fully seized by the government; the individuals as prisoners of war, and the property to satisfy claims on the opposed nation. This practice has generally been mitigated by the forbearance of governments, and has been forbidden in a great number of treaties; but the liability to the enforcement of the rule always exists where not prevented by express convention. By Magna Charta, the merchants of a country at war with us, found in our country when war broke out, were to be detained, "attachientur," till it was known how our countrymen, similarly circumstanced, were treated by the enemy; and the subjects of the latter were to be released or detained according to the enemy's conduct. (1) There were numerous instances of the rigid rule being enforced in the middle ages, and it was even sometimes requested that friendly powers would join in its exercise. In 1315, Louis X. wrote to Edward II., stating, that he was going to make war on the Flemings, and requesting him to seize the persons and property of all Flemings found in England: Edward did not comply with the whole of this request; but he commanded all Flemings immediately to quit the kingdom. (2) A few years afterwards, in 1324, Edward II., then about to make war on France, issued an edict for seizing all the French found in his dominions. (3) As civilization advanced, and the importance of pro- Leave to retire tecting commerce began to be appreciated by govern- when war ments, this practice became relaxed, and was very often generally (1) See the charters in Blackstone's "Law Tracts," XVII., XXXII., LI. 24. (2) Dumont, Corps Dip. I. II. (3) Id. I. 11. 69. "Ireland, unless they come in voluntarily upon revolt, or are driven in ""by the king's cruisers.' Usage hath construed this to include ships "and goods already come into ports, creeks, or roads, and these not "only of England and Ireland, but of all the dominions thereunto "belonging."-ED.] allowed. the subject of special convention. In 1483 Louis XI. granted to the Hanse Towns, that they should be at liberty to remain in his dominions for one year after war broke out, with full protection of persons and goods. (1) In the next century, the sixteenth, it began to be generally agreed, in treaties of commerce, that a specified time, varying from three months to two years, should be allowed to the subjects of either nation, when war broke out, to remain unmolested for the settlement of their affairs, with full liberty to retire peaceably during that period. Of treaties containing such articles a list lies before me too long for insertion. It suffices to say, that not only all the chief European States, but even the Barbary powers, have, in a great number of instances, concluded such agreements. By the treaty between Great Britain and France, in 1786, it was agreed, that the subjects of either power should be allowed to continue to reside, unmolested, in the dominions of the other, notwithstanding the breaking out of war, as long as they comported themselves satisfactorily to the government. (2) A similar article was inserted in our treaty with the United States, in 1795, where it was agreed that the citizens of either power may remain unmolested during war in the dominions of the other, as long as they "behave peaceably and commit no offence against the laws;" and in case either government thought proper to desire their removal, twelve months should be allowed them for that purpose. (3) Likewise by our treaty with Portugal, in 1810, the subjects of either power were to continue unmolested during war, as long as they commit no offence. (4) And a similar article has been inserted in several of the treaties with the States of South America, as that between Great Britain and Rio de la Plata, in (1) Dumont, III. II. 123. (3) 1d. V. 686. (4) Id. Supp. VII. 213. 1825, (1) between Great Britain and Columbia in the same year; (2) between France and Brazil, in 1826; (3) between Great Britain and Mexico, in 1824; (4) between Prussia and Brazil, in 1827; (5) and between Denmark and Brazil, in 1828. (6) But although there have been so many conventions But the right remains, when granting exemption from the liabilities resulting from there is no a state of war, the right to seize the property of enemies special treaty. found in our territory when war breaks out, remains indisputable, according to the Law of Nations, wherever there is no such special convention. All jurists, including the most recent, such as De Martens (7) and Klüber, (8) agree in this decision; and various instances are given by Moser in which this right has been exercised by different States, by either the temporary or the permanent sequestration of the property of one belligerent found in the territory of the other. (9) The United States have coincided in the rule existing in Europe, by an express decision of their supreme court: "However strong," says Chancellor Kent, "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 open for discussion in this country (the United States); and it has been 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, (1) De Martens, Recueil, X. 678. (2) Id. 744. (3) Id. Supp. 870. (4) Id. XI. 92. (5) Id. 471. (6) Id. 613. (7) De Martens, Précis, liv. VIII. ch. IV. § 279. (8) Klüber, Droit des Gens, tom. II. § 250, 252. (9) Moser, Versuch, IX. 4960. Opinion of 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 vested 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.” (1) Vattel is not quite explicit, or consistent, when treating of this subject. When treating" of things belonging to the enemy," he allows the seizure of the property of enemies found in a belligerent State, even to the rent of landed property and the debts due from private individuals to subjects of the other belligerent. (2) But when treating of declarations of war, he says, that "the sovereign declaring war can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the (1) Kent's Commentaries on American Law, vol. I. 59. (2) Droit des Gens, liv. III. ch. V. § 76, 77. [* A full review and criticism of the judgment of the court in the leading case of Brown v. The United States will be found in Dana's note to Wheaton (Part IV. chap. I.). The court was agreed that a right existed to confiscate private property and private debts. Judge Story, with the minority, held, that the power to enforce such confiscation was in each case a function of the executive government. Chief Justice Marshall, on the other hand, with the majority of the court, held, that confiscation could only be resorted to by an express act of the legislature. ED.] declaration. They came into his country under the public faith: by permitting them to enter and reside in his territories, he tacitly promised them full liberty and security for their return." (1) Thus Vattel makes a distinction between the property of resident and that of non-resident enemies; and allows the confiscation of the latter, but forbids the confiscation of the former. It will be remembered that Vattel treats of the Law of Nature, and not of the customary Law of Nations. (2) I confess that I doubt if the principles of equity prescribe the distinction which he makes, while by the customary Law of Nations, no such limitation has been made. But the usage of nations has not been invariable regarding the confiscation of the property of enemies found in a belligerent State, even when unprotected by special treaty. This country has usually adopted the rule of reciprocity, confiscating where the enemy confiscates, and releasing where the enemy releases. The right to confiscate such property seems undisputed, but the exercise of that right has been frequently modified, from considerations of policy or of humanity. * never confis One description of property is invariably respected Public debts during war, namely, the sums due from the State to the cated. enemy, such as the property which the latter may possess in the public funds. An attempt was made by the King (1) Droit des Gens, liv. III. ch. IV. § 63. (2) Vide ante, p. 39. [* The general rule seems to be that the immovable property of alien enemies is never confiscated, though in certain cases the income may be sequestrated during the war. See Bynkershoek, Quæst. Jur. Pub. lib. I. c. VII. in notis. "In omni fere Europâ sola fit immobilium annotatio, ut eorum fructus, durante bello, percipiat fiscus, finito autem bello ipsa immobilia, ex pactis, restituantur pristinis dominis." Sir R. Phillimore, Part IX. chap. VI., accepts this as a still subsisting principle. -ED.] |