confiscate all enemy's property, found within the territory of the other belligerent at the commencement of hostilities. In former times, this right was exercised with great rigour, but it has now become an established, though not inflexible, rule of international law, that such property is not liable to confiscation as a prize of war. This rule, says Chief Justice Marshall, 'like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign-it is a guide which he follows or abandons at his will; and, although it cannot be disregarded by him without obloquy, yet it may be disregarded. It is not an immutable rule of law, but depends on political considerations, which may continually vary.' The supreme court of the United States has decided that that Government has a right to seize and confiscate all goods of the enemy found in the country, and all vessels and cargoes found afloat in its ports, at the commencement of hostilities; but that this right was vested in congress, and, until some statute, directly applying to the subject, be passed, the courts could not condemn such property; that it would continue under the protection of the law, and might be claimed by the owner on the restoration of peace. We have already stated the ancient law of England, which prescribes that, at the commencement of a war, the enemy's merchants, with their goods, were to be treated precisely as the English merchants, with their goods, were treated in the enemy's country. But the modern practice of Great Britain has been far less liberal. In the recent maritime wars commenced in that country,' says Wheaton, 'it has been the constant usage to seize and condemn, as droits of admiralty, the property of the enemy found in its ports at the breaking out of hostilities, and this practice does not appear to have been influenced by the corresponding conduct of the enemy in that respect.' The English text-writers, down to the beginning of the war of 1854 with Russia, continued to maintain the existence of the right to seize and condemn, not only as a general right of war, but as one which could be exercised by the crown, without any express act of parliament to sanction it." 1 In a civil war, captures of the property of those in rebellion against the established Government, whether made on land or sea, are not prize of war; such can only be condemned by virtue of municipal law-United States v. 269 bales of Cotton, Rev. Cas., 2; the Mary McRae,' Blatchf. Pr. Cas. 91. * Wheaton, Elem. Int. Law, p. iv. ch. i. § 11; Brown v. The United § 16. On the declaration of a war between the Ottoman Porte and Russia, in October, 1853, a notice was issued by the latter government to the effect that, as the Porte had not imposed an embargo on Russian vessels in its ports, &c., the Russian government, on its part, grants liberty to Turkish. vessels in its ports to return to their destination, till the 10th (22nd) of November. After the declaration of hostilities by France and England against Russia, similar declarations were made by these powers. That of France, dated March 27, 1854, declares: 'Article one. Six weeks from the present date are granted to Russian ships of commerce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declaration of war, may enter into French ports, and remain there for the completion of their cargoes, until the 9th of May, inclusive.' The declaration of England, to the same effect, was dated March 29, 1854. Still further indulgences were afterward declared to Russian vessels, which had sailed prior to May 15, 1854, for English and French ports. Russia allowed English and French vessels six weeks from April 25, 1854, to take on board their cargoes and sail from Russian ports in the Black Sea, the Sea of Azoff, and the Baltic, and six weeks from the opening of navigation, to leave the ports of the White Sea.1 § 17. Debts contracted before the declaration of war, and owing by one belligerent, or its allies, to the enemy, are necessarily merged in the war, and must abide the issue of the contest, or rather the stipulations of the treaty of peace by which it is terminated. Formerly debts contracted in time of peace, and owing by the belligerent State, or its subjects, to the subjects of the enemy, were also regarded as annulled or confiscated by the declaration of war. This doctrine is fully recognised in the writings of Cicero, Grotius, Puffendorf, Bynkershoek, and others. But, according to Vattel, the rigour of this rule was afterwards relaxed, and the oppo States, 8 Cranch. R., 123; Kluber, Droit des Gens, §§ 250-252; Moser, Versuch, etc., b. ix. §§ 49-60; Vattel, Droit des Gens, liv. iii. ch. iv. § 63; ch. v. §§ 76, 77; De Cussy, Droit Maritime, liv. i. tit. iii. § 6. See also, vol. ii. p. 126. 1 Paris Moniteur, March 28, 1854; London Gazette, April 18 1854; Cong. Doc, 33 Cong., H. R. No. 103, p. 5; Circulaire du Ministre de la Marine, Annuaire, etc., 1853-4, app. v. pp. 913, 926, 928. site custom grew up in its place, which has now become so general throughout Europe, that the sovereign who should enforce the former rule, would be regarded as violating good faith; for strangers trusted his government or subjects only from the firm persuasion that the modern custom would be observed. Emerigon and Martens advocate the same doctrine. The question is also most ably discussed by Hamilton in the numbers of Camillus, published in 1795. The supreme court of the United States has decided that the right, stricti jure, still exists as a settled and undoubted right of war recognised by the law of nations, although it was, at the same time, admitted to be the universal practice at present to forbear to seize and confiscate debts and credits, as also to seize and confiscate enemy's tangible property found in the country at the opening of the war. The court would not confiscate without an act of the legislative power declaring its will that such property should be condemned. Mr. Justice Story dissented in a most able and learned opinion. Mr. Phillimore makes a distinction between debts due from the State, in its corporate capacity, to individuals,—money invested in the public funds and the like,-and private debts of individuals of the one State to individuals of the other. While admitting that private debts may be confiscated, stricti jure, although modern custom is opposed to the exercise of that right, he says that the opinion of Vattel, Emerigon and Martens, against the lawfulness of confiscating those due from the State to enemy's subjects, 'now may happily be said to have no gainsayers.' Wildman says: 'It will not be easy to find an instance where a prince has thought fit to make reprisals upon a debt due from himself to private men; there is a confidence that this will not be done. A private man lends money to a prince upon the faith of an engagement of honour, because he cannot be compelled, like other men, in an adverse way in a court of justice. So scrupulously did England, France, and Spain adhere to this public faith, that during war they suffered no inquiry to be made whether any part of the public debts was due to subjects of the enemy, though it is certain many English had money in the French funds, and many 1 See ante, p. 144. The Confiscation Act of the United States, passed in 1861, did not embrace choses in action such as State bonds.