be sage precautions, proper to temper the rigor of this perilous mode of redress. (f) General reprisals upon the persons and property of the subjects of another power are equivalent to open war; but these special letters of marque and reprisal, limited to a specific object, are spoken of generally, and even in the articles of confederation of the United States, in 1781, (g) as issuing "in times of peace." They are, however, regarded by Barbeyrac, Emerigon, and other publicists, as a species of hostility, an imperfect war, and usually a prelude to open hostilities. The favorable or adverse issue of the hazardous experiment will depend, in some degree, upon the matter in demand, and, in a much greater degree, upon the relative situation, character, strength, and spirit of the nations concerned. (h)

* 62

Confiscation

*The claim of a right to confiscate debts, contracted by individuals in time of peace, and which remain due to of debts. subjects of the enemy at the declaration of war, rests very much upon the same principles as that concerning enemy's tangible property, found in the country at the opening of the war; though I think the objection to the right of confiscation, in this latter case, is much stronger. In former times, the right to confiscate debts was admitted as a doctrine of national law, and Grotius, Puffendorf, and Bynkershoek pronounced in favor of it. (a) It had the countenance of the civil law; (b) and even Cicero, in his Offices, (c) when stating the cases in which prom

(f) In the time of Edward II., and for some succeeding reigns, the power of granting letters of marque and reprisal against the subjects of a foreign state, that refused to render justice to the subjects of the crown of England, was vested in the Court of Chancery. It was in the nature of a judicial process and of a private remedy. The capture was in the nature of a security to obtain justice. Lord Campbell, Lives of the Lord Chancellors, vol. i. 205.

(g) Art. 9.

(h) War does not exist merely on the suspension of the usual relations of peace. Commerce may be suspended or interdicted between the subjects of different states, without producing a state of war. Reprisals and embargoes are forcible measures of redress, but do not, per se, constitute war, nor does the furnishing of specific assistance to one of the parties at war, according to a previous stipulation. Vide infra, p. 116. Mr. Manning, in his Commentaries on the Law of Nations, p. 98, after showing the imperfect definitions given by publicists, defines an open and solemn war to be "the state of nations among whom there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign."

(a) Grotius, b. 1, c. 1, sec. 6; b. 3, c. 8, sec. 4; Puff. lib. 8, c. 6, 19, 20; Bynk. lib. 1, c. 7; Lord Hale also laid it down to be the law of England. 1 Hale's P. C. 95.

(b) Dig. 41, 1 and 49, 15.

(c) Lib. 3, c. 26.

ises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favor of the right; but Vattel says, that a relaxation of the rigor of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it would injure the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. (d) There has frequently been a stipulation in modern treaties, that debts or moneys in the public funds should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right of confiscation of debts and things in action is against good policy, and ought to be discon- *63 tinued. The treaties between the United States and Colombia, in 1825, and Chili, in 1832, and Venezuela, in 1836, and the Peru-Bolivian Confederation, in 1838, and Ecuador, in 1839, contain such a provision; but the treaty between the United States and Great Britain, in 1795, went further, and contained the explicit declaration, that it was "unjust and impolitic" that the debts of individuals should be impaired by national differences. A very able discussion of this assumed right to confiscate debts was made by Mr. Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscated private debts, or private property in banks, or in public funds, on the ground of reason and principle, on those of policy and expediency, on the opinion of jurists, on usage, and on conventional law; and his argument against the justice and policy of the claim was exceedingly powerful. He contended it to be against good faith for a government to lay its hands on private property, acquired by the permission, or upon the invitation of the government, and under a necessarily implied promise of protection and security. Vattel says, that everywhere, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon (a) and Martens (6) make the same declaration. The practice would have a very injurious influence upon the general sense of the inviolability and sanctity of private contracts; and with debt

(d) Vattel, b. 3, c. 5, sec. 77.

(a) Des Ass. tom. i. 567. (b) B. 8, c. 2, sec. 5.

ors who had a nice and accurate sense of justice and honor, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given (c) a striking instance of the impracticability of confiscating property deposited in trust with a debtor, and of the firmness of Spanish faith. When war was declared between France and Spain, in 1684, the king of Spain endeav* 64 ored to seize the property of the French in Spain, but *not a single Spanish factor would betray his French correspond

ent. (a)

Notwithstanding the weight of modern authority, and of argument, against this claim of right on the part of the sovereign, to confiscate the debts and funds of the subjects of his enemy during war, the judicial language in this country is decidedly in support of the right. In the case of Brown v. The United States, (b) already mentioned, Judge Story, in the Circuit Court in Massachusetts, laid down the right to confiscate debts and enemy's property found in the country, according to the rigorous doctrine of the elder jurists; and he said the opinion was fully confirmed by the judgment of the Supreme Court in Ware v. Hylton, (c) where the doctrine was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by none. Chief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of Brown, observed, that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and the right of the sovereign to confiscate debts was precisely the same with the right to confiscate other property found in the *65 country. This right, therefore, was admitted to exist as a

*

(c) Essai sur les Mœurs et l'Esprit des Nations.

