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to be discontinued. The recent treaty between the United States and Colombia contains 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 General Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscate 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 every where, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon' and Martens 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 debtors who had a nice and accurate sense of justice and honour, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given 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 endeavoured to seize the property of the French in Spain, but
a Des Ass. tom. 1. 567.
b B. 8. c. 2. sec. 5.
e Essai sur les Moeurs et l'Esprit des Nations.
not a single Spanish factor would betray his French correspondent.
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, 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, 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 country. This right,
a The English Court of K. B. declared in the case of Wolff v. Oxholm, (6 Mau. & 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 recognised 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. e 3 Dallas, 199.
therefore, was admitted to exist as a settled and decided right stricto jure, though at the same time, it was conceded to be the universal practice, to forbear to seize and 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 in 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. No such property was ever attempted to be 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 Wm. Scott observed, in the case of the Santa Cruz,a 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.
Trading with the enemy.
One of the immediate and important consequences of the declaration of war, is the absolute interruption 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. 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 operations of war, and throw obstacles in the way of the public efforts, and lead to disorder, imbecility, and treason. Trading supposes the existence of civil contracts and relations, and a reference to courts of justice; and it is, therefore, necessarily, contradictory to a state of war. It affords aid to the enemy in an effectual manner, by enabling the merchants of the enemy's country to support their government, and it facilitates the means of conveying intelligence, and carrying on a traitorous correspondence with the enemy. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and commerce of the enemy, in order to force them to peace. It is a well settled doctrine in the English courts, and with the English jurists, that there cannot exist, at the same time, a war for arms, and a peace for commerce. The war puts an end at once to all dealing and all communication with each other, and places every individual of the respective governments, as
a 1 Chilly on Commercial Law, 378.
well as the governments themselves, in a state of hostility. This is equally the doctrine of all the authoritative writers on the law of nations, and of the maritime ordinances of all the great powers of Europe. It is equally the received law of this country, and was so decided frequently by the Congress of the United States during the revolutionary war, and again by the Supreme Court of the United States during the course of the last war; and it is difficult to conceive of a point of doctrine more deeply or extensively rooted in the general maritime law of Europe, and in the universal and immemorial usage of the whole community of the civilized world.
with an ene
It follows, as a necessary consequence of the doctrine of Contracts the illegality of all intercourse or traffic, without express my. permission, that all contracts with the enemy, made during war, are utterly void. The insurance of enemy's property is an illegal contract, because it is a species of trade and intercourse with the enemy. The drawing of a bill of exchange, by an alien enemy, on a subject of the adverse country, is an illegal and void contract, because it is a communication and contract. The purchase of bills on the enemy's country, or the remission and deposit of funds there, is a dangerous and illegal act, because it may be cherishing the resources and relieving the wants of the enemy. The remission of funds, in money or bills, to subjects of the enemy, is unlawful. The inhibition reaches to every communication, direct or circuitous. All endeavours at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice has succeeded to legalize the trade, without the express permission of the government. Every relaxation of the rule tends to corrupt the allegiance of the subject, and prevents
a Potts v. Bell, 8 Term, 548. Willison v. Patteson, 7 Taunt. 450. b Willison v. Patteson, ub. sup. The Indian Chief, 3 Rob. 22. The Jonge Pieter, 4 Rob. 79. The Franklin, 6 Rob. 127.