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times acted in contradiction to the principle. When the king of France and the bishops of Cologne and Munster, in the year 1673, confiscated even actions,* and gave orders to call in what their subjects owed to the citizens of the United Provinces, the states-general, by their edict of the 6th of July 1673, reprobated it, and decreed that payment could not be made but to the true creditor, and that they would not ratify such an exaction, whether made by force or by consent. But in fact it appears that by the common lawf actions may be confiscated, for the same reason that corporeal goods may. Actions and credits are by the law of nations not less under our dominion than other goods; why, therefore, might we pursue these and not those by the law of war? and if there is no ground here for a rational distinction, reason alone supports the principle of the common law. But examples and authorities are not wanting in support of it.
It appears from Polybius, Excerpt. Legat. c. 35. n. 4., that it was agreed between the Romans and Antiochus, that actions, as well as every thing else which had been confiscated during the war, should be restored. Therefore it follows, that actions had been confiscated on both sides. That the kings of France and Spain also exercised this right towards each other, appears by the twenty-second article of the treaty of peace made between them, on the 17th of September 1678, for by that article it is stipulated that credits which have been actually confiscated shall not be restored. And the king of Denmark, having declared war against the Swedes, did on the 9th of March 16.76 issue an edict ordering that the goods of Swedes within the Da
or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other and in their respective governments, should ever be destroyed or impaired by national authority on account of national differences and discontents." 1 T. .
* Here we again use the technical language of the civil law. The common law term is things, or choses in action. T.
f The civil law and the law of nations are very frequently styled "the common law" (jus commune) by writers on the continent of Europe. They are, in fact, in many respects, the common lata of the civilized world. T.
nish empire, and all the debts due to Swedes, should be brought within six weeks into the public treasury, there to be confiscated, under a penalty of double the value and discretionary punishment against those who should not obey. The king of Denmark had decreed something similar against the English in 1667, as'is related by Aitzema.*
Nor does it appear that the Dutch have always been averse to that doctrine from the edict of the 18th of July 1536, from that of Philip II. against the French of the 27th of March 1556, and that of the states of Holland of the 29th of January 1591. There is also an edict which the prince of Orange and the court of Holland issued, on the 7th of December 1577, under the assumed name of Philip II. king of Spain, by which they ordered the confiscation of all the movable and immovable property, and of all the actions i and credits, not only of those who had gone over to Don John of Austria, but of all their enemies. The states-general also, on the 4th of June 1584, declared those of Bruges and Vrye, who had gone over to the Spaniards, to be their enemies, and ordered all their goods, actions and credits, public as well as private, to be confiscated. And afterwards, when those of Venloo had also gone over to the Spaniards, the earl of Leicester, by his edict of the 9th of July 1586, declared them guilty of the crime of high treason, and ordered all their goods, movable and immovable, and all their actions and credits, to be confiscated. Nor must it be believed that these things were decreed concerning those of Bruges, Vrye, and Venloo, merely because they were not so much enemies as they were traitors, as they had previously bound themselves by the confederation of Utrecht; for I must observe, that the penalties of the edict of the 4th of June 1584 are expressly applied to all who hold themselves to be our adversaries, in whatever manner it may be,. precisely as in the abovementioned edict of the 7th of December 1577, traitors and enemies are classed together, as to that particular purpose.
Under this head are also to be noted the decrees of the statesgeneral of the 2d, and of the states of Holland of the 29th of
October 1590, in both of which the following sentence is contained: "That those who come into these provinces out of the enemy's territory, although provided with proper passports, shall not be qualified to bring any personal or real action, either in the petitory or in the possessory, but shall be dismissed from court, in order that hostility against the enemies, and the confiscation of their goods, rights and actions, may subsist in their fullest' extent." By these decrees they are not permitted to bring even personal actions, and the reason publicly given for it clearly shews that they cannot do it, because not only the goods of enemies but their actions are liable to confiscation. And when once the king of France had ordered the goods of Dutch subjects to be seized, the states of Holland, on the 26th of April 1657, ordered the same thing with regard to the goods of French subjects, and prohibited any body from paying to them, on pain of being compelled to pay the amount a second time, for the indemnity of the Dutch subjects who had suffered by the seizure of their goods in France, and of paying moreover half the amount of the debt by way of punishment, and they ordered the goods and credits of Frenchmen to be brought under a penalty to certain officers appointed in each town for that purpose. Wherefore, if the subject of a prince who has confiscated the credits of his enemies, should pay to his government what he owed to the enemy, it has been very properly held that he is discharged.
