The point next to be examined is the right of confiscation or sequestration, as depending on the opinions of Jurists and on usage.

To understand how far these ought to weigh, it is requisite to consider what are the elements, or ingredients, which compose what is called the laws of Nations.

The constituent parts of this system are, 1 The necessary or internal law, which is the law of Nature applied to Nations; or that system of rules for regulating the conduct of Nation to Nation which reason deduces from the principles of natural right as relative to political societies or States. 2 The voluntary law, which is a system of rules resulting from the equality and independence of nations, and which, in the administration of their affairs and the pursuit of their pretensions, proceeding on the principle of their having no common judge upon earth, attributes equal validity, as to external effects, to the measures or conduct of one as of another without regard to the intrinsic justice of those measures or that conduct. Thus captures in war are as valid when made by the party in the wrong as by the party in the right. 3 The Pactitious or Conventional law, or that law which results from a Treaty between two or more nations. This is evidently a particular not a general law; since a treaty or pact can only bind the contracting parties: Yet when we find a provision universally pervading the Treaties between nations for a length of time, as a kind of formula, it is high evidence of the general law of Nations. 4 The customary law, which consists of those rules of conduct that in practice are respected and observed among Nations. Its authority depends on usage implying a tacit consent and agreement. This also is a particular not a general law, obligatory only on those nations whose acquiescence has appeared or from circumstances may fairly be presumed. Thus the customary law of Europe may not be that of a different quarter of the Globe. The three last branches are sometimes aggregately denominated the positive law of Nations.

The two first are discoverable by reason; the two last depend on proof as matters of fact. Hence the opinions of Jurists though weighing, as the sentiments of judicious or learned men who have made the subject a particular study—are not conclusive as authorities. In regard to the necessary and voluntary law, especially, they may be freely disregarded, unless they are found to be adopted and sanctioned by the practice of Nations: For where Reason is the guide, it cannot properly be renounced for mere Opinion, however respectable. As Witnesses of the customary law, their testimony, the result of careful researches, is more particularly intitled to attention.

If then it has been satisfactorily proved, as the dictate of sound reason, that private debts and private property in public funds, are not justly liable to confiscation or sequestration, an opposite opinion of one or more jurists, could not controul the conclusion in point of principle. So far as it may attest a practice of nations which may have introduced a positive law on the subject, the consideration may be different. It will then remain to examine upon their own and other testimony whether that practice be so general as to be capable of varying a rule of reason by the force of usage, and whether it still continues to bear the same character, or has been weakened or done away by more recent or more modern usage.

I will not avail myself of a position advanced by Writers, that usage if derogating from the principles of natural Justice is null, further than to draw this inference, that a rule of right deducible from them cannot be deemed to be altered by usage, partially contradicted, and fluctuating.

With these guides, our further inquiries will serve to confirm us in the negative of the pretended right to confiscate or sequester in the cases supposed.2

The Notion of this right is evidently derived from the Roman Law. It is seen there in this peculiar form—“Those things of an enemy which are among us belong not to the State but to the first occupant”* which seems to mean that the things of an enemy at the commencement of a War found in our country may be seized by any citizen and will belong to him who first gets possession. It is known that the maxims of the Roman law, are extensively incorporated into the different codes of Europe; and particularly that the Writers on the law of Nations have borrowed liberally from them.

This source of the Notion does not stamp it with much authority. The history of Rome proves that War and Conquest were the great business of that People & that for the most part Commerce was little cultivated. Hence it was natural that the rights of War should be carried to an extreme, unmitigated by the softening and humanizing influence of Commerce. Indeed the world was yet too young—moral science too much in its cradle—to render the Roman jurisprudence a proper model for implicit imitation. Accordingly in this very particular of the rights of War, it seems to have been equally a rule of the Roman law, “that those who go into a foreign Country in time of peace, if war is suddenly kindled, are made the slaves of those among whom, now become enemies, by ill fortune, they are apprehended.”† This right of capturing the property and of making slaves of the persons of enemies is referred, as we learn from Cicero, to the right of killing them, which was regarded as absolute and unqualified extending even to Women and Children.5 Thus it would seem that on the principle of the Roman Law, we might rightfully kill a foreigner who had come into our Country during peace and was there at the breaking out of a War with his Country. Can there be a position more horrible, more detestable?

