confided to the public, are exempt from seizure and confiscation." In another passage, Vattel gives the reason of this exemption. "In reprisals, the property of subjects is seized, as well as that belonging to the sovereign or state. Every thing which belongs to the nation is liable to reprisals as soon as it can be seized, provided it be not a deposite confided to the public faith. This deposite being found in our hands only on account of that confidence which the proprietor has reposed in our good faith, ought to be respected even in case of open war. Such is the usage in France, in England, and elsewhere, in respect to money placed by foreigners in the public funds." Again he says: "The sovereign declaring war can neither detain those subjects of the enemy who were within his dominions at the time of the declaration, nor their effects. They came into his country on the public faith: by permitting them to enter his territories, and continue there, he has tacitly promised them liberty and perfect security for their return. He ought, then, to allow them a reasonable time to retire with their effects, and if they remain beyond the time fixed, he may treat them as enemies; but only as enemies disarmed."13

It appears, then, to be the established rule of international usage that property of the enemy found within the territory of the belligerent state, or debts due to his subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prizes of war. This rule is frequently enforced by treaty stipulations, but unless it be thus enforced it cannot be considered as an

inflexible, though an established, rule. "The rule," as it has been beautifully observed, "like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign-it is a guide which he follows or abandons at his will; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. It is

13 Vattel, Droit des Gens, liv. ii. clí. 18, § 344; liv. iii. ch. 4, § 63; ch. 5, §§ 73-77.

§ 10.

Rule of re

not an immutable rule of law, but depends on political considerations, which may continually vary."14

Among these considerations is the conduct observed by the ciprocity. enemy. If he confiscates property found within his territory, or debts due to our subjects on the breaking out of war, it would certainly be just, and it may, under certain circumstances, be politic, to retort upon his subjects by a similar proceeding. This principle of reciprocity operates in many cases of international law. It is stated by Sir W. Scott to be the constant practice of Great Britain, on the breaking out of war, to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. "It is," says he, "a principle sanctioned by that great foundation of the law of England, Magna Charta itself, which prescribes, that at the commencement of a war, the enemy's merchants shall be kept and treated as our own merchants are kept and treated in their country."15 And it is also stated in the report of the English civilians in 1753, before referred to, in order to enforce their argument, that the king of Prussia could not justly extend his reprisals to the Silesia loan, that "French ships and effects, wrongfully taken, after the Spanish war, and before the French war, have, during the heat of the war with France, and since, been restored by sentence of your Majesty's courts to the French owners. No such ships or effects ever were attempted to be confiscated as enemy's property, here, during the war; because, had it not been for the wrong first done, these effects would not have been in your Majesty's dominions."

§ 11. Droits of

The ancient law of England seems thus to have surpassed Admiralty. in liberality its modern practice. In the recent maritime wars commenced by that country, it has been the constant usage to seize and condemn as droits of admiralty the property of the enemy found in its ports at the breaking out of

14 Mr. Chief Justice Marshall in Brown v. the United States, Cranch's Rep. vol. viii.

15 Robinson's Adm. Rep. vol. i. p. 64. The Santa Cruz.

hostilities, and this practice does not appear to have been influenced by the corresponding conduct of the enemy in that respect. As has been observed by an English writer, commenting on the judgment of Sir W. Scott in the case of the Dutch ships, "there seems something of subtlety in the distinction between the virtual and the actual declaration of hostilities, and in the device of giving to the actual declaration a retrospective efficacy, in order to cover the defect of the virtual declaration previously implied.”1

§ 12. Debts due

In respect to debts due to an enemy previously to the commencement of hostilities, the law of Great Britain pur- to sues a policy of a more liberal, or at least of a wiser cha- my. racter. A maritime power which has an overwhelming naval superiority may have an interest, or may suppose it has an interest, in asserting the right of confiscating enemy's property seized before an actual declaration of war; but a nation, which by the extent of its capital must generally be the creditor of every other commercial country, can certainly have no interest in confiscating debts due to an enemy, since that enemy might, in almost every instance, retaliate with much more injurious effect. Hence, though the prerogative of confiscating such debts, and compelling their payment to the crown, still theoretically exists, it is seldom or never practically exerted. The right of the original creditor to sue for the recovery of the debt is not extinguished: it is only suspended during the war, and revives in full force on the restoration of peace.'

