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Private debts
suspended,
but not extin-
guished by

war.

of Prussia, in 1752, to apply such property to the purpose of reprisals, but it was an infamous attempt, which neither had example to justify it, nor has it ever been resorted to as a precedent to excuse a breach of public faith. (1) Property in the public funds 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 the public faith. (2) Immovable property, such as a landed estate, is also respected during war, though Bynkershoek and Vattel say that the rents arising from such property may be sequestrated during war, to prevent their being given to the enemy. (3)

Debts due from individuals to subjects of the enemy are not in the same position as debts due from the State, which latter are under the guarantee of the national honour. Debts due from individuals to the enemy may be confiscated by the rigorous application of the rights of war, being the property of the enemy, and therefore liable to confiscation; but the exercise of this right has been discontinued in modern warfare. In the first half of the last century this was regarded as a right of war, but was even then a subject of doubt; Bynkershoek says that there had been many exceptions to the exercise of this right, but he gives it as his opinion that such confiscations are allowable, and says, that if the sovereign does not confiscate debts due from his subjects to the enemy, then the right to claim payment revives when the war has terminated; but that if

(1) For the correspondence on this subject, see the "Causes célèbres du Droit des Gens," by Charles de Martens, Vol. II.

(2) Vattel, Droit des Gens, liv. III. ch. v. § 77.

(3) Vattel, ubi sup., Bynkershoek, Quæst. Jur. Pub. lib. I.

C. III.

he does confiscate them, the right to demand payment has ceased. Vattel says, that the sovereign may confiscate debts due from his subjects to the enemy, "if the term of payment happen in the time of war, or at least he may prohibit his subjects from paying while the war continues: but, at present, a regard to the advantage and safety of commerce has induced all the sovereigns of Europe to act with less rigour on this point: and, 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 persuasion that the general custom would be observed." (1) Since the time of these writers, a great number of treaties have been made which make special mention of this subject, and provide that the subjects of the contracting parties shall not be liable to have debts due to them confiscated when war breaks out: such provision was made in the treaty between Great Britain and Russia, in 1766; (2) in that between Austria and Russia, in 1785; (3) between France and Russia in 1787; (4) and between Russia and the Sicilies, and Russia and Portugal, in the same year; (5) the articles in the treaties between Russia and Great Britain and Portugal, were renewed in 1797 and 1798; (6) the provision is also made in the treaty between France and the United States, in 1800; (7) between Russia and Sweden in 1801; (8) and in several treaties with the South American States. (9) These treaties are a proof that the practice of confiscating debts was a usage that it was thought necessary to guard against; but this right has hardly ever been exercised in modern

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warfare, the only modern instance being that of Denmark in her last war with Great Britain, when debts due to the British were confiscated by the Danish government. The practice of our own courts coincides with the general usage of Europe; and it may now 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."

[ See note above on trading with the enemy. Also Tudor's notes on the cases of The Fortuna, The Bremen Flugge and The Santa Cruz. (Leading Cases in Maritime Law.)]

CHAPTER V.

OF THE RIGHTS OF A BELLIGERENT WITH REGARD TO
THE PROPERTY OF HIS ENEMY IN A HOSTILE COUNTRY.

property of the

passed to the

ACCORDING to the usages of ancient warfare, all pro- In ancient perty belonging to the conquered passed to the victor: warfare all the even property dedicated to sacred purposes was not vanquished held exempt, and it was only gradually that spoils of victor. this description obtained some degree of respect. The confiscation of all property whatever was not merely the practice of warriors, but philosophers and moralists approved the custom; and Plato, Aristotle and Cicero, are quoted by Grotius, as saying that all the property of the vanquished rightfully passes to the victor. Grotius, who deduced the Law of Nations from the practice of nations, allows the confiscation or destruction of all property whatever belonging to an enemy. (1) Bynkershoek likewise supports the most rigorous application of the laws of war; he says, that we may rightfully take possession of whatever belongs to an enemy; (2) and subsequently adds, expressly, that by the rights of war we may justly take possession both of the movable and immovable property of an enemy. (3)

Vattel.

The opinion of Vattel corresponds more exactly with Opinion of the dictates of right, or, in other words, with the law of nature he admits that war gives a complete right to seize upon an enemy's property; but says, that this, like the other evils of war, can only be permitted as far as called for by the purposes of war, such as to

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obtain redress, or to take away the means of future aggression. "We have a right," he says, " to deprive our enemy of his possessions, of every thing which may augment his strength and enable him to make war. Whenever we have an opportunity, we seize on the enemy's property, and convert it to our own use." (1) It is lawful, he subsequently remarks, to appropriate an enemy's property, with a view of weakening him, of punishing him, or of obtaining compensation, and thus, "according to the law of nature, which constitutes the necessary Law of Nations, war, founded on justice, is a lawful mode of acquisition. But that sacred law does not authorize even the acquisitions made in a just war, any further than as they are approved by justice; that is to say, no farther than is requisite to obtain complete satisfaction, in the degree necessary for accomplishing the lawful ends we have just mentioned." But though the law of nature makes consistency with justice indispensable to establish an equitable right in acquisitions taken from an enemy, yet as no nation can erect itself into a judge of other independent nations, all acquisitions made in war must be treated as rightful, as no nation can take upon itself to question their justice, unless in some most evident and outrageous case. "By the rules of the voluntary Law of Nations," says Vattel, "every regular war is on both sides accounted just, as to its effects; and no one has a right to judge a nation respecting the unreasonableness of her claims, or what she thinks necessary for her own safety. Every acquisition, therefore, which has been made in regular warfare, is valid according to the voluntary Law of Nations, independently of the justice of the cause, and the reasons which may have induced the conqueror to assume the property of what he has taken. Accordingly, nations

(1) Droit des Gens, liv. III. ch. IX. § 161.

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