(a) The English Court of K. B. declared, in the case of Wolff v. Oxholm, 6 Maule & Selw. 92, that an ordinance of Denmark, in 1807, pending hostilities with England, which sequestered debts due from Danish to English subjects, and caused them to be paid over to the Danish government, was not a defence to a suit in England for the debt, and that the ordinance was not conformable to the usage of nations, and was void. It was observed by the court, that the right of confiscating debts, contended for on the authority of Vattel, b. 2, c. 18, sec. 344; b. 3, c. 5, sec. 77, was not recognized by Grotius, (see Grot. lib. 3, c. 7, sec. 4; and c. 8, sec. 4,) and was impugned by Puffendorf, (b. 8, c. 6, sec. 22) and others; and that no instance had occurred of the exercise of the right, except the ordinance in question, for upwards of a century.

(b) 8 Cranch, 110. (c) 3 Dallas, 199.

settled and decided right, stricto jure, though, at the same time, it was conceded to be the universal practice to forbear to seize and to confiscate debts and credits. 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 and judgment of modern times.

If property should have been wrongfully taken by the state before the war, and be in the country at the opening of the war, such property cannot be seized, but must be restored; because to confiscate that species of enemy's property would be for the government to take advantage of its own wrong. The celebrated Report of the English law officers of the crown, 1753, in answer to the Prussian Memorial, stated, that French ships taken before the war of 1741, were, during the heat of the war with France, as well as afterwards, restored by sentences of the admiralty courts to the French owners. (a) No such property was ever attempted to be

(a) The case of the Silesian loan contains, in the discussions between the Prussian and British courts, in 1752, a memorable exposition of the law of nations on the subject of belligerent rights and duties. The Report of the high and distinguished law officers of the crown, in answer to the Prussian Memorial, made in 1753, was declared by such eminent writers as Vattel and Montesquieu, to be an excellent and unanswerable tract on the law of nations. See the substance of the discussion in Wheaton's History of the Law of Nations, edit. N. Y. 1845, pp. 206-217, and the Report at large. Collectanea Juridica, vol. i. p. 95. The case is worthy of special notice, not only for the authority of the work, but for the recognition of the sanctity of private debts and contracts, in opposition to the pretensions of the rights of war and conquest. In that case, a loan of money was made by British creditors to the Emperor of Germany, in 1735, and for the better security of the payment of the loan, with interest, he mortgaged his revenues of the Duchies of Silesia; and when Silesia was conquered by Prussia, the Empress Queen, who had succeeded to the sovereignty of the country, before its conquest, ceded the Duchies to the King of Prussia, upon condition that the king should be responsible for the debt, and he assumed the payment of it. The king afterwards seized the revenues, by way of reprisal and indemnity against losses by British cruisers, under lawful capture and condemnation by the laws of war. The Report showed, unanswerably, as Montesquieu admitted, that the King of Prussia could not lawfully seize the mortgaged revenues or debt, by way of reprisal, and that he was bound by the law of nations, and every principle of justice, to pay the British

confiscated; for had it not been for the wrong done, the property would not have been within the king's dominions. And yet even such property is considered to be subject to the rule of vindictive retaliation; and Sir William Scott observed, in the case of The Santa Cruz, (b) that it was the constant practice of England to condemn property seized before the war, if the enemy condemns, and to restore, if the enemy restores.

* 66

emy.

Trading

*One of the immediate and important consequences of the declaration of war, is the absolute interruption with the en- and interdiction of all commercial correspondence, intercourse and dealing between the subjects of the two countries. The idea that any commercial intercourse, or pacific dealing, can lawfully subsist between the people of the powers at war, except under the clear and express sanction of the government, and without a special license, is utterly inconsistent with the new class of duties growing out of a state of war. (a) The interdiction flows necessarily from the principle already stated, that a state of war puts all the members of the two nations respectively in hostility to each other; and to suffer individuals to carry on a friendly or commercial intercourse, while the two governments were at war, would be placing the act of government and the acts of individuals in contradiction to each other. It would counteract the

creditors. The King of Prussia, by treaty in 1756, agreed to take off the sequestration laid on the Silesian debt, and pay the capital and interest due to the British creditors.

(b) 1 Rob. Adm. 50.

(a) The doctrine goes to the extent of holding it unlawful, after the commencement of war, except under the special license of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, which was there when the war broke out. It would be liable to seizure, in transitu, as enemy's property. The Rapid, 8 Cranch, 155; Potts v. Bell, 8 Term Rep. 548; in the case of The Juffrow Catharina, 5 Rob. Adm. 141, and of The Hoop, 1 Rob. Adm. 196, Sir Wm. Scott inculcated very strictly the duty of applying in all cases for the protection of a license, where property is to be withdrawn from the country of the enemy, as being the only safe course. Mr. Duer, in his Treatise on Insurance, vol. i. pp. 561-566, ably and successfully contends, that when a subject finds himself in an enemy's country on the breaking out of war, he may return diligently to his country, with his property, without rendering it justly liable to confiscation by the prize courts of his own country; though the language of Mr. Justice Story, in the cases of The Rapid, in 1 Gallison, 309, and The Mary, Id. 621, goes to the extent of the severe denial of that right under any circumstances. If the adverse belligerent allow such a right, as, see supra, p. 56, surely his own country ought to exercise the same lenity. Such was the decision of the Supreme Court of New York, in Amory v. McGregor, 15 Johns. 24.