and barbarism?* Why would it not be equally reprehensible to violate the asylum which had been given to the property of those foreigners?

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 person of a foreigner found in our country, under the license and guarantee of the laws of previous amity.

The case of property in the public funds is still stronger than that of private debts. To all the sanctions which apply to the latter, it adds that of an express pledge of the public faith to the foreign holder of stock.

The constituting of a public debt or fund, transferable without limitation or distinction, amounts to a promise to all the world, that whoever, foreigner or citizen, may acquire a title to it, shall enjoy the benefit of what is stipulated. Every transferee becomes, by the act of transfer, the immediate proprietor of the promise. It inures directly to his use, and the foreign promisee no more than the native, can be deprived of that benefit, except in consequence of some act of his own, without the infraction of a positive engagement.

Public debt has been truly defined, "A property subsisting in the faith of government." Its essence is promise. To confiscate or sequester it is emphatically to rescind the promise given, to revoke the faith plighted-It is impossible to separate the two ideas of a breach of faith, and the confiscation or sequestration of a property subsisting only in the faith of the government by which it is made.

When it is considered, that the promise made to the foreigner is not made to him in the capacity of member of another society, but in that of citizen of the world, or of an individual in the state of nature-the infraction of it towards him, on account of the fault, real or pretended, of the society to which he belongs, is the more obviously destitute of color. There is no real affinity between the motive and the consequence. There is a confound

* All that can rightfully be done, is to oblige the foreigners, who are subjects of

our enemy, to quit our country.

ing of relations. The obligation of a contract can only be avoided by the breach of a condition express or implied, which appears or can be presumed to have been within the contemplation of both parties, or by the personal fault or crime of him to whom it is to be performed. Can it be supposed that a citizen of one country would lend his money to the government of another, in the expectation that a war between the two countries, which, without or against their will, might break out the next day, could be deemed a sufficient cause of forfeiture?

The principle may be tested in another way-Suppose one government indebted to another in a certain sum of money, and suppose the creditor government to borrow of the citizen of the other an equal sum of money. When he came to demand payment, would justice, would good faith, permit the opposing to his claim, by way of set-off, the debt due from his government? Who would not revolt at such an attempt? Could not the individual creditor answer with conclusive force, that in a matter of contract he was not responsible for the society of which he was a member, and that the debts of the society were not a proper setoff against his private claim?

With what greater reason could his claim be refused on account of an injury which was a cause of war, received from his sovereign, and which had created on the part of the sovereign a debt of reparation? It were certainly more natural and just to set off a debt due by contract to the citizen of a foreign country against a debt due by contract from the sovereign of that country, than to set it off against a vague claim of indemnification for an injury or aggression of which we complain, and of which the reality or justice is seldom undisputed on the other side.

The true rule which results from what has been said, and which reason sanctions with regard to the right of capture, is this "It may be exercised every where except within a neutral jurisdiction or where the property is under the protection of our own

*There are exceptions to this exception; but they depend on special circumstances, which admit the principal exception, and need not be particularized.

laws;" and it may perhaps be added that it always supposes the possibility of rightful combat, of attack, and defence.

These exceptions involve no refinement-they depend on obvious considerations, and are agreeable to common sense and to nature-the spontaneous feelings of equity accord with them. It is, indeed, astonishing that a contrary rule should ever have been countenanced by the opinion of any jurist, or by the practice of any civilized nation.

We shall see in the next number how far either has been the case, and what influence it ought to have upon the question.

NO. XX.

CAMILLUS.

1795.

The point next to be examined is the right of confiscation or sequestration, as depending on the opinions of jurists and on

usage.

To understand how far these ought to weigh, it is requisite to consider what are the elements or ingredients, which compose what is called the law of nations.

