Page images

treaty stipula

dominions of the other, as long as they "behave peaceably and commit no offence against the laws;" and in case either government thinks proper to desire their removal, twelve months' notice shall be allowed them for that purpose.' But, as before re- Modern rule marked, where there is no treaty stipulation to the in absence of contrary, the right remains. The rule so well es- tions. tablished in Europe has been recognized by the highest federal tribunal in the United States. "However strong," says Chancellor Kent, "the current of authority, in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country, and it has been definitively settled in favor of the ancient and sterner rule, by the Supreme Court of the United States. The effect of war upon British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly considered, in the case of "Brown;" and the Circuit Court of the United States at Boston, decided, as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation, and the exercise of the right vested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assumed, that war gave to the sovereign the right to take the persons, and confiscate the property of the enemy, wherever

'De Marten's Recueil, V., 686.

Property exempt from the ' rule, public


Private debts.

found, and that the mitigation of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself."

There is one description of property of the enemy which is invariably respected in time of war, and that is, the sums due from the state to the enemy, such as the property which the enemy may have in the public funds or stock. This property is justly regarded as intrusted to the faith of the nation. Its credit, honor, security, require that it should be held sacred. An attempt was made by Prussia in 1752 to apply such property for the pur pose of reprisals. But it was universally held at the time as an infamous breach of public faith, without example to justify it, and not likely to furnish excuse or precedent for future action.

But debts due from individuals to subjects or citizens of the enemy's country, stand in an entirely different position from that of debts due from the state which are under the guaranty of the national honor. Debts due from individuals to the enemy, may undoubtedly be confiscated, by the rigorous application of the rights of war, being the property of the enemy, and therefore liable to confiscation; but in modern warfare the exercise of this right has been almost universally discontinued.

"The claim of a right to confiscate debts," says Chancellor Kent, "contracted by individuals in

1 Kent's Com., Vol. I., 59; Brown vs. The United States, 8 Cranch, 110; Wure vs. Hilton, 3 Dallas, 199.

2 Charles De Marten's "Causes Celeb. du Droit des Gens," Vol. II.



fiscated by the

time of peace, and which remain due to the sub- Private debts jects of the enemy at the declaration of war, rests suspended but very much upon the same principle as that concern-debts not coning the enemy's tangible property found in the modern rule. country at the opening of the war. In former times, the right to confiscate debts was admitted as a floctrine of national law, by Grotius,' Puffendorff," Bynkershoek, and Lord Hale. It had the countenance of the civil law, and even Cicero, when stating the cases in which promises 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 relaxa tion 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 violate the public faith, for strangers trusted his subjects only from a firm per . suasion that the general custom would be observed. There has been frequently a stipulation in modern the subject. treaties that debts or moneys in the public funds should not be confiscated in time of war, and these conventional provisions are evidence of the sense of the governments which are parties to them, that the right of confiscation of debts and things in action is against good policy, and ought to be discontinued. The treaties between the United States and Colombia, in 1825, and Chili, in 1832, and Venezuela in 1836, and the Peru Bolivian Con

'Grotius B. I., c. i., § 6; B. III., c. iii., § 4.

Puff. I., 8, c. vi., 19, 20. 3 Bynk. I., 1., c. vii.

Lord Hale, I., 95.


Dig. 41, 1, 49, 15.

Vattel B. III., c. v., § 77.

Cic. De Off. I. 3., c. xxvi.

Treaties on

federation in 1838, and of Ecuador in 1839, contained 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 differ ences." Vattel Vattel says, that everywhere, money lent to the public is exempt from confiscation and seiz ure in time of war. Emerigon' and Martens2 make the same declaration. With regard to the United States, however, the cases of Brown vs. The United States, 8 Cranch, 110, and Ware vs. Hilton, 3 Dallas, 199, establish it as a principle of public law, as far as the same is understood and declared by the highest judicial authorities in that 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 its citizens and due to the enemy, though, as it is asserted by the same authority, this right is contrary to universal practice, and may therefore well be considered as a naked and impolitic right, condemned by the enlightened judgment and conscience of modern times."

But the modern practice of nations in war, while departing from the ancient rule of confiscation of debts to the enemy, is uniform in suspending their payment, either by absolute prohibition, or by clos ing the doors of the courts against proceedings for their enforcement. Thus the debt is not annulled, but the remedy to reduce it to possession is sus


'Emerigon, Des. Ass. I., 567; De Martens, B. VIII. c. ii., § 5. Kent's Com., I., 71; The Ann Greene, 1 Gall., 292.

pended. This doctrine was established in a leading English case, in which one Boussemaker, a bankrupt, was indebted to certain alien enemies, whose debts the commissioners refused to admit. On the return of peace, these creditors filed their petition, praying to be allowed to prove their claims, and upon the decision of the case in the Court of Chancery, the Lord Chancellor took occasion to explain the distinctions of the law and its principles on the important question whether the right of an alien enemy was destroyed, or only suspended by war. "If this," says his lordship, "had been a debt arising from a contract, entered into with an alien enemy during war, it could not possibly stand, for the contract would be void-but if the two nations were at peace at the date of the contract, though, from the time of war taking place, the creditor could not sue, yet, the contract being originally good, upon the return of peace the right would revive. It would be contrary to justice, therefore, to confiscate this dividend. Though the right to recover is suspended, there is no reason why the fund should be divided among the other creditors. The point is of great moment, from the analogy to the case of an action.

"The policy of avoiding contracts with an enemy is sound and wise; but where the contract was originally good, and the remedy is only suspended, the proposition that therefore the fund should be lost different."



Ex parte Boussemaker, 13 Ves. Jun., 71.

« PreviousContinue »