Part IV. legislature had not confiscated enemy's property which was within the United States at the declaration of war, and that the sentence of condemnation pronounced in the Court below could not be sustained. One view, however, had been taken of this subject, which deserved to be further considered. It was urged that, in executing the laws of war, the executive may seize and the courts condemn all property which, according to the modern law of nations, is subject to confiscation; although it might require an act of the legislature to justify the condemnation of that property, which, according to modern usage, ought not to be confiscated. This argument must assume for its basis that modern usage constitutes a rule which acts directly upon the thing itself, by its own force, and not through the sovereign power. This position was not allowed. This usage was a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, was addressed to the judgment of the sovereign; and although it could not be disregarded by him without obloquy, yet it might be disregarded. The rule was, in its nature, flexible. It was subject to infinite modifications. It was not an immutable rule of law, but depended on political considerations, which might continually vary. Commercial nations, in the situation of the United States, had always a considerable quantity of property in the possession of their neighbours. When war breaks out, the question, what shall be done with enemy's property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it was proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It was proper for the consideration of the legislature, not of the executive or judiciary. It appeared to the Court that the power of confiscating enemy's pro perty was in the legislature, and that the legislature had Chap. I. not yet declared its will to confiscate property which was within our territory at the declaration of war (q). $ 304a. war. On the outbreak of the Crimean war, Russia permitted Turkish Practice of vessels to leave her ports on the ground that a similar indulgence had the Crimean been granted to Russian vessels by Turkey. When England and France took part in the war, they allowed Russian vessels in their ports six weeks to complete their cargoes and depart. This exemption from the effects of the war was afterwards extended to all Russian ships that put to sea before the 15th of May, 1854. Russia also allowed English and French vessels a period of six weeks for departure, and for vessels in the White Sea the period of six weeks commenced from the date when the navigation was opened. A similar principle was followed in the Franco-Austrian war of 1859, the Danish war in 1862, and the war of 1866 between Austria and Prussia, not to quote more recent examples (r). $305. In respect to debts due to an enemy, previously to the Debts due to commencement of hostilities, the law of Great Britain the enemy. pursues a policy of a more liberal, or at least of a wiser character, than in respect to droits of admiralty. A maritime power, which has an overwhelming naval superiority, may have an interest, or may suppose it has an interest, in asserting the right of confiscating enemy's property, seized before an actual declaration of war; but a nation which, by the extent of its capital, must generally be the creditor of every other commercial country, can certainly have no interest in confiscating debts due to an enemy, since that enemy might, in almost every instance, retaliate with much more injurious effect. Hence, though the prerogative of confiscating such debts, and compelling their payment to the crown, still theoretically exists, it is seldom or never practically exerted. The right of the original creditor to sue for the recovery of the debt is not extinguished; it is only suspended during the war, and revives, in full force, on the restoration of peace (s). (9) Mr. Chief Justice Marshall, in Brown v. United States, 8 Cranch, 123129. (r) Calvo, vol. ii. p. 609. And see, for the American practice as shown in the Spanish war of 1898, Hertslet, Com. (s) Furtado v. Rogers, 3 Bos. & Pul. Part IV. § 306. Practice of the United States. § 307. Of England and France. Such, too, 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. The impediments which had existed to the collection of British debts, under the local laws of the different States of the Confederation, were stipulated to be removed by the treaty of peace, in 1783; but this stipulation proving ineffectual for the complete indemnification of the creditors, the controversy between the two countries on this subject was finally adjusted by the payment of a sum en bloc by the government of the United States, for the use of the British creditors. The commercial treaty of 1794 also contained an express declaration, that it was unjust and impolitic that private contracts should be impaired by national differences; with a mutual stipulation, that "neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, shail ever, in any event of war, or national differences, be sequestered or confiscated” (†). On the commencement of hostilities between France and Great Britain, in 1793, the