The improvement of moral science in modern times restrains the right of killing an enemy to the time of battle or resistance, except by way of punishment for some enormous breach of the laws of nations, or for self preservation in a case of immediate and urgent danger, and rejects altogether the right of imposing slavery on captives.6

Why should there have been a hesitation to reject other odious consequences of so exceptionable a principle? What respect is due to maxims which have so inhuman a foundation?

And yet a deference for those maxims has misled writers who have professedly undertaken to teach the principles of National Ethics; and the spirit of Rapine has continued to a late period to consecrate the relicts of ancient barbarism with too many precedents of imitation. Else it would not now be a question with any, whether the person or property of a foreigner, being in our country with permission of the laws of peace, could be liable to molestation or injury by the laws of War, merely on account of the War.

Turning from the ancients to the moderns we find that the learned Grotius quotes and adopts as the basis of his opinions the rules of the Roman law; though he in several particulars qualifies them by the humane innovations of later times.7

On the very question of the right to confiscate or sequester private debts, his opinion as far as it appears seems to be at variance with his premises8 steering a kind of middle course. His expressions (L III C: XX § XVI)9 are these “Those debts which are due to private persons at the beginning of the War are not to be accounted forgiven, (that is when peace is made) for these are not acquired by the right of War, but only forbidden to be demanded in time of War, therefore the impediment being removed, that is the War ended, they retain their full force.” His idea appears from this passage to be that the right of war is limited to the arresting of the payment of private debts during its continuance and not to the confiscation or annihilation of the debt. Nor is it clear whether he means that this arrestation is to be produced by a special act of prohibition, or by the operation of some rule of law which denies to an alien enemy a right of action. This feeble and heterogeneous opinion may be conceived to have proceeded from a conflict between a respect for ancient maxims and the impression of more enlightened views inculcated by the principles of Commerce and civilization.

Bynkershoeck is more consistent. Adopting with Grotius the rule of the Roman Law in its full rigor, he is not frightened at the consequences, but follows them throughout. Hence he bestows a chapter upon the defence of the proposition quoted in a former number10 (to wit) that * “Since it is the condition of War that enemies may with full right be deposited and proscribed, it is reasonable that whatsoever things of an enemy are found among his enemies should change their Owner and go to the Treasury” and in several places he expressly applies the rule to things in action, or debts & credits as well as to things in possession.

In confirmation of his doctrine he adduces a variety of examples which embrace a period of something more than a century beginning in the year 1556 and ending in the year 1667 and which comprehend as actors on the principle he espouses, France Spain The States General Denmark the Bishops of Cologne and Munster. But he acknowleges that the right has been questioned, and notes particularly that when the King of France and the Bishops of Munster and Cologne in the year 1673 confiscated the debts which their subjects owed to the Confederated Belgians, the States General by an Edict of the 6th of July of that year censured the proceeding and decreed that those debts could not be paid but to the true Creditors and that the exaction of them whether by force or with consent was not to be esteemed valid.

If, from the great pains which appear to have been taken by this learned writer to collect examples in proof of his doctrine we are to conclude that the collection is tolerably complete—we are warranted in drawing this inference, that he has not cured any defect which reason may discern in his principle, by any thing like the evidence of such a general uniform and continued usage as is requisite to introduce a rule of the positive law of Nations in derogation from the natural.

A minority only of the powers of Europe are shewn to have been implicated in the practice, and among the majority not included are several of the most considerable and respectable. One of these, Great Britain, is represented as having acquiesced in it in the Treaties of peace, between her and some of the powers who went into the practice to her detriment by relinquishing the claim of restitution.12 But War must at length end in peace, and the sacrifices a nation makes to the latter is a slight argument of her consent to the principle of the injuries which she may have sustained. I have not been able to trace a single instance in which Great Britain has herself set the example of such a practice; nor could she do it, as has elsewhere appeared13 without contravening an article of Magna Charta, unless by way of reprisal for the same thing done towards her. The suggestion of an instance in the present war with France will be hereafter examined. In such a question the practice of a Nation which has for ages figured so preeminently in the Commercial Wor[l]d is intitled to particular notice.