—United States v. Virginia Bonds, 9 Pittsb. Leg. J., 377. French had money in ours.' With respect to the confiscation of private debts, the same author considers that the rigid rule of Grotius and Bynkershoek has been more or less mitigated by the wise and humane practice of modern times. By the 34 Geo. 3, c. 79,' he says, 'the transmission of money due to the enemy was prevented; the money itself was called in, secured, and kept for those to whom it was due, until the return of peace should enable them to receive it.'1 § 18. After a full examination of the authorities and decisions on this question, Chancellor Kent says: We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in this country, that it rests in the discretion of the legislature of the union, by a special law for that purpose, to confiscate debts contracted by our citizens, and due to the enemy; but, as it is asserted by the same authority, this right is contrary to universal practice, and it may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience of modern times.' On this ques 1 Wildman, Int. Law, vol. ii. pp. 10, 11; Cicero, de Off., lib. iii. cap. xxvi.; Grotius, De Jur. Bel. ac Pac., lib. i. cap. i. § 6; lib. iii. cap. vii. §§ 3, 4; Puffendorff, De Jur. Nat. et Gent, lib. viii. caps. vi. xix. xx. xxiii.; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. vii.; Vattel, Droit des Gens, liv. iii. ch. v. § 77; Hamilton, The Federalist, Camillus, Nos. 18-23; Brown v. The United States, 8 Cranch. R., 110; Phillimore, On Int. Law, vol. iii. §§ 87-89, and see vol. ii. p. 196. The Congress of the Confederate States enacted in August, 1861, that property of whatever nature, except public stocks and securities, held by an alien enemy since May 21 of that year, should be sequestrated and appropriated as directed by the Act. Further, the Attorney-General of the Confederate States declared that all persons who had a domicil within the States, with which the Confederate Government was at war, were subject to the provisions of the Act. Lord John Russell instructed the British Consul to remonstrate strongly with the Secretary of State of the so-called Confederate States, on the hardship and injustice of the Act as regarded neutrals, insisting that the modern rule of international usage that the property and debts of an enemy, at the beginning of hostilities, are not liable to be confiscated as prize of war, applied with still more force in a civil war between different parts of a confederation, during whose union the subjects of foreign States were invited to settle indiscriminately, without any ground for contemplating a disruption. No notice, or time, had allowed them to separate their affairs from either belligerent, and though technically liable to be considered enemies, it was impossible to treat them as such, without gross injustice and a breach of faith.-Parl. Papers, 1862, N. Amer., 108. It is a principle of the prize procedure of the United States, that belligerent captors are discharged of liens, or equities, of neutral creditors, resting upon the effects of an enemy seized at sea.- The 'Sally Magee,' Blatchf., Pr. Cas., 382. tion, Mr. Wheaton remarks: 'In respect to debts due to an enemy, previously to the commencement of hostilities, the law of Great Britain pursues a policy of a more liberal, or at least, of a wiser character, than in respect to droits of admiralty. A maritime power, which has an overwhelming superiority, may have an interest, or may suppose it has an interest, in asserting the right of confiscating enemy's property, seized before an actual declaration of war; but a nation which, by the extent of its capital, must generally be the creditor of every other commercial country, can certainly have no interest in confiscating debts due to an enemy, since that enemy might, in almost every instance, retaliate with much more injurious effect. Hence, though the prerogative of confiscating such debts, and compelling their payment to the crown, still theoretically exists, it is seldom or ever practically exerted. The right of the original creditor to sue for the recovery of the debt is not extinguished; it is only suspended during the war, and revives in full force on the restoration of peace. Such, too, is the law and practice in the United States. The debts due by American citizens to British subjects before the War of the Revolution, and not actually confiscated, were judicially considered as revived, together with the right to sue for their recovery on the restoration of peace between the two countries.' By the treaty of 1794, between the United States and Great Britain, it was stipulated that debts due from individuals of the one nation to individuals of the other, should never, in any event of war or national differences, be sequestered or confiscated.1 § 19. While the English text-writers and jurists have contended for the right to seize and sequestrate the property of an alien enemy found in British territory, at the declaration of a war, as a right conceded by the law of nations, they have almost uniformly denied the right to confiscate debts due to such enemy, on the ground that usage and custom have annulled that right. The distinction thus attempted to be drawn between debts and other property is not well founded in reason or authority, but has resulted, apparently, 1 Kent, Com. on Am. Law, vol. i. p. 65; Wheaton, Elem. Int. Law, pt. iv. ch. i. § 12; The State of Georgia v. Brailsford et al., 3 Dall. R.,4 ; ex parte Boussmaker, 13 Vesey Jun. R., 71; the 'Nuestra Señora de las Dolores,' Edw. R., 60; Furtade v. Rodgers, 3 Bos. and Pull. R., 191 ; Ware v. Hilton et al., 3 Dall. R., 199. |