In quoting these authorities, which are general in their bearing, I do not stop to consider their modification according to the discretion of the belligerent power. I accept them as the starting-point in the present inquiry, and assume that by the Rights of War enemy property may be taken. But rights with regard to such property are modified by the _locality_ of the property; and this consideration makes it proper to consider them under two heads: _first_, rights with regard to enemy property actually within the national jurisdiction; and, _secondly_, rights with regard to enemy property actually outside the national jurisdiction. It is easy to see, that, in the present war, rights against enemy property actually outside the national jurisdiction must exist _a fortiori_ against such property actually within the jurisdiction. But, for the sake of clearness, I shall speak of them separately.
_First._ I begin with the Rights of War over enemy property actually within the national jurisdiction. In stating the general rule, I adopt the language of a recent English authority.
“Although there have been so many conventions granting exemption from the liabilities resulting from a state of war, the right to seize the property of enemies found in our territory when war breaks out remains indisputable, according to the Law of Nations, wherever there is no such special convention. All jurists, including the most recent, such as De Martens and Klüber, agree in this decision.”[23]
This statement is general, but unquestionable even in its rigor. For the sake of clearness and accuracy it must be considered in its application to different kinds of property.
1. It is undeniable, that, in generality, the rule must embrace real property, or, as termed by the Roman Law and the Continental systems of jurisprudence, _immovables_; but so important an authority as Vattel excepts this species of property, for the reason, that, being acquired by consent of the sovereign, it is as if it belonged to his own subjects.[24] But personal property is also under the same safeguard, and yet it is not embraced within the exception. If such, indeed, be the reason for the exception of real property, _it loses all applicability where the property belongs to an enemy who began by breaking faith on his side_. Surely, whatever the immunity of an ordinary enemy, it is difficult to see how a rebel enemy, whose hostility is bad faith in arms, can plead any safeguard. _Cessante ratione, cessat et ipsa lex_, is an approved maxim of the law; and since with us the reason of Vattel does not exist, the exception which he propounds need not be recognized, to the disparagement of the general rule.