These things, however, do not take place when war is carried on with so much mildness that commerce is permitted on both sides: for there cannot be any commerce without contracts, contracts without actions, actions without courts of justice, nor courts of justice without parties to litigate before them. Who will sell and carry goods to an enemy without the hope of recovering the price of them? and what hope can there be of recovering that price, if one cannot judicially compel payment from his enemy purchaser? Although, therefore, an enemy has no persona standi in judicio,* as it is
No rijjht to bo heard as plaintiff in courts of justice. T.
56 TREATISE ON*THE LAW OF WAR.
simply expressed in the decrees of the 2d and 29th of October 1590, and although it has been thus held and adjudged in this country in various instances, yet the case of commerce is properly excepted, that is tp say, when there is a mutual liberty of trade; for if there is not, actions, though arising out of commerce, may justly be confiscated. But is the case of commerce to be so distinguished from all other cases, that in this we grant, and in others we refuse to the enemy the persona standi in judicio? It has undoubtedly been so adjudged, and if the distinction is proper here,' it must also obtain as to the confiscation of actions. But if the enemy be once permitted to bring actions, it is difficult to distinguish from what causes they arise, nor have I been able to observe, that this distinction has ever been carried into practice.
Moreover, if you do not permit your enemy to bring actions, neither can you with justice suffer them to be brought against your enemy, if perchance he should tarry within your territory, and thus the decree of our supreme senate, of the 18th of September 1590, confirming the sentence of the inferior judge and of the court of Holland is unjust, to wit, that an enemy, who had come with a safe conduct into this country, might be arrested and held to bail in a civil action. For it is manifestly unjust to hinder an enemy from bringing actions, (as he is plainly forbidden by the said decrees of the 2d and 29th of October 1590,) and not to allow him the same privilege. Whatever right'one arrogates to himself by the law of war, he must also allow to his enemy.
What I have said about the legality of confiscating actions, obtains only in case the prince has really made his subjects pay what they owed to the subjects of his enemies. If he has exacted it, they have lawfully paid, if not, when the peace takes place, the former right of the creditor revives, because the occupation which is had by war consists more in fact than in law. Therefore credits not exacted are in some manner suspended during the war, but at the peace they return to their former owners by a kind of postliminy. Upon this principle it has been agreed among almost all nations, that actions which have been confiscated during the war, and have been called in by the sovereign, are considered at the peace as lost, and are for ever extinct; but if they have not been exacted they revive and return to the real creditors. It was thus agreed by the fifth article of the treaty of peace between Frederick III. king of Denmark and Charles II. king of England, of the 31st of July 1667, the thirty-seventh article of the treaty of peace between the kings of Spain and England, of the 21st of September 1667, and the twenty-second article of the treaty of peace between the kings of France and Spain of the 17th of September 1678, which twenty-second article I have mentioned above in this chapter, in order to establish what is proved by the said 5th and 37th articles, that actions have not less than other goods of the enemy been confiscated in time of war, and have often been exacted.*
Let it not, however, be supposed, that it is only true of actions that they are not condemned ipso jure; for other things also, belonging to the enemy, may be concealed and escape condemnation. So that it has been very properly held that those things which we had in the enemy's country before the war began, and which during the war have been concealed, and therefore not condemned, if they are afterwards retaken by our countrymen, do not become the- property of the recaptors, but return to the former owners.
• Vatttl, though he acknowledges the legality of confiscating in war the enemy's actions and credits, yet tells us that a more liberal practice has generally prevailed in modern times. "Mais aujourd'hui, I'avantage et la silrete" du commerce ont engage" tons les souverains de I'Europe o) se reldcher de cette rigueur. But at this day, the advantage and security of commerce have induced all the sovereigns of Europe to relax from this severity." Van. Lain of Nat. b. 3. c. 5. § 77. 'T