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Sovereigns in the acts of the Conquerors or Usurpers was more remarkable, because the Peace of Paris (Art. 27.) had only protected French subjects in their possessions acquired "à titre onéreux" in the departments of Belgium, the left bank of the Rhine, and the Alps beyond the limits of Old France. Koch (0) actually defends this limitation of the general amnesty on the ground that the Allies would otherwise have recognised the usurpation of Napoleon, and his authority to alienate the domains of countries which he had conquered. Therefore, he says, the Allies did not legalise the alienations in Holland, in the Transrhenish Provinces, in the Tuscan or Papal States. But Koch's reasoning is both inconsistent and unsound:---the former, because, if good at all, it was applicable to all the territory acquired by France since the Revolution,-the latter, because it is contrary, as has been attempted to be shown in the preceding pages, to the true principles of International Justice. Moreover, he admits that the restriction of the amnesty in this particular was solely for the purpose of protecting the restored monarch of France against the reclamations and solicitations of proprietors who had been despoiled during the reign of Napoleon.

But, as has been seen, the good sense, if no higher motive, of the restored Sovereigns gave an almost universal application to the principle and rejected the limitation.

(0) Rotteck, Staats-Lexikon, p. 364.

CHAPTER VII.

POSTLIMINIUM.—DECISIONS IN ENGLISH COURTS OF

JUSTICE.

DLXXV. THE question as to the right to confiscate the Public Debts of a State has been already discussed, and, generally speaking, the principles relating to this subject are the same as those which relate to the confiscation of Private Debts (a). It has been stated, in an earlier part of this volume (b), that the right of confiscating the private debts of an enemy is a corollary to the right of confiscating his property. That, however rigorous and inexpedient the application of this summum jus may be, it is nevertheless competent to an enemy to exercise it. That this position is supported by the reason of the thing, and by the authority of jurists and judges on the Continent of Europe and in the United States of North America.

DLXXVI. Nevertheless, in 1817, the English Court of King's Bench made a decision (c) wholly at variance with these authorities. A Dane, who had been for many years naturalised by Act of Parliament, and resided in this country, brought an action in the English Court against a Danish subject, who had been arrested and holden to bail in this country. The debt had been contracted in England, at a time when the Danish debtor was resident in Denmark, having a house of trade established there, and when Den

(a) Vide antè, p. 146.

See, too, Story's Conflict of Law, ss. 334, 348, 351.

(b) Vide antè, pp. 145-7.

(c) Wolff v. Oxholm, 6 Maule and Selwyn's Reports, p. 100.

all

mark and England were at peace with each other. Proceedings had been instituted in the Court at Denmark for the recovery of this debt: while these were pending, in 1807, a war broke out between England and Denmark, and an ordinance was therefore made by the latter, dated 16th August, 1807, whereby all ships, goods, monies, and money's worth were declared to be sequestrated and detained; and by another ordinance, dated 9th September, 1807, persons were commanded, within three days after the publication thereof, to transmit an account of the debts due to English subjects, of whatsoever nature or quality they might be, the whole of which were directed to be paid into the Danish Treasury; and in case of concealment, the person so offending was to be proceeded against by the officers of the Exchequer; and Commissioners were appointed to receive the sequestrated debts: to them the debt in this case had been paid, and it was contended, for the defendant, that it was a valid discharge according to International Law. The plaintiff, on the other hand, contended,-(1.) That the ordinance was contrary to International Law. (2.) That it did not appear to have been a compulsory payment under the ordinance. (3.) That the defendant, being a Danish subject, paid to himself in paying to the Government, because every subject of a State is deemed to be a party to the laws of his own Government.

