may not have been duly observed, yet the spirit of commerce, diffusing more just ideas, has been giving strength to it for a century past, and a negative usage among nations, according with the opinions of modern writers, authorizes the considering the exception as established. If there have been deviations from that usage in the actual war of Europe, they form no just objection to this reasoning: for this war has violated, in different instances, most of the most sacred laws of nations."

Recurring later to the subject, Hamilton said:

"The right of holding or having property in a country always implies a duty on the part of its government to protect that property, and to secure to the owner the full enjoyment of it. Whenever, therefore, a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security. . . . Property, as it exists in civilized society, if not a creature of, is, at least, regulated and defined by the laws. An extraordinary discretion to resume or take away the thing, without any personal fault of the proprietor, is inconsistent with the notion of property. . . . It is neither natural nor equitable to consider him as subject to be deprived of it for a cause foreign to himself; still less for one which may depend on the volition or pleasure, even of the very government to whose protection it has been confided; for the proposition which affirms the right to confiscate or sequester does not distinguish between offensive or defensive war; between a war of ambition on the part of the power which exercises the right, or a war of self-preservation against the assaults of another.

"The property of a foreigner placed in another country, by permission of its laws, may justly be regarded as a deposit, of which the society is the trustee. How can it be reconciled with the idea of a trust, to take the property from its owner, when he has personally given no cause for the deprivation?

. There is no parity between the case of persons and goods of enemies found in our own country and that of the 'Works of Alexander Hamilton (Lodge's ed.), Vol. V, p. 160.

persons and goods of enemies found elsewhere. In the former there is a reliance upon our hospitality and justice; there is an express or implied safe conduct; the individuals and their property are in the custody of our faith; they have no power to resist our will; they can lawfully make no defense against our violence; they are deemed to owe a temporary allegiance; and for endeavoring resistance would be punished as criminals, a character inconsistent with that of an enemy. To make them a prey is, therefore, to infringe every rule of generosity and equity; it is to add cowardice to treachery. . . . Moreover, the property of the foreigner within our country may be regarded as having paid a valuable consideration for its protection and exemption from forfeiture; that which is brought in, commonly enriches the revenue by a duty of entry. All that is within our territory, whether acquired there or brought there, is liable to contributions to the treasury, in common with other similar property. Does there not result an obligation to protect that which contributes to the expense of its protection? Will justice sanction, upon the breaking out of a war, the confiscation of a property which, during peace, serves to augment the resources and nourish the prosperity of a state? . . . Reason, left to its own lights, would answer all these questions in one way, and severely condemn the molestation, on account of a national contest, as well of the property as of the person of a foreigner found in our country, under the license and guaranty of the laws of previous amity."10

The Jay treaty was duly ratified.

But, in time of war, no principle is ever safe against attack; and, twenty years later, when the second war with Great Britain occurred, an attempt was made to confiscate, through the courts, British private property found on land at the outbreak of hostilities. There was no specific confiscatory statute, but it was claimed that the act of Congress, declaring the existence of a state of war, sufficed to render the property confiscable. The attempt

10 Works of Alexander Hamilton (Lodge's ed.), Vol. V, pp. 412-418.

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failed. No confiscatory law was ever passed. The decision of the Supreme Court, defeating the attempted confiscation, was delivered by the Chief Justice, John Marshall, who, in the course of his opinion, said that, while war gave to the sovereign "full right to take the persons and confiscate the property of the enemy wherever found," yet the "mitigations of this rigid rule, which the humane and wise policy of modern times" had "introduced into practice," would "more or less affect the exercise" of the right; and that, although this practice could not "impair the right itself," yet it was "not believed that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace in course of trade." Such a proceeding, said Marshall, was "rare, and would be deemed a harsh exercise of the rights of war"; so much so, indeed, that the "modern usage" could not be disregarded by the sovereign "without obloquy." Declaring, therefore, that the "modern rule" was "totally incompatible with the idea that war does of itself vest the property in the belligerent government," he held that the declaration of war did not authorize the confiscation.11

Some years ago I had occasion to comment on Marshall's intimation that the "modern usage," although it would "more or less affect the exercise" of the ancient right, could not "impair the right itself." The distinction between the effect of usage on rights and on the exercise of rights may be of doubtful value. But, however this may be, the intimation was only a dictum; "United States v. Brown (1814), 8 Cranch, 110.

