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maxim qui haeret in litera haeret in cortice, meaning that "he who considers merely the letter of an instrument goes but skin-deep into its meaning.' No doubt their phraseology may in some instances have been specially designed, like the terms of criminal statutes, to prevent the repetition of particular odious acts. But, without regard to the words employed and their literal interpretation, there can be no doubt that they were understood to emanate from the general rule against confiscation, which it was not supposed that the contracting parties would seek in any respect to infringe. Even by Magna Carta the pre-war property of enemies, though they were not themselves personally present, was not, simply as enemy property, subject to confiscation by the Crown.19

Not long after the outbreak of the recent war, the belligerent governments, one after another, proceeded to assume control of, or, as was generally said, to "intern" enemy private property found within their jurisdiction. Individuals and property are "interned" to prevent them from doing harm. In the present instance, the avowed object of taking control of the property was for the time being to prevent its use in the enemy interest, either directly, or as a basis for credits or otherwise. Upwards of six months after entering the war, the government of the United States, under certain provisions of the "Trading with the Enemy Act," which had just then been passed, embarked on a similar course. This was not, nor did it purport to be, an exercise by Congress of its constitutional power "to make rules concerning captures on land and water." The word "capture" is in law a technical term, denoting the hostile seizure of places, persons or things. Men in arms are "captured," but

18 Broom's Legal Maxims, 8th Ed., p. 533, citing Coke's Littleton, 283 b.

19 F. E. Farrer, The Forfeiture of Enemy Private Pre-War Property: Law Quarterly Review, Vol. 37 (1921), pp. 218, 337, 353, 356.

a non-combatant is seized or arrested. A defended city, if taken, is said to be "captured"; if undefended, it is "occupied." Property is said to be "captured," only when seized, in a hostile sense, under claim of forfeiture or confiscation. These distinctions are very elementary. The idea of provisionally holding enemy property in custody in order to prevent its use in the enemy interest is by no means new. In England, it is at least as old as Magna Carta. No one understood the act of Congress to contemplate a hostile seizure. The very terms of the act preclude such an interpretation. It merely authorized the provisional holding of the property in custody, and appropriately styled the official, who was to perform this function, the Alien Property Custodian.

In the original statute the function of the alien property custodian was defined as that of a trustee. Subsequently, however, there came a special revelation, marvelously brilliant but perhaps not divinely inspired, of the staggering discovery that the foreign traders and manufacturers whose property had been taken over had made their investments in the United States not from ordinary motives of profit but in pursuance of a hostile design, so stealthily pursued that it had never before been detected or even suspected, but so deadly in its effects that the American traders and manufacturers were eventually to be engulfed in their own homes and the alien plotters left in grinning possession of the ground. Under the spell engendered by this agitating apparition, and its patriotic call to a retributive but profitable war on the malefactors' property, substantial departures were made from the principle of trusteeship.

The Preacher has told us that the thing that hath been shall be, that what is done shall be done again, and that "there is no new thing under the sun.' "20 So it is in the present instance. Hamilton, in his denunciation of 20 Book of Ecclesiastes, Chap. 1, Verse 9.

the principle of confiscation, did not overlook those who, as he said, "then defended the confiscation or sequestration of debts as our best means of retaliation and coercion, as our most powerful, sometimes as our only means, of defense"; and, pursuing his protest, he declared:

"But so degrading an idea will be rejected with disdain, by every man who feels a true and well-informed national pride; by every man who recollects and glories, that in a state of still greater immaturity, we achieved independence without the aid of this dishonorable expedient; that even in a revolutionary war, a war of liberty against usurpation, our national councils were too magnanimous to be provoked or tempted to depart so widely from the path of rectitude; by every man, in fine, who, though careful not to exaggerate, for rash and extravagant projects, can nevertheless fairly estimate the real resources of the country, for meeting dangers which prudence cannot avert."21

Such a man would, said Hamilton, look for the security of the country "in the courage and constancy of a free, brave, and virtuous people-in the riches of a fertile soil-an extended and progressive industry-in the wisdom and energy of a well-constituted and well-administered government-in the resources of a solid, if well-supported, national credit-in the armies, which, if requisite would be raised-in the means of maritime annoyance, which if necessary, could be organized, and with which we could inflict deep wounds on the commerce of a hostile nation"; and would "indulge an animating consciousness, that, while our situation is not such as to justify our courting imprudent enterprises, neither is it such as to oblige us, in any event, to stoop to dishonorable means of security, or to substitute a crooked and piratical policy, for the manly energies of fair and open war."22

In the main, the momentous question as to what shall "Works of Alexander Hamilton (Lodge's ed.), Vol. V, pp. 408-409. " Id., p. 409.

be done with the enemy private property taken over by the United States in the recent war is yet to be determined; and, with more than $3,000,000,000 of the world's supply of gold in the coffers of the Federal Reserve System, and continuously tolerated additions to the more than $11,000,000,000 of tax-exempt securities already in private hands, the United States is hardly in a position to put forth the plea of financial stress to excuse or palliate the retention of what it seized.

The subject has also another aspect. During the past ten years the investments abroad of citizens of the United States have enormously increased, and the process has only begun. Considering the question, therefore, purely as one of selfish calculation, I venture to think it directly contrary to the interests of the United States to resuscitate the doctrine that enemy private property found in a country on the outbreak of war may be confiscated. Such a doctrine might even create a temptation.

But there is yet another and higher reason. The United States has an honorable past as well as an expedient future to consider.

Of all the illusions a people can cherish, the most extravagant and illogical is the supposition that, along with the progressive degradation of its standards of conduct, there is to go a progressive increase in respect for law and morality. Again may we remark that "there is no new thing under the sun." The world never will be rid of the problem of preserving its elementary virtues. Three hundred years ago Grotius declared that, as he who violated the laws of his country for the sake of some present advantage to himself, "sapped the foundation of his own perpetual interest, and at the same time that of his posterity," so the people that "violated the laws of nature and nations" broke down "the bulwarks of its future happiness and tranquillity."

No less pertinent is the confession of Alexander Hamil

ton, made a century-and-a-quarter ago, that, serious as the evil of war had appeared to him to be, yet the manner in which it might be carried on was in his eyes "still more formidable." It was, said Hamilton, "to be feared that, in the fermentation of certain wild opinions, those wise, just, and temperate maxims, which will forever constitute the true security and felicity of a state, would be overruled," and that, one violation of justice succeeding another, measures would be adopted which even might "aggravate and embitter the ordinary calamities of foreign war."'23

Among the questions affecting freedom to trade in time of war that of contraband was easily the most important, and it still retains that character. While trade between opposing belligerents generally is prohibited, trade between belligerents and third countries, called neutrals, continues uninterrupted, subject to certain restrictions, one of which forbids a neutral to carry to a belligerent country, or to its military or naval forces, articles called contraband of war. Obviously, if the list of such articles might be extended at will, all trade with belligerents could be cut off. So, also, if inferences of hostile destination were freely admitted, might trade between countries at peace.

In treating of this subject, Grotius divided articles into three categories, the first embracing articles primarily useful for war, such as arms and ammunition, which, when bound to a belligerent country, were always contraband; the second, articles of double use, which, as they might or might not be employed for war, might, even though directly bound to a belligerent country, be captured as contraband only if there were proof that they were actually intended for military use; the third, articles not at all useful for war, and therefore never contraband. The center of conflict has been the second category, in"Works of Alexander Hamilton (Lodge's ed.), Vol. V, p. 406.