The strict right, (d)-the summun jus-by the Reason of the Thing, T and by the opinion of every eminent jurist, remains unquestioned. "I take upon me to say," (observes Mr. *Justice Story,) "that no jurist of reputation can be found who has denied the right of [*133] confiscation of enemies' debts."(e)

Bynknershoek, writing in 1737, observes: Sed profecto videtur esse jus commune, ut et actiones publicentur, ex eâdem nempe ratione quâ cor- + poralia quælibet-actiones utique sive credita non minus Jure Gentium sunt in dominio nostro, quam alia bona, eccur igitur in his jus belli sequamur, in illis non sequamur? et cum nihil succurrat, quod distinctioni idoneæ locum præbere possit, etiam sola ratio jus commune defendit."(ƒ)

The article of the English Magna Charta, already referred to,(g) does not protect the property or the debts of foreign enemies without the realm. And it appears to be the ancient and well established rule of the English Common Law, as laid down in the old Year Books, and confirmed by the judgment of the Court of Exchequer, (h) that all debts, all, what are technically and barbarously called, choses in action, belonging to an enemy are forfeitable to the crown; albeit this power is, as Lord Alvanley, the Master of the Rolls, observed, very rarely executed. (i)

This doctrine has been confirmed by the judgment of the Supreme Court in the United States of North America, (k) in which, as Dr. Story says, it was explicitly asserted by some, reluctantly admitted by some, but denied by none of the judges.(1)

One, however, of the English(m) Common Law Tribunals has arrived at a different conclusion, and pronounced that, *according to [*134] modern International Law, the confiscation of private debts is illegal and invalid. The case in which this law was laid down, and the subject generally, will be considered when the effect of the restoration of peace upon the possessors of property is discussed.

LXXXVIII. So much as to the strict right; but the rigour of this right has been mitigated by the humane and wise practice of nations, for nearly a century and a half, which has forborne from the seizure of debts and credits, and has been accompanied by a principle, which has obtained universally,(n) of allowing rights to debts and actions to revive with the

(d) Dig., 1. xli. t. i. s. 51: "Transfugam jure belli recipimus. Et quæ res hostiles apud nos sunt non publicæ sed occupantium fiunt." Dig., 1. xlix. t. xv. (e) Brown v. The United States, 8 Cranch, (Amer.) (March 1, 1814,) 140. (ƒ) Q. J. P., l. i. c. vii.

(g) Vide ante, p. 116.

(h) Attorney-General v. Weeden, Parker's Rep., p. 267, citing Maynard's Edw. II. Hale, Pleas of the Crown, I. p. 95.

(i) Furtado v. Rodgers, 3 Bos. & Pull. 191.

(k) Ware v. Hylton, 3 Dallas, (Amer.) 199.

(7) Brown v. The United States, 8 Cranch, (Amer.) 143.

(m) Wolffe v. Oxholm, 6 Maule & Selwyn, 92.

(n) So much so, that Vattel says: "Aujourd'hui l'avantage et la sûreté du commerce ont engagé tous les souverains de l'Europe à se relâcher de cette rigueur. Et dès que cet usage est généralement reçu, celui qui y donnerait atteinte blesserait la foi publique; car les étrangers n'ont confié à ses sujets, que dans la ferme persuasion que l'usage général serait observé." He has before asserted, however, and not very consistently, that the War gives the same right over our enemies' debt "qu'elle peut nous donner sur les autres biens." Azuni follows in the same track, pt. ii. c. iv. art. ii. s. 7.

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restoration of peace. We have already considered, in the preceding
chapter on Embargo,(o) the manner in which this extreme Right has
been mitigated in practice; the memorable case of the Silesian(p) Loan
in 1752, did not, Dr. Story observes, (q) in the slightest degree intimate
that International Law prohibited a sovereign from confiscating debts
due to his enemies, even where the debts were due from the nation,
though it contained a very able statement of the injustice in that partic-
ular case; and this memorial admitted that when Sovereigns or States
borrowed money from foreigners, it was very commonly expressed in the
contract that it should not be seized as reprisals or in case of War; various
other Treaties have subsequently been entered into containing a similar
stipulation.(r)
*LXXXIX. We have been considering the question of private
[*135] debts. The subject of debts due from the State, in its corporate
capacity, to individuals,―money invested in the Public Funds and the
like, has been already discussed. The opinion of Vattel upon this
point is thus emphatically expressed: "L'Etat ne touche pas même aux
sommes qu'il doit aux ennemis; partout, les fonds confiés au public sont
exempts de confiscation et de saisie, en cas de guerre." Emerigon(s)
and Martens(t) are of the same opinion. Indeed, it is one which now
may happily be said to have no gainsayers.