13 John Marshall: An address delivered before the Delaware Bar on February 4, 1901, on the celebration of the hundredth anniversary of Marshall's assumption of the office of Chief Justice. This address was printed in the Political Science Quarterly, Vol. 16 (September, 1901), pp. 393-411, and an extract from it bearing on the present question may be found in Moore, Digest of International Law, Vol. VII, pp. 312, 313.

moreover, the distinction between the effect of usage on rights and on the exercise of rights is of doubtful value; and the great Chief Justice twenty years later discarded it, when, in the decision of another celebrated case, he declared:

"It is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is felt and acknowledged by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled."is

When John Quincy Adams, as Secretary of State, affirmed that, "by the usages of modern war the private property of an enemy is protected from seizure and confiscation as such," he avowed a belief not more tena

13 United States v. Percheman (1883), 7 Pet. 51, 86. In an action in England under the Legal Proceedings against Enemies Act, 1915, the question arose as to whether a German partner in an English company, engaged in a manufacturing business, in England, was entitled (1) to a share of the profits made since the dissolution of the partnership by war, or (2) to interest on his share in the partnership assets, or (3) only to the value of his share in the partnership as of August 4, 1914, the date of the beginning of the war. The House of Lords, January 25, 1918, unanimously held that the German partner was entitled to a share of the profits, so far as attributable to the use of his share of the capital. The Lord Chancellor, Lord Finlay, said: "It is not the law of this country that the property of enemy subjects is confiscated. Until the restoration of peace the enemy can, of course, make no claim to have it delivered up to him, but when peace is restored he is considered to be entitled to his property with any fruits it may have borne in the meantime." Said Viscount Haldane: "The law of this country does not in general confiscate the property of an enemy. He cannot claim to receive it during war, but his right to his property is not extinguished; it is merely suspended." Lord Dunedin concurred. So, also, Lord Atkinson, who declared that the opposite view was one "which not even the most rabid patriotism can justify." Lord Parmoor remarked that the right of confiscation of enemy property on land in favor of the Crown had "long since been disused." (Hugh Stevenson & Sons, Ltd., Appellants; and Aktiengesellschaft für Cartonnagen-Industrie, Respondents (1918), A.C. 239.)

ciously held by himself than by many illustrious predecessors and successors. It is therefore not strange that the non-confiscatory principle pervades the treaties of the United States, which provide that on the outbreak of war citizens or merchants of the enemy may have six months, nine months, a year, or such time as they may require, in which to arrange their affairs and withdraw their property or effects,14 and, almost as often, that they may remain and continue to trade as long as they behave peaceably, their property and effects meanwhile being exempt from seizure or sequestration.15 There have indeed been Presidents such as Pierce, McKinley and Roosevelt, and Secretaries of State such as Adams, Marcy, Fish and Hay, who have proposed that even enemy private property at sea be exempt from capture; and such an exemption actually was incorporated in the treaty with Italy of February 26, 1871, when Grant was President, Fish being Secretary of State.16

It would be an idle task minutely to analyze the language of the foregoing treaties in order to ascertain whether some particular confiscation might be enacted without flagrant violation of their precise terms. St. Paul's well-known proverb, that "the letter killeth but the spirit giveth life," is equally expressed in the legal

14

"Bolivia, 1858, Art. 28; Costa Rica, 1851, Art. 11; Dominican Republic, 1867, Art. 1; Ecuador, 1839, Art. 26; Haiti, 1864, Art. 3; Honduras, 1864, Art. 11; Italy, 1871, Art. 21; Morocco, 1836, Art. 24; New Granada (Colombia), 1846, Art. 27; Nicaragua, 1867, Art. 11; Paraguay, 1859, Art. 13; Peru, 1887, Art. 27; Prussia, 1799, Art. 23; 1828, Art. 12; Salvador, 1870, Art. 27; Spain, 1795, Art. 13, which also provides that indemnity shall be made for any injury meanwhile done to them; Sweden, 1783, Art. 22, containing a similar stipulation; Tunis, 1797, Art. 23.

"Argentine Confederation, 1853, Art. 12; Bolivia, 1858, Arts. 28, 29; Colombia, 1846, Arts. 27, 28; Costa Rica, 1851, Art. 11; Ecuador, 1839, Arts. 26, 27; Haiti, 1864, Arts. 3, 4; Honduras, 1864, Art. 11; Italy, 1871, Art. 21; Nicaragua, 1867, Art. 11; Paraguay, 1859, Art. 13; Peru, 1887, Arts. 27, 28; Salvador, 1870, Art. 27.

16 Art. 12.

"Corinthians, II, Chap. 3, Verse 6.