stances of such declarations by the King of Great Britain, and he says that aliens were thereby enabled to acquire personal chattels, and to maintain actions for the recovery of their personal rights, in as full a manner as alien friends. (x) Besides those stipulations in treaties, which have softened the rigors of war by the civilizing spirit of commerce, many governments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy's subjects, found in the country at the commencement of war. (c) It was provided by Magna Charta (d) that, upon the breaking (c) By the Spanish decree of February, 1829, making Cadiz a free port, it was declared that, in the event of war, foreigners who had established themselves there for the purposes of commerce, and becoming alien enemies by means of the war, were to be allowed a proper time to withdraw, and their property was to be sacred from all sequestration or reprisal. (d) Ch. 30. certain dates, should have sailed from any 1854. These and other orders are given (x) War suspends the right to sue, but does not work a forfeiture of property or obligations. Lamar v. Micou, 112 U. S. 452, 464. In time of war, the President may submit to a court what amount of damages should be allowed for a capture, without the authority of an act of Congress. The Neustra Senora De Regla, 108 U. S. 92. Property taken and used by the government may, when equitable and just, be treated as taken under an implied contract of payment, but when the taking or use amounts to its seizure or destruction for the public good and safety, or as incident to the ravages of war, the owner bears the loss, but, on the other hand, he is not liable for any military works improving his property. United States v. Pacific R. Co., 120 U. S. 227; United States v. Atlantic & Pacific R. Co., id. 241; Heflebower v. United States, 21 Ct. Cl. 228. Hence, as the government is not responsible for property destroyed by in 1 Spinks, Ec. & Ad. R. app. ; Cong. its military operations in war, so private Acts done in their own country by the In this country it is the province of the President, by proclamation, and of Congress, but not of the judiciary, to declare what is hostile territory. Heflebower v. United States, 21 Ct. Cl. 228. L out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached, "without harm of body or goods," until it should be known how English merchants were treated by the enemy; "and if our mer- *58 chants," said the charter, "be safe and well treated there, theirs shall be likewise with us." It has been deemed extraordinary that such a liberal provision should have found a place in a treaty between a feudal king and his barons; and Montesquieu (a) was struck with admiration at the fact that a protection of that kind should have been made one of the articles of English liberty. But this provision was confined to the effects of alien merchants who were within the realm at the commencement of the war, and it was understood to be confined to the case of merchants domiciled there. (b) It was accompanied, also, with one very ominous qualification; and it was at least equalled, if not greatly excelled, by an ordinance of Charles V. of France a century afterwards, which declared that foreign merchants who should be in France at the time of the declaration of war should have nothing to fear, for they should have liberty to depart freely with their effects. (c) The spirit of the provision in Magna Charta was sustained by a resolution of the judges, in the time of Henry VIII., when they resolved, that if a Frenchman came to England before the war, neither his person nor goods should be seized. (d) The statute of staples, of 27 Edw. III. c. 17, made a still more liberal and precise enactment in favor of foreign merchants residing in England, when war commenced between their prince and the King of England. They were to have convenient warning of forty days, by proclamation, to depart the realm with their goods; and if they could not do it within that time, by reason of accident, they were to have forty days more to pass with their merchandise, and with liberty, in the meantime, to sell the same. The act of Congress of the 6th of July, 1798, c. 73, was dictated by the same humane and enlightened policy. It authorized the President, in* case *59 of war, to direct the conduct to be observed towards subjects of the hostile nation, being aliens, and within the United States, and in what cases, and upon what security, their resi (a) Esprit des Lois, 20, 14. (b) 1 Hale's P. C. 93. (c) Henault's Abreg. Chron. i. 338. dence 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." 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, and without a legislative act authorizing its confiscation it could (a) Brown v. The United States, 8 Cranch, 110. See also ibid. 228, 229. 1 Ante, 57, n. 1. 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 Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly laden vessels (a) 5 C. Rob. 233. 1 The Juanita, Newberry, 352; United States v. 1756 Shares of Capital Stock, 5 Blatchf. 231, 237; post, 91, n. 1. 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 (a) Mitf. Hist. of Greece, v. 402–404. (b) Doug. 613. (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; Valiu, 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, one ground of the war between the United States and Mexico was the non-payment by Mexico of debts due to American citizens. |