ever, if a neutral be engaged, in peace, in a house of trade in the enemy's country, his property so engaged in the house is not, at the commencement of War, confiscated; but if he continues in the house after the knowledge of the War, it is liable, as above stated, to confiscation.(2) It is a settled principle, that traffic alone, independent of residence, will, in some cases, confer a hostile character on the individual;(a) and if a neutral be engaged in the enemy's navigation, it not only affects the peculiar vessel in which he is employed, but all other vessels belonging to him that have no distinct national character impressed upon them. 1.(b) LXXXVI. But in considering who are enemies, it is to be observed that a declaration of War does not per se recall subjects home.

"It has been further argued,”—Mr. Justice Story said in a case in which he delivered judgment—"that a declaration of War is, in effect, a command to the citizens of the belligerent country abroad at the time, to return home, and that the law allows a reasonable time and way to to effect it.

"I am not aware of any principle of public law, which obliges every absent citizen to return to his country, on the breaking out of a War; nor has any authority been produced which countenances the position. It may be admitted, that the sovereign power of the country has a right *to require the services of all its citizens, in time of War, and

[*132] for this purpose may recall them home under penalties for diso

bedience. But until the sovereign power has promulgated such command, the citizens of the country have a perfect right to pursue their ordinary business and trade in and with all other countries, except that of the enemy. Upon any other supposition, all foreign commerce would, during War, be suspended; for if it were the duty of absent citizens to return, it would, upon the same principle, be the duty of those at home. to remain there. As to citizens in the hostile country, the declaration of War imports a suspension of all further commerce with such country and obliges them to return, unless they would be involved in all the consequences of the hostile character. If they wish to return, they must do it in a manner which does not violate the laws; and their property cannot be removed with safety from the enemy's country, unless under the sanction of their own Government.

"But even if the position were generally true, that is contended for, the law would never deem that a reasonable mode of conveying property home, which involved it in a noxious trade with the public enemy. That can never be held to be a reasonable mode of returning a ship to the United States, which involves her in a traffic forbidden by the laws. However, I am well satisfied, that the position cannot be maintained in any extent adequate to the purpose for which it has been introduced.”(c) LXXXVII. The right of confiscating the debts of the enemy is a corollary to the right of confiscating his property.

(2) The Vigilantia, 1 Rob. 1, 14, 15. The Susa, 2 Ib. 251, 255. (a) Ibid. The Vriendschap, 4 Ib. 166.

(b) Ibid.

(c) The brig Joseph, Judgment of Story, J., October Term, 1813, 1 Gall. (Amer.)

551-2.

The strict right, (d)—the summun jus-by the Reason of the Thing, 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 corporalia 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.(7)

One, however, of the English(m) Common Law Tribunals has arrived at a different conclusion, and pronounced that, *according to

modern International Law, the confiscation of private debts is [*134]

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. (f) Q. J. P., 1. 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.

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 particular 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 like,—has 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.

(9) Brown v. The United States, 8 Cranch, (Amer.,) 142. (r) E. g., Treaty between N. A. United States and England, 1794, art. x. Between 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. Between N. A. United States and Morocco, 1787, art. xxiv. In this Treaty the confiscation of the debts of individuals was said to be "unjust and impolitic." Between the N. A. United States and Columbia, 1825. Between the N. A. United States and Chili, 1832. Between the N. A. United States and Venezuela, 1836. Between the N. A. United States and the Peru-Bolivian Treaty, 1838. (s) 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.

*CHAPTER VII.

WAR-WHO MAY MAKE.

[*137]

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

(2) 1 Rob. Adm. Rep. 64.

[*138]

(a)" At the same time usage does require a lawful commission for the exercise of hostilities."-Martens, 1. 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.)

:

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.(k) "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."(7) 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, (2) 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 searcely 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.”(~)

ХСІІІ. 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. Brown v. The United States, 8 Cranch, (Amer.,) 131.

619.

(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.

(7) Brown v. United States, Cranch, (Amer.,) 132. (m) Ib. 132, 134.

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

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

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

(9) Q. J. P., cc. iii. xviii. xx. "Looking to the general scope of his arguments (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.