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its declaration was not considered as prescribing a law respecting the person of an enemy found in our country, neither did it prescribe a law for his property. The act concerning alien enemies, which conferred on the President very great discretionary powers respecting their persons, afforded a strong implication that he did not possess those powers by virtue of the declaration of war.

The act "for the safe keeping and accommodation of prisoners of war," was of the same character.

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The act prohibiting trade with the enemy contained this clause: "That the President of the United States be, and he is hereby authorized to give, at any time within six months after the passage of this act, passports for the safe transportation of any ship or other property belonging to British subjects, and which is now within the limits of the United States."

The phraseology of this law showed that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the authority which the act conferred on the President was manifestly considered as one which he did not previously possess.

The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, was believed to be entirely free from doubt. Was there in the Act of Congress, by which war was declared against Great Britain, any expression which would indicate such an intention?

That act, after placing the two nations in a state of war, authorizes the President to use the whole land and naval force of the United States, to carry the war into effect; and "to issue to private armed vessels of the United States commissions, or letters of marque and general reprisal, against the vessels, goods, and effects of the government of the United Kingdom of Great Britain and Ireland, and the subjects thereof."

That reprisals may be made on enemy's property found within the United States at the declaration of war, if such be the will of the nation, had been admitted; but it was not admitted that, in the declaration of war, the nation had expressed its will to that effect.

It could not be necessary to employ argument in showing, that when the Attorney for the United States institutes proceedings

at law for the confiscation of enemy's property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel.

The act "concerning letters of marque, prizes, and prize goods," certainly contained nothing to authorize that seizure.

There being no other Act of Congress which bore upon the subject, it was considered as proved that the legislature had not confiscated enemy's property, which was within the United States at the declaration of war, and that the sentence of condemnation, pronounced in the court below, could not be sustained.

One view, however, had been taken of this subject, which deserved to be further considered. It was urged that, in executing the laws of war, the executive may seize and the courts condemn all property which, according to the modern law of nations, is subject to confiscation; although it might require an act of the legislature to justify the condemnation of that property, which, according to modern usage, ought not to be confiscated.

This argument must assume for its basis that modern usage constitutes a rule which acts directly upon the thing itself, by its own force, and not through the sovereign power. This posi tion was not allowed. This usage was a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, was addressed to the judgment of the sovereign; and although it could not be disregarded by him without obloquy, yet it might be disregarded.

The rule was, in its nature, flexible. It was subject to infinite modifications. It was not an immutable rule of law, but depended on political considerations, which might continually vary. Commercial nations, in the situation of the United States, had always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy's property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it was proper

for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It was proper for the consideration of the legislature, not of the executive or judiciary. It appeared to the Court that the power of confiscating enemy's property was in the legislature, and that the legislature had not yet declared its will to confiscate property which was within our territory at the declaration of war.1

12. Debts

due to the enemy.

In respect to debts due to an enemy, previously to the commencement of hostilities, the law of Great Britain pursues a policy of a more liberal, or at least of a wiser character, than in respect to droits of admiralty. 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 ever 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.2

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 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

1 Mr. Chief Justice Marshall, Cranch's Rep. vol. viii. pp. 123–129. 2 Bosanquet & Puller's Rep. vol. iii. p. 191. Rep. vol. xiii. p. 71, ex parte Boussmaker. Nuestra Signora de los Dolores.

Furtado v. Rodgers. Vesey Jun. Edward's Adm. Rep. p. 60. The

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 funds, or in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated.1

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 powers, 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 even-handed 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.2

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

1 Dallas's Rep. vol. iii. pp. 4, 5, 199–285.
2 Martens, Nouveau Recueil, tom. ii. p. 16.

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.1 (a)

13. Trading with the enemy, un

One of the immediate consequences of the commencement of hostilities is, the interdiction of all commercial intercourse between the subjects of the States the part of

lawful on

1 Maule & Selwyn's Rep. vol. vi. p. 92. Wolff v. Oxholm. Cranch's Rep. vol. viii. p. 110. Brown v. The United States. [Thompson, Laws of War, p. 7.] (a) [The property in Danish vessels and cargoes, condemned as droits of admiralty in 1807, and in retaliation of which the British debts were confiscated, was computed at £1,265,000. The debts due from Danish to British subjects, ordered to be paid into the treasury, amounted to only from £200,000 to £300,000. When Great Britain demanded the payment of this sum from the Danish government, the latter offered to deduct it from the value of the ships and other property condemned as above mentioned. This was declined; and the British government ultimately satisfied their own merchants, by an indemnity granted by Act of Parliament. "It is difficult," said Mr. Wheaton, writing in reference to this transaction, "to show a reasonable distinction between debts contracted under the public faith in time of peace, and property found in the enemy's territory on the breaking out of the war, or taken at sea before the declaration of hostilities." Mr. Wheaton to Mr. Forsyth, 29th November, 1834. MS. Despatches.]

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