17

Such, too, is the law and practice of the United States. The debts due by American citizens to British subjects before the war of the revolution, and not actually confiscated, were judicially considered as revived, together with the right to sue for their recovery, on the restoration of peace between the two countries. The impediments which had existed to

16 Chitty's Law of Nations, ch. 3, p. 80.

17 Bosanquet and Puller's Rep. vol. iii. p. 191. Furtado v. Rogers. Vesey, Jun. Rep. vol. xiii. p. 71, ex parte Boussmaker. Edward's Adm. Rep. p. 60. The Nuestra Senora de los Dolores.

the ene

the collection of British debts under the local laws of the different states of the confederation were stipulated to be removed by the treaty of peace in 1783; but this stipulation proving ineffectual for the complete indemnification of the creditors, the controversy between the two countries on this subject was finally adjusted by the payment of a sum en bloc by the government of the United States for the use of the British creditors. The commercial treaty of 1794 also contained an express declaration that it was unjust and impolitic that private contracts should be impaired by national differences, with a mutual stipulation that "neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated."'18

pow

On the commencement of hostilities between France and Great Britain in 1793, the former power sequestrated the debts and other property belonging to the subjects of her enemy, which decree was retaliated by a countervailing measure on the part of the British government. By the additional articles to the treaty of peace between the two ers, concluded at Paris in April, 1814, the sequestrations were removed on both sides, and commissaries were appointed to liquidate the claims of British subjects for the value of their property unduly confiscated by the French authorities, and also for the total or partial loss of the debts due to them, or other property unduly retained under sequestration subsequently to 1792. The engagement thus extorted from France may be considered as a severe application of the rights of conquest to a fallen enemy, rather than a measure of evenhanded justice; since it does not appear that French property, seized in the ports of Great Britain and at sea, in anticipation of hostilities, and subsequently condemned as droits of admiralty, was restored to the original owners under this treaty on the return of peace between the two countries.19

18 Dallas' Rep. vol. iii. pp. 4. 5, 199–285.

19 Martens, Nouveau Recueil, tom. ii. p. 16.

So also, on the rupture between Great Britain and Denmark in 1807, the Danish ships and other property, which had been seized in the British ports and on the high seas before the actual declaration of hostilities, were condemned as droits of admiralty by the retrospective operation of the declaration. The Danish government issued an ordinance, retaliating this seizure by sequestrating all debts due from Danish to British subjects, and causing them to be paid into the Danish royal treasury. The English court of King's Bench determined that this ordinance was not a legal defence to a suit in England for such a debt, not being conformable to the usage of nations; the text writers having condemned the practice, and no instance having occurred of the exercise of the right, except the ordinance in question, for upwards of a century. The soundness of this judgment may well be questioned. It has been justly observed, that between debts contracted under the faith of laws, and property acquired on the faith of the same laws, reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property found within the country on the breaking out of the war. Both require some special act expressing the sovereign will, and both depend, not on any inflexible rule of international law, but on political considerations by which the judgment of the sovereign may be guided.20

unlawful

One of the immediate consequences of the commencement § 13.. of hostilities is the interdiction of all commercial intercourse Trading with the between the subjects of the states at war, without the license enemy, of their respective governments. In Sir W. Scott's judgment, on the part in the case of the Hoop, this is stated to be a principle of of subjects universal law, and not peculiar to the maritime jurisprudence ligerent of England. It is laid down by Bynkershoek as a universal state. principle of law. "There can be no doubt," says that writer, "that from the nature of war itself, all commercial in

tercourse ceases between enemies.

Although there be no

20 Maule & Selwyn's Rep. vol. vi. p. 92. Wolff v. Oxholm. Cranch's Rep. vol. viii. p. 110. Brown v. the United States.

of the bel