It is not unworthy of remark that the Common law of England from its earliest dawnings contradicted the rule of the Roman Law. It exempted from seizure, by a subject of England, the property of a foreigner brought there before a war, but gave to the first seizer or occupant the property which came there after the breaking out of war.14 The noble principles of the Common law cannot cease to engage our respect while we have before our eyes so many monuments of the excellence, in our own jurisprudence.

It also merits to be dwelt upon, that the United Netherlands for some time the first and long only the second in Commercial consequence formally disputed the right and condemned the practice of confiscating private debts, though themselves in some instances guilty of it.

And it is likewise a material circumstance that Bynkershoeck who seems to have written in the year 1737 does not adduce any precedent later than the year 1667 seventy years before his publication.

The subsequent period will it is believed be found upon strict inquiry equally barren of similar precedents. The exceptions are so few,* that we may fairly assert that there is the negative usage of near a century and a half against the pretended right. This negative usage of a period the most enlightened as well as the most commercial in the annals of the world is of the highest authority. The former usage, as being partial and with numerous exceptions, was insufficient to establish a rule. The contrary usage, or the renunciation of the former usage, as being general, as attended with few or no exceptions, is sufficient even to work a change in the rigour of an ancient rule, if it could be supposed to have been established. Much more is it sufficient to confirm and enforce the lesson of reason, and to dissipate the clouds which error and some scattered instances of violence and rapine may have produced.

Of the theoretical Writers whom I have had an opportunity of consulting, Vatel16 is the only remaining one, who directly treats the point. His opinion has been said to favour the right to confiscate and sequester. But when carefully analized it will add to the proofs of the levity with which the opposers of the Treaty make assertions.

After stating among other things that “War gives the same right over any sum of money due by a neutral nation to our enemy as it can give over his other goods” he proceeds thus* “When Alexander by conquest became absolute Master of Thebes he remitted to the Thessalians a hundred talents which they owed to the Thebans. The sovereign has naturally the same right over what his subjects may be indebted to his enemies. Therefore he may confiscate debts of this nature, if the term of payment happen in the time of War, or at least he may prohibit his subjects from paying while the War last[s]. But at present in regard to the advantage and safety of Commerce, all the sovereigns of Europe have departed from this Rigour. And as this 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. The State does not so much as touch the sums which it owes to the enemy. Every where, in case of a War funds creditted to the public are exempt from confiscation and seizure.”17

The first proposition of the above passage amounts to this, that “A sovereign naturally that is, according to the law of Nature may confiscate debts, which his subjects owe to his enemies, if the term of payment happen in the time of War, or at least he may prohibit his subjects from paying while the War lasts.”

So far as this goes, it agrees with the principle, which I combat, that there is a natural right to confiscate or to sequester private debts in time of War: So far, Vatel accords with the Roman Law and with Bynkershoek.

But he annexes a whimsical limitation—“if the term of payment happens in the time of war”—and there is a marked uncertainty and hesitation—The sovereign may confiscate “or at least he may prohibit his subjects from paying while the War lasts.” ‘Tis evident that the circumstance of the time of payment can have no influence upon the right. If it reaches to confiscation which takes away the substance of the thing, the mere incident of the happening of payment must be immaterial. If it is confined to the arresting of payment during the war, the reason of the rule the object being to prevent supplies going to the enemy will apply it as well to debts which had become payable before the war as to those which became payable in the War. Whence this inaccuracy in so accurate a thinker? Whence the hesitation about so important a point, as whether the pretended right extends to confiscation or simply to sequestration? They must be accounted for as in another case by the conflict between respect for antient maxims and the impressions of juster views seconded by the more enlightened policy of modern times.

