into the question of retaliation. Napoleon said: “The matter is very delicate; I do not wish to set an example; but, if the English do it, I must use reprisals." The Count Mollien doubted both the accuracy of Napoleon's information and the policy of retaliation, and sent him a memoir of Hamilton on the subject of the confiscation of debts. Napoleon did not recur to the subject. (Traité de Droit Int. Pub. VI. 750.)

War does not extinguish debts due from the citizens of one belligerent to those of another; it merely suspends the remedy for their recovery.

Private debts.

The State of Georgia r. Brailsford, 3 Dall. 1.

"Every nation at war with another is justifiable, by the general and strict law of nations, to seize and confiscate all moveable property of its enemy, (of any kind or nature whatsoever), wherever found, whether within its territory or not."

Chace, J., in Ware r. Hylton (1796), 3 Dall. 199, 226, citing Bynkershoek, Q. J. P., lib. 1, c. 7, pp. 175, 177; Lee on Capt., c. 8, pp. 111, 118; 2 Burl. p. 207, s. 12, p. 219, s. 2, p. 221, s. 11; Vatt. lib. 4, s. 22; Sir Thomas Parker's Rep. p. 267 (11 William 3d).

Marshall was of counsel in this case, and, as counsel for the defendant in error, supported the confiscation under the Virginia statutes.

The relaxation by the commercial nations of Europe of the strict war right to confiscate debts is founded on custom only, and as such is not binding on any nation which has not adopted such custom, e. g., on the State of Virginia during the Revolutionary war.

Chace, J., in Ware r. Hylton (1796), 3 Dall. 199, 227. Iredell, J., seemed to incline to the same opinion, though he refrained from deciding it.

"By every nation, whatever is its form of government, the confiscation of debts has long been considered disreputable."

Wilson, J., in Ware r. Hylton (1796), 3 Dall. 199, 281.

"The confiscation of debts is at once unjust and impolitic; it destroys confidence, violates good faith, and injures the interests of commerce; it is also unproductive, and in most cases impracticable.

In the war that broke out between France and Spain in the year 1684, His Catholic Majesty endeavored to seize the effects of the subjects of France in his Kingdom; but the attempt proved abortive, for not one Spanish agent or factor violated his trust, or betrayed his French principal or correspondent. . . . Confiscation of debts is considered a disreputable thing among civilized nations of the present day; and indeed nothing is more strongly evincive of this truth, than that it has gone into general desuetude, and whenever put

into practice, provision is made by the treaty, which terminates the war, for the mutual and complete restoration of contracts and payment of debts."

Paterson, J., in Ware . Hylton (1796), 3 Dall. 199, 254, 255, A. D. 1796.

.

"The war of the Revolution has been sometimes appealed to as countenancing the sequestration of debts and the confiscation of property. This was denied by Mr. Hamilton, in his argument on the 10th article of the British treaty of 1794. He said, in reply to those who represent the confiscation or sequestration of debts as our best means of retaliation and coercion, as our most powerful, and sometimes as our only means of defense. So degrading an idea will be rejected with disdain by every man who feels a true and well-informed national pride; by every man who recollects and glories, that in a state of still greater immaturity we achieved independence without the aid of this dishonorable expedient. The Federal Government never resorted to it; and a few only of the State governments stained themselves with it. It may, perhaps, be said that the Federal Government had no power on the subject: but the reverse of this is truly the case. The Federal Government alone had power. The State governments had none, though some of them undertook to exercise it. This position is founded on the solid ground that the confiscation or sequestration of the debts of an enemy is a high act of reprisal and war, necessarily and exclusively incident to the power of making war, which was always in the Federal Government.' (Hamilton's Works, vol. VII. p. 329, Camillus No. XVIII.)"

Lawrence's Wheaton (ed. 1863), 610.

"It is an interesting fact that, prior to his appointment as Chief Justice, Marshall had appeared only once before the Supreme Court, and on that occasion he was unsuccessful. This appearance was in the case of Ware v. Hylton, 3 Dallas, 199, which was a suit brought by a British creditor to compel the payment by a citizen of Virginia of a pre-Revolutionary debt, in conformity with the stipulations of the treaty of peace. During the Revolutionary war various States, among which was Virginia, passed acts of sequestration and confiscation, by which it was provided that, if the American debtor should pay into the State treasury the debt due to his British creditor, such payment should constitute an effectual plea in bar to a subsequent action for the recovery of the debt. When the representatives of the United States and Great Britain met at Paris to negotiate for peace, the question of the confiscated debts became a subject of controversy, especially in connection with that of the claims of the loyalists for the confiscation of their estates. Franklin and Jay, though they did

