nor the property of those subjects of the enemy who are within his dominions at the time of the declaration.'

"It is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities; but it applies equally to things in action and to things in possession; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the enemy in the sovereign, his presence would not exempt it from this operation of war. Nor can a reason be perceived for maintaining that the public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others.

"Chitty, after stating the general right of seizure, says, 'but, in strict justice, that right can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities.' (P. 67.)

"The modern rule, then, would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property.

"This rule seems to be totally incompatible with the idea that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not itself confiscate the property of the enemy; and their rules go to the exercise of this right."

Having thus decided that war gives the right, in accordance with international law, to confiscate enemy's property in the situation of this cargo, but not of its own force, the court next proceeded to inquire whether the Constitution or laws of the United States had authorized such confiscation. The Constitution confers upon Congress the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." It is evident then that the power to confiscate is vested in Congress, and that it is not included in the power to declare war. The declaration of war, therefore, did not authorize confiscation; and Congress had enacted no other law to that effect.

"Neither is it admitted that the executive, in executing the laws of war, may seize and the courts condemn all property which, according to the modern law of nations, is subject to condemnation. The rule is in its nature flexible. It is subject to infinite modifica

tions; it is not an immutable rule of law, but depends on political considerations which may continually vary. It is a question rather of policy than of law; and like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, and not of the executive or judiciary.

"The court is therefore of opinion that there is error in the sentence of condemnation pronounced in the circuit court in this case, and doth direct that the same be reversed and annulled, and that the sentence of the district court be affirmed."

Mr. Justice STORY with a minority of the court, held that, the right of confiscation existing, it was within the power of the executive to enforce confiscation, in the same manner that the executive established blockades and authorized the capture of the enemy's property at sea, and contraband goods.

Ex Parte BOUSSMAKER.

CHANCERY, 1806.

(13 Vesey Jun., 71.)

Held, that property of an enemy, in the form of a dividend arising from a contract made before the war, could not be confiscated.

This was a petition to be admitted to prove a debt under a commission of bankruptcy; which the commissioners refused to admit, upon the objection that the creditors applying to prove were alien enemies.

The Lord Chancellor, ERSKINE, said: "If this had been a debt arising from a contract with an alien enemy, it could not possibly stand; for the contract would be void. But, if the two nations were at peace at the date of the contract, from the time of war taking place the creditor could not sue; but the contract being originally good, upon the return of peace the right would revive. It would be contrary to justice, therefore, to confiscate this dividend. Though the right to recover is suspended, that is no reason why the fund should be divided among the other creditors. The point is of great moment, from the analogy to the case of an action; and it is true, a court of law would not take notice of the objection without a plea. It must appear upon the record. * * * The policy, avoiding contracts with an enemy is sound and wise; but when the contract

was originally good, and the remedy is only suspended, the proposition, that therefore the fund should be lost, is very different. "Let the claim be entered; and the dividend reserved."

WOLFF v. OXHOLM.

KING'S BENCH, 1817.

(6 Maule and Selwyn, 92.)

Held, that the confiscation of private debts due to an enemy was not in conformity with the usage of nations.

Oxholm, a Danish subject, was indebted, February 7, 1800, to the firm of Wolff & Dorville, English subjects, in the sum of £2,101 78. 5d. sterling money, for which a suit was instituted in the Danish courts by Wolff & Dorville through their proctor, resident in Denmark. The defendant set up certain counter-claims in defense. To avoid this, the plaintiffs in 1806 assigned the debt to a Danish subject, who should sue and recover in his own name, thus avoiding some technicality in the Danish laws which affected the case.

The defendant, in Sept., 1806, instituted a cross-suit. In 1807, whilst these suits were pending, a war broke out between Great Britain and Denmark; and an ordinance was made by the government of Denmark, August 16, 1807, by which all ships, goods, money, and money's worth, of or belonging to English subjects, were declared to be sequestrated and detained; and by another law or ordinance of the Danish government, dated Sept. 9, 1807, all persons were commanded with in three days after the publication thereof (wherever it was not then already done) to transmit an account of the debts due to English subjects, of whatsoever nature or quality they might be, the whole of which were directed to be paid into the Danish treasury, and in case of concealment the person so offending was to be proceeded against by the officers of the exchequer. In virtue of this law and ordinance, commissioners were appointed to receive the debts declared to be sequestrated: and as a consequence of the ordinance, the suit of Mountford (the assignee of Wolff & Co.) against the defendant was not further prosecuted, and in 1807, the proctor gave information to the commissioners of the debt. The commissioners authorized such payments at the then current rate of exchange, six Danish dollars to the pound sterling.

