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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 bave found a place in a treaty between a feudal king and his barons; and Montesquieu" 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. 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. 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. The statute of staples, of 27 Edw. III. c. 17. made a still more liberal and precise enactment in favour 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, 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
a Esprit des Loix, 20. 14. 61 Hale's P. C. 93. c Henrull's Abreg. Chron. tom. 1. 338. d Bro. tit. Property, pl. 38. Jenk. Cent. 201. case 22.
case of war, to direct the conduct to be observed towards subjects of the hostile nation, and 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.”
But however strong the current of authority in favour of his htiof como the modern and milder construction of the rule of national cariny's prolaw on this subject, the point seems to be no longer open for discussion in this country; and it has become definitely settled, in favour of the ancient and sterner rule, by the Supreme Court of the United States. 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, 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 right itself. Commercial nations have always considerable property in
a Brown v. The U. States, 8 Cranch, 110. See also loid. 228, 229.
The cargo of the ship Emulous, 1 Gallison, 563.
the possession of their neighbours; 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 migbt be claimed by the British owner, at the restoration of peace.
Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigour 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 hostility, 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,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 at first equivocal, 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 enemy's property, and liable to condeinnation. This
a 5 Rob. 233.
species of reprisal for some previous injury, is laid down in the books as a lawful measure, according to the usage of nations ;- but it is often reprobated, and it cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It does not differ in substance from the conduct of the Syracusans, in the time of Dionysius the Elder, (and which Mitford considered to be a gross violation of the law of nations,) for they voted a declaration of war against Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly laden vessels in their harbour, and sent a herald to Carthage to negotiate. But this act of the Syracusans, near four hundred years before the Christian era, was no more than what is the ordinary practice in England, according to the observation of Lord Mansfield, in Lindo v. Rodney. “Upon the declaration of war or hostilities, all the ships of the enemy,” he says, "are detained in our ports, to be confiscated, as the property of the enemy, if no reciprocal agreement is made.”
Another question respecting the effect of a declaration of war upon property, arose in the case of the Rapid. It was beld, that after the commencement of war, an American citizen could not lawfully send a vessel to the enemy's country, to bring home his own property, without rendering it liable to seizure in transitu, as enemy's property. Every thing that issues from a hostile country, is, prima facie, the property of the enemy, and a citizen cannot lawfully be concerned in any commercial intercouse with the enemy. The English courts were formerly inclined to allow goods, in the enemy's country at the beginning of the war, to be brought home ; but it is now the settled law, that it cannot be done safely, without a license from the government."
a Vattel, b. 2. c. 18. sec. 342. 344. Martens, 269. b Mitf. Hist. of Greece, vol. 5. 40 -4. c Doug. 613. d 6 Cranch, 153.
The claim of a right to confiscate debts, contracted by individuals in time of peace, and which remain due to subjects of the enemy at the declaration of war, rests very much upon the same principles as that concerning enemy's tangible property, found in the country at the opening of the war; though I think the objection to the right of confiscation, in this latter case, is much stronger. In former times the right to confiscate debts was admitted as a doctrine of national law, and Grotius, Puffendorf, and Bynkershoeck, pronounce in favour of it.” It had the countenance of the civil law, and even Cicero, in his Offices, when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favour of the right; but Vattel says, that a relaxation of the rigour of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it, would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. There has frequently been a stipulation in modern treaties, that debts should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right of confiscation of debts and things in action, is against good policy, and ought
Confiscation of debts.
a Bell v. Potts, 8 Term, 548. The Ocean, 5 Rob. Rep. 90. The Juffrow Catharina, 1b. 141.
b Grotius, b. 1. ch. 1. sec. 6.-b. 3. ch. 8. scc. 4. Puff. lib. 8. ch. 6. 19, 20. Bynk. lib. 1. ch. 7. Lord Hale also laid it down to be the law of England. I Hale's P. C.95,
c Dig. 41. 1. and 49. 15.