of it, if shares in the public stocks, held by a foreign government, were confiscated. With regard to the two former cases, the Supreme Court of the United States has decided, in accordance with the body of earlier and later text-writers, that by strict right such property is confiscable, but they add that such a measure requires the sanction of the national legislature, which, it is to be hoped, will never consent to disgrace the country by an act of that kind.1 For the usage is now general, if not fixed, with the single exception of measures of retorsion, to allow the subjects of the enemy to remain within the territory during good behavior, in the enjoyment of their property, or to give them, by public proclamation, reasonable time to remove with their effects from the country. The English and French in the late Crimean war allowed Russian vesvels six weeks' time to leave their ports and reach their destination. In many cases treaties have given additional security to the goods, claims, and persons of enemies' subjects so situated. The treaty of 1794, between the United States and Great Britain, often called in the United States Jay's, from its American negotiator, declared it to be unjust and impolitic to confiscate debts due to the subjects of a nation that has become hostile. It was also stipulated in this instrument that the citizens of either power might remain unmolested during war, in the dominions of the other, so long as they should behave peaceably, and commit no offense against the laws; and facto government; pronouncing that the law of confiscation was passed without authority, and that, although persons having property in their possession may sometimes be freed from liability for giving it up on account of the force put upon them, yet, since debts are not tangible things, “the debtors cannot claim release from their creditors by reason of the coerced payment of similar sums to an unlawful combination."

1 Comp. Kent, i., Lect. 3, p. 59 seq.

2 In Article X. it is provided that "neither debts due from individuals of the one nation to individuals of the other, nor shares nor monies which they may have in the public funds or in the public or private banks, shall ever, in any event of war or national difference, 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."

that, if either government desired their removal, twelve months' notice should be given them to this effect. Of treaties containing similar provisions, "a list lies before me," says Mr. Manning, "too long for insertion, but even the Barbary powers have in a great number of instances concluded such agreements.

"1

With regard to the shares held by a government or its subjects in the public funds of another, all modern authorities. agree, we believe, that they ought to be safe and inviolate. To confiscate either principal or interest would be a breach of good faith, would injure the credit of a nation and of its public securities, and would provoke retaliation on the property of its private citizens. "The Emperor Napoleon I., during his stay at Posen, imagining that the cabinet of London had the intention of confiscating stock in the public debt belonging to Frenchmen, ordered his minister of finance to examine whether, in case they should so act, it would not be necessary to have recourse to the same rigor. The matter is a very delicate one, said he; I am not willing to set the example, but if the English do so, I ought to make reprisals. M. Mollien replied that such an act was so contrary to English policy that he could not believe it, that he wished the cabinet of London would commit such a mistake, but that results would be the more disastrous for them if it were not imitated. On this occasion he sent to the emperor the memoir of Hamilton,2 the friend, counsellor, and minister of Washington, on the question whether the political, more even than the moral rule, did not forbid every government, not only to confiscate capital which had been lent to it by the subjects of a power with which it was at war, but even to suspend, as far as they were concerned, the payment of interest. Napoleon did not insist further on the matter.” 3

We close this subject with referring to some of the opinions 1 Comment., p. 126.

2 Probably the letters of Camillus. See the note at the end of this section.

3 From a biography of Count Mollien, contributed by Michel Chevalier to the Revue des Deux Mondes, in the year 1856, cited by Vergé on De Martens, § 258, ed. of 1858.

which text writers have expressed on the several points considered. As for immovable property in an enemy's country, Bynkershoek says that in strict justice it can be sold and confiscated, "ut in mobilibus obtinet," but he adds that it is a general usage throughout Europe for the rents to go to the public treasury during war, but for the property itself after the war to revert "ex pactis" to the former owner. ("Quæst. Jur. Publ.,” i. 7.) As for other property, except debts, all jurists hold the same doctrine of its liability to confiscation. (Comp. Manning, p. 127, ed. I.) As for debts, even Grotius decided that "hæc non belli jure quæsita sed bello tantum exigi vetita." But Bynkershoek (u. s.), while he mentions that the right to confiscate them had been questioned, adds, "sed videtur esse jus commune ut et actiones publicentur, ex eadem nempe ratione quâ corporalia quælibet. Actiones utique sive credita non minus, jure gentium, sunt in dominio nostro quam alia bona; eccur igitur in his jus belli sequamur, in aliis non sequamur?" There must, however, be actual confiscation. "If the sovereign," - Bynkershoek goes on to say, "has exacted debts due to his enemies from his subjects, they are duly paid, but if not, at peace the creditor's former right revives, because occupation in war consists rather in fact than in jural power. Debts, therefore, if not confiscated in time of war, suffer a temporary suspension, but after peace return by a sort of postliminy to their old owner." Accordingly, he adds that treaties often provide for the non-payment to the creditor of confiscated debts. Vattel takes the same ground as to debts, but adds that all the sovereigns of Europe have departed from this rigor, and, as the usage has altered, he who should act contrary to it would injure the public faith. (B. iii., 5, § 77.) Mr. Manning says that "debts due from individuals to the enemy may be confiscated by the rigorous application of the rights of war-but the exercise of this right has been discontinued in modern warfare; and it may be regarded as established, that though debts cannot be claimed by an enemy during war, yet, that the right to claim payment revives on the return of peace." (Pages 129, 130.) Dr.

