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 mem ber 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 indemnification 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

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 prac tice 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