See also Hanger v. Abbott, 6 Wall. 532, 18 Law. Ed. 939; Ware v. Hylton, 3 Dall. 199, 1 Law. Ed. 568; Alexander's Cotton, 2 Wall. 404, 419, 17 Law. Ed. 915; Wolff v. Oxholm, 6 M. & S. 92; Porter v. Freudenberg (1915), 1 K. B. 857; Oppenheim's International Law, Vol. 2, p. 139; Phillimore's Commentaries upon International Law, Vol. 3, pp. 147, 148; Wheaton's International Law, 5th Ed., p. 417; Hall on International Law, 6th Ed., p. 451; Hyde on International Law, Vol. 2, p. 229.

The Revised Statutes of the United States, section 4068, provide as follows:

"Sec. 4068. When an alien who becomes liable as an enemy, in the manner prescribed in the preceding section, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality."

Of course, this refers only to enemies who are in the country and does not specifically refer to enemy property where the enemy national is in his own country. It is difficult, however, to draw a moral distinction between the protection of property

which has resulted from investment depending upon our good faith and that of property under the immediate control of the owner.

10. United States-Prussian Treaty.

The same question arises under the Treaty between the United States and Prussia of July 11, 1799, 8 Stat. 162, revised by the Treaty of May 1, 1828, 8 Stat. 378. This Treaty continued in force in spite of the war by reason of its express provisions. Such Treaty reads in part as follows:

"Article XXIII. If war should arise between the two contracting parties, the merchants of either country then residing in the other, shall be allowed to remain nine months, to collect their debts and settle their affairs, and may depart freely carrying off all their effects, without molestation or hindrance, and all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen, unarmed and inhabiting unfortified towns, villages or places, and in general all others, whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt, or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.

Article XXIV. And it is declared, that neither the pretence, that war dissolves all treaties, nor any other whatever shall be considered as annulling or suspending this and the next preceding article; but on the contrary that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature and nations."

Of this Treaty, Alexander Hamilton said in one of his Camillus Letters, No. 22:

"Our treaty with Prussia is indeed a model of liberality, which, for the principles it contains, does honor to the parties, and has been in this country a subject of deserved and unqualified admiration. Adopting the rule, that free ships shall make free goods, it extends the protection to the persons as well as to the goods of enemies."

It may be pointed out that the Treaty is not in point in connection with the alien property seized by the United States because it referred only to merchants of Germany who were in the United States at the time of the outbreak of war, and this has been expressly so held in a number of cases cited in this volume. The Treaty, however, was applicable in connection with those Germans who were interned. They were not permitted "to depart" freely and their property was taken.

11. Enemy Property as Security for American Claims?

It would appear then that according to the intent of Congress, and in the light of the traditions of this country and the principles of international law, German property should be returned. As is pointed out above, on this proposition there is practically no disagreement, the only question being as to whether or not it should be held as security for the payment of American claims by the German Government.

To substitute the German Government as a debtor to her nationals for the American Government which has taken their property is not in accord with moral principle. To shift a debtor in such manner is taking away property and, as a practical matter, is confiscating it.

12. Taxes on the Fund Imposed by Germany?

There is force in the argument that Americans should somehow be secured and it has been suggested that the Germans whose property had been. taken consent to a tax of say 10 per cent or even 20 per cent and thus provide a fund for the payment of Americans. Of course, if the American claims are of huge proportions, this solution would not be possible. But almost any method other than that of a tax by Germany consented to by property

owners would seem to be contrary to our history and traditions and even the implications from a tax by a consent (practically forced) are unpleasant. Were not the question of payment of American claims by Germany dependent largely upon the consent of the Allies, some arrangement might be made but, no doubt, the Allies would feel that American claims should not rise higher than their claims or claims of their citizens.

But with such a tax this Government would not be directly concerned for the German Government would agree to pay American claims. The imposition of such a tax would be its method,-not ours. Our sole interest is to see that payment is made. As a matter of fact the German owners would no doubt be well satisfied with an arrangement by which this percentage would be the limit of their tax. If, on the other hand, this property were returned and its value figured in marks for tax purposes, the appreciation in marks might be taxed as income, the net result being that the German Government, and indirectly the reparations fund, would get the larger part of this property.

13. German Bonds to Satisfy. American Claims?

There is some support for the proposition that in order that there may be no question as to our morality in dealing with other nations and its citizens within our borders, it might be worth while