In 1812 the defendant paid to the commissioners the amount of the debt with the accrued interest, and took their receipt for the same; upon the production of which, the court quashed the cause depending between Mountford and the defendant. It is said the rate of exchange at the time of payment, was forty-five to fifty dollars to the pound sterling. In 1814, the defendant arrived in this country and was arrested, and held to bail by the plaintiffs for the debt.

Judgment of ELLENBOROUGH, C. J.:-This judgment is a long and elaborate discussion, in which the opinions of Grotius, Puffendorf, Vattel, and some older authorities are analyzed; and the conclusion reached, that the practice of Europe in refraining from the confiscation of debts had become so general that confiscation must be considered as a violation of the public faith. It is admitted that Bynkershoek mentions several cases of confiscation in the 16th and 17th centuries which that writer considered as warranted by the law of nations. A similar case is cited as decided by a court at Paris in the middle of the 16th century. Moreover, Sir Matthew Hale is quoted as saying "that by the law of England debts and goods found in the realm belonging to alien enemies belong to the King, and may be seized by him." But, say the court, the books referred to do not furnish an instance of the seizure of debts, or a decided case in support of the legality of such a seizure. Magna Charta, Cap. 30, is referred to in support of the position of the court.

And finally, in the midst of all the extraordinary violence of our own times, say the court, "this ordinance of the court of Denmark stands single and alone, not supported by any precedent, nor adopted as an example in any other state." Not being therefore conformable to the usage of nations, the quashing of the suit of the plaintiffs thereunder could form no bar to the present suit.

"1

"Postea to the plaintiffs."

1 This decision is directly at variance with the American cases above quoted. Sir ROBERT PHILLIMORE (International Law, III, 723) in reviewing this judgment, shows that the inferences from the language of Vattel, Grotius, and Puffendorf were not warranted; while the authority of Bynkershoek and the Dutch tribunals was hardly touched upon. That, moreover, to the high authority of Story and the American tribunals no allusion appears to have been made by counsel or judge. "Perhaps," he continues, "if the occasion should present itself, the decision of Lord Ellenborough might be reversed in England. It was the decision of a single court not much accustomed to deal with questions of international law."

The provocation for the act of the Danish government was very great. An English squadron had taken violent possession of the Danish fleet in time of peace between the two countries (1807); and at the breaking out of war in consequence of this act, the English government had confiscated all the Danish ships found in English ports as droits of admiralty.

SECTION 30.-Private Contracts.

HANGER v. ABBOTT.

SUPREME COURT OF THE UNITED STATES, 1867.

(6 Wallace, 532.)

Held, that, in the case of contract debts, as between persons who become enemies, the remedy is suspended during the period of the war, and revives on the return of peace. In such case, the statute of limitations does not run during the

war.

Error to the Circuit Court for the Eastern District of Arkansas. J. & E. Abbott, of New Hampshire, sued Hanger, of Arkansas, in assumpsit. The latter pleaded the statute of limitations of Arkan

In the case of the Johanna Emilie, Spinks' Prize Cases, 14 (1854), Dr. LUSHINGTON said, "If the property was on land, according to the ancient law, it was also seizable; and certainly during the American war there were not wanting instances in which such property was seized and condemned by law,-not by the authority of this court, but of another. That rigor was afterwards relaxed. I believe no such instance has occurred from the time of the American war to the present day-no instance in which property inland was subject to search or seizure, but no doubt it would be competent to the authority of the crown if it thought fit."

During the civil war in the United States (1861), the Congress of the Confederate States confiscated by act of Congress all property, movable or immovable, and all rights, credits, and interests held within the Confederacy by or for any alien enemy, except public stocks and securities. And all persons domiciled within the enemy's country were held to be subject to the provisions of the act. (Act of August 6th, 1861. McPherson, History of the Rebellion, 203.)

It would seem to be clear that, by the strict law, tangible property and debts are still subject to confiscation by a belligerent. But it is equally clear that the entire drift of modern opinion and practice is opposed to the exercise of that right. In the case of Hanger v. Abbott, 1867, the Supreme Court of the United States said "in strictness it (the right of confiscating such debts) may still be said to exist, but it may well be considered as a naked and impolitic right, condemned by the enlightened conscience of modern times."

On the other hand, property of the enemy found afloat in ports at the outbreak of war, as ships with their cargoes, has generally in the absence of a contrary agreement, been confiscated, following the rules still in practice in respect of private property of the enemy at sea. In Brown v. The United States, the Supreme Court was careful to exclude from the rule of the decision property found afloat in ports. But here, too, there are strong indications of a milder rule, if indeed it is not already pretty firmly established.