessions of territory made during the continuance of the treaty of arbitration, shall be void if made under threats of war or in the presence of an armed force. "3. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration. "4. Any renunciation of the right to arbitration, made under the conditions named in the second section, shall be null and void." The conference unanimously agreed to accept this as a substitute for the former report, Chile abstaining from voting. But, as the plan of arbitration never became effective, the declaration against conquest, which was made an integral part of it, can now be cited only as an expression of opinion. International American Conference, Reports of Committees and Discussions, II. 1122, 1123, 1146. |