tration Commissioners were informed of the debt in 1807, the defendant *did not pay the debt till 1812. Yet the Court, in fact, decided [*722] 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. 6 Qua [*723] *DLXXVII. The authority both of Bynkershoek and of the Dutch Tribunals is directly opposed to this judgment. propter (he says) si subditus Principi qui credita publicavit, solverit quod hosti debebat liberationem contingere, 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(f) 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 demum sit ejus quod ipse teneat; jus quod sit incorporale apprehendi manu non posse—non in tabulis esse jus. These and other arguments (d) L. iii. c. vii. s. 4, c. viii. s. 4. (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. 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."() Surely this is an inaccurate and erroneous statement. Heffters, whose opinion is on the whole in favour of the continuing liability of the creditor, and who therefore adopts the argument of *Quintilian, admits that he has to contend against the opinion of a phalanx of International [*724] Jurists.(k) In this decision of the English Court, the authority of Vattel appears to have(7) been greatly overestimated and not a little overstrained, the inferences from the language of Grotius and Puffendorf to be ingenious rather than sound: while to the high authority of Story and the American Tribunals, no allusion appears to have been made by counsel or judge. The question for the International Jurists who review this judgment is, really this, whether the practice of nations was so rooted and confirmed in opposition to the strict right as to have superseded it-whether, to repeat a former passage in this work, this was one of those cases in which a usage, which had its origin in the precarious concession of Comity, had become transferred, through uninterrupted exercise and the lapse of time, into the certain domain of Right.(m) It must be remembered that this was a decision against a foreigner for obeying the law of his own country, and that this law was warranted by the authority of most eminent jurists and judges. There were, no doubt, traces of mala fides in this case, which had their effect upon the minds of the English judges; but, as far as the general principal is concerned, the decisions of the American, Dutch, and German Courts (none of which, strange to say, were quoted,) appear much sounder; and perhaps, if the occasion should present itself, the decision of Lord Ellenborough might be reversed in England. It was the decision of a single Court not much accustomed to deal with questions of International Law. Moreover the argument was not, as in the case of *Potts v. [*725] Bell,(n) before Lord Kenyon, or in the more recent slave case of the Felicidade, argued with the assistance of Civilians,(o) and some of the principal International authorities were not referred to. DLXXVIII. Where a Treaty has awarded compensation for confiscated property, there have been various decisions in England upon cases alleged to fall under this category: they have been principally decided by the Privy Council, on appeal from Commissioners appointed to inquire into the claims. Among the principal cases the following relate to In (h) L. iii. c. v. s. 77. (i) 6 Maule & Selwyn's Rep., p. 103. (k) "Die meisten Publicisten haben sich in lange Reihefolge für ein solches Verfügungsrecht ausgesprochen, u. s. w."-Heffters, p. 131. (m) Vol. I. p. 161. p. 548. (1) L. iii. c. viii. s. 4. Denison's Crown Cases reserved, vol. i. p. 154. dividuals. It has been decided by the Privy Council that a person who possesses the characters both of a French subject under the Municipal Law of France, and of a British subject under the Statute 13 Geo. 3, c. