mean of doing ourselves justice and avoiding war. If we trace the origin of the pretended right to confiscate or sequester debts, we find it, in the very authority, principally relied on to prove it, to be this (Bynkershoeck, quæstiones juris publici, I. s. 2): "Since it is the condition of WAR, that ENEMIES may be deprived of all their rights, it is reasonable, that every thing of an enemy's, found among his enemies, should change its owner, and go to the treasury." Hence it is manifest, that the right itself, if it exist, presupposes, as the condition of its exercise, an actual state of war, the relation of enemy to enemy. Yet we are fastidiously and hypocritically told, that this high and explicit act of war, is a peaceable mean of doing ourselves justice and avoiding war. Why are we thus told? Why is this strange paradox attempted to be imposed upon us? Why, but that it is the policy of the conspirators against our peace, to endeavor to disguise the hostilities, into which they wish to plunge us, with a specious outside, and to precipitate us down the precipice of war, while we imagine we are quietly and securely walking along its summit.

Away with these absurd and incongruous sophisms! Blush, ye apostles of temerity, of meanness, and of deception! Cease to beckon us to war, and at the same time to freeze our courage by the cowardly declaration, that we have no resource but in fraud! Cease to attempt to persuade us, that peace may be obtained by means which are unequivocal acts of war. Cease to tell us, that war is preferable to dishonor, and yet, as our first step, to urge us into irretrievable dishonor. A magnanimous, a sensible people, cannot listen to your crude conceptions. Why will ye persevere in accumulating ridicule and contempt upon your own heads?

In the further observations which I shall offer on this article, I hope to satisfy, not the determined leaders or instruments of faction, but all discerning men, all good citizens, that, instead of being a blemish, it is an ornament to the instrument in which it is contained; that it is as consistent with true policy as with substantial justice; that it is, in substance, not without precedent in our other treaties, and that the objections to it are futile.

CAMILLUS.

NO. XIX.

1795.

The objects protected by the 10th article, are classed under four heads:-1. Debts of individuals to individuals; 2, property of individuals in the public funds; 3, property of individuals in public banks; 4, property of individuals in private banks. These, if analyzed, resolve themselves, in principle, into two discriminations, viz., private debts, and private property in public funds. The character of private property prevails throughout. No property of either government is protected from confiscation. or sequestration by the other. This last circumstance merits attention, because it marks the true boundary.

The propriety of the stipulation will be examined under these several aspects: the right to confiscate or sequestrate private debts or private property in public funds, on the ground of reason and principle-the right as depending on the opinions of jurists and on usage-the policy and expediency of the practice -the analogy of the stipulation with stipulations in our other treaties, and in treaties between other nations.

First, as to the right on the ground of reason and principle. The general proposition on which it is supported, is this, "That every individual of a nation, with whom we are at war, wheresoever he may be, is our enemy, and his property of every kind, in every place, liable to capture by right of war."

The only exception admitted to this rule, respects property within the jurisdiction of a neutral state; but the exemption is referred to the right of the neutral nation, not to any privilege which the situation gives to the enemy proprietor.

Reason, if consulted, will suggest another exception. This regards all such property as the laws of a country permit for. eigners to acquire within it or to bring into it. 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 secure to the owner the full enjoyment of it. Whenever, therefore, a government grants permission to foreigners to acquire property

within its teritories, or to bring and deposit it there, it tacitly promises protection and security. It must be understood to engage, that the foreign proprietor, as to what he shall have acquired or deposited, shall enjoy the rights, privileges and immunities of a native proprietor, without any other exceptions than those which the established laws may have previously declared. How can any thing else be understood? Every state, when it has entered into no contrary engagement, is free to permit or not to permit foreigners to acquire or bring property within its jurisdiction; but if it grant the right, what is there to make the tenure of the foreigner different from that of the native, if antecedent laws have not pronounced a difference? Property, as it exists in civilized society, if not a creature of, is, at least, regulated and defined by, the laws. They prescribe the manner in which it shall be used, alienated, or transmitted; the conditions on which it may he held, perserved, or forfeited. It is to them we are to look for its rights, limitations, and conditions. No condition of enjoyment, no cause of forfeiture, . which they have not specified, can be presumed to exist. An extraordinary discretion to resume or take away the thing, without any personal fault of the proprietor, is inconsistent with the notion of property. This seems always to imply a contract between the society and the individual; that he shall retain and be protected in the possession and use of his property, so long as he shall observe and perform the conditions which the laws have annexed to the tenure. 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 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?

Suppose two families in a state of nature, and that a member of one of them had by permission of the head of the other, placed in his custody some article belonging to himself-and suppose a quarrel to ensue between the two heads of families, in which the member had not participated by his immediate counsel or consent-would not natural equity declare the seizure and confiscation of the deposited property to be an act of perfidious rapacity?

Again-suppose two neighboring nations, which had not had intercourse with each other, and one of them opens its ports and territories for the purpose of commerce, to the citizens of the other, proclaiming free and safe ingress and egress-suppose afterwards a war to break out between the two nations, and the one which had granted that permission, to seize and convert to its own use, the goods and credits of the merchants of the other, within its dominion. What sentence would natural reason, unwarped by particular dogmas, pronounce on such conduct? If we abstract ourselves from extraneous impressions, and consult a moral feeling, we shall not doubt that the sentence would in} flict all the opprobrium and infamy of violated faith.

Nor can we distinguish either case, in principle, from that which constantly takes place between nations, that permit a commercial intercourse with each other, whether with or without national compact. They equally grant a right to bring into and carry out of their territories the property which is the subject of the intercourse, a right of free and secure ingress and egress; and in doing this, they make their territories a sanctuary or asylum, which ought to be inviolable, and which the spirit of plunder only could have ever violated.

There is no parity between the case of the persons and goods of enemies found in our own country, and that of the 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 defence 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. In the latter case, there is no confidence whatever reposed in us; no claim upon our hospitality, justice or good faith; there is the simple character of enemy, with entire liberty to oppose force to force. The right of war consequently to attack and seize, whether to obtain indemnifica tion for any injury received-to disable our enemy from doing us further harm-to force him to reasonable terms of accommodation or to repress an overbearing ambition, exists in full vigor, unrestrained and unqualified by any trust or duty on our part. In pursuing it, though we may inflict hardship, we do not commit injustice.

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?

The principle of the proposition gives an equal right to subject the person as the property of the foreigner to the rigors of war. But what would be thought of a government which should seize all the subjects of its enemy found within its territory, and commit them to durance, as prisoners of war? Would not all agree that it had violated an asylum which ought to have been sacred? That it had trampled upon the laws of hospitality and civilization? That it had disgraced itself by an act of cruelty