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 concerning enemy's tangible property, found in the country at the open (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. (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. (g) 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 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 between 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 to be against good faith for a government to lay its hands on (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. private property, acquired by the permission or upon the invitation of the government, and under a necessarily implied promise of protection and security. Vattel says, that everywhere, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon (a) and Martens (b) make the same declaration. The practice would have a very injurious influence upon the general sense of the inviolability and sanctity of private contracts; and with debtors who had a nice and accurate sense of justice and honor, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given (c) a striking instance of the impracticability of confiscating property deposited in trust with a debtor, and of the firmness of Spanish faith. When war was declared between France and Spain, in 1684, the King of Spain endeavored to seize the property of the French in Spain, but not a single Spanish factor would * 64 betray his French correspondent. (a) * Notwithstanding the weight of modern authority, and of argument, against this claim of right on the part of the sovereign, to confiscate the debts and funds of the subjects of his enemy during war, the judicial language in this country is decidedly in support of the right. In the case of Brown v. The United States, (b) already mentioned, Judge Story, in the Circuit Court in Massachusetts, laid down the right to confiscate debts and enemy's property found in the country, according to the rigorous doctrine of the elder jurists; and he said the opinion was fully confirmed by the judgment of the Supreme Court in Ware v. Hylton, (c) where the doctrine was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by (a) Des Ass. i. 567. (c) Essai sur les Mœurs et l'Esprit des Nations. (b) 8, c. 2, sec. 5. (a) The English Court of K. B. declared, in the case of Wolff v. Oxholm, 6 Maule & Selw. 92, that an ordinance of Denmark, in 1807, pending hostilities with England, which sequestered debts due from Danish to English subjects, and caused them to be paid over to the Danish government, was not a defence to a suit in England for the debt, and that the ordinance was not conformable to the usage of nations, and was void. It was observed by the court that the right of confiscating debts, contended for on the authority of Vattel, b. 2, c. 18, sec. 344; b. 3, c. 5, sec. 77, was not recognized by Grotius (see Grot. lib. 3, c. 7, sec. 4, and c. 8, sec. 4), and was impugned by Puffendorf (b. 8, c. 6, sec. 22) and others; and that no instance had occurred of the exercise of the right, except the ordinance in question, for upwards of a century. none. Chief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of Brown, observed, that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and the right of the sovereign to confiscate debts was precisely the same with the right to confiscate other *65 property found in the country. This right, therefore, was admitted to exist as a settled and decided right, stricto jure, though, at the same time, it was conceded to be the universal practice to forbear to seize and to confiscate debts and credits. We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in this country, that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens, and due to the enemy; but, as it is asserted by the same authority, this right is contrary to universal practice, and it may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times.1 If property should have been wrongfully taken by the state before the war, and be in the country at the opening of the war, such property cannot be seized, but must be restored; because to confiscate that species of enemy's property would be for the government to take advantage of its own wrong. The celebrated Report of the English law officers of the crown, 1753, in answer to the Prussian Memorial, stated, that French ships taken before the war of 1741 were, during the heat of the war with France, as well as afterwards, restored by sentences of the admiralty courts to the French owners. (a) No such property (a) The case of the Silesia[n] loan contains, in the discussions between the Prussian and British courts, in 1752, a memorable exposition of the law of nations on the subject of belligerent rights and duties. The report of the high and distinguished law officers of the crown, in answer to the Prussian Memorial, made in 1753, was declared by such eminent writers as Vattel and Montesquieu, to be an excellent and unanswerable tract on the law of nations. See the substance of the discussion in Wheaton's History of the Law of Nations, ed. N. Y. 1845, 206-217, and the Report, at large Collectanea Juridica, i. 95. The case is worthy of special notice, not only for the authority of the work, but for the recognition of the sanctity of private debts and contracts, in opposition to the pretensions of the rights of war and conquest. 1 Sed vide post, 91, n. 1. An inter- S. C. C. 1792, Martin's R. (N. C.) pt. 2, esting old case is Hamilton v. Eaton, U. p. 1. was ever attempted to be confiscated; for had it not been for the wrong done, the property would not have been within the king's dominions. And yet even such property is considered to be subject to the rule of vindictive retaliation; and Sir William Scott observed, in the case of the Santa Cruz, (b) that it was the constant practice of England to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. (x) 6. Interdiction of Commerce. *One of the immediate *66 and important consequences of the declaration of war is In that case, a loan of money was made by British creditors to the Emperor of Ger- (b) 1 C. Rob. 50. are (z) Cases construing the confiscation A decree confiscating real estate under cated property. Avegno v. Schmidt, 113 U. S. 293. Under that act, upon the owner's death, his heirs, though not named in the statute, took the confiscated property by descent from him and not by gift or grant from the Government. Ibid.; Shields v. Schiff, 124 U. S. 351; Illinois Central R. Co. v. Bosworth, 133 U. S. 92. See further upon the Confiscation Acts, Jenkins v. Collard, 145 U. S. 546; Briggs v. United States, 143 U. S. 346; 25 Ct. Cl. 391. General language in the govern ment's deed to a purchaser at a sale under that act did not operate as a warranty that the offender had any estate in the property at the time it was seized. Waples v. United States, 110 U. S. 630. The acts of 1861 and 1862 did not authorize the confiscation of corporate property. Ellis v. Phenix Bank, 12 Daly (N. Y.), 177. |