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." Very important consequences concerning the obligations of subjects are deducible from this principle.

Enemy's *56 property within the

country.

*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. No one, says Bynkershoeck, 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 Bynkershoeck lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances, arising in the 17th, and one as early as the 15th 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. Emeri

■ Grotius, b. 3. c. 3. sec. 9.-c. 4. sec. 8. Burlamaqui, part 4. c. 4. sec. 20. Vattel, b. 3. c. 5. sec. 70.

Grotius, b. 3. c. 9. sec. 4.-c. 21. sec. 9. Bynk. Quæst. Pub. J. c. 2 and 7. Martens, b. 8. c. 2. sec. 5.

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

gon considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the later publicists is in conformity with that provision". 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 pro- *57 tection 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. Sir Michael Fosterd 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 re

and the Republic of Venezuela, by the treaty of friendship and commerce in May, 1836.

a Tome i. p. 567.

Vattel, b. 3. c. 4. sec. 63. Azuni, part 2. c. 4. art. 2. sec. 7. Le Droit Public de l'Europe, par Mably, Œuvres, tome vi. p. 334. Burlamaqui, p. 4. c. 7. sec. 6.

e 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.

4 Discourse of High Treason, pp. 185, 186.

covery of their personal rights, in as full a manner as alien friends.

Besides those stipulations in treaties, which have softened the rigours of war by the civilizing spirit of commerce, many governments 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.a

It was provided by magna charta,b 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

be known how English merchants were treated by *58 the enemy; and "if our merchants," said the

charter, "be safe and well treated here, 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 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

a 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 them. selves 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.

b Ch. 30.

с

Esprit des Loix, 20. 14.

d 1 Hale's P. C. 93.

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 conve-
nient 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 po-
licy. It authorized the President, in *case of war, *59
to direct the conduct to be observed towards sub-
jects of the hostile nation, being aliens, and within the
United States, and in what cases, and upon what secu-
rity, their residence should be permitted; and it de-
clared, 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 the modern and milder construction of the rule of national law on this subject, the point seems to be no longer

Right of confiscation of enemy's property.

open for discussion in this country; and it has become definitively 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 considera*60 ble property in *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.

▲ Brown v. The United States, 8 Cranch, 110. See, also, Ibid. 228, 229. The cargo of the ship Emulous, 1 Gallison, 563.