The English Court, presided over by Lord Ellenborough, pronounced in favour of the plaintiff, and against the validity of the defence which had been set up. The Court observed, indeed, that the ordinance in question had not been followed up by any practical measure of compulsion upon the subjects of Denmark; that there had been nothing in the nature of process against the defendant to enforce the payment of this particular debt-nothing analogous to the seizure or condemnation of corporeal things taken in the time of war; and that, though the Sequestration Commissioners were informed of the debt in 1807, the defendant did not pay the debt till 1812. Yet the Court, in fact, decided upon the

broad ground that the Danish Ordinance was a violation of the principles of International Law. The principal grounds of this decision appear to have been :-(1.) The language of Vattel, in which he speaks of the security of enemy's money in the public funds, the reason of which, the Court said, extended equally to debts owing to an individual in the course of commerce; it was said that Vattel, in laying down that a Sovereign might, at least, prohibit his subjects from paying debts pendente bello, intimated a doubt as to the right of confiscating debts; and that the right was properly limited to its operation in personam, upon the subject of the State, or upon his property within the reach and control of that State. (2.) That the language of Vattel with respect to the practice of Europe as to not confiscating debts, had become so general that the confiscating State must be holden to violate the public faith. (3.) That, in spite of what is said in Treatises as to the Law of England, there was no case in the books in which debts had been so confiscated. (4.) That even in the time of Grotius (d) doubts had been entertained as to the lawfulness of confiscating debts; that he expresses no opinion in favour of such a course, but rather inclined the other way. (5.) That the reasoning of Puffendorf, in the 22nd section of the sixth chapter of the eighth book of his Treatise "De Jure Naturali et "Gentium," was opposed to such a right.

(6.) Lastly and chiefly, the Court said that it was admitted that, notwithstanding all the violent measures to which recourse had been had during the extraordinary warfare that characterized those times, the Ordinance of the Court of Denmark stood single and alone, not supported by any precedent, nor adopted as an example in any other State. They therefore gave judgment for the plaintiff.

DLXXVII. The authority both of Bynkershoek and of the Dutch Tribunals is directly opposed to this judgment.

(d) L. iii. c. vii. s. 4, c. viii. s. 4.

"Quapropter" (he says)" si subditus Principi, qui credita "publicavit, solverit quod hosti debebat, liberationem contin"gere optimo jure responsum est" (e). His authority does not appear to have been cited in the argument, and to have been but slightly referred to in the judgment. And it seems to the writer of these pages that the opinion of Grotius does countenance the doctrine. The passage," Incorporalia jura quæ "universitatis fuerant, fient victoris quatenus velint," cannot be otherwise interpreted.

The famous passage in Quintilian (ƒ) relating to the remission of the Thessalian debt is, as has been shown, referred to by Grotius, Puffendorf, and Vattel; and it was also discussed in Wolff v. Oxholm (g). The question, it will be remembered, was, did the remission of the debt fall within the jus victoris? Quintilian suggests that it did not, "quia id demùm sit ejus quod ipse teneat ; jus "quod sit incorporale apprehendi manu non posse-non "in tabulis esse jus." These and other arguments Grotius condemns (h), while mentioning the transaction as exemplifying his position, that jura incorporalia do belong to the victor; and yet the judge in Wolff v. Oxholm says that because he does not go on, as Vattel did, to express a conclusion that private debts may be confiscated, "there is "nothing in the works of that very learned author (Grotius) "which can give a countenance to such a right " (i). Surely this is an inaccurate and erroneous statement. Heffters, whose opinion is on the whole in favour of the continuing liability of the debtor, and who therefore adopts the argument of Quintilian, admits that he has to contend against the opinion of a phalanx of International Jurists (k).

(e) Consil. Holl. t. i. consil. 297, cited by Bynkershoek, Q. J. P. b. i. c. vii.

(f) Inst. Orat. v. 10.

(g) 6 Maule & Selwyn's Rep. p. 92.

(h) L. iii. c. v. s. 77.

(i) 6 Maule & Selwyn's Rep. p. 103.

(k) "Die meisten Publicisten haben sich in langer Reihefolge für

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