and public credit, the customary law of Europe has restrained that right, as to private debts, and private property, in public funds. His opinion, therefore, favors the principle of the article of the treaty under examination, as consonant with the present European law of nations-and it is an opinion of greater weight than any that can be cited; as well on account of the capacity, diligence, information, and the precision of ideas, which characterize the work in which it is contained, as on account of the recency of that work.*

A question may be raised-Does this customary law of nations, as established in Europe, bind the United States? An affirmative answer to this is warranted by conclusive reasons.

1. The United States, when a member of the British empire, were, in this capacity, a party to that law, and not having dissented from it, when they became independent, they are to be considered as having continued a party to it. 2. The common law of England, which was and is in force in each of these States, adopts the law of nations, the positive equally with the natural, as a part of itself. 3. Ever since we have been an independent nation, we have appealed to, and acted upon, the modern law of nations as understood in Europe--various resolutions of Congress during our revolution-the correspondences of executive officers-the decisions of our courts of admiralty, all recognized this standard. 4. Executive and legislative acts, and the proceedings of our courts, under the present government, speak a similar language. The President's proclamation of neutrality, refers expressly to the modern law of nations, which must necessarily be understood of that prevailing in Europe, and acceded to by this country; and the general voice of our nation, together with the very arguments used against the treaty, accord in the same point. It is indubitable, that the customary law of European nations is, as a part of the common law, and by adoption, that of the United States.

But let it not be forgotten, that I derive the vindication of the article from a higher source, from the natural or necessary law

*It appears to have been written about the year 1760.

of nature-from the eternal principles of morality and good faith.

There is one more authority which I shall cite in reference to a part of the question; property in the public funds. It is a report of the British king in the year 1753, from Sir George Lee, judge of the prerogative court, Dr. Paul, advocate-general in the courts of civil law, Sir Dudley Rider and Mr. Murray, attorney and solicitor-general,* on the subject of the Silesia loan, sequestered by the king of Prussia, by way of reprisal, for the capture and condemnation of some Prussian vessels. This report merits all the respect which can be derived from consummate knowledge and ability in the reporters; but it would lose much of its weight from the want of impartiality, which might fairly be imputed to the officers of one of the governments interested in the contest, had it not since received the confirming eulogies of impartial and celebrated foreign writers. Among these, Vat tel calls it an excellent piece on the law of nations.

The following is an extract:-"The king of Prussia has pledged his royal word to pay the Silesia debt to private men. It is negotiable, and many parts of it have been assigned to the subjects of other powers. It will not be easy to find an instance, where a prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a prince upon an engagement of honor; because a prince cannot be compelled, like other men, in an adversary way, by a court of justice. So scrupulously did England and France adhere to this public faith, that even during the war, they suffered no inquiry to be made, whether any part of the public debt was due to the subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours."

The universal obligation of good faith is here reinforced on a special ground, by the point of honor; to confirm the position that money which a sovereign or state owes to private men, is not a proper object of reprisals.

* Sir George Lee, was afterwards the very celebrated Chief Justice Lee, and Mr. Murray was the late Lord Mansfield.

This case of the Silesia debt is the only example, within the present century, prior to the existing war, which I have been able to trace, violating the immunity of private debts, or private property, in public funds. It is a precedent that can have little weight, not only from singularity, but from the character of its author. Frederick was a consummate general, a profound statesman; but he was very far from being a severe moralist. This is not the only instance in which he tarnished his faith; and the friends of his fame must regret, that he could not plead on the . occasion those mighty and dazzling reasons of state, which are the specious apologies for his other aberrations.

It is asserted, that the present war of Europe affords examples of the practice, which I reprobate, and that Great Britain herself has given one. The present war of Europe is of so extraordinary a complexion, and has been conducted, in all respects, upon such extraordinary principles, that it may truly be regarded as an exception to all general rules, as a precedent for nothing. It is rather a beacon, warning mankind to shun the pernicious examples, which it sets, than a model inviting to imitation. The human passions, on all sides, appear to have been wrought up to a pitch of frenzy, which has set reason, justice, and humanity, at defiance.