XC. With respect to immoveable property,-lands or houses of the enemy, the general rule of civilized States appears to be, that this kind of property is never confiscated, upon the principle, that the sovereign, by permitting the proprietors to purchase and possess such property, has incorporated them amongst his subjects. In cases, however, where the income of the estate would otherwise be sent out of the country to augment the resources either of the private or public wealth of the enemy, it may be sequestrated during the pendency of the War, without any breach of international usage.(u)

We shall have occasion hereafter to consider the protection usually afforded by an invading or conquering State to the *landed pro[*136] perty of foreigners in the invaded or conquered territory.(x) XCI. Before this subject of enemies' (y) property be dismissed, it should be observed, that if it have been wrongfully seized before the War, it must be resorted. In the Report of the English Law Officers (1753,) in answer to the Prussian Memorial, it was stated that French

(0) Vide ante, p. 36, c. iii.

(p) Ib., p. 25.

Be

(9) Brown v. The United States, 8 Cranch, (Amer.,) 142. (r) E. g., Treaty between N. A. United States and England, 1794, art. x. tween N. A. United States and Holland, 8th October, 1782, art. xviii. Between N. A. United States and France, 1778, art. xx. Between N. A. United States and Prussia, 11th July, 1799, art. xxiii. 1787, art. xxiv. In this Treaty the said to be "unjust and impolitic." 1825. Between the N. A. United United States and Venezuela, 1836. Peru-Bolivian Treaty, 1838.

Between N. A. United States and Morocco, confiscation of the debts of individuals was Between the N. A. United States and Columbia, States and Chili, 1832. Between the N. A. Between the N. A. United States and the

(8) Des Assur., t. i. p. 567.
(u) Bynk., Q. J. P., 1 i. c. vii. in initio.
(x) Grot., 1. iii. c. vi. s. 5. Heffters, s.

(t) Vol. iii. c. ii. s. 5. Vattel, 1. iii. c. v. s. 76.

133.

(y) 1 Comment. 65.

ships taken before the War of 1741, were restored by the Admiralty Court, both during the heat of the conflict and afterwards, to the French

owners.

Such property may not be confiscated, because, but for the wrong done, it would not have been within the territory of the belligerents. Mr. Chancellor Kent cites the Santa Cruz(z) as an instance that in England such property is subject to the rules of vindictive retaliation. But this seems to be a mistake. Lord Stowell is not speaking of property wrongfully taken, but of property lawfully seized by Embargo, when he says, " at the breaking out of War it is the constant practice of this country to condemn property seized before the War, if the enemy condemns, and to restore if the enemy restores."

The restoration in these cases is not matter of right, but of expediency. The English Law-officers, in the Memorial which has been just mentioned, were speaking of restoration in cases where wrong had been done.

XCII. It is important to consider the doctrine of International Law, both with respect to those who may be actually engaged in warlike operations, and to those who may possess themselves of the enemy's property. This is, however, quite strictly speaking, a question of Public rather than of International Law. A declaration of War, as Vattel remarks, which enjoins the subjects at large to attack the enemy's subjects, implies a general order. (a) If the unauthorized subject carry on War, or make captures, it may be an offence against the sovereignty of his own nation, but it is not a violation of International Law.(b) It is true that the sovereign's order which commands acts of hostilities, and gives a right to commit them, is usually a particular order, (c) that is, an order to certain persons, and that such an order greatly conduces to the mitigation of the evils inseparable from War; but there are many conceivable cases in which a sovereign may appeal to all his subjects to protect their country. (d) Certainly the sovereign may commission whomsoever he pleases to carry on the War, both by land and sea. Maritime volunteers or Privateers(e) will be considered hereafter; but it must be remembered here that they carry Letters of Marque.

The legal position that no subject can lawfully commit hostilities, or capture property of an enemy, when his sovereign has either expressly or constructively prohibited it, is unquestionable.(f) *But it appears to be equally unquestionable that the sovereign may

(z) 1 Rob. Adm. Rep. 64.

[*138]

(a)" At the same time usage does require a lawful commission for the exercise of hostilities."-Martens, l. viii. c. iii. s. 2. (b) Vattel, 1. iii. c. xv. ss. 224-28.

(d) Ib., s. 228.

(c) Ib., s. 224.

(e) Et vide ante, vol. i. p. 393.

(f) Brown v. The United States, 8 Cranch, (Amer.,) 133. (Story.)

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retroactively ratify and validate the unauthorized act of his subject. In fact, the subject seizes at his peril, and it is for the sovereign to decide in the last resort whether he will ratify or repudiate the act.(g) It is another unquestionable proposition that all captures in War enure to the sovereign, and can become private property only though his grant.(h) But this doctrine has not prevented the English Prize Courts from holding that a subject may seize hostile property for the use of the Crown, wherever it is found it will be in the discretion of the Crown to ratify the capture by proceeding to condemnation; but to the Prize Court it is quite indifferent whether the capture was originally authorized or subsequently sanctioned by the Crown. This principle is illustrated by various decisions of the Prize Courts in cases of capture by non-commissioned vessels, by commanders on foreign stations anterior to the War, by private individuals in port or on the coasts, and by naval commanders on shore, or unauthorized expeditions ;(i) and in cases where private captors have sought to obtain a condemnation of their captures to themselves, it has been the practice of the Prize Court, on failure of their title, to decree condemnation to the Crown or the Admiralty, as the circumstances required.() "Nor," says Mr. Justice Story, in a judgment [*139] which really exhausts the argument and learning which belong

to this subject, "can I consider these principles of the British Courts a departure from the Law of Nations."(1) And he proceeds to show that Puffendorf and Vattel are improperly cited as authorities for the position, that private subjects who seize enemies' property are to be considered as Pirates;(m) and that Puffendorf, (n) Vattel, (o) Grotius, (p) and Bynkershoek,(g) when carefully and thoroughly examined, fully sustain the law administered in the Prize Courts of Great Britain; and he adds the remarkable words, "If the principles of British Prize Law go further, I am free to say that I consider them as the law of this country."

