Aërial Law and War Targets

Abstract

Since international law is largely based upon custom, prevalent custom is more likely to evidence the real change than are formal documents. No more striking example of this effect of growing sentiment upon law can be cited than the successive pronouncements of John Marshall regarding the status of enemy property on land in time of war.1 In 1796 he appeared for the State of Virginia in the case of Ware v. Hylton (3 Dallas, 199), and argued that by the law of nations confiscation was justifiable. In 1814, deciding from the bench of the Supreme Court the case of Brown v. United States (8 Cranch, 110), he declared that though the old rigid rule would allow confiscation, prevailing current practice forbade and no nation could sanction confiscation “without obloquy.” In the Percheman case (7 Peters, 51), twenty years later, he announced that the confiscation of private property was contrary to the modern usage of nations “which has become law.”