tory on the

how far lia

fiscation.

As no declaration, or other notice to the enemy, of

§ 9. Enemy's prothe existence of war, is necessary, in order to legalize perty found in the terri- hostilities, and as the property of the enemy is, in genecommence- ral, liable to seizure and confiscation as prize of war, it ment of war, would seem to follow as a consequence, that the proble to con- perty belonging to him and found within the territory of the belligerent State at the commencement of hostilities, is liable to the same fate with his other property wheresoever situated. But there is a great diversity of opinions upon this subject among institutional writers, and the tendency of modern usage between nations seems to be, to exempt such property from the operations of war.

One of the exceptions to the general rule, laid down by the text writers, which subjects all the property of the enemy to capture, respects property locally situated within the jurisdiction of a neutral State; but this exemption is referred to the right of the neutral State, not to any privilege which the situation gives to the hostile owner. Does reason, or the approved practice of nations, suggest any other exception?

With the Romans, who considered it lawful to enslave, or even to kill an enemy found within the territory of the State on the breaking out of war, it would very naturally follow that his property found in the same situation would become the spoil of the first taker. Grotius, whose great work on the laws of war and peace appeared in 1625, adopts as the basis of his opinion upon this question the rules of the Roman law, but qualifies them by the more humane sentiments which began to prevail in the intercourse of mankind at the time he wrote. In respect to debts, due to private persons, he considers the right to demand them as suspended only during the war, and reviving with the peace. Bynkershoek, who wrote about the year 1737, adopts the same rules, and follows them to all their consequences. He holds that, as no declaration of war to the enemy is necessary, no notice is necessary to legalize the capture of his property, un

Pub. lib. i. cap. 2. Rutherforth's Inst. b. ii. ch. 9, § 10. Vattel, Droit des Gens, liv. iii. ch. 4, §§ 51-56. Klüber, Droit des Gens Moderne de l'Europe, §§ 238, 239.

less he has, by express compact, reserved the right to withdraw it on the breaking out of hostilities. This rule he extends to things in action, as debts and credits, as well as to things in possession. He adduces, in confirmation of this doctrine, a variety of examples from the conduct of different States, embracing a period of something more than a century, beginning in the year 1556 and ending in 1657. But he acknowledges that the right had been questioned, and especially by the States-General of Holland; and he adduces no precedent of its exercise later than the year 1667, seventy years before his publication. Against the ancient examples cited by him, there is the negative usage of the subsequent period of nearly a century and a half previously to the wars of the French revolution. During all this period, the only exception to be found is the case of the Silesian loan, in 1753. In the argument of the English civilians against the reprisals made by the King of Prussia in that case, on account of the capture of Prussian vessels by the cruisers of Great Britain, it is stated that "it would not be easy to find an instance where a prince had 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 an engagement of honor; because a prince cannot be compelled, like other men, by a court of justice. So scrupulously did England and France adhere to this public faith, that even during the war," (alluding to the war terminated by the peace of Aix-laChapelle,) "they suffered no inquiry to be made whether any part of the public debt was due to the subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours." I

Vattel, who wrote about twenty years after Bynkershoek, after laying down the general principle, that the property of the enemy is liable to seizure and confiscation, qualifies it by the exception of real property (les immeubles) held by the enemy's subjects within the belligerent State, which having been acquired by

1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 16. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 2, 7. Letters of Camillus, by A. Hamilton, No. 20.

Vattel calls the Report of the English civilians " un excellent morceau de droit des gens," (liv. ii. ch. 7, § 34, Note a;) and Montesquieu terms it "une réponse sans réplique." Euvres, tom. vi. p. 445.

the consent of the sovereign, is to be considered as on the same footing with the property of his own subjects, and not liable to confiscation jure belli. But he adds that the rents and profits may be sequestrated, in order to prevent their being remitted to the enemy. As to debts, and other things in action, he holds that war gives the same right to them as to the other property belonging to the enemy. He then quotes the example referred to by Grotius, of the hundred talents due by the Thebans to the Thessalians, of which Alexander had become master by right of conquest, but which he remitted to the Thessalians as an act of favor and proceeds to state, that the "sovereign has naturally the same right over what his subjects may be indebted to the enemy; therefore he may confiscate debts of this nature, if the term of payment happen in time of war, or at least he may prohibit his subjects from paying while the war lasts. But at present, the advantage and safety of commerce have induced all the sovereigns of Europe to relax from this rigor. And as this custom has been generally received, he who should act contrary to it would injure the public faith; since foreigners have confided in his subjects only in the firm persuasion that the general usage would be observed. The State does not even touch the sums which it owes to the enemy; everywhere, in case of war, the funds confided to the public, are exempt from seizure and confiscation." In another passage, Vattel gives the reason of this exemption. "In reprisals, the property of subjects is seized, as well as that belonging to the sovereign or State. Every thing which belongs to the nation is liable to reprisals as soon as it can be seized, provided it be not a deposit confided to the public faith. This deposit being found in our hands only on account of that confidence which the proprietor has reposed in our good faith, ought to be respected even in case of open war. Such is the usage in France, in England, and elsewhere, in respect to money placed by foreigners in the public funds." Again he says: "The sovereign declaring war can neither detain those subjects of the enemy who were within his dominions at the time of the declaration, nor their effects. They came into this country on the public faith; by permitting them to enter his territories, and continue there, he has tacitly promised them liberty and perfect security for their return. He ought, then, to allow them a reasonable time to retire with their effects, and if they

