Слике страница

of captures,

ble for the debts or obligations of the state or sove-
Upon this point Vattel is more emphatic. IIe

He says, that the property of individuals in the aggre- . gate, is to be considered, with respect to other states, as the property of the nation itself. A nation, being regarded by foreign nations as constituting only one whole, one single person, all their wealth together can only be considered as the wealth of the same person.

If one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation, until the debt is paid.?

From this principle result many important rights General right and liabilities, such as captures, reprisals, &c., by reprisuls, &c. which the property of any citizen of an enemy's state is seized as indemnification for the injuries sustained by the state or the citizens. These will be more fully considered hereafter.

Resulting from this principle, also, it is well established, that the persons and the property of alien enemies, found within the state, when a war breaks out, may be rightfully seized by the govern. ment, the individuals as prisoners of war, and the property to indemnify the nation. The modern practice of nations has greatly mitigated the severity of the rule of right, and in some instances, it has been modified by treaty; but there is no doubt of the right, and that, in the absence of express convention, it may be lawfully exercised. By Magna

[merged small][ocr errors][merged small][ocr errors]

Rule in the early ages.

Charta of Great Britain, it was provided that the merchants of a foreign nation, found in Great Britain, upon the breaking out of hostilities with that nation, should be detained, until it were known how British subjects were treated by the enemy, and then to be released or detained accordingly.

In the Middle Ages, the rule was rigidly enforced, but its relaxation commenced with the advance of civilization and the growing appreciation of the importance of commerce. As early as 1483, Louis XI. granted protection to the persons and property of the Hanse Towns, with liberty to remain for one year after the war broke out. In the sixteenth century it became a common stipulation in commercial treaties between nations, that the citizens or subjects of either should be allowed a specified time, varying from three months to two years, from the commencement of a war, during which they might remain unmolested for the settlement of their

affairs, and retire peaceably, at any time within the Treaty stipula- period stipulated. By the treaty of 1786 between

Great Britain and France, it is provided that the subjects of either power shall be allowed to continue their residence during war, in the dominions of the other, as long as they comport themselves to the satisfaction of the government.® An article of a similar character was inserted in the treaty of 1795 between the United States and Great Britain. By this it is provided, that the citizens of either power may remain unmolested during war in the


[blocks in formation]

dominions of the other, as long as they “behave peaceably and commit no offence against the laws;" and in case either government thinks proper to de. sire their removal, twelve months' notice shall be allowed them for that purpose. But, as before re- Modern rule marked, where there is no treaty stipulation to the in absence of

treaty stipulacontrary, the right remains. The rule so well es- tions. tablished in Europe has been recognized by the highest federal tribunal in the United States. “However strong," says Chancellor Kent,“ the current of authority, in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country, and it has been definitively settled in favor of the ancient and sterner rule, by the Supreme Court of the United States. The effect of war upon British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly considered, in the case of “Brown;" and the Circuit Court of the United States at Boston, decided, as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation, and the exercise of the right vested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assumed, that war gave to the sovereign the right to take the persons, and confiscate the property of the



1 De Marten's Recueil, V., 686.

Property exempt from the rule, public funds.

found, and that the mitigation of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself."

There is one description of property of the enemy which is invariably respected in time of war, and that is, the sums due from the state t, the enemy, such as the property which the enemy may have in the public funds or stock. This property is justly regarded as intrusted to the faith of the nation. Its credit, honor, security, require that it should be held sacred. An attempt was made by Prussia in 1752 to apply such property for the purpose of reprisals. But it was universally held at the time as an infamous breach of public faith, without example to justify it, and not likely to furnish excuse or precedent for future action.?

But debts due from individuals to subjects or citizens of the enemy's country, stand in an entirely different position from that of debts due from the state which are under the guaranty of the national honor. Debts due from individu is to the enemy, may undoubtedly be confiscated, by the rigorous application of the rights of war, being the property of the enemy, and therefore liable to confiscation; but in modern warfare the exercise of this right has been almost universally discontinued.

“ The claim of a right to confiscate debts,” says Chancellor Kent, “contracted by individuals in

Private debts.

[ocr errors]


Kent's Com., Vol. I., 59; Brown vs. The United States, 8 Cranch, 110; Ware vs. Hilton, 3 Dallas, 199.

? Charles De Marten's “ Causes Celeb. du Droit des Gens,” Vol. II.


fiscated by

time of peace, and which remain due to the sub- Private debts jects of the enemy at the declaration of war, rests

suspended but very much upon the same principle as that concern- debts not coning the enemy's tangible property found in the modern rúle. country at the opening of the war. In former times, the right to confiscate debts was admitted as a doctrine of national law, by Grotius, Puffendorff," Bynkershoek, and Lord Hale. It had the countenance of the civil law," and even Cicero, when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favor of the right. But Vattel' says that a relaxa

? tion of the rigor of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it, would violate the public faith, for strangers trusted his subjects only from a firm per suasion that the general custom would be observed.

Treaties on There has been frequently a stipulation in modern the subject. treaties that debts or moneys in the public funds should not be confiscated in time of war, and these conventional provisions are evidence of the sense of the governments which are parties to them, that the right of confiscation of debts and things in action is against good policy, and ought to be discontinued. The treaties between the United States and Colombia, in 1825, and Chili, in 1832, and Venezuela in 1836, and the Peru Bolivian Con


Grotius B. I., c. i., § 6; B. III., c. iii., § 4. · Puff. I., 8, c. vi., 19, 20. Bynk. I., 1., c. vii. * Lord Hale, I., 95. • Dig. 41, 1, 49, 15. • Cic. De Off. I. 3., C. xxvi. • Vattel B. III., C. v., 8 77.



« ПретходнаНастави »