e;

his due for we are not to send treasure abroad for the direct supply of our enemies in their attempts to destroy us; but, with the return of peace, return the right and the remedy.

The case of The Hoop (supra, p. 5) comprehends, in one concise view, not only the law of nations respecting the power of withholding payment from an enemy of the debts that may be due to him, but the rule of our own law also, with the exceptions which it admits.

The law with regard to the payment of debts due to the enemy, at the return of peace, is given in Ex parte Boussmaker (13 Ves. jun. 71). There a petition came on in the Court of Chancery, in the matter of Boussmaker, a bankrupt, praying, that the petitioner might be admitted to prove, under the commission, a debt which the commissioners had refused to admit, upon the objection that the creditors, applying to prove, were alien enemies. The Lord Chancellor explained the distinctions of the law and its principles on the important question, whether the right of an alien enemy was destroyed or only suspended by war. "If this," said his Lordship, "had been a debt, arising from a contract entered into with an alien enemy during war, it could not possibly stand, for the contract would be void; but if the two nations were at peace at the date of the contract, though, from the time of war taking place, the creditor could not sue, yet the contract being originally good, upon the return of peace the right would revive it would be contrary to justice, therefore, to confiscate this dividend. Though the right to recover is suspended, that is no reason why the fund should be divided among the other creditors.

The

But

point is of great moment, from the analogy to the case of an action. The policy avoiding contracts with an enemy is sound and wise; but where the contract was originally good, and the remedy is only suspended, the proposition that therefore the fund should be lost, is very different." According to the strictness of the law of nations, we have already seen that debts due to alien enemies may be confiscated by the state. in England, and in some other modern states, a milder law appears to have been established—a law which, though in no way compulsory with regard to foreign nations, is binding upon the crown in this particular country. An old case, indeed, of the Attorney-General v. Weedon and another (Parker's Reports, 207), seems to countenance the prerogative of the British crown in all the rigour of the old law of nations, but that doctrine is questioned by Rolle, in his Abridgment; and in the case of Furtado v. Rogers (3 Bos. & Pul. 191), Lord Alvanley said, "With respect to the argument, that all contracts made with the enemy enure to the benefit of the king during war, and that he may enforce payment of any debt due to an alien enemy from any of his subjects, we think it is not entitled to much weight. ceeding never has been adopted, nor is it very probable that it ever will be adopted, as well from the difficulties attending it, as from the disinclination to put in force such a prerogative." As between Great Britain and the United States, the 10th article of the treaty of 1794 prohibits the confiscation of enemy's property found in the country at the beginning of a war, as to debts and money in the funds and banks, on the principle that because property on arrival at a particular place would

Such a course of pro

have been liable for confiscation, it is not therefore to be treated as if it had arrived and been confiscated." The right to confiscate debts so due to enemy's subjects, though a strictly national right, is so justly deemed odious in modern times, and is so generally discountenanced, that in the United States it is held that nothing but an express act of the legislature could include it in the objects of warfare. (The Ann Green, 1 Gallison, 292.)

"The claim of a right to confiscate debts," says Chancellor Kent (i. 71), "contracted by individuals in time of peace, and which remain due to the 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. In former times, the right to confiscate debts was admitted as a doctrine of national law, and (Grotius, B. 1, c. 1, s. 6; b. 3, c. 8, s. 4; Puffendorf, 1. 8, c. 6, 19, 20; Bynkershoeck, 1. 1, cap. 7, and Lord Hale, 1, 95) pronounced in favour of it. It had the countenance of the civil law (Dig. 41, 1; 49, 15); and even Cicero (Off. 1. 3, c. 26), 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 (B. 3, c. 5, s. 77) 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 violate the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. There has been

frequently a stipulation in modern treaties, that debts or monies in the public funds 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 to be discontinued. The treaties between the United States and Columbia in 1825, and Chili, in 1832, and Venezuela in 1836, and the Peru-Bolivian confederation in 1838, and of Ecuador, in 1839, contained such a provision; but the treaty between the United States and Great Britain in 1795 went further, and contained the explicit declaration, that it was unjust and impolitic that the debts of individuals should be impaired by national differences.' Vattel says (ubi supra) that everywhere money lent to the public is exempt from confiscation and seizure in case of war." Emerigon (Des Ass. i. 567) and Martens (B. 8, c. 2, s. 5) make the same declaration. With regard to the United States, however, the cases of Brown v. The United States (8 Cranch, 110, and Ware v. Hilton, 3 Dallas 199,) establish it as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in that country, that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by its citizens and due to the enemy, though, as it is asserted by the same authority, this right is contrary to universal practice, and may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times. (Kent, ubi supra.)

COMMERCE OF THE ENEMY.

The commerce of the enemy has in all ages been considered as the legitimate prize of war. There is no such thing as a war for arms, and a peace for commerce. The rights of war, as they may be lawfully exercised against hostile commerce, are discussed at large in the Third Book of Grotius, c. 6. A state taking up arms in a just cause has a double right against her enemy: first, a right to obtain possession of her property withheld by the enemy; to which must be added the expenses incurred in the pursuit of that object, the charges of the war, and the reparation of damages for were she obliged to bear those expenses and losses, she would not fully recover her property or obtain her due; secondly, she has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence,—a right to deprive him of the means of resistance. Hence, as from this source originate all the rights which war gives us over things belonging to the enemy, we have a right to deprive him of his possessions, of everything which may augment his strength and enable him to make war. This every one endeavours to accomplish in the manner most suitable to him. Whenever we have an opportunity, we seize on the enemy's property, and convert it to our own use; and thus, besides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent either for what constitutes the subject of the war or for the expenses and losses incurred in its prosecution; in a word, we do ourselves justice.