But while Vatel thus contenances in the first part of the passage the opinion that the natural law of Nations authorises the confiscation or sequestration of private debts, in what immediately follows he most explicitly and unequivocally informs us that the rule of that law in this respect has been abrogated by modern usage or custom—in other words that the modern customary law has changed in this particular the antient natural law. Let his own words be consulted.

“At present (says he) in regard to the advantage and safety of Commerce All The Sovereigns of europe have departed from this Rigor. And as this Custom has been generally received he who should act contrary to it would injure the public faith; for strangers trusted his subjects only from the firm persuasion that the General Custom would be observed.”

This testimony is full, that there is a General Custom received & adopted by all the sovereigns of Europe, which obviates the rigor of the antient rule, that is, alters the rule; the non observance of which Custom would violate the public faith of a Nation; as being a breach of an implied Contract by virtue of the Custom upon the strength of which foreigners trust his subjects.

Language cannot describe more clearly a rule of the customary law of Nations, the essence of which we have seen is general usage implying a tacit agreement to conform to the rule. The one alleged is denominated a custom generally received a general custom; all the sovereigns of Europe are stated to be parties to it, and it is represented as obligatory on the public faith, since this would be injured by a departure from it. The consequence is that if the right pretended did exist by the natural law it has given way to the customary law; for tis a contradiction to call that a right which cannot be exercised without breach of faith. The result is that by the present customary law of Nations, within the sphere of its action, there is no right to confiscate or sequester private Debts in time of War. The reason or motive of which law is the advantage and safety of commerce.

As to private property in public funds, the right to meddle with them is still more emphatically negatived—”The State does not so much as touch the sums it owes to the enemy. Every where in case of a War funds creditted to the Public are exempt from confiscation and seizure.” These terms manifestly exclude sequestration as well as confiscation.

In another place the Author gives the reason of this position—Book II Chapt XVIII18 “In reprisals, the goods of a subject are seized in the same manner as those of the State or the Sovereign. Every thing that belongs to the nation is liable to reprisals as soon as it can be seized provided it be not a deposit trusted to the public faith. This Deposit19 is found in our hands only in consequence of the confidence which the proprietor has put in our good faith, and it ought to be respected even in case of open War. Thus it is usual to behave in France England and elsewhere with respect to the money which foreigners have placed in the public funds.” The same principle if he had reflected without byas, would have taught him that reprisals could rightfully extend to nothing that had been committed with their permission to the custody and guardianship of our laws during a state of peace; and consequently that no property of our enemy which was in our Country before the breaking out of war is justly liable to them. For is not all such property equally a deposit trusted to the public faith? What foreigner would acquire property in our country or bring and lodge it there but in the confidence that in case of war it would not become an object of reprisals? Why then resort to Custom for a denial of the right to confiscate or sequester private debts? Why not trace it to the natural injustice and perfidy of taking away in war what a foreigner is permitted to own and have among us in peace? Why ever have considered that as a natural right which was contrary to good faith tacitly pledged? Tis evidently the effect of too much deference to ferocious maxims of antiquity, of undue complaisance to some precedents of modern rapacity.

He had avoided the error by weighing maturely the consequences of his own principle in another case. “He who declares war (says he) does not confiscate the immoveable goods possessed in his Country by his enemy’s subjects. In permitting them to purchase and possess those goods he has in this respect admitted them into the number of his subjects.”20 That is, he has admitted them to a like privilege with his subjects as to the real property they were permitted to acquire & hold. But Why should a less privilege attend the license to purchase possess or have other kinds of property in his Country? The reason, which is the permission of the sovereign, must extend to the protection of one kind of property as well as another, if the permission extends to both.

Vatel advances in this and in the passage quoted immediately before it the true principles which ought to govern the question, though he does not pursue them into their consequences; else he would not have deduced the exemption of private debts from confiscation or sequestration from the customary law of Nations but would have traced it to the natural or necessary law; as founded upon the obligations of good faith; upon the tacit promise of security connected with the permission to acquire property within or bring property into our Country; upon the protection which every government owes to a property of which it legalizes the acquisition or the deposit within its jursidiction—and in the case of immoveable goods, or real estate, of which he admits a right to sequester the income to prevent its being remitted to the enemy, he would have perceived the necessity of leaving this effect to be produced by the obstructions intrinsically incident to a State of War; since there is no reason why the Income should be less privileged than the substance of the thing.

