to confiscate all debts due from its own subjects to enemy-subjects, it becomes necessary to distinguish between the existence of a Right, which by the rigour of the Law of Nations is inherent in the Sovereign Power of every independent State, and the exercise of that Right as it is controlled by the usage of Nations. There may be a warrant of Natural Right for the Executive Government of every belligerent State to confiscate enemy's property, in whatever form it may be, if it is found in a place which is subject to its Sovereignty; and yet there may be a restraint imposed by the usage of Nations upon a belligerent State exercising its extreme Right of Sovereignty in certain cases, which restraint it cannot disregard consistently with good faith.

The rules of law, which Courts are bound to administer, are not always identical with the rules of conduct, which Nations are bound to observe in their intercourse with one another. The functions of the judiciary body in every State are defined by the Sovereign Power of the State, in regard to the law which they are called upon to administer: so likewise the judicial tribunals may be limited and controlled in their field of view by the executive authority, or by the territorial legislature; and it is not within the province of the judiciary body to criticise or call in question the good faith of the State, if it has authorised it to administer the summum jus of belligerents. But as between Nations Good Faith must be upheld at the sacrifice of absolute Right; and if it should be inconsistent with International Good Faith for a State to exercise the summum jus of a belligerent in certain matters, it would be against the modern Law of Nations for a State to authorise its Courts to administer the summum jus of a belligerent in such matters. Mr. Justice Story seems to consider, that foreign Nations with whom there is not a treaty to

the contrary, could only complain of such an act as a violation of the modern policy; but this matter seems to rest upon more solid foundations than those of mere policy. Mr. Justice Story holds, and in this respect he has the concurrence of all jurists, that if a Nation has stipulated in a treaty of commerce with another Nation that, if war should break out between them, they will mutually refrain from exercising their extreme Rights as belligerents in certain matters, either Nation would have just ground of complaint, if the other should not conform its conduct to the treaty stipulations; but in maintaining this position Mr. Justice Story concedes the whole question, and upholds the obligation of Good Faith at the sacrifice of Absolute Right; for war terminates, or at least suspends, the obligations of commercial treaties, as such, and no obligation remains after the breaking out of war, but that of Good Faith, to bar the exercise of all the Rights on the part of Nations which a State of War gives rise to. Treaty stipulations in such matters only serve to give greater precision to the obligations of Good Faith; but they are not necessary to create those obligations, which may arise, and will be equally binding without any written specification of them. A specific contract in fact differs only from an implied contract in the mode of proof".

§ 55. The Right of a belligerent Power to confiscate debts contracted by itself or by its Subjects in time of peace with individuals, who by the breaking out of war have become clothed with an enemy-character, chusetts. The Emulous, I Gallison, p. 136.

40 The case of Brown v. the United States, 8 Cranch, p. 121, was an appeal to the Supreme Court of the United States, from a judgment of Mr. Justice Story in the Circuit Court of Massa

41 Chief-Justice Erle, in Kennedy v. Broun, Queen's Bench, Jan. 16, 1863.

Kent.

rests very much upon the same principles as the right of confiscating the property of enemy-subjects, found in the country of a belligerent at the commencement Chancellor of war. Mr. Chancellor Kent however considers that the objection to the right of confiscation in the case of debts is much stronger than the objection to the right of confiscating the tangible property of an enemy. It may be conceded that if the extreme right of a belligerent is to be exercised against an enemy, the latter is in strict right absolutely at the mercy of his adversary; and no limits can be set to the exercise of the summum jus, than those which compassion for the vanquished may suggest. But war is not carried on in this spirit between Christian Nations. It has been the constant effort of the wise and the good amongst statesmen whose more especial province it has been to regulate the intercourse of Commonwealths, to mitigate the exercise of hostile Right between Nations; and wheresoever the practice of Nations has, under their influence, restrained the exercise of the summum jus, individual Nations cannot revive its exercise without a violation of good faith. Vattel, who considers that the summum jus of a belligerent warrants the confiscation of debts due to his adversary, says, “At present, a regard to the advantages and safety of commerce, has induced all the Sovereigns of Europe to act with less rigour in the subject of confiscating debts due from their subjects to an enemy. And as the custom has been generally received, the Sovereign who should act contrary to it would violate public faith; for strangers have trusted his subjects only from a firm persuasion that the general custom would be observed "2. Bynkershoek is the only jurist of eminence who holds it to be a matter of Common Right for a belligerent

Vattel.

Bynkershoek.

42 Droit des Gens, Lib. III. c. 5. § 77.

Sovereign to confiscate upon the outbreak of war the debts due from himself or his Subjects to the Enemy. There are however passages in Grotius and Puffendorf which are frequently cited as being in accordance with Bynkershoek's views, but these passages, if carefully examined, will be found to bear upon another subject-namely, the right of a belligerent, who is in possession of an enemy's country by Right of Conquest, to appropriate to himself the debts due from neutral Nations to the Enemy whom he has conquered, as well as the tangible property of the Enemy. The instance which is given by both those writers is that of Alexander the Great, who by conquest had become master of the City and State of Thebes, and thereupon remitted to the Thessalians a debt due from them to the Thebans. In this case the conqueror in the war considered himself to have succeeded, by Right of Conquest, to the title of the conquered State to exact or remit the debt due to it from the Thessalians. Now Grotius holds this transaction to have been well founded in Right, on the ground of the absolute conquest and subjection of the City and State of Thebes: "Nam qui dominus est personarum, idem et rerum est, et juris omnis quod personæ competit "." But it is one thing to claim dominion over incorporeal Rights which are annexed to corporeal things, such as cities or countries, by reason of such corporeal things being reduced into our possession by conquest, and another thing to claim dominion over incorporeal Rights belonging to persons, more especially when such persons have not been made captive.

43

§ 56. It is a well understood position of Law, that if a subject of any commonwealth be taken by an enemy,

43 L. III. c. 4. § 2. Qui possidetur, non possidet sibi, nec in

potestate habet, qui non est suæ potestatis.

of Lord

his goods, which were not taken with him, are not acquired by the conqueror, but fall to him who would Judgment have been his heir at law, if he had died a natural death". "How then," asks Lord Ellenborough, "can things belonging to a person who has not been made captive, be legally acquired by an enemy, who is not a conqueror either as to the person or the thing?"

Ellen

borough, in Wolff v. Oxholm.

45

Lord Ellenborough, on the occasion of making the above observation, was delivering the judgment of the Court of Queen's Bench (anno 1817,) in a suit brought by a British subject against a Danish subject for a debt, which the latter alleged to have been confiscated by the Danish Government under an Ordinance issued by it at the commencement of war with Great Britain in 1807. On this occasion Lord Ellenborough said that the Court had been unable to discover that there ever was a time when it was the general practice of Nations to confiscate debts; that although Bynkershoek had cited some instances of such confiscations in the sixteenth and seventeenth centuries, and there was a solitary decision about the middle of the sixteenth century by a Court in Paris, against a Fleming, who was suing a Frenchman to recover from him a debt which he had paid into the French Treasury in obedience to a French decree during war between the two Nations; yet there was not a single instance of such a confiscation to be found for something more than a century, whilst the right was not recognised by Grotius, and was impugned by Puffendorf and others. The Court accordingly held that as the Danish Ordinance was not conformable to the usage of Nations, they were not bound to pay regard to it. Lord Alvanley, in the case of Furtado v. Rogers, 3 Bosanquet and Puller, p. 191, said,

44 Puffendorf, L. VIII. c. 6. $22.

45 Wolff v. Oxholm. 6 Maule and Selwyn, p. 92.