The constituent parts of this system are, 1. The necessary or internal law, which is the law of nature applied to nations; or that system of rules for regulating the conduct of nation to nation, which reason deduces from the principles of natural right, as relative to political societies or states. 2. The voluntary law, which is a system of rules resulting from the equality and independence of nations, and which, in the administration of their affairs, and the pursuit of their pretensions, proceeding on the principle of their having no common judge upon earth, attributes equal validity, as to external effects, to the measures or conduct of one as of another, without regard to the intrinsic justice of those measures or that conduct. Thus captures, in war, are as valid, when made by the party in the wrong, as by the party in the right. 3. The pactitious or conventional law, or that law

which results from a treaty between two or more nations. This is evidently a particular, not a general law, since a treaty or pact can only bind the contracting parties: yet, when we find a provision universally pervading the treaties between nations, for a length of time, as a kind of formula, it is high evidence of the general law of nations. 4. The customary law, which consists of those rules of conduct, that, in practice, are respected and observed among nations. Its authority depends on usage, implying a tacit consent and agreement. This also is a particular, not a general law, obligatory only on those nations whose acquiescence has appeared, or, from circumstances, may fairly be presumed. Thus, the customary law of Europe may not be that of a different quarter of the globe. The three last branches are sometimes aggregately denominated the positive law of nations.

The two first are discoverable by reason; the two last depend on proof, as matters of fact. Hence the opinion of jurists, though weighing, as the sentiments of judicious or learned men, who have made the subject a particular study, are not conclusive, as authorities. In regard to the necessary and voluntary law, especially, they may be freely disregarded, unless they are found to be adopted and sanctioned by the practice of nations: For where REASON is the guide, it cannot properly be renounced for mere OPINION, however respectable. As witnesses of the customary laws, their testimony, the result of careful researches, is more particularly entitled to attention.

If, then, it has been satisfactorily proved, as the dictate of sound reason, that private debts, and private property in public funds, are not justly liable to confiscation or sequestration, an opposite opinion of one or more jurists could not control the conclusion in point of principle. So far as it may attest a practice of nations, which may have introduced a positive law on the subject, the consideration may be different. It will then remain to examine, upon their own and other testimony, whether that practice be so general as to be capable of varying a rule of reason, by the force of usage; and whether it still continues to bear the same character, or has been weakened or done away by some recent or more modern usage.

I will not avail myself of a position, advanced by some writers, that usage, if derogating from the principles of natural justice, is null, further than to draw this inference, that a rule of right, deducible from them, cannot be deemed to be altered by usage, partially contradicted, fluctuating.

With these guides, our further inquiries will serve to confirm us in the negative of the pretended right to confiscate or sequester in the cases supposed.

The notion of this right is evidently derived from the ROMAN law. It is seen there, in this peculiar form: "Those things of an enemy which are among us, belong not to the state, but to the first occupant,"* which seems to mean, that the things of an enemy, at the commencement of the war, found in our country, may be seized by any citizen, and will belong to him who first gets possession. It is known, that the maxims of the Roman law are extensively incorporated into the different codes of Europe; and particularly, that the writers on the law of nations have borrowed liberally from them. This source of the notion does not stamp it with much authority. The history of Rome proves, that war and conquest were the great business of that people, and that, for the most part, commerce was little cultivated. Hence it was natural, that the rights of war should be carried to an extreme, unmitigated by the softening and humanizing influence of commerce. Indeed the world was yet too young-moral science too much in its cradle-to render the Roman jurisprudence a proper model for implicit imitation: accordingly, in this very particular of the rights of war, it seems to have been equally a rule of the Roman law, "That those who go into a foreign country, in time of peace, if war is suddenly kindled, are made the slaves of those among whom, now become enemies by ill fortune, they are apprehended." This right of capturing the property and of making slaves of the persons of enemies is referred, as we learn from Cicero, to the right of killing them; which was regarded as abso

* Digest. XLI. tit. I. "Et quæ res hostiles apud nos," &c.

"In pace qui pervenerunt ad alteros, si bellum subito exarcisset, eorum servi efficiuntur, apud quos jam hostes suo facto deprehenduntur." Digest, lib. XLIX. tit. XV. 1. xii.