It appears then that the doctrine of Vatel collectively taken amounts to this, that there is a natural right of War in certain cases to confiscate or sequester enemy’s property found within our Country; but that on motives relative to Commerce and Public Credit, the Customary Law of Europe has restrained that right as to private debts and private property in public funds. His opinion therefore favours the principle of the article of the Treaty under examination, as consonant with the present European Law of Nations. And it is an opinion of greater weight than any that can be cited; as well on account of the capacity diligence information and the precision of ideas which characterise the work in which it is contained as on account of the recency of that work.*

A question may be raised. Does this customary law of Nations as established in Europe bind the UStates? An affirmative answer to this is warranted by conclusive reasons.

I The U States when a member of the British Empire were in this capacity a party to that law, and not having dissented from it when they became independent they are to be considered as having continued a party to it. II The common law of England which was & is in force in each of these states adopts the law of Nations, the positive equally with the natural, as a part of itself. III Ever since we have been an Independent nation we have appealed to and acted upon the modern law of Nations as understood in Europe. Various resolutions of Congress during our revolution22—the correspondencies of Executive officers23—the decisions of our Courts of Admiralty,24 all recognised this standard. IV Executive and legislative Acts and the proceedings of our Courts under the present government speak a similar language. The President’s Proclamation of Neutrality25 refers expressly to the modern law of Nations, which must necessarily be understood of that prevailing in Europe and acceded to by this Country. And the general voice of our Nation, together with the very arguments used against the Treaty accord in the same point. ’Tis indubitable that the customary law of European Nations is as a part of the common law and by adoption that of the U States.

But let it not be forgotten, that I derive the vindication of the article from a higher source; from the natural or necessary law of nations, from the eternal principles of morality & good faith.

There is one more authority which I shall cite in reference to a part of the question—property in the public funds. It is a Report to the British King in the year 1753, from Sir George Lee Judge of the Prerogative Court Doctor Paul26 Advocate General in the Courts of Civil Law Sir Dudley Ryder27 and Mr. Murray28 Attorney & Solicitor General * on the subject of the Silesia loan sequestered by the King of Prussia by way of reprisal for the capture and condemnation of some Prussian Vessels.30 This Report merits all the respect which can be derived from consummate knowlege and ability in the Reporters, but it would lose much of its weight from the want of impartiality which might fairly be imputed to the Officers of one of the Governments interested in the Contest—had it not since received the eulogies and concurrence of impartial and celebrated foreign Writers. Among these, Vatel calls it an excellent piece on the law of Nations.31

The following is an extract—“The King of Prussia has pleged his Royal word to pay the Silesia Debt to private men. It is negotiable and many parts of it have been assigned to the subjects of other powers. It will not be easy to find an instance, where a Prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a Prince upon an engagement of honor, because a prince cannot be compelled like other men in an adversary way by a Court of Justice. So scrupulously did England and France adhere to this public faith, that even during the War, they suffered no inquiry to be made whether any part of the public Debt was due to the subjects of the enemy, though it is certain many English had money in the French Funds and many French had money in our’s.”32

The universal obligation of good faith is thus reenforced on a special ground by the point of honor; to confirm the position that money which a sovereign or State owes to private men is not a proper object of Reprisals.

This case of the Silesia debt is the only example within the present Century prior to the existing War, which I have been able to trace, violating the immunity of private debts or private property in public funds. ’Tis a precedent that can have little weight not only from its singularity but from the character of its author. Frederickwas a consummate general, a profound Statesman, but he was far from being a severe moralist. This is not the only instance in which he tarnished his faith, and the friends of his fame must regret that he could not plead on the occasion those mighty and dazzling reasons of State which are the specious apologies for his other aberrations.

