the contrary, could only complain of such an act as a violation of the modern policy; but this matter seems to rest upon more solid foundations than those of mere policy. Mr. Justice Story holds, and in this respect he has the concurrence of all jurists, that if a Nation has stipulated in a treaty of commerce with another Nation that, if war should break out between them, they will mutually refrain from exercising their extreme Rights as belligerents in certain matters, either Nation would have just ground of complaint, if the other should not conform its conduct to the treaty stipulations; but in maintaining this position Mr. Justice Story concedes the whole question, and upholds the obligation of Good Faith at the sacrifice of Absolute Right; for war terminates, or at least suspends, the obligations of commercial treaties, as such, and no obligation remains after the breaking out of war, but that of Good Faith, to bar the exercise of all the Rights on the part of Nations, which a State of War gives rise to. Treaty stipulations in such matters only serve to give greater precision to the obligations of Good Faith; but they are not necessary to create those obligations, which may arise, and will be equally binding without any written specification of them. A specific contract in fact differs only from an implied contract in the mode of proof".

§ 55. The Right of a belligerent Power to confiscate debts contracted by itself or by its Subjects in time of peace with individuals, who by the breaking out of war have become clothed with an enemy-character,

40 The case of Brown v. the United States, 8 Cranch, p. 121, was an appeal to the Supreme Court of the United States, from a judgment of Mr. Justice Story in the Circuit Court of Massa

chusetts. The Emulous, I Gallison, p. 136.

41 Chief-Justice Erle, in Kennedy v. Broun, Queen's Bench, Jan. 16, 1863.

rests much upon
very

the same principle, as the right of confiscating the property of enemy-subjects which is found in the country of a belligerent at the comChancellor mencement of war. Mr. Chancellor Kent however con

Kent.

Vattel.

Bynkershoek,

siders that the objection to the right of confiscation in the case of debts is much stronger than the objection to the right of confiscating the tangible property of an enemy. It may be conceded that if the extreme right of a belligerent is to be exercised against an enemy, the latter is in strict right absolutely at the mercy of his adversary; and no limits can be set to the exercise of the summum jus, than those which compassion for the vanquished may suggest. But war is not carried on in this spirit between Christian Nations. It has been the constant effort of the wise and the good amongst statesmen, whose more especial province it has been to regulate the intercourse of Commonwealths, to mitigate the exercise of hostile Right between Nations; and wheresoever the practice of Nations has, under their influence, restrained the exercise of the summum jus, individual Nations cannot revive its exercise without a violation of good faith. Vattel, who considers that the summum jus of a belligerent warrants the confiscation of debts due to his adversary, says, "At present, a regard to the advantages and safety of commerce has induced all the Sovereigns of Europe to act with less rigour in the subject of confiscating debts due from their subjects to an enemy. And as the custom has been generally received, the Sovereign who should act contrary to it would violate public faith; for strangers have trusted his subjects only from a firm persuasion that the general custom would be observed." Bynkershoek is the only jurist of eminence who holds it to be a matter of Common Right for a belligerent 42 Droit des Gens, Lib. III. c. v. § 77.

Sovereign to confiscate upon the outbreak of war the debts due from himself or his Subjects to the Enemy. There are however passages in Grotius and Puffendorf, which are frequently cited as being in accordance with Bynkershoek's views, but these passages, if carefully examined, will be found to bear upon another subject-namely, the right of a belligerent, who is in possession of an enemy's country by Right of Conquest, to appropriate to himself the debts due from neutral Nations to the Enemy whom he has conquered, as well as the tangible property of the Enemy. The instance which is given by both those writers is that of Alexander the Great, who by conquest had become master of the City and State of Thebes, and thereupon remitted to the Thessalians a debt due from them to the Thebans. In this case the conqueror in the war considered himself to have succeeded, by Right of Conquest, to the title of the conquered State to exact or remit the debt due to it from the Thessalians. Now Grotius holds this transaction to have been well founded in Right, on the ground of the absolute conquest and subjection of the City and State of Thebes: "Nam qui dominus est personarum, idem et rerum est, et juris omnis quod personæ competit3." But it is one thing to claim dominion over incorporeal Rights which are annexed to corporeal things, such as cities or countries, by reason of such corporeal things being reduced into our possession by conquest, and another thing to claim dominion over incorporeal Rights belonging to persons, more especially when such persons have not been made captive.

