is still in that enemy's hands. To obtain a right to it he must reduce it to possession. "Owner of all property taken from the enemy," says Grotius. "We seize on the enemy's property and convert it to our own use," says Vattel. The Supreme Court employs a similar phrase, authorizing "the seizure or destruction of enemies" property." Until we seize the horses on which the enemy has mounted his cavalry, or the muskets which he has placed in the hands of his soldiers, they are not ours. As to tangible property, such as horses and muskets, we must capture before we own.
When we propose to take and cancel enemies" claims to service-in other woods, to emancipate the slaves of our enemies-does the rule hold good? Must we obtain possession of the persons of these slaves before we can declare them to be free of their boundage?
In this case the question is not of seizing and destroying tangible property belonging to the enemy. Even if a slave were an article of merchandise, we do not propse ot ourselves the possession and destruction of that article. If we did, it could not be ours to possess until we captured it, not to destroy until the laws against murder were repealed.
The property with which we propose to deal, and of which we seek to deprive our enemies, is property of a character very different to that of property in horses or muskets. It consists of a right or claim; the only right over a slave by a master which is recognized in the Constitution-the claim to that slave's service or labor.
This is, strictly speaking, a species of property in the nature of a demand, to be satisfied in the furute. It is a debt of a peculiar nature, it is true; not payable in money; not recoveralbe by suit in court; enforced by physical means; but still essentially a dept. Service or labor can make it; as practically binding, within the State which enacted these laws, as the debt an artisan might contract, if he gave, in payment of property bought, his promissory note for so many months" labor. It is a debt due by an inhabitant of the United States to an enemy of the United States. a
Property of this description, being of an intangible character, cannot be physically seized or destroyed. It is evident, therefore, that the usual rule that the seizure, by physical force, of enemies" property must precede our ownership of the same, can have no practical application in this case.
But debts can be confiscated, and after being confiscated they can be canceled so that the debtor shall be forever free of the same. Nor is there in the international code any rule or law to the effect
a The question is not mooted here whether, because of the existing civil war, slaves held within the insurrectionary States are, in law, enemies or not. We have seen that the principle on which the inhabitants of the insurrectionary States, without reference to personal loyalty, are held to be enemies is, first, because of their domicile; and secondly, because their property may be used to increase the revenue of the hostile power. But slaves are persons acting under duress; they have no voluntary domicile, and cannot legally hold any property, real or personal.
In any event, though by international law the Government may rightfully hold all the inhabitants of the insurrectionary States as enemies, it is not compelled to hold them as such. It may undoubtedly waive its right as to the whole or any part of them.
The question is a new one that has never, probably, been decided by the courts. Its decision is immaterial to the present argument. A debt due to an enemy by any inhabitant of the United States, whether friend or enemy, may lawfully be confiscated.