It is asserted that the present war of Europe affords examples of the practice which I reprobate and that Great Britain herself has given one.33

The present War of Europe is of so extraordinary a complexion and has been conducted in all respects upon such extraordinary principles, that it may truly be regarded as an exception to all general rules as a precedent for nothing. Tis rather a beacon warning mankind to shun the pernicious examples which it sets, than a model inviting to imitation. The human passions on all sides appear to have been wrought up to a pitch of phrenzy, which has set Reason justice and humanity at defiance.

Those who have nevertheless thought fit to appeal to the examples of this very anomalous War have not detailed to us the precise nature or course of the transactions to which they refer, nor do I know that sufficient documents have appeared in this Country to guide us in the inquiry.

The imperfect evidence which has fallen under my observation respects France and Great Britain, and seems to exhibit these facts.

France past a decree sequestering the property of the powers at War with her,34 and in the same or another decree obliged all those of her Citizens who had monies owing to them in foreign Countries to draw bills upon their Debtors and to furnish those bills to the Government by way of loan or upon certain terms of payment.35

The Government of Great Britain in consequence of this proceeding passed two different acts,36 the objects of which were to prevent the payment of those bills and to secure the sums due for the benefit of the original Creditors. These acts appoint certain Commissioners to whom reports are to be made of all French property in the hands of British subjects, and who are empowered to receive and sell goods and other effects, to collect debts, and to deposit the proceeds in the Bank of London, or in other safekeeping, if preferred & requested by parties interested. The monies deposited are to be invested in the purchase of public stock, together with the interest or dividends arising from time to time, to be eventually accounted for to the proprietors. The Commissioners have likewise a discretion upon demand to deliver over their effects and monies to such of the proprietors as do not reside within the French Dominions.

I shall not enter into a discussion of the propriety of these acts of Great Britain. It is sufficient to observe that they are attended with circumstances which very essentially discriminate them from the thing for which they are quoted. The act of the French Government was in substance, a compulsory assumption of all the property of its citizens in foreign countries. This extraordinary measure presented two options to the Government of these countries—one to consider the transfer as virtually effected and to confiscate the property as being no longer that of the individuals but that of the Government of France—the other to defeat the effect of her plan by tying up the property for the benefit of the Original Creditors in exclusion of the drafts which they were compelled to draw. Great Britain appears to have elected the latter course. If we suppose her sincere in the motive and there is fairness and fidelity in the execution, the issue will be favourable rather than detrimental to the rights of private property.

I have said that there was an option to confiscate. A government may rightfully confiscate the property of an adversary Government. No principle of justice or policy occurs to forbid reprisals upon the public or national property of an enemy. That case is foreign in every view to the principles which protect private property. The exemption stipulated by the 10th article of the Treaty is accordingly restricted to the latter.

It appears that the Government of France convinced by the effect of the experiment that the sequestration of the property of the subjects of her enemies was impolitic thought fit to rescind it. Hence on the 29th of December 1794 the Convention decreed as follows—

“The decrees concerning the sequestration of the property of the subjects of the powers at War with the Republic are annulled. Such sums as have been paid by French Citizens into the Treasury in consequence of those Decrees will be reimbursed.”37

In the course of the debates upon this decree, it was declared that the decrees which it was to repeal had prepared the ruin of Commerce and had severed, against the right of Nations, the obligations of Merchants in different states.38 This is a direct admission that the sequestration was contrary to the law of Nations.

As far as respects France, then, the precedent upon the whole is a strong condemnation of the pretended right to confiscate or sequester. This formal renunciation of the ground which was at first taken is a very emphatical protest against the principle of the measure. It ought to serve us too as an instructive warning against the employment of so mischievous and disgraceful an expedient.39

Thus we perceive that opinion and usage, far from supporting the right to confiscate or sequester private property on account of National Wars, when referred to the modern standard, turn against that right and coincide with the principle of the article of the Treaty under examination.

What remains to be offered will further illustrate its propriety and reconcile to it all reflecting men.