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be regarded personally as having taken any part in the offence which has given rise to war, nor as taking any part in hostilities." Accordingly it is very rare that any measures of rigour are employed against them beyond what the necessities of war require in order to prevent them ranging themselves on the enemy's side, and augmenting his active force. In accordance with these principles, Modern the subjects of a sovereign, who has become an not to deenemy, are permitted freely to return to their tain enemy. country after a certain delay, and sometimes they are permitted by a belligerent Power to continue altogether in its territory without molestation 34 Heffter to the same purport writes, "that Enemy-Subjects, who are found within the territory of a belligerent Power at the commencement of war, ought to be allowed an interval of time to depart. Circumstances nevertheless may render a temporary detention of them necessary, in order to prevent them communicating to their fellow countrymen the plans of the belligerent 35" Lord Stowell, in commenting upon the modifying influence which the practice of Nations has exercised on the Natural Right of belligerents, observes, "that on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner in which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes, which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and 34 Klüber, § 246, 247. 35 Heffter, § 126. 2.

to enemy.

36 "

purposes It may be said in like manner that the exercise of the Right of a belligerent Power at the commencement of war to seize as prisoners of war all Enemy-Subjects within its territory, although it may have been in ancient times conformable to the practice of Nations, and in restraint of the Natural Right of a belligerent to put his enemies to death, has undergone further restraint, with the increased intercourse of Nations in time of peace; and that such Right may not be exercised in the present day by any belligerent Power without an odious deviation from a milder practice, to which all belligerents are bound in good faith to conform themselves.

§ 53. The exercise of the Right of a belligerent Power to seize and confiscate all enemy's goods found within its territory at the commencement of war, has likewise undergone considerable modification; as it is not the practice to seize and confiscate the goods of an enemy which are on land, nor the debts contracted by the belligerent Power or by its Subjects with Debts due the enemy before war broke out. "Between debts contracted under the faith of laws, and property acquired in the course of trade, reason draws no distinction; and although, in practice, vessels with their cargoes found in port at the declaration of war may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace, in the course of trade." Such is the language of a most eminent American Jurist, Chief-Justice Marshall 37.

subjects.

§ 54. Mr. Justice Story, on the other hand, seems to impugn the suggestion that the exercise of the right of seizure and confiscation has become modified by usage, although he admits that the exception made

36 The Fladoyen, 1 Ch. Rob. p. 140.

37 Brown v. the United States, 8 Cranch, p. 123.

Mr. Justice

by Vattel, namely, that the Sovereign in declaring war can neither detain the persons nor the property of those subjects of the enemy, who are within his dominions at the time of the declaration, because they come into them upon the public faith", "is highly reasonable in itself, as confined to the property of persons who are within the country." But even limited as it is, he says, it does not seem followed in practice; and Bynkershoek is an authority the other way 39. But Mr. Justice Story, in illus- Opinion of trating the exercise of hostile Right, the summum jus, Story. in such matters, does not allege any other instances than those in which enemy-vessels and cargoes found afloat in the ports of a belligerent at the commencement of war have been embargoed, and ultimately confiscated as prize of war. "Of the Right of a State to seize vessels and cargoes found in her ports on the breaking out of war, I do not find," he says, “any denial in authorities which are entitled to much weight; and I therefore consider the rule of the Law of Nations to be, that every such exercise of authority is lawful, and rests on the sound discretion of the Sovereign." It will be seen then that Mr. Justice Story maintains in practice nothing beyond the limited exercise of hostile Right in regard to enemy's property, which may be afloat in the ports of a belligerent Nation at the commencement of war, and in the exercise of which Right, as perfectly lawful under the Admiralty jurisdiction, all jurists concur. But when Mr. Justice Story goes further, and holds that a belligerent Power may lawfully authorise the confiscation of enemy's property, whenever by the rigour of the Law of Nations it may be rightfully seized; and that however odious it may be deemed in modern times, a belligerent Power has the Right 39 Bynkershoek, Quæst. Jur. Pub. L. I. c. 2, 3, 7.

38 Vattel, Droit des Gens. L. III. c. 4. § 63.

to confiscate all debts due from its own subjects to enemy-subjects, it becomes necessary to distinguish between the existence of a Right, which by the rigour of the Law of Nations is inherent in the Sovereign Power of every independent State, and the exercise of that Right as it is controlled by the usage of Nations. There may be a warrant of Natural Right for the Executive Government of every belligerent State to confiscate enemy's property, in whatever form it may be, if it is found in a place which is subject to its Sovereignty; and yet there may be a restraint imposed by the usage of Nations upon a belligerent State exercising its extreme Right of Sovereignty in certain cases, which restraint it cannot disregard consistently with good faith.

The rules of law, which Courts are bound to administer, are not always identical with the rules of conduct, which Nations are bound to observe in their intercourse with one another. The functions of the judiciary body in every State are defined by the Sovereign Power of the State, in regard to the law which they are called upon to administer: so likewise the judicial tribunals may be limited and controlled in their field of view by the executive authority, or by the territorial legislature; and it is not within the province of the judiciary body to criticise or call in question the good faith of the State, if it has authorised it to administer the summum jus of belligerents. But as between Nations Good Faith must be upheld at the sacrifice of absolute Right; and if it should be inconsistent with International Good Faith for a State to exercise the summum jus of a belligerent in certain matters, it would be against the modern Law of Nations for a State to authorise its Courts to administer the summum jus of a belligerent in such matters. Mr. Justice Story seems to consider, that foreign Nations with whom there is not a treaty to

the contrary, could only complain of such an act as a violation of the modern policy; but this matter seems to rest upon more solid foundations than those of mere policy. Mr. Justice Story holds, and in this respect he has the concurrence of all jurists, that if a Nation has stipulated in a treaty of commerce with another Nation that, if war should break out between them, they will mutually refrain from exercising their extreme Rights as belligerents in certain matters, either Nation would have just ground of complaint, if the other should not conform its conduct to the treaty stipulations; but in maintaining this position Mr. Justice Story concedes the whole question, and upholds the obligation of Good Faith at the sacrifice of Absolute Right; for war terminates, or at least suspends, the obligations of commercial treaties, as such, and no obligation remains after the breaking out of war, but that of Good Faith, to bar the exercise of all the Rights on the part of Nations which a State of War gives rise to. Treaty stipulations in such matters only serve to give greater precision to the obligations of Good Faith; but they are not necessary to create those obligations, which may arise, and will be equally binding without any written specification of them. A specific contract in fact differs only from an implied contract in the mode of proof 11.

§ 55. The Right of a belligerent Power to confiscate debts contracted by itself or by its Subjects in time of peace with individuals, who by the breaking out of war have become clothed with an enemy-character, chusetts. The Emulous, 1 Gallison, p. 136.

40 The case of Brown v. the United States, 8 Cranch, p. 121, was an appeal to the Supreme Court of the United States, from a judgment of Mr. Justice Story in the Circuit Court of Massa

41 Chief-Justice Erle, in Kennedy v. Broun, Queen's Bench, Jan. 16, 1863.

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