Those who have nevertheless thought fit to appeal to the examples of this very anomalous war, have not detailed to us the precise nature or course of the transactions to which they refer; nor do I know that sufficient documents have appeared in this country to guide us in the inquiry.

The imperfect evidence which has fallen under my observation, respects France and Great Britain, and seems to exhibit these facts:

France passed a decree sequestering the property of the subjects of the powers at war with her; and in the same or another decree, obliged all those of her citizens, who had moneys owing to them in foreign countries, to draw bills upon their debtors, and to furnish those bills to the government, by way of loan, or upon certain terms of payment.

The government of Great Britain, in consequence of this pro

ceeding, passed ten different acts, the objects of which were to prevent the payment of those bills, and to secure the sums due for the benefit of the original creditors. These acts appoint certain commissioners, to whom reports are to be made of all French property in the hands of British subjects, and who are empowered to receive and sell goods and other effects-to collect debts, and to deposit the proceeds in the bank of London, or in other safe keeping, if preferred or required by parties interested. The mo neys deposited are to be invested in the purchase of public stock, together with the interest or dividends arising from time to time, to be eventually accounted for to the proprietors. The commissioners have, likewise, a discretion, upon demand, to deliver over their effects and moneys to such of the proprietors as do not reside within the French dominions.

I shall not enter into a discussion of the propriety of these acts of Great Britain.-It is sufficient to observe, that they are attended with circumstances which very essentially discriminate them from the thing for which they were quoted. The act of the French government was in substance a compulsory assumption of all the property of its citizens in foreign countries. This extraordinary measure presented two options to the governments of those countries-One, to consider the tranfer as virtually effected, and to confiscate the property as being no longer that of the individuals, but that of the government of France-the other, to defeat the effect of her plan by buying up the property for the benefit of the original creditors, in exclusion of the drafts which they were compelled to draw. Great Britain appears to have elected the latter course. If we suppose her sincere in the motive, and there is fairness and fidelity in the execution, the issue will be favorable, rather than detrimental, to the rights of private property.

I have said, that there was an option to confiscate. A government may rightfully confiscate the property of an adversary government. No principle of justice or policy occurs to forbid reprisals upon the public or national property of an enemy. That case is foreign, in every view, to the principles which protect private property. The exemption stipulated by the 10th article of the treaty is accordingly restricted to the latter.

It appears, that the government of France, convinced by the effect of the experiment, that the sequestration of the property of the subjects of her enemies was impolitic, thought fit to rescind it. Thence, on the 29th of December, 1794, the convention decreed as follows:

"The decrees concerning sequestration of the property of the subjects of the powers at war with the republic, are annulled. Such sums as have been paid by French citizens into the treasury, in consequence of those decrees, will be reimbursed."

In the course of the debates upon this decree, it was declared, that the decrees which it was to repeal, had prepared the ruin of commerce, and had severed, against the rights of nations, the obligations of merchants in different states. This is a direct admission, that the sequestration was contrary to the law of nations.

As far as respects France, then, the precedent, upon the whole, is a strong condemnation of the pretended right to confiscate or sequester. This formal renunciation of the ground which was at first taken, is a very emphatical protest against the principle of the measure-It ought to serve us too as an instructive warning against the employment of so mischievous and disgraceful an expedient. And as to England, as has been shown, the precedent is foreign to the question.

Thus we perceive, that opinion and usage, far from supporting the right to confiscate or sequester private property, on account of national wars, when referred to the modern standard, turn against that right, and coincide with the principle of the article of the treaty under examination.

What remains to be offered will farther illustrate its propriety, and reconcile it to all reflecting men.

NO. XXI.

CAMILLUS.

1795.

Since the closing of my last number, I have accidentally turn

ed to a passage of Vattel, which is so pertinent to the immediate