"With respect to the argument, that all contracts made with the enemy accrue to the benefit of the King during war, and that he may enforce payment of any debt due to an alien enemy from any of his subjects, we think it is not entitled to much weight. Such a course of proceeding never has been adopted, nor is it probable that it ever will be adopted, as well from the difficulties attending it, as from the disinclination to put in force the Prerogative." It is worthy of remark that even Bynkershoek 46 admits that there were doubts in his time whether the incorporeal rights of an enemy could be confiscated by a belligerent ; and he cites an instance of the States General (6 July 1673,) refusing to pay regard to an Ordinance of the French King, confiscating certain debts due from French subjects to subjects of the States General. Mr. Justice Story is therefore not strictly warranted in affirming that down to the year 1737 it may considered as the opinion of jurists that the right of a belligerent to confiscate debts due to his enemy at the commencement of war was unquestionable. This eminent jurist does not in either of his elaborate judgments take any notice of the decision of the Court of King's Bench at Westminster, in Wolff v. Oxholm. Mr. Chancellor Kent, on the other hand, refers to that judgment in a note, and admits that the weight of modern authority and of argument is against the claim of Right on the part of a belligerent Sovereign to confiscate the debts and funds of the Subjects 48 46 De incorporalibus tamen, ut sunt actiones et credita, dubitari videtur, et dubitasse, quin et aliquando contradixisse nostros ordines. Quæst. Jur. Publici, L. I. c. 7. 47 Mr. Justice Story adopts the year 1737 as being the date of the publication of Bynkershoek's 47 be Quæstiones Juris Publici; but Mr. Wheaton aptly remarks that Bynkershoek adduces no precedent later than the year 1667, seventy years before the publication of his work. 48 The Emulous, I Gallison, p. 563. Brown v. the United States, 8 Cranch, p. 121. of the Enemy during war. "This right," he goes on to say, "was admitted by the American Courts, to exist as a settled and decided Right stricto jure, though at the same time it was considered to be the universal practice, to forbear to seize and confiscate debts and credits; we may therefore lay it down, he says, as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in the United States, that it rests on the discretion of the legislative of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens and due to the enemy; but, as it is asserted by the same authority, this Right is contrary to universal practice, and it may therefore well be considered as a naked and impolitic Right, condemned by the enlightened conscience and judgment of modern Wheaton. times 49" Mr. Wheaton 50 questions the soundness of the judgment of the Courts of Queen's Bench in Wolff v. Oxholm; but he admits that the Right only exists theoretically, and is seldom or never practically exerted. Emérigon, Klüber, Chitty, Manning, and Phillimore, concur in holding that the modern Law of Nations repudiates the confiscation of debts due to an enemy at the outbreak of war; and it is beyond controversy, that if a Sovereign Power should, in the present day, exercise the extreme Right of a belligerent in confiscating debts due from its Subjects to Enemy-Subjects, other Nations would be justified by the modern usage in refusing to recognise such an avoidance of the contract in regard to their own Subjects. $ 57. War, however, whilst it does not avoid a contract which was originally valid, suspends the remedy for the non-observance of it, until peace has been restored. It is the doctrine of all the writers 49 Commentaries, Tom. I. p 65. 50 Elements, Pt. IV. c. 1. § 12. of commer of authority on the Law of Nations, and a rule of the maritime ordinances of all the great Powers of Europe, that War puts an end to all commerce between the subjects of adverse belligerent Powers; and this doctrine is in conformity with the universal and immemorial usage of civilised Nations. All contracts Suspension accordingly made with the enemy during war are cial conlegally void; that is, Courts of Law will not give tracts. effect to them. But the same necessity which precludes a belligerent from allowing his subjects to enter into contracts with the enemy during war, authorises him to forbid his subjects to fulfil their contracts made before war, until the necessity of weakening the enemy, by cutting off his supplies, shall have passed away upon the cessation of war. It is a principle of law, says Lord Stowell, that during a State of War there is a total inability to sustain any contract by an appeal to the tribunals of the one country on the part of the inhabitants of the other. In the law of almost every country, the character of an alien enemy carries with it a disability to sue or to sustain in the language of civilians a persona standi in judicio. The peculiar law of our own country applies this principle with great vigour. The same principle is received in our Courts of the Law of Nations: they are so far British Courts, that no man can sue therein, who is a subject of the enemy, unless under particular circumstances, that pro hác vice discharge him of the character of an enemy; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority, that puts him in the King's peace pro hac vice. But otherwise he is totally exlex. But the right of an alien to enforce a contract which is suspended whilst he is an alien enemy, will revive as soon as 51 The Hoop, 1 Robinson, p. 201. Debts due by an enemy. he is again clothed with the character of an alien friend. Such is the doctrine maintained by the English Courts both of Law and of Equity. The Lord Chancellor Eldon 52, in admitting a debt to be proved on behalf of an alien enemy against the bankrupt estate of an English merchant, said, "If this 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, that is no reason why the fund should be "divided amongst the creditors." Such also, says Mr. Wheaton," 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. § 58. The Right of confiscating the public debts of a State, if war breaks out between that State sovereign. and the country of which the creditors of the State are subjects, deserves a separate consideration. The question arose for the first time, as a great question of Public Law, upon the occasion of the King of Prussia, by way of retorsion for the capture of Prussian vessels by British cruisers, attaching certain capital funds which his Majesty had undertaken to reimburse to the subjects of Great Bri 52 Ex parte Boussmaker. 13 Vesey Junior, p. 7 1 53 Elements, Part IV. C. I. § 12. Prussia in regard to Loan. tain in virtue of the Treaties of Breslau (11 June 174251) and of Dresden (25 Dec. 174555), with the view of indemnifying his own subjects out of those funds. Under those treaties the King of Prussia had engaged himself to the Empress Maria Theresa to pay off more than a million of money, which had been lent by British subjects to the Emperor Charles VI. upon the mortgage of the Duchies of Silesia, which were ceded by those treaties to Prussia, and of which the possession was guaranteed to Prussia by Great Britain under the Treaty of Dresden. The consider- Conduct of ation for Prussia undertaking to discharge the debt contracted by the Emperor, was the cession of the the Silesian Duchies of Silesia; and Prussia was in possession of those Duchies at the time when the King of Prussia proposed to confiscate all the debt due to British subjects. But the King of Prussia had undertaken to pay the money selon le contrat, and the English jurists contended in the memorable reply 56 presented by the Duke of Newcastle, in answer to Mr. Michell's memorial on behalf of his Prussian Majesty, that the late Emperor could not have seized the money as reprisals, or even in case of open war between the two Nations, because his faith was engaged to pay it without any delay, demur, deduction, or abatement whatsoever. "It will not be "It will not be easy to find," they say, "an instance where a person has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will 54 Wenck, Codex Jur. Gent. I. p. 739. 55 Ibid. II. p. 195. 56 This reply, which was drawn up by Sir George Lee, Judge of the Prerogative Court, Dr. Paul, his Majesty's Advocate General, Sir Dudley Ryder, Attorney General, and Mr. Murray, Soli citor General, has been pro- |