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. (a)

Practice of

§ 306. Such, too, is the law and practice of the United the United States. The debts due by American citizens to British States, in that particu- subjects before the war of the Revolution, and not actular. ally 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 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." (a)

Practice of Great Britain and

§ 307. On the commencement of hostilities between France and Great Britain, in 1793, the former power France. 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 engage

(a) Bosanquet & Puller's Rep. iii. 191, Furtado v. Rodgers. Vesey, jun., Rep. xiii. 71, Ex parte Boussmaker. Edwards's Adm. Rep. 60. The Nuestra Signora de los Dolores.

(a) Georgia v. Brailsford, Dallas, iii. 4, 5. Ware v. Hylton, Ib. 199–285.

ment 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. (a)

Britain and

lar, in

§ 308. So, also, on the rupture between Great Britain Great and Denmark, in 1807, the Danish ships and other prop- Denmark, in erty, which had been seized in the British ports and on that particuthe high seas, before the actual declaration of hostilities, 1807. 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. (a) 157

(a) Martens, Nouveau Recueil, tom. ii. p. 16.

(a) Maule & Selwyn's Rep. vi. 92, Wolff v. Oxholm.

Brown v. The United States.

Cranch's Rep. viii. 110,

[157 Confiscation of Private Debts due to Enemies. - Modern writers seem to agree that no distinction in principle exists between such debts and other private property on land. (Ships and their cargoes, and commercial property at sea, have always been differently treated, for reasons given in note 171, infrà, Distinction between Enemy's Property at Sea and on Land.) Persons who either leave their property in another country, or give credit to a foreign citizen, act on the understanding that the law of nations will be followed, whatever that may be. To argue, therefore, that the rule under the law of nations must be to abstain from confiscation because the

Trading with the

enemy, un-
lawful on

the part of
subjects
of the bel-
ligerent
State.

§ 309. One of the immediate consequences of the commencement of hostilities is, the interdiction of all commercial intercourse between the subjects of the States at war, without the license of their respective governments. In Sir W. Scott's judgment, in the case of The Hoop, this is stated to be a principle of universal law, and not peculiar

...

debt or property is left in the foreign country on the public faith of the country, seems to be a petitio principii. Kent (i. 65) states the law of nations to be, at the time of his writing, that it rests in the discretion of the legislative authority of a nation to confiscate private debts or not, at its discretion; but, as the exercise of the right is contrary to universal practice, it may "well be considered as a wicked and impolitic right, condemned by the enlightened conscience of modern times." Wildman (ii. 10, 11) speaks of the old rule as more or less mitigated by the wise and humane practice of modern times. Phillimore (iii. 132 et seq.), says, "The strict right,—the summum jus,—by the reason of the thing and the opinion of every eminent jurist, remains unquestioned;" and adds, that "the rigor of this right has been mitigated by the wise and humane practice of nations for nearly a century and a half." Manning (p. 129) says such debts "may be confiscated by the rigorous application of the rights of war, but the exercise of this right has been discontinued in modern warfare." Woolsey (§ 118) says, “from the strict theory of hostile relations laid down above, it would follow. that enemy's property within the country, at the breakingout of war, was liable to confiscation. This principle would also apply to debts due to them at that time." Halleck (pp. 362-9) agrees with Kent, that the law of nations in this respect cannot be considered as changed, so as to prohibit the confiscation. So, also, Pfeiffer, Kriegserob. § 14. Story, in his opinion in Brown v. United States (Cranch, viii. 140), says, "I take upon me to say, that no jurist of reputation can be found who has denied the right of confiscation of enemy's debts." Heffter (Europ. Völker. § 140) seems to assert a general right to seize and confiscate, but contends for a moral principle that should govern nations, which, he thinks, permits the sovereign to seize and use, or convert into money and put in his treasury, enemy's property or debts found in his dominions; but requires him to account for it, in the terms of the treaty of peace, as something of which he has had a lawful use, but the absolute title to which should not be lost by the mere fact of war. It is true, that Alexander Hamilton, in his celebrated Camillus Letters, in defence of Jay's Treaty (Works, vii. letters 18, 19, 20), argues that the public faith is pledged to the foreigner who leaves his property or debt in the country; but it should be remembered that the scope of Hamilton's argument was to justify a treaty which recognized the validity of private debts not actually confiscated, and not to question the abstract right of a nation, under the international law, to confiscate such debts, during the war, at its discretion. The Declaration of Paris of 1856 does not touch this subject. In a great many treaties made by the United States, the confiscation of private debts is prohibited; and, in one, that with Great Britain, 1794, art. 10,-it is pronounced "unjust and impolitic."