So Mr. Chancellor Kent observes in his Commentaries, that "there is scarcely a decision of the Prize Courts on any general question of public usage which has not received the express approbation and sanction of our national courts."(r)

XCIII. We have seen under what circumstances the property of Foreign Corporations may be subject to Belligerent Rights; it remains

(g) Thorshaven, 1 Edwards's Rep. 102.

(h) The Elsebe, 5 Rob. 173. The Maria Françoise, 6 Rob. 282; 11 East's Rep. 619. Brown v. The United States, 8 Cranch, (Amer.,) 131.

(i) The Aquila, 1 Rob. 37. The Twee Gesuster, 2 Ib. 284, n.
1 Ib. 227. The Gertruyda, 2 Ib. 211. The Mariamne, 5 Ib. 11.
Ib. 282. The Richmond, 5 Ib. 325. Thorshaven, 1 Edward, 102.
grave's Law Treatises, c. xxviii. 245.

The Rebeckah,
The Charlotte,
Hale, in Har-

(k) The Walsingham Packet, 2 Rob. 77. The Etrusco, 4 Ib., p. 262, note, and

see cases just cited.

(1) Brown v. United States, Cranch, (Amer.,) 132.

(n) L. viii. c. vi. p. 21.

(p) L. iii. c. vi. ss. 2, 10, 12.

(2) Q. J. P., cc. iii. xviii. xx.

(m) Ib. 132, 134.

(0) L. iii. c. xv. ss. 22-328.

Looking to the general scope of his arguments

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(id., cc. iii. iv. xvi. xvii.,) I think it might not unfairly be argued that, independent

of particular edicts, the subjects of hostile nations might lawfully seize each other's property wherever found."-Story, ubi supr., p. 134.

(r) Part. i. 1. iii. p. 70.

to observe that Corporations may also, under certain circumstances, exer-
cise these Rights. Thus, wars have been carried on out of Europe by
Companies or Societies, but these wars have been waged under the direct
or implied authority of the sovereign. The right of waging them is a
consequence of the power granted by the State to those *compa-
nies over particular territories.(s) It has so happened that this
[*140]
power has been only granted with respect to possessions out of Europe,
but there does not appear to be any absolute necessity that it should be
so limited.

The East India Companies, as has been already observed,(t) present the most remarkable illustration of the enjoyment of this authority by corporate bodies. But though they have made war and peace in their own name, it is clear that they have done so as delegates of their sovereign; and it may be observed, that the sovereign regulates the distribution of the Booty captured in time of war by the East India troops.(u)

XCIV. With respect to the instruments by which the work of destruction and devastation may be carried on, but little can be said by the International Jurist, and that little must be chiefly of a negative char

acter.

The means of carrying on war are either (1) secret or (2) open.

With respect to secret means, those of poison, of assassination, of treachery, are proscribed by Christian and civilized Heathen nations. It was a noble reply of the Roman Senate, even in the days of its corruption, to the offer of a barbarous ally to destroy their enemy by poison:"Si patrandæ neci veneum mitteretur-non fraude neque occultè, sed palam et armatum, populum Romanum suos ulcisci."(x)

Memorable also is the language of our own Lord Bacon upon the same subject: It were," he says, "just and honourable for princes, being in wars together, that however they prosecute their quarrels and debates by arms and acts of hostility; yea, though the wars be such as they pretend, the utter ruin and overthrow of the forces and states one of *another, yet they so limit their passions as they preserve two things sacred and inviolable, that is, the life and good name each of other.

[*141]

"For the wars are no massacres and confusions; but they are the highest trials of right, when princes and States, that acknowledge no superior upon earth, shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give on either side. And as in the process of particular pleas between private men, all things ought to be ordered by the rules of civil laws, so in the proceedings of the war nothing ought to be done against the Law of Nations or the Law of Honour; which laws have ever pronounced these two sorts of men, the one conspirators against the persons of princes, the other libellers against their good fame, to be such enemies of common society as are not to be cherished,-no, not by enemies.

(t) Vol. i. s. 122.

(8) Martens, 1. viii. c. iii. s. 2. (u) Case of the Army of the Deccan, 2 Knapp's Privy Council Rep. 103. The question related to booty captured in the Pindaree and Mahratta War, 1817-18. Vide post as to this case and booty generally.

(x) Tacit. Annal., 1. ii. c. lxxxviii.