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." 1 4. Confiscation of Property. But however strong the current of authority in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country; and it has become definitively settled, in favor of the ancient and sterner rule, by the Supreme Court of the United States. (a) 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, (b) 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 * 60 property in * the possession of their neighbors; 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, (a) Brown v. The United States, 8 Cranch, 110. See, also, Ibid. 228, 229. 1 Ante, 57, n. 1. 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 might be claimed by the British owner at the restoration of peace.1 Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigor 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 hostilities, 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, (a) 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 an act at first equivocal, as to the effect, though hostile in the mere execution, 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 condemnation. This * species * 61 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 (a) 5 C. Rob. 233. 1 The Juanita, Newberry, 352; U. S. v. 1756 Shares of Capital Stock, 5 Blatchf 231. 237; post, 91, n. 1. Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly laden vessels in their harbor, and sent a herald to Carthage to negotiate. (a) 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. (b) "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." Reprisals by commission, or letters of marque and reprisal, granted to one or more injured subjects, in the name and by the authority of a sovereign, is another mode of redress for some specific injury, which is considered to be compatible with a state of peace, and permitted by the law of nations. The case arises when one nation has committed some direct and palpable injury to another, as by withholding a just debt, or by violence to person or property, and has refused to give any satisfaction. The reprisals may be made in support of the rights of a subject, as well as those of the sovereign, and for the acts of the subject as well as for those of the sovereign. The commission is not to be issued except in a case clearly just-in re minime dubia; and it authorizes the seizure of the property of the subjects as well as of the sovereign of the offending nation, and to bring it in to be detained as a pledge, or disposed of under judicial sanction, in like manner as if it were a process of distress under national authority for some debt or duty withheld. (c) These letters (b) Doug. 613. (a) Mitf. Hist. of Greece, v. 402–404. (c) Bynk. Q. J. Pub. c. 24; Vattel, b. 2, c. 18, sec. 342, 344, 347, 353; Puff. Droit des Gens, par Barbeyrac, b. 8, c. 6, sec. 13, n. 1; Valin, Comm. ii. tit. des Lettres de Marque, 414, 416; Traité des Prises, 331; Emerigon, Traité des Ass. i. 569; Message of the President of the United States to Congress, December 1, 1834. The right of government to enforce the just claims of its subjects against a foreign government, for debts duly contracted and unjustly withheld, is not to be questioned. It is admitted by statesmen and jurists, and was so stated by Lord Palmerston in the British Parliament, in July, 1847, that governments had a right to enforce by reprisals the claims of their subjects for debts against the subjects of other governments, if relief be denied by the non-execution or the improper administration of the laws in the foreign courts. Protection is due from government to its subjects in their persons and property; but the interference on the part of government to enforce that duty must always be a question of expediency. The government of the United States expressly acknowledged, and in one or more instances acted upon that principle. President Jackson, in 1834, suggested such a measure against France; and in 1847, of reprisal, as being applicable to a state of peace, have been frequently recognized and regulated by treaty. (d) The French ordinance of the marine of 1681 (e) regulates minutely this remedial process, and the judicial sanction requisite to the proceedings under letters of reprisal, and which Valin considers to be sage precautions, proper to temper the rigor of this perilous mode of redress. (f) General reprisals upon the persons and property of the subjects of another power are equivalent to open war; but these special letters of marque and reprisal, limited to a specific object, are spoken of generally, and even in the articles of confederation of the United States, in 1781, (g) as issuing "in times of peace." They are, however, regarded by Barbeyrac, Emerigon, and other publicists, as a species of hostility, an imperfect war, and usually a prelude to open hostilities. The favorable or adverse issue of the hazardous experiment will depend, in some degree, upon the matter in demand, and, in a much greater degree, upon the relative situation, character, strength, and spirit of the nations concerned. (h) 5. Confiscation of Debts. * The claim of a right to confis 62 cate 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 concernone ground of the war between the United States and Mexico was the non-payment by Mexico of debts due to American citizens. (d) See, for this purpose, the treaty of Munster, between Spain and Holland, in 1648; the treaties between England and Holland, in 1654 and 1667; the treaty of Ryswick, art. 9; the treaty of Utrecht, art. 16; treaty between the United States and the Republic of Colombia, in 1825. (e) Liv. 3, tit. 10, des Réprisailles. (f) In the time of Edward II., and for some succeeding reigns, the power of granting letters of marque and reprisals against the subjects of a foreign state, that refused to render justice to the subjects of the crown of England, was vested in the Court of Chancery. It was in the nature of a judicial process and of a private remedy. The capture was in the nature of a security to obtain justice. Lord Campbell, Lives of the Lord Chancellors, i. 205. (9) Art. 9. (h) War does not exist merely on the suspension of the usual relations of peace. Commerce may be suspended or interdicted between the subjects of different states without producing a state of war. Reprisals and embargoes are forcible measures of redress, but do not per se constitute war, nor does the furnishing of specific assistance to one of the parties at war, according to a previous stipulation. Vide infra, 116. Mr. Manning, in his Commentaries on the Law of Nations, p. 98, after showing the imperfect definitions given by publicists, defines an open and solemn war to be "the state of nations among whom there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign." ing 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 Bynkershoek pronounced in favor of it. (a) It had the countenance of the civil law; (b) and even Cicero, in his Offices, (c) 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 favor of the right; but Vattel says, that a relaxation of the rigor 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. (d) There has frequently been a stipulation in modern treaties, that debts or moneys 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 *63 policy, and ought to be discontinued. The treaties be tween the United States and Colombia in 1825, and Chili in 1832, and Venezuela in 1836, and the Peru-Bolivian Confederation in 1838, and Ecuador in 1839, contain 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. A very able discussion of this assumed right to confiscate debts was made by Mr. Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscate private debts, or private property in banks, or in public funds, on the ground of reason and principle, on those of policy and expediency, on the opinion of jurists, on usage, and on conventional law; and his argument against the justice and policy of the claim was exceedingly powerful. He contended it (a) Grotius, b. 1, c. 1, sec. 6; b. 3, c. 8, sec. 4; Puff. lib. 8, c. 6, 19, 20; Bynk. lib. 1, c. 7. Lord Hale also laid it down to be the law of England. 1 Hale's P. C. 95. (b) Dig. 41. 1 and 49. 15. (c) Lib. 3, c. 26. (d) Vattel, b. 3, c. 5, sec. 77. |