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One, however, of the English (9) Common Law Tribunals has arrived at a different conclusion, and pronounced that, according to modern International Law, the confiscation of private debts is illegal and invalid. The case in which this law was laid down, and the subject generally, will be considered when the effect of the restoration of peace upon the possessors of property is discussed.

LXXXVIII. So much as to the strict right; but the rigour of this right has been mitigated by the humane and wise practice of nations, for nearly a century and a half, which has forborne from the seizure of debts and credits, and has been accompanied by a principle, which has obtained universally (r), of allowing rights to debts and actions to revive with the restoration of peace. We have already considered, in the preceding chapter on Embargo (s), the manner in which this extreme Right has been mitigated in practice; the memorable case of the Silesian (t) Loan in 1752, did not, Dr. Story observes (u), in the slightest degree intimate that International Law prohibited a Sovereign from confiscating debts due to his enemies, even where the debts were due from the nation, though it contained a very able statement of the injustice in that particular case; and this memorial admitted that when Sovereigns or States borrowed money from foreigners, it was very commonly expressed in the contract that it should

(q) Wolffe v. Oxholm, 6 Maule & Selwyn, 92.

(r) So much so, that Vattel says: Aujourd'hui l'avantage et la sûreté du commerce ont engagé tous les souverains de l'Europe à se relâcher de cette rigueur. Et dès que cet usage est généralement reçu, celui qui y donnerait atteinte blesserait la foi publique; car les étrangers n'ont confié à ses sujets, que dans la ferme persuasion que l'usage général serait observé." He has before asserted, however, and not very consistently, that the War gives the same right over our enemies' debt "qu'elle peut nous donner sur les autres biens." Azuni follows in the same track, pt. ii. c. iv. art. ii. s. 7. (8) Vide ante, p. 44, c. iii.

(t) Ib. p. 33.

(u) Brown v. The United States, 8 Cranch (Amer.), 142.

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not be seized as reprisals or in case of War; various other Treaties have subsequently been entered into containing a similar stipulation (x).

LXXXIX. We have been considering the question of private debts. The subject of debts due from the State, in its corporate capacity, to individuals,-money invested in the Public Funds and the like,-has been already discussed. The opinion of Vattel upon this point is thus emphatically expressed: "L'État ne touche pas même aux sommes qu'il "doit aux ennemis; partout, les fonds confiés au public "sont exempts de confiscation et de saisie, en cas de guerre." Emerigon (y) and Martens (z) are of the same opinion. Indeed, it is one which now may happily be said to have no gainsayers.

XC. With respect to immoveable property,-lands or houses of the enemy, the general rule of civilised States appears to be, that this kind of property is never confiscated, upon the principle, that the Sovereign, by permitting the proprietors to purchase and possess such property, has incorporated them amongst his subjects. In cases, however, where the income of the estate would otherwise be sent out of the country to augment the resources either of the private or public wealth of the enemy, it may be seques

(x) E. g. Treaty between N. A. United States and England, 1794,

art. x.

Between N. A. United States and Holland, 8th October, 1782, art. xviii.

Between N. A. United States and France, 1778, art. xx.

Between N. A. United States and Prussia, 11th July, 1799, art. xxiii. Between N. A. United States and Morocco, 1787, art. xxiv. In this Treaty the confiscation of the debts of individuals was said to be unjust and impolitic."

66

Between the N. A. United States and Columbia, 1825.

Between the N. A. United States and Chili, 1832.

Between the N. A. United States and Venezuela, 1836.

Between the N. A. United States and the Peru-Bolivian Treaty, 1838. (y) Des Assur. t. i.

P. 567.

(*) Vol. iii. c. ii. s. 5.

trated during the pendency of the War, without any breach of international usage (a).

We shall have occasion hereafter to consider the protection usually afforded by an invading or conquering State to the landed property of foreigners in the invaded or conquered territory (b).

XCI. Before this subject of enemies' (c) property be dismissed, it should be observed, that if it have been wrongfully seized before the War, it must be restored. In the Report of the English Law Officers (1753), in answer to the Prussian Memorial, it was stated that French ships taken before the War of 1741, were restored by the Admiralty Court, both during the heat of the conflict and afterwards, to the French owners.