§ 56. It is a well understood position of Law, that if a subject of any commonwealth be taken by an

43 L. III. c. VIII. tit. iv. § 2. Qui possidetur, non possidet sibi,

nec in potestate habet, qui non est suæ potestatis.

enemy, his goods, which were not taken with him, are not acquired by the conqueror, but fall to him. who would have been his heir at law, if he had died Judgment a natural death. "How then," asks Lord Ellenborough, "can things belonging to a person who has not been made captive, be legally acquired by an enemy, who is not a conqueror either as to the person or the thing?"

of Lord

Ellen

borough, in Wolff v.

Oxholm.

Lord Ellenborough, on the occasion of making the above observation, was delivering the judgment of the Court of Queen's Bench 45 (anno 1817,) in a suit brought by a British subject against a Danish subject for a debt, which the latter alleged to have been confiscated by the Danish Government under an Ordinance issued by it at the commencement of war with Great Britain in 1807. On this occasion Lord Ellenborough said that the Court had been unable to discover that there ever was a time when it was the general practice of Nations to confiscate debts; that, although Bynkershoek had cited some instances of such confiscations in the sixteenth and seventeenth centuries, and there was a solitary decision about the middle of the sixteenth century by a Court in Paris against a Fleming, who was suing a Frenchman to recover from him a debt which he had paid into the French Treasury in obedience to a French decree during war between the two Nations, yet there was not a single instance of such a confiscation to be found for something more than a century, whilst the right was not recognised by Grotius, and was impugned by Puffendorf and others. The Court accordingly held that, as the Danish Ordinance was not conformable to the usage of Nations, it was not bound to pay regard to it. Lord Alvanley, in the case of Furtado

44 Puffendorf, L. VIII. c. 6. § 22.

45 Wolff v. Oxholm, 6 Maule and Selwyn, p. 92.

v. Rogers, 3 Bosanquet and Puller, p. 191, said, "With respect to the argument, that all contracts made with the enemy accrue to the benefit of the King during war, and that he may enforce payment of any debt due to an alien enemy from any of his subjects, we think it is not entitled to much weight. Such a course of proceeding never has been adopted, nor is it probable that it ever will be adopted, as well from the difficulties attending it, as from the disinclination to put in force the Prerogative." It is worthy of remark that even Bynkershoek 46 admits that there were doubts in his time whether the incorporeal rights of an enemy could be confiscated by a belligerent; and he cites an instance of the States General (6 July 1673,) refusing to pay regard to an Ordinance of the French King, which confiscated certain debts due from French subjects to subjects of the States General. Mr. Justice Story is therefore not strictly warranted in affirming that down to the year 173747 it may considered as the opinion of jurists, that the right of a belligerent to confiscate debts due to his enemy at the commencement of war was unquestionable. This eminent jurist does not in either of his elaborate judgments 48 take any notice of the decision of the Court of King's Bench at Westminster in Wolff v. Oxholm. Mr. Chancellor Kent, on the other hand, refers to that judgment in a note, and admits that the weight of modern authority and of argument is against the claim of Right on the part of a belligerent

46 De incorporalibus tamen, ut sunt actiones et credita, dubitari video, et dubitasse, quin et aliquando contradixisse nostros ordines. Quæst. Jur. Publici, L. I. c. VII.

47 Mr. Justice Story adopts the year 1737 as being the date of the publication of Bynkershoek's

be

Quæstiones Juris Publici; but Mr. Wheaton aptly remarks that Bynkershoek adduces no precedent later than the year 1667, seventy years before the publication of his work.

48 The Emulous, 1 Gallison, p. 563. Brown v. the United States, 8 Cranch, p. 121.