that, as the custom has been generally received, he who should act contrary to it, would injure the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. (a) There has frequently been a stipulation in modern treaties, that debts or moneys in the public funds should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right

of confiscation of debts and things in action, is against 63 good policy, and ought to be discontinued. The trea

ties between the United States and Colombia, in 1825, and Chili, in 1832, and Venezuela, in 1836, and the PeruBolivian Confederation, in 1838, and Ecuador, in 1839, contain 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 Mr. Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscated 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 protec tion and security. Vattel says, that everywhere, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon (b) and Martens (c) 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 honor, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given (d) a strik

(a) Vattel, b. 3, c. 5, sec. 77. (c) B. 8, c. 2, sec. 5.

(b) Des Ass. tom. i. 567.

(d) Essai sur les Mœurs et l'Esprit des Nations.

ing 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 endeavored to seize the property

of the French in Spain, but not a single Spanish factor *64 would betray his French correspondent. (a)

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, (b) 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, (c) 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, therefore, was * 65 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 to confiscate debts and credits.

(a) The English Court of K. B. declared, in the case of Wolff v. Oxholm, 6 Maule & 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 recognized 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.

(c) 3 Dallas, 199.

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, 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. (a) No such property

(a) The case of the Silesian loan contains, in the discussions between the Prussian and British courts, in 1752, a memorable exposition of the law of nations on the subject of belligerent rights and duties. The Report of the high and distinguished law officers of the crown, in answer to the Prussian Memorial, made in 1753, was declared by such eminent writers as Vattel and Montesquieu, to be an excellent and unanswerable tract on the law of nations. See the substance of the discussion in Wheaton's History of the Law of Nations, edit. N. Y. 1845, pp. 206-217, and the Report at large. Collectanea Juridica, vol. i. p. 95. The case is worthy of special notice, not only for the authority of the work, but for the recognition of the sanctity of private debts and contracts, in opposition to the pretensions of the rights of war and conquest. In that case, a loan of money was made by British creditors to the Emperor of Germany, in 1735, and for the better security of the payment of the loan, with interest, he mortgaged his revenues of the Duchies of Silesia; and when Silesia was conquered by Prussia, the Empress Queen, who had succeeded to the sovereignty of the country, before its conquest, ceded the Duchies to the King of Prussia, upon condition that the king should be responsible for the debt, and he assumed the payment of it. The king afterwards seized the revenues, by way of reprisal and indemnity against losses by British cruisers, under lawful capture and condemnation by the laws of war. The Report showed, unanswerably, as Montesquieu admitted, that the King of Prussia could not lawfully seize the mortgaged revenues or debt, by way of reprisal, and that he was bound by the law of nations, and every principle of justice, to pay the British creditors. The King of Prussia, by treaty in 1756, agreed to take off the sequestration laid on the Silesian debt, and pay the capital and interest due to the British creditors.

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 William 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.

66

Trading with the

One of the immediate and important consequences of the declaration of war, is the absolute interruption and interdiction of all commercial correspondence, in- enemy. tercourse 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. (b) 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

(a) 1 Rob. Rep. 50.

(b) The doctrine goes to the extent of holding it unlawful, after the commencement of war, except under the special license of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, which was there when the war broke out. It would be liable to seizure, in transitu, as enemy's property. The Rapid, 8 Cranch, 155. Potts v. Bell, 8 Term Rep. 548. In the case of The Juffrow Catharina, 5 Rob. Adm. Rep. 141, and of The Hoop, 1 Rob. 196, Sir Wm. Scott inculcated very strictly the duty of applying in all cases for the protection of a license, where property is to be withdrawn from the country of the enemy, as being the only safe course. Mr. Duer, in his Treatise on Insurance, vol. i. pp. 561-566, ably and successfully contends, that when a subject finds himself in an enemy's country on the breaking out of war, he may return diligently to his country, with his property, without rendering it justly liable to confiscation by the prize courts of his own country; though the language of Mr. Justice Story, in the cases of The Rapid, in 1 Gallison, 309, and The Mary, Id. 621, goes to the extent of the severe denial of that right under any circumstances. If the adverse belligerent allow such a right, as, see supra, p. 56, surely his own country ought to exercise the same lenity. Such was the decision of the Supreme Court of New York, in Amory v. McGregor, 15 Johnson, R. 24.

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 resources and commerce of the enemy, in order to force them to peace. (a) 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

1

other, and places every individual of the respective gov*67 ernments, as well as the governments themselves, in a state of hostility. (b) 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. It follows as a necessary consequence of the doctrine of the illegality of all intercourse or traffic, without express permission, that all contracts with the enemy, made during war, are utterly void. The insurance of enemy's

Contracts with an ene

my.

(a) 1 Chitty on Commercial Law, 378.

(b) Potts v. Bell, 8 Term Rep. 548. Willison v. Patteson, 7 Taunt. Rep. 439. Story, J., in The Joseph, 1 Gallison, 549, 550. In The Julia, Id. 601–603. Jonge Pieter, 4 Rob. 79. The Hoop, 1 Rob. 199, 217. The Rapid, 1 Gallison, 305.

1 Clemontson v. Blessig, 32 E. L. & Eq. 544. to examine witnesses in an enemy's country.

The court will not grant a commission Barrick v. Buba, 32 E. L. & Eq. 465.