remain beyond the time fixed, he may treat them as enemies; but only as enemies disarmed." 1

It appears, then, to be the modern rule of international usage, that property of the enemy found within the territory of the bel ligerent State, or debts due to his subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war. This rule is frequently enforced by treaty stipulations, but unless it be thus enforced, it cannot be considered as an inflexible, though an established rule. "The rule," as it has been beautifully observed, "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." 2

Among these considerations is the conduct observed § 10. Rule by the enemy. If he confiscates property found within of reciprocity. his territory, or debts due to our subjects on the breaking out of war, it would certainly be just, and it may, under certain circumstances, be politic, to retort upon his subjects by a similar proceeding. This principle of reciprocity operates in many cases of international law. It is stated by Sir W. Scott to be the constant practice of Great Britain, on the breaking out of war, to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. "It is," says he, "a principle sanctioned by that great foundation of the law of England, Magna Charta itself, which prescribes, that, at the commencement of a war, the enemy's merchants shall be kept and treated as our own merchants are kept and treated in their country." And it is also stated in the report of the English civilians, in 1753, before referred to, in order to enforce their

3

' Vattel, Droit des Gens, liv. ii. ch. 18, § 344; liv. iii. ch. 4, § 63; ch. 5, S$ 73-77.

2 Mr. Chief Justice Marshall, in Brown v. the United States, Cranch's Rep. vol. viii. p. 110.

3 Robinson's Adm. Rep. vol. i. p. 64. The Santa Cruz.

argument that the King of Prussia could not justly extend his reprisals to the Silesian loan, that "French ships and effects, wrongfully taken, after the Spanish war, and before the French war, have, during the heat of the war with France, and since, been restored by sentence of your Majesty's courts to the French owners. No such ships or effects ever were attempted to be confiscated as enemy's property, here, during the war; because, had it not been for the wrong first done, these effects would not have been in your Majesty's dominions."

ty.

11. Droits

The ancient law of England seems thus to have surof Admiral- passed in liberality its modern practice. In the recent maritime wars commenced by that country, 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. As has been observed by an English writer, commenting on the judgment of Sir W. Scott in the case of the Dutch ships, "there seems something of subtlety in the distinction between the virtual and the actual declaration of hostilities, and in the device of giving to the actual declaration a retrospective efficacy, in order to cover the defect of the virtual declaration previously implied." (a)

'Chitty's Law of Nations, ch. 3, p. 80.

(a) [Lorsque la guerre éclate entre deux puissances maritimes, il est de principe que les navires de commerce de l'une d'elles qui se trouvent dans les ports de l'autre ne peuvent être considérés comme des prises et qu'ils ont la faculté de se retirer pour rentrer dans leur pays; ce principe est consacré par un grand nombre de traités, dont plusieurs ont même fixé le délai pendant lequel ils peuvent jouir de cette immunité. Il est vrai que dans l'usage, les belligérants respectent rarement cette loi, et que souvent le premier acte de la guerre est de saisir tous les navires devenus ennemis, qui se trouvent dans les ports du belligérant, qui y sont venus sur la foi des traités et de la paix; mais cette violation de la foi publique, malheureusement trop fréquente, ne détruit pas la loi, loi incontestée et surtout incontestable. La raison qui a dicté ce principe pour les navires qui se trouvent dans le port devenu ennemi au moment de la déclaration de guerre, l'a fait étendre à ceux qui, étant en cours de navigation, à ce même moment sont rencontrés par des croiseurs à la haute mer on leur accorde un délai suffisant pour se mettre en sûreté. A cet égard le droit n'est pas douteux, mais sur ce second point comme sur le premier, il faut avouer qu'il est très-rarement respecté, cepend