not advocate the policy of confiscating debts, hesitated, chiefly on the ground of a want of authority in the existing National Government, to override the acts of the States. But when John Adams arrived on the scene, he delivered one of those dramatic strokes of which he was a master, and ended the discussion by suddenly declaring, in the presence of the British plenipotentiaries, that, so far as he was concerned, he had no notion of cheating anybody;' that the question of paying debts and the question of compensating the loyalists were two; and that, while he was opposed to compensating the loyalists, he would agree to a stipulation to secure the payment of debts. It was therefore provided, in the fourth article of the treaty, that creditors on either side should meet with no lawful impediment to the recovery in full sterling money of bona fide debts contracted prior to the war. This stipulation is remarkable, not only as the embodiment of an enlightened policy, but also as perhaps the strongest assertion to be found in the acts of that time of the power and authority of the National Government. Indeed, when the British creditors, after the establishment of peace, sought to proceed in the State courts, they found the treaty unavailing, since those tribunals held themselves still to be bound by the local statutes. In order to remove this difficulty, as well as to provide a rule for the future, there was inserted in the Constitution of the United States the clause declaring that treaties then made, or which should be made, under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the constitution or laws of any State to the contrary notwithstanding. On the strength of this provision, the question of the debts was raised again, and was finally brought before the Supreme Court, in the case of Ware v. Hylton. Marshall appeared for the State of Virginia, to oppose the collection of the debt. He based his contention on two grounds: First, that by the law of nations the confiscation of private debts was justifiable; second, that, as the debt had by the law of Virginia been extinguished by its payment into the State treasury, and had thus ceased to be due, the stipulation of the treaty was inapplicable, since there could be no creditor without a debtor.

"It is not strange that this argument was unsuccessful. While it doubtless was the best that the cause admitted of, it may serve to illustrate the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication. On the question of the right of confiscation the judges differed, one holding that such a right existed, while another denied it, two doubted, and the fifth was silent. But, as to the operation of the treaty, all but one agreed that it restored to the original creditor his right to sue, without regard to the validity or the invalidity of the Virginia statute

H. Doc. 551-vol 7-21

"It is not alone upon his decisions on questions of constitutional law that Marshall's fame as a judge rests. judge rests. So marked was his supremacy in that domain, and so profoundly did his opinions affect the course of the national development, that we are accustomed to think of him in the United States only as the expounder of the Constitution. This is not, however, his sole title to fame. He is known in other lands as the author of important opinions on questions which deeply concern the welfare and intercourse of all nations. In the treatment of questions of international law he exhibited the same traits of mind, the same breadth and originality of thought, the same power in discovering and the same certainty in applying fundamental principles, that distinguished him in the realm of constitutional discussions; and it was his lot in more than one case to blaze the way in the establishment of rules of international conduct

"It is not, however, by any means essential to Marshall's preeminence as a judge, to show that his numerous opinions are altogether free from error or inconsistency. In one interesting series of cases, relating to the power of a nation to enforce prohibitions* of commerce by the seizure of foreign vessels outside territorial waters, the views which he originally expressed, in favor of the existence of such a right (Church v. Hubbart, 2 Cranch, 187), appear to have undergone a marked, if not radical, change in favor of the wise and salutary exemption of ships from visitation and search on the high seas in time of peace (Rose . Himely, 4 Cranch, 241)-a principle which he affirmed on more than one occasion. (The Antelope, 10 Wheaton, 66.) In the reasoning of another case, though not in its result, we may perhaps discern traces of the preconceptions formed by the advocate in the argument concerning the British debts. (Supra, § 1150.) This was the case of Brown v. United States, 8 Cranch, 110, which involved the question of the confiscability of the private property of an enemy on land, by judicial proceedings, in the absence of an act of Congress expressly authorizing such proceedings. On the theory that war renders all property of the enemy liable to confiscation, Mr. Justice Story, with the concurrence of one other member of the court, maintained that the act of Congress declaring war of itself gave ample authority for the purpose. The majority held otherwise, and Marshall delivered the opinion. Referring to the practice of nations and the writings of publicists, he declared that, according to the modern rule,' 'tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated; that this rule' seemed to be totally incompatible with the idea that war does of itself vest the property in the belligerent

6

government; and, consequently, that the declaration of war did not authorize the confiscation. Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that war gives 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 humane and wise policy of modern times has introduced into practice,' though they will more or less affect the exercise of this right,' can not impair the right itself. Nor were the two declararations quite consistent. The supposition that usage may render unlawful the exercise of a right, but can not impair the right itself, is at variance with sound theory. Between the effect of usage on rights and on the exercise of rights, the law draws no precise distinction. A right derived from custom acquires no immutability or immunity from the fact that the practices out of which it grew were ancient and barbarous. We may, therefore, ascribe the dictum in question to the influence of preconceptions, and turn for the true theory of the law to an opinion of the same great judge, delivered twenty years later, in which he denied the right of the conqueror to confiscate private property, on the ground that it would violate the modern usage of nations, which has become law.' (United States v. Percheman, 7 Peters, 51.)"

John Marshall, an address, by J. B. Moore, 16 Political Science Quarterly (Sept., 1901), 400-402, 404-405, 408-410.

See, as to the development of law, The Paquete Habana, 175 U. S. 677, supra, § 1, I. 7-8.

Debts due by one belligerent state to the citizens of the other are not extinguished by the war.

72 Stanbery, At. Gen., 1866, 12 Op. 72.

It is by no means to be admitted that a conquering power may compel private debtors to pay their debts to itself, and that such payments extinguish the claims of the original creditor. The principle of international law, that a conquering state, after the conquest has subsided into government, may exact payment from the state debtors of the conquered power, and that payments to the conqueror discharge the debt, so that when the former government returns the debtor is not compellable to pay again, has no applicability to debts not due to the conquered state.

Planter's Bank v. Union Bank, 16 Wall. 483.

"When a rebellion becomes organized, and attains such proportions as to be able to put a formidable military force in the field, it is usual for the established government to concede to it some belligerent rights.