Such property may not be confiscated, because, but for the wrong done, it would not have been within the territory of the belligerents. Mr. Chancellor Kent cites the Santa Cruz (d) as an instance that in England such property is subject to the rules of vindictive retaliation. But this seems to be a mistake. Lord Stowell is not speaking of property wrongfully taken, but of property lawfully seized by Embargo, when he says, " at the breaking out of War it "is the constant practice of this country to condemn pro'perty seized before the War, if the enemy condemns, and "to restore if the enemy restores."

The restoration in these cases is not matter of right, but of expediency. The English Law Officers, in the Memorial which has been just mentioned, were speaking of restoration in cases where wrong had been done.

(a) Bynk. Q. J. P. 1. i. c. vii. in initio.
Vattel, 1. iii. c. v. s. 76.

(b) Grot. 1. iii. c. vi. s. 5.
Heffters, s. 133.

(c) 1 Comment. 65.

(d) 1 Rob, Adm. Rep. 64.

CHAPTER VII.

WAR-WHO MAY MAKE.

XCII. It is important to consider the doctrine of International Law, both with respect to those who may be actually engaged in warlike operations, and to those who may possess themselves of the enemy's property. This is, however, quite strictly speaking, a question of Public rather than of International Law. A declaration of War, as Vattel remarks, which enjoins the subjects at large to attack the enemy's subjects, implies a general order (a). If the unauthorised subject carry on War, or make captures, it may be an offence against the sovereignty of his own nation, but it is not necessarily a violation of International Law (b). It is true that the Sovereign's order which commands acts of hostilities, and gives a right to commit them, is usually a particular order (c), that is, an order to certain persons, and that such an order greatly conduces to the mitigation of the evils inseparable from War; but there are many conceivable cases in which a Sovereign may appeal to all his subjects to protect their country (d). Certainly the Sovereign may commission whomsoever he pleases to carry on the War, both by land and sea. Maritime volunteers or

(a) "At the same time usage does require a lawful commission for

the exercise of hostilities."-Martens, 1. viii. c. iii. s. 2.

(b) Vattel, 1. iii. c. xv. ss. 224-28.

(c) Ib. s. 224.

(d) Ib. s. 228.

Privateers (e) will be considered hereafter; but it must be remembered here that they carry Letters of Marque.

The legal position that no subject can lawfully commit hostilities, or capture property of an enemy, when his Sovereign has either expressly or constructively prohibited it, is unquestionable (f). But it appears to be equally unquestionable that the Sovereign may retroactively ratify and validate the unauthorised act of his subject. In fact, the subject seizes at his peril, and it is for the Sovereign to decide in the last resort whether he will ratify or repudiate the act (g). It is another unquestionable proposition that all captures in War enure to the Sovereign, and can become private property only through his grant (h). But this doctrine has not prevented the English Prize Courts from holding that a subject may seize hostile property for the use of the Crown, wherever it is found: it will be in the discretion of the Crown to ratify the capture by proceeding to condemnation; but to the Prize Court it is quite indifferent whether the capture was originally authorised or subsequently sanctioned by the Crown. This principle is illustrated by various decisions of the Prize Courts in cases of capture by non-commissioned vessels, by commanders on foreign stations anterior to the War, by private individuals in port or on the coasts, and by naval commanders on shore, or unauthorised expeditions (i); and in cases where private

(e) Et vide ante, vol. i. p. 425.

(f) Brown v. The United States, 8 Cranch (Amer.), 133. (Story). (g) The Thorshaven, Edward's Rep. 102.

(h) The Elsebe, 5 Rob. Adm. Rep. 173.

The Maria Françoise, 6 ib. 282; 11 East's Rep. 619.

Brown v. The United States, 8 Cranch (Amer.), 131.

(i) The Aquila, 1 Rob. Adm. Rep. 37.

The Twee Gesuster, 2 ib. 284, n.

The Rebeckah, 1 ib. 227.

The Gertruyda, 2 ib. 211.

The Mariamne, ib. 11.

The Charlotte, ib. 282.

The Richmond, ib. 325.

The Thorshaven, Edward's Rep. 102.

Hale, in Hargrave's Law Treatises, c. xxviii. 245.

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