Opinion of Mr. Commissioner Frazer in abandoned and captured property cases, No. 225, and others. (See p. 49, ante.)

The capture or destruction of property on land belonging to individual enemies is justified by the modern law of nations, if there be military reasons for it; in the absence of good military reasons such captures are generally without the support of the public law. When such reasons do exist, such capture or destruction is, in the nature of things, quite as proper as the capture or destruction of such property on the high seas.

The latter is maintained because an enemy’s commerce and navigation are “the sinews of his naval power,” to take or destroy which is, therefore, a legitimate act of war. (Wheat. Int. Law; Lawrence, 626.)

“The sinews” of his military power on land must, in view of the natural law, be equally the subject of capture or destruction by an invading army. Cotton was held to be such by the Supreme Court, in the case of Mrs. Alexander’s cotton, (2 Wall., 404.) The reasoning of the opinion of the Chief Justice in that case is, I think, unanswerable.

The war of the American rebellion was a civil war—an immense one, too, and the Government had all the rights of war which it would have had if its enemy had been an independent nation. Even the rebel organization was recognized by Her Majesty’s government as a belligerent, i. e., having the rights of war 5 and certainly that government is thereby estopped from denying, and, indeed, never has denied, that belligerent rights also belonged to the Government of the United States. Every act of war recognized as lawful by the public law between independent states at war was, therefore, lawful on the part of the United States, and involved no cause for reclamation on the part of neutrals. On this ground only, as a lawful belligerent act, could a blockade be maintained. The subject is discussed very fully by the Supreme Court in the Prize Cases, 2 Black; and I think the reasoning of that court is conclusive.

Neutral’s property in the enemy’s territory stands exactly on the same footing as any other property found there. Indeed, a neutral domiciled there is an enemy in view of the public law. He may be compelled to serve the enemy as a soldier even, and his property must contribute to the support of the enemy’s hostile operations without reference to his national character. I think that all authorities, British, continental, and American, are in accord upon the proposition that the belligerent right of capture of movable property on land is in no respect affected by the nationality of its owner.

Whatever is lawfully done in the exercise of belligerent rights cannot involve any liability contemplated by the treaty 5 it cannot possibly be a tort.

The belligerent right of capture must not be confounded with the right of eminent domain, which is a civil right exercised in virtue of sovereignty. The two are wholly distinct and rest upon different grounds.

Grant’s case, (C. Cls., 1863,) cited by Her Britannic Majesty’s counsel, was not a destruction of enemy’s property; it was not in the enemy’s lines, nor in a seceding State. It was a destruction of property in Arizo, within actual possession of the United States, to prevent its falling into the enemy’s hands, and by the Constitution of the United States compensation for it was secured, and this only did the court decide.

But are we to be told that the Government of the United States is compelled by its Constitution to pay its rebellious citizens for their [Page 238] property destroyed as a lawful, belligerent act? Has its Constitution thus tied its hands as against a rebellion? Might the rebels, without liability, exercise all recognized belligerent rights against it, including the capture of the property of British subjects found in the loyal States, and yet it do the like only subject to the duty of making compensation?

From all this absurdity there is no escape if the belligerent right of capture and destruction shall be confounded with the sovereign right of eminent domain. And indeed captures on the high seas must then go into the same general category.

In fine, a constitutional provision—the condition of compensation for property taken for public use—intended only to restrain civil administration, would be held to so trammel belligerent rights in time of civil war that effective hostilities against rebels might sometimes be practically impossible.

Now, Congress saw that the full exercise of the belligerent right of capture on land was, as to cotton especially, of the greatest military importance, and that such capture would, therefore, be extensive, and that it would fall alike on the loyal and the disloyal citizen, and also upon foreign residents in the South who had not actually violated any duty. It was a generous policy to mitigate calamities which a war thus lawfully conducted would nevertheless impose upon persons guilty of no actual wrong. If the capture was a lawful act of war, to restore a portion of the proceeds would been act of grace and generosity constituting no foundation for a claim for more; and if a particular mode was at the same time provided, whereby this partial restitution might be sought, that mode only could be resorted to. The right generously given and the mode of seeking it must go together.

The act concerning captured and abandoned property, allowing loyal persons to recover in the Court of Claims, was just this act of grace. (Anderson’s case, 9 Wall., 56.)

My conclusions are:

Capture of cotton of British owners within the rebel territory was not wrongful by international law.
It was not wrongful under the act of Congress.
It was a belligerent right, and not the civil and sovereign right of eminent domain.
Without the act of Congress no compensation was due.
Only such liability as the act of Congress imposes exists, and it must be sought in the mode prescribed by the act.

Again, it is a principle of international law established by the practice of all civilized states, and sanctioned by every consideration of expediency and justice, that where a nation has provided an adequate municipal remedy by judicial proceedings for wrongs done by it to foreigners domiciled within its jurisdiction, as well as to its own subjects, no international reclamation can be made, at least until this municipal remedy has been exhausted.

Upon this principle, also, this commission should make no award in this class of cases. The Court of Claims was open to these claimants, with jurisdiction to give them reasonable compensation for captures of cotton. There citizens of the United States must go for relief within the time limited by act of Congress; and I cannot assent to the proposition that domiciled aliens have a better claim than citizens.

I would not be understood to hold that the right of capture of enemy’s property on land, as recognized in recent times, is as broad as it is at sea. The military reason for it must be more palpable and immediate. There is a remote possibility that to take the lives of non-combatants—[Page 239]enemies—may weaken the enemy, for these might be forced into the armies of the enemy; so, too, as to an indiscriminate capture or destruction of private property. But all this is condemned by the modern law, and I would shudder to countenance a revival of practices so horrible.

I admit, too, that there may be difficulty in defining the precise limits of the right of capture on land. It cannot be doubted that it may be as broad and general as the practice of the enemy in that regard: for retaliation is fully justified by institutional writers, and by the practice of all nations.

So I suppose it would not be questioned that arms, munitions of war-commissary and quartermaster’s supplies, intended for sale to the enemy, might be captured or destroyed. So, too, private manufactories intended to furnish arms to be sold to the enemy, &c., &c. This enumeration might be extended.

I feel safe in asserting that no nation in Christendom has practically abandoned the right to capture and destroy in all such cases. It is a direct blow at the military power of the enemy.

So if an enemy banker has engaged to supply the enemy government with money, may not the cash in his vaults for that purpose be captured?

This, too, would be a direct blow at the sinews of his military power, quite as effective and not less humane than taking of life in battle.