Wheaton says that for nearly a century and a half previous to the French revolution, no instance of confiscation of debts had occurred, with the simple exception of the Silesian loan, in 1753. And he sums up his view of international law on this point in the words, that property of the enemy found within the territory of the belligerent state, or debts due to its subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as a prize of war. This rule, he adds, is frequently enforced by treaty stipulations, but unless it be thus enforced, it cannot be considered as an inflexible, though an established rule. (Elements," iv., i. 345–347.)

Finally, as to public debts due to individual subjects of the enemy, I will cite but the single authority of Mr. Manning: "One description of property is invariably respected during war, namely, the sums due from the state to the enemy, such as the property which the latter may possess in the public funds. This is justly regarded as entrusted to the faith of the nation; and during the most bitter animosity of our wars with France, no attempt has been made on either side to confiscate such property, which cannot be touched without a violation of public faith."1

1 In the Letters of Camillus, written by Alexander Hamilton just after Jay's treaty in 1795, this subject is considered at length, particularly in letters 18-20. (Works, vol. vii.) In letter 19 he examines the right to confiscate or sequestrate private debts or property on the ground of reason and principle. He admits at the outset the proposition that every individual of the nation with whom we are at war is our enemy, and his property liable to capture. To this there is one admitted exception respecting enemy's property in a neutral state, but this is owing to the right of the neutral nation alone. Reason, he maintains, "suggests another exception. Whenever a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security." "The property of a foreigner placed in another country, by permission of its laws, may justly be regarded as a deposit of which the society is a trustee. How can it be reconciled with the idea of a trust, to take the property from its owner when he has personally given no cause for the deprivation?" Goods of enemies found elsewhere differ from those which are in our country, since in the latter case there is a reliance on our hospitality and justice. And the same argument which would confiscate the goods would seize the persons of enemies' subjects. The case of property in the public funds is still stronger than that of private debts.

§ 125.

Have all in

each hostile

state a right

to carry on

War?

If each and all on the one side were enemies to each and all on the other, it would seem that every person had a right, so far as the municipal code did not forbid, to fall upon his enemy wherever he could find him; that, for instance, an invading army had a right to seize on all the property and persons within reach, and dispose of them at discretion. But no such unlimited enmity is now known in the usages of nations. It is to be hoped that the theory from which such consequences flow will be abandoned and disappear altogether. The true theory seems to be that the private persons on each side are not fully in hostile relations, but in a state of non-intercourse, in a state wherein the rights of intercourse, only secured by treaty and not derived from natural right, are suspended or have ceased; while the political bodies to which they belong are at war with one another, and they only. Of course until these political bodies allow hostile acts to be performed, such acts, save in selfdefense, may not be performed; and accordingly the usages of war visit with severity those who fight without a sanction from their governments. The plunder which such persons seize belongs not to themselves but to the public, until public authority gives them a share in it.

§ 126.

There has long been a difference between the treatment of enemies' property - including in this term the property of in

The result which Hamilton reaches is sound, but if we admit the principle that every individual belonging to the belligerent nation is an enemy, and every enemy's property liable to capture, we must deny the validity of exceptions, unless treaty or usage has established them. The foreigner brought his property here, it can at once be said, knowing the risk he might run in the event of a war. Why should he not incur the risk? He should incur it, say the older practice and the older authorities. He should not, says the modern practice, although international law in its rigor involves him in it. He should not, according to the true principle of justice, because his relation to the state at war is not the same with the relation of his sovereign or government; because, in short, he is not in the full sense an enemy.