former power sequestrated the debts and other property belonging to the subjects of her enemy, which decree was retaliated by a countervailing measure on the part of the British Government. By the additional articles to the treaty of peace between the two powers, concluded at Paris, in April, 1814, the sequestrations were removed on both sides, and commissaries were appointed to liquidate the claims of British subjects for the value of their property unduly confiscated by the French authorities, and also for the total or partial loss of the debts due to them, or other property unduly retained under sequestration, subsequently to 1792. The engagement thus extorted from France may (t) Dallas's Rep. vol. iii. pp. 4, 5, 199–285. be considered as a severe application of the rights of Chap. I. conquest to a fallen enemy, rather than a measure of even-handed justice; since it does not appear that French property, seized in the ports of Great Britain and at sea, in anticipation of hostilities, and subsequently condemned as droits of admiralty, was restored to the original owners under this treaty, on the return of peace between $308. and Denmark. the two countries (u). So, also, on the rupture between Great Britain and Of England Denmark, in 1807, the Danish ships and other property, which had been seized in the British ports and on the high seas, before the actual declaration of hostilities, were condemned as droits of admiralty by the retrospective operation of the declaration. The Danish government issued an ordinance, retaliating this seizure by sequestrating all debts due from Danish to British subjects, and causing them to be paid into the Danish royal treasury. The English Court of King's Bench determined that this ordinance was not a legal defence to a suit in England for such a debt, not being conformable to the usage of nations; the text writers having condemned the practice, and no instance having occurred of the exercise of the right, except the ordinance in question, for upwards of a century. The soundness of this judgment may well be questioned. It has been justly observed, that between debts contracted under the faith of laws, and property acquired on the faith of the same laws, reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property found within the country on the breaking out of the war. Both require some special act expressing the sovereign will, and both depend, not on any inflexible rule of international law, but on political considerations by which the judgment of the sovereign may be guided (x). § 308a. Some writers have drawn a distinction between debts due from a Public and subject of one belligerent to a subject of the other, and debts due from private debts. (u) Martens, Nouveau Recueil, tom. ii. p. 16. W. (x) Wolff v. Oxholm, 6 M. & S. 92; Brown v. United States, 8 Cranch, 110. FF Part IV. § 309. Trading with the enemy, unlawful on the part of belligerent State. a belligerent State to the subjects of the other. It is said that there exists a right to confiscate the former, while the latter are to be exempt. The Confederate States acted upon this distinction, and confiscated all property and all rights, credits, and interests held within the confederacy, by or for any alien enemy, except public stocks and securities. Lord Russell strongly protested against this as being an act as unusual as it was unjust (y). Many of the individual inhabitants of the South carried this principle further, and repudiated all their debts due to citizens of the Northern States (z). But this is the only instance in recent times of such measures having been adopted, and it is an example that seems unlikely to be imitated. The confiscation of private debts of any sort, besides exposing the State doing so to retaliation, only cripples the enemy in a very indirect way. It has no effect at all on the military or naval operations of the war, and cannot, therefore, be justified on any principle. One of the immediate consequences of the commencement of hostilities is, the interdiction of all commercial subjects of the intercourse between the subjects of the States at war, without the license of their respective governments. In Sir W. Scott's judgment, in the case of The Hoop, this is stated to be a principle of universal law, and not peculiar to the maritime jurisprudence of England. It is laid down by Bynkershoek as a universal principle of law. "There can be no doubt," says that writer, "that, from the nature of war itself, all commercial intercourse ceases between enemies. Although there be no special interdiction of such intercourse, as is often the case, commerce is forbidden by the mere operation of the law of Declarations of war themselves sufficiently manifest it, for they enjoin on every subject to attack the subjects of the other prince, seize on their goods, and do them all the harm in their power. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war, as to commerce. Hence it is alternately permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser war. (y) Parl. Papers, 1862. Correspondence relating to Civil War, p. 108. (2) Draper, Hist. of American Civil War, vol. i. p. 537. |