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federation in 1838, and of Ecuador in 1839, contained 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.” Vattel says, that everywhere, money lent to the public is exempt from confiscation and seizure in time of war. Emerigon' and Martens make the same declaration. With regard to the United States, however, the cases of Brown vs. The United States, 8 Cranch, 110, and Ware vs. Hilton, 3 Dallas, 199, establish it as a principle of public law, as far as the same is understood and declared by the highest judicial authorities in that 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 its citizens and due to the enemy, though, as it is asserted by the same author. ity, this right is contrary to universal practice, and may therefore well be considered as a naked and impolitic right, condemned by the enlightened judgment and conscience of modern times. 98
But the modern practice of nations in war, while departing from the ancient rule of confiscation of debts to the enemy, is uniform in suspending their payment, either by absolute prohibition, or by closing the doors of the courts against proceedings for their enforcement. Thus the debt is not annulled, but the remedy to reduce it to possession is sus
Emerigon, Des. Ass. I., 567; De Martens, B. VIII. c. ii., 85 · Kent's Com., I., 71; The Ann Greene, 1 Gall., 292.
pended. This doctrine was established in a lead. ing English case, in which one Boussemaker, a bank- . rupt, was indebted to certain alien enemies, whose debts the commissioners refused to admit. On the return of peace, these creditors filed their petition, praying to be allowed to prove their claims, and upon the decision of the case in the Court of Chancery, the Lord Chancellor took occasion to explain the distinctions of the law and its principles on the important question whether the right of an alien enemy was destroyed, or only suspended by war. says his lordship, “had been a debt arising from a contract, entered into with an alien enemy during war, it could not possibly stand, for the contract would be void—but if the two nations were at peace at the date of the contract, though, from the time of war taking place, the creditor could not sue, yet, the contract being originally good, upon the return of peace the right would revive. It would be contrary to justice, therefore, to confiscate this dividend. Though the right to recover is suspended, there is no reason why the fund should be divided among
the other creditors. The point is of great moment, from the analogy to the case of an action.
“The policy of avoiding contracts with an enemy is sound and wise; but where the contract was originally good, and the remedy is only suspended, the proposition that therefore the fund should be lost is very different."1
Ex parte Boussemaker, 13 Ves. Jun., 71.
Belligerent rights exer
THE CIVIL WAR IN THE UNITED STATES;
DETERMINATIONS OF THE RIGHTS AND LIABILITIES
[In this supplement to the chapter which treats of the rights and liabilities resulting from war, it is proposed to consider the grave and interesting questions connected with those rights and liabilities, which have constituted the basis of objections to the validity of the maritime captures made during the existing civil war in the United States; and to recite, at such length as the great importance of the subject may justify, the judicial discussions and de. terminations which have thus far been had upon these questions.
The government of the United States, in entering cised by the upon the performance of its momentous duty of
suppressing an insurrection of its slaveholding citi. zens,
which had assumed the character and proportions of civil war, saw fit to bring into exercise its belligerent rights, so far as they relate to the commerce and commercial intercourse of the insurgent section, carried on by means of the ports upon its coast or rivers.
These rights were asserted by the Executive in. stitution of a blockade of these ports.
Having in view the purpose for which the block. ade of the southern ports was established, namely, the cutting off the insurgents from all means of converting their movable property into warlike muni. tions and stores for subsistence, which would enable them to prosecute and prolong the unholy contest
United States in the conduct of the civil war.
of the policy
upon which they had entered, the wisdem of the The wisdom policy of resorting to a belligerent blockade, rather of the belligerthan to the sovereign right of closing the ports by of the insurmunicipal regulation, cannot be questioned.
A helligerent blockade addresses itself to neutral commerce throughout the world. It peaks to neutral travles in all quarters of their dispersion, proPiliting them from fitting out their vessels for a voyage to any of the invested ports, forlidding their approach to such ports under any pretence whatsoever, and holding over them the terrors of capture and its consequences, not only for the act. wal but the attempted offence, and not only upon the royage on which the interdict was evaded, but at any time on the voyage following that of the ofence, and not only while in the act of violation, but anywhere upon the high seas, out of neutral jurisdiction.
The closing of the ports by municipal regulation, In preference }eclaring them no longer ports of entry and deliv-to a municipa. variis il sovereign right, whic! can be exercises and closing the popitored only within the territorial juris liction of of entry. the nation.
Beyond the few miles from tie coast, to which that jurisiliction is limitel, it is wholly inoperative.
The fitting out of vessels avowedly destined to ports thus closed, is no offence. The approach to, and hovering about, such closed ports, with the avowed design of entering whenever opportunity occurs to avoid the revenue cruiser, is not a culpalole act, for which any penalty can be imposed ; and seizure must be made of the offending vessel before she reaches that line which marks the restricted
ports as ports
limits of the sovereign's jurisdiction, or it cannot be made at all.
To enforce such a regulation, all the naval forces of the world would be hopelessly inadequate. When to this is added the consideration, that proceedings for the forfeiture of property seized for an infraction of the municipal regulation, must be taken upon the instance side of the Admiralty Courts of the sovereign, and conducted without any of the summary and speedy action and deter. mination, which may and should distinguish the courts that are organized for the enforcement of belligerent rights under the law of nations, it seems incredible, that any one can have doubted the wis. dom of the policy adopted to effect the purpose
of commercial interdiction, or have seriously proposed its virtual abandonment, hy a resort to the munici. pal regulation.
But, the institution of a blockade, under the law puiscal to the of nations, being the exercise of a purely belligerent tures for the right, presupposes the existence of war-of war the blockade. which carries with it the consequences of a public
war, imposing restrictions upon neutral commerce, and subjecting to confiscation, property impressed with hostility of charact?r; and, it was urged by distinguished advocates, as a fundi mental objection to the validity of captures maile either for the violation of the asserted belligerent right, or as the property of public enemies, or impressed with a hostile character, that under the peculiar frame of government and written coastitution of the United States, a state of war, carrying with it such consequences, could not result merely from the existence of an armed rebellion by a portion of its citizens,
validity of cap