A distinction lies between private debts and debts due by the State itself to a person becoming its enemy by war. Vattel says that "l'état ne touche pas même aux sommes qu'il doit aux ennemis; partout, les fonds confiés au public sont exempt de confiscation et de saisie en cas de guerre." See also Emérigon, Des Assurances, tit. i. p. 567, and Martens, liv. viii. ch. 11, § 5, to the same effect. Phillimore (iii. 135) speaks of the doctrine of the immunity of public debts as one "which now may

to the maritime jurisprudence of England. It is laid down by Bynkershoek as a universal principle of law. "There can be no doubt," says that writer, "that, from the nature of war itself, all commercial intercourse ceases between enemies. Although there be no special interdiction of such intercourse, as is often the case, commerce is forbidden by the mere operation of the law of war. Declarations of war themselves sufficiently manifest it, for they enjoin on every subject to attack the subjects of the other prince, seize on their goods, and do them all the harm in their power. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war, as to commerce. Hence it is alternately permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the goods of others. Thus, sometimes a mutual commerce is permitted generally; sometimes as to certain merchandises only, while others are prohibited; and sometimes it is prohibited alto

happily be said to have no gainsayers." Manning says such debts are "invariably regarded during war;" and considers them as "intrusted to the public faith," and not liable to be touched "without a violation of public faith." Woolsey says (Introd. § 118) that "all modern authorities agree, we believe, that they ought to be safe and inviolable. To confiscate either principal or interest would be a breach of good faith, injure the credit of a nation, and provoke retaliation on persons and all private property." So Wildman, ii. 10, 11. Among the extremest measures between Great Britain and France, during the wars of Napoleon, public debts were never confiscated. Kent (i. 63, 64) considers the impolicy of such confiscation to be so clear, and its bad faith so palpable, as to remove it from the permitted acts of war.

The distinction seems to be, that a loan to a State is in the nature of a permanent investment invited by the State itself; and the implication is fairly to be made by the foreign creditor that he is not to lose it by war. The whole turns on this question, — what has the foreign creditor a right to assume will be the result in case of war? The policy of a State to have its loans open to people of all nations, as investments secure against the chances of war, is so obvious and paramount as not only to settle the practice, but to give countenance to the assumption of the creditor that the faith of the State was impliedly pledged to him to that effect. During the civil war in the United States, the Congress of the rebel confederacy confiscated all property, movable or immovable, and all rights, credits, and interests held within the confederacy by or for any alien enemy, except public stocks and securities. (Act 6th August, 1861: McPherson's Hist. of Rebellion, 203.) Earl Russell remonstrated against this proceeding as discountenanced, if not disallowed, by the modern law of nations, and as especially objectionable in civil wars. Parliam. Papers, 1862: Correspondence relating to the Civil War, 108. Abdy's Kent, 211, 212. See note 156, ante, Enemy's Property found in the Country on the Breaking-out of War; and note 169, infrà, on Conquest and Belligerent Occupation.] — D.

gether. But in whatever manner it may be permitted, whether generally or specially, it is always, in my opinion, so far a suspension of the laws of war; and in this manner there is partly war and partly peace between the subjects of both countries." (a)

It appears from these passages to have been the law of Holland. Valin states it to have been the law of France, whether the trade was attempted to be carried on in national or neutral vessels; and it appears from a case cited (in The Hoop) to have been the law of Spain; and it may without rashness be affirmed to be a general principle of law in most of the countries of Europe. (b)

Sir W. Scott's decision in

§ 310. Sir W. Scott proceeds to state two grounds upon which this sort of communication is forbidden. The Hoop. The first is, that "by the law and constitution of Great Britain the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient; but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce merely, and possibly on grounds of private advantage, not very reconcilable with the general interests of the State. It is for the State alone, on more enlarged views of policy, and of all the circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the

(a) "Quamvis autem nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant, quisque enim subditus jubetur alterius Principis subditos, eorumque bona aggredi, occupare, et quomodocumque iis nocere. Utilitas verò mercantium, et quòd alter populus alterius rebus indigeat, fere jus belli, quòd ad commercia, subegit. Hinc in quoque bello aliter atque aliter commercia permittuntur vetanturque, prout e re suâ subditorumque suorum esse censent Principes. Mercator populus studet commerciis frequentandis, et prout quisque alterius mercibus magis minusve carere potest, eò jus belli accomodat. Sic aliquando generaliter permittuntur mutua commercia, aliquando quòd ad certas merces, reliquis prohibitis, aliquando simpliciter et generaliter vetantur. Utcunque autem permittas, sive generaliter, sive specialiter, semper, si me audias, quoad hæc status belli suspenditur. Pro parte sic bellum, pro parte pax erit inter subditos utriusque Principis." Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 3. (b) Valin, Comm. sur l'Ordonn. de la Marine, liv. iii. tit. 6, art. 3.