of war between the two Nations on the 20th of May, and the First Consul was entitled to use the Right of a belligerent Power towards British subjects after the capture of the French merchant vessels, but not in the way of extraordinary Reprisals, such as he directed to be executed throughout the Italian Republic", as well as throughout France, inasmuch as the act of the British Government involved neither in form nor in substance any departure from the practice, which had been observed in previous wars between Great Britain and France 29. M. Thiers 30 has represented the First Consul to have originally intended to arrest all the English indiscriminately, but to have given way to the urgent remonstrances of the Minister Cambacérès, and to have so far modified his original purpose, as only to order the arrest of such British subjects as were serving in the Militia31, or held some commission from the British Government. But this statement of M. Thiers is

28 Toutes les Marchandises Anglaises qui se trouveront dans la République Italienne seront confisquées au profit de la République, et tous les Anglais qui s'y trouveront, séront arrétés et constitués prisonniers de guerre. (Letter of the First Consul to Citizen Marescalchi, Minister of Foreign Affairs for the Italian Republic, 2 Prairial an. XI. (22 May 1803.) Correspondence de Napoleon, Tom. VIII. p. 322.

29 Madame la Duchesse d'Abrantes, in her Memoirs of Napoleon, (Tom. VI. p. 405.) narrates the particulars of the interview between the First Consul and her husband, General Junot, when the First Consul ordered General Junot to arrest all the English without any exception. The latter remonstrated with the

PART II.

First Consul, and pointed out to him that there were women and children and old men and merchants amongst them, and that many of them had remained in Paris, trusting to the express assurances of the Minister of Foreign Affairs, that they would be in perfect security.

30 Histoire du Consulat et de l'Empire, Tom. IV. p. 348.

31 The Duchesse d'Abrantes represents Napoleon to have yielded to the remonstrances of Cambacérès, so far as to allow the English, who were arrested, to be at large on their parole in the towns, to which they were confined as prisoners; and when Junot expressed by his looks his surprise at Napoleon declaring that he would use his Right against them, as Prisoners of

H

not consistent with the language of the Ordinance itself, or with the facts which attended its execution; for the orders, issued under the hand of the First Consul himself, and which are to be found amongst his published correspondence, were to arrest all English subjects without any distinction; and ten thousand British subjects of all classes indiscriminately were seized and detained as prisoners of war, many of whom were even thrown into prison, from which they were not liberated until the allied armies entered France in 1814. The conduct of the French Consul on this occasion must be regarded as altogether exceptional to the modern practice of Nations. Reprisals for the capture of the French vessels was the colourable pretext for his measures, but they were in reality prompted by the exaggerated, if not false, reports of the French police, that the British subjects, who had been allowed to remain in Paris, were plotting against the French Consul 32. An American jurist, in commenting upon the Ordinance of the First Consul, observes that the Law of Retaliation would hardly seem to require, or even to justify, a resort to means so unusual and odious, although within the extreme limits fixed by the ancient and severer rules of War 33

§ 52. "Although," writes Klüber, the Natural Law of Nations does not forbid us to use force against the Subjects of an Enemy-Sovereign, wherever they may be found, yet the usage of war, as established in Europe, restricts the exercise of this Natural Right in regard to those Subjects, who cannot War, Napoleon exclaimed, Oui, prisonniers de la guerre. Ne font ils pas partie des milices du Royaume? Memoires de Madame la Duchesse d'Abrantes, p. 410.

32 Memoires de Madame la Duchesse d'Abrantes, vol. I. p. 406.

33 Halleck's International Law,

p. 362.

practice

subjects.

be regarded personally as having taken any part in the offence which has given rise to war, nor as taking any part in hostilities." Accordingly it is very rare that any measures of rigour are employed against them beyond what the necessities of war require in order to prevent them ranging themselves on the enemy's side, and augmenting his active force. In accordance with these principles, Modern the subjects of a sovereign, who has become an not to deenemy, are permitted freely to return to their tain enemycountry after a certain delay, and sometimes they are permitted by a belligerent Power to continue altogether in its territory without molestation 34. Heffter to the same purport writes, "that Enemy-Subjects, who are found within the territory of a belligerent Power at the commencement of war, ought to be allowed an interval of time to depart. Circumstances nevertheless may render a temporary detention of them necessary, in order to prevent them communicating to their fellow countrymen the plans of the belligerent 35" Lord Stowell, in commenting upon the modifying influence which the practice of Nations has exercised on the Natural Right of belligerents, observes, "that on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner in which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes, which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and 34 Klüber, $246, 247. 35 Heffter, § 126. 2.

36"

purposes It may be said in like manner that the exercise of the Right of a belligerent Power at the commencement of war to seize as prisoners of war all Enemy-Subjects within its territory, although it may have been in ancient times conformable to the practice of Nations, and in restraint of the Natural Right of a belligerent to put his enemies to death, has undergone further restraint, with the increased intercourse of Nations in time of peace; and that such Right may not be exercised in the present day by any belligerent Power without an odious deviation from a milder practice, to which all belligerents are bound in good faith to conform themselves.

$53. The exercise of the Right of a belligerent Power to seize and confiscate all enemy's goods found within its territory at the commencement of war, has likewise undergone considerable modification; as it is not the practice to seize and confiscate the goods of an enemy which are on land, nor the debts contracted by the belligerent Power or by its Subjects with Debts due the enemy before war broke out. "Between debts

to enemy.

subjects.

contracted under the faith of laws, and property acquired in the course of trade, reason draws no distinction; and although, in practice, vessels with their -cargoes found in port at the declaration of war may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace, in the course of trade." Such is the language of a most eminent American Jurist, Chief-Justice Marshall 37.

§ 54. Mr. Justice Story, on the other hand, seems to impugn the suggestion that the exercise of the right of seizure and confiscation has become modified by usage, although he admits that the exception made

36 The Fladoyen, 1 Ch. Rob. p. 140.

37 Brown v. the United States, 8 Cranch, p. 123.

Mr. Justice

by Vattel, namely, that the Sovereign in declaring war can neither detain the persons nor the property of those subjects of the enemy, who are within his dominions at the time of the declaration, because they come into them upon the public faith", "is highly reasonable in itself, as confined to the property of persons who are within the country." But even limited as it is, he says, it does not seem followed in practice; and Bynkershoek is an authority the other way 39. But Mr. Justice Story, in illus- Opinion of trating the exercise of hostile Right, the summum jus, story. in such matters, does not allege any other instances than those in which enemy-vessels and cargoes found afloat in the ports of a belligerent at the commencement of war have been embargoed, and ultimately confiscated as prize of war. "Of the Right of a State to seize vessels and cargoes found in her ports on the breaking out of war, I do not find," he says, "any denial in authorities which are entitled to much weight; and I therefore consider the rule of the Law of Nations to be, that every such exercise of authority is lawful, and rests on the sound discretion of the Sovereign." It will be seen then that Mr. Justice Story maintains in practice nothing beyond the limited exercise of hostile Right in regard to enemy's property, which may be afloat in the ports of a belligerent Nation at the commencement of war, and in the exercise of which Right, as perfectly lawful under the Admiralty jurisdiction, all jurists concur. But when Mr. Justice Story goes further, and holds that a belligerent Power may lawfully authorise the confiscation of enemy's property, whenever by the rigour of the Law of Nations it may be rightfully seized; and that however odious it may be deemed in modern times, a belligerent Power has the Right 39 Bynkershoek, Quæst. Jur. Pub. L. I. c. 2, 3, 7.

38 Vattel, Droit des Gens. L. III. c. 4. § 63.