viduals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other. (c) Very important consequences concerning the obligations of subjects are deducible from this principle. y1 * 56 3. Protection to Enemy's Property. *When hostilities have commenced, the first objects that naturally present themselves for detention and capture are the persons and property of the enemy found within the territory on the breaking out of the war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war. (a) No one, says Bynkershoek, ever required that notice should be given to the subjects of the enemy to withdraw their property, or it would be forfeited. The practice of nations is to appropriate it at once, without notice, if there be no special convention to the contrary. But though Bynkershoek lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances, arising in the seventeenth, and one as early as the fifteenth century, of stipulations in treaties, allowing foreign subjects a reasonable time after the war breaks out to recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties. (b) Emerigon (c) considers such treaties as an affirmance of common (c) Grotius, b. 3, c. 4, sec. 9; c. 4, sec 8; Burlamaqui, pt. 4, c. 4, sec. 20; Vattel, b. 3, c. 5, sec. 70; [Small's Adm. v. Lumpkins's Exec., 28 Gratt. 832.] (a) Grotius, b. 3, c. 9, sec. 4; c. 21, sec. 9; Bynk. Quæst. J. Pub. c. 2 and 7; Martens, b. 8, c. 2, sec. 5. (b) A liberal provision of this kind is inserted in the treaty of amity and commerce between the United States and the Republic of Colombia, which was ratified at Washington, May 27, 1825, and between the United States and the Republic of Venezuela, by the treaty of friendship and commerce in May, 1836. (c) [Traité des Ass. i. 566], 567. yl See Hall, Int. Law, pt. 1, c. 3, § 18, where the opinions of continental jurists, holding that only the states as such, and not the individuals of each, become enemies, are reviewed. * 57 right, or the public law of Europe, and the general rule laid down by some of the latter publicists is in conformity with that provision. (d) The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are in his dominions at the time of the declaration of war, nor their effects. They came into the country under the sanction of public faith. By permitting them to enter his territories, and continue there, the sovereign tacitly promised them protection and security for their return. He is, therefore, to allow them. a reasonable time to retire with their effects, and if they stay beyond the time, he has a right to treat them as disarmed enemies, unless detained by sickness or other insurmountable necessity, and then they are to be allowed a further time. It has been frequently provided by treaty that foreign subjects should be permitted to remain, and continue their business, notwithstanding a rupture between the governments, so long as they conducted innocently; and when there was no such treaty, such a liberal permission has been often announced in the very declaration of war. (a) 1 Sir Michael Foster (b) mentions several instances of such declarations by the King of Great Britain, and he says that aliens were thereby enabled to acquire personal chattels, and to maintain actions for the recovery of their personal rights, in as full a manner as alien friends. Besides those stipulations in treaties, which have softened the rigors of war by the civilizing spirit of commerce, many gov (d) Vattel, b. 3, c. 4, sec. 63; Azuni, pt. 2, c. 4, art. 2, sec. 7; Le Droit Public de l'Europe, par Mably, ŒŒuvres, vi. 334; Burlamaqui, pt. 4, c. 7, sec. 6. (a, Vattel, b. 3, c. 4, sec. 63. See the treaty of commerce between the United States and the Republic of Chili, May, 1832, art. 23, which affords that permanent protection. (b) Discourse of High Treason, 185, 186. 1 See treaties of the United States with Guatemala, 10 U. S. St. at L. 873, art. 25; Costarica, ib. 916, art. 11; Peru, ib. 926, art. 32; Argentine Confederation, ib. 1005, art. 12. By orders in council of the British government, at the beginning of the war with Russia, Russian merchant vessels in British ports were allowed six weeks to load their cargoes and depart. March 29, 1854. It was further ordered that any Russian merchant vessel which, prior to certain dates, should have sailed from any foreign port for any port in her Majesty's dominions, might enter such port, discharge her cargo, and depart without molestation. March 29, 1854, April 15, 1854. These and other orders are given in 1 Spinks, Ec. & Ad. R. app.; Cong. Doc. 33 Cong., 1 Sess. H. R. No. 103, p. 5. See Clemontson v. Blessig, 11 Exch. 135; [Hall Int. Law, pt. 3, c. 1, § 126.] ernments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy's subjects, found in the country at the commencement of war. (c) It was provided by Magna Charta (d) that, upon the breaking out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached, "without harm of body or goods, " until it should be known how English * 58 merchants were treated by the enemy; "and if our * merchants," said the charter," be safe and well treated there, theirs shall be likewise with us." It has been deemed extraordinary that such a liberal provision should have found a place in a treaty between a feudal king and his barons; and Montesquieu (a) was struck with admiration at the fact that a protection of that kind should have been made one of the articles of English liberty. But this provision was confined to the effects of alien merchants who were within the realm at the commencement of the war, and it was understood to be confined to the case of merchants domiciled there. (b) It was accompanied, also, with one very ominous qualification; and it was at least equalled, if not greatly excelled, by an ordinance of Charles V. of France a century afterwards, which declared that foreign merchants who should be in France at the time of the declaration of war should have nothing to fear, for they should have liberty to depart freely with their effects. (c) The spirit of the provision in Magna Charta was sustained by a resolution of the judges, in the time of Henry VIII., when they resolved, that if a Frenchman came to England before the war, neither his person nor goods should be seized. (d) The statute of staples, of 27 Edw. III. c. 17, made a still more liberal and precise enactment in favor of foreign merchants residing in England, when war commenced between their prince and the King of England. They were to have convenient warning of forty days, by proclamation, (c) By the Spanish decree of February, 1829, making Cadiz a free port, it was declared that, in the event of war, foreigners who had established themselves there for the purposes of commerce, and becoming alien enemies by means of the war, were to be allowed a proper time to withdraw, and their property was to be sacred from all sequestration or reprisal. (d) Ch. 30. (b) 1 Hale's P. C. 93. (a) Esprit des Lois, 20, 14. (d) Bro. tit. Property, pl. 38; Jenk. Cent. 201, case 22. to depart the realm with their goods; and if they could not do it within that time, by reason of accident, they were to have forty days more to pass with their merchandise, and with liberty, in the mean time, to sell the same. The act of Congress of the 6th of July, 1798, c. 73, was dictated by the same humane and enlightened policy. It authorized the President, in * case *59 of war, to direct the conduct to be observed towards subjects of the hostile nation, being aliens, and within the United States, and in what cases, and upon what security, their residence should be permitted; and it declared, in reference to those who were to depart, that they should be allowed such reasonable time as might be consistent with the public safety, and according to the dictates of humanity and national hospitality, "for the recovery, disposal, and removal of their goods and effects, and for their departure."1 4. Confiscation of Property. But however strong 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 become definitively settled, in favor of the ancient and sterner rule, by the Supreme Court of the United States. (a) 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, (b) 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 rested 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 full right to take the persons and confiscate the property of the enemy wherever found; and that the mitigations 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 (a) Brown v. The United States, 8 Cranch, 110. See also ibid. 228, 229. 1 Ante, 57, n. 1. right itself. *60 property in Commercial nations have always considerable the possession of their neighbors; and, when war breaks out, the question, what shall be done with enemy's property found in the country, is one rather of policy than of law, and is one properly addressed to the consideration of the legislature, and not to the courts of law. The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation it could not be judicially condemned; and the act of Congress of 1812, declaring war against Great Britain, was not such an act. Until some statute directly applying to the subject be passed, the property would continue under the protection of the law, and might be claimed by the British owner at the restoration of peace.1 Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right to depend upon a special act of Congress. The practice, so common in modern Europe, of imposing embargoes at the breaking out of hostilities has, apparently, the effect of destroying that protection to property which the rule of faith and justice gives to it, when brought into the country in the course of trade and in the confidence of peace. Sir William Scott, in the case of the Boedes Lust, (a) explains this species of embargo to be an act of a hostile nature, and amounting to an implied declaration of war, though liable to be explained away and annulled by a subsequent accommodation between the nations. The seizure is an act at first equivocal, as to the effect, though hostile in the mere execution, and if the matter in dispute terminates in reconciliation, the seizure becomes a mere civil embargo; but if it terminates otherwise, the subsequent hostilities have a retroactive effect, and render the embargo a hostile measure, ab initio. The property detained is deemed * 61 enemy's property, and liable to condemnation. This * species of reprisal for some previous injury is laid down in the (a) 5 C. Rob. 233. 1 The Juanita, Newberry, 352; United States v. 1756 Shares of Capital Stock, 5 Blatchf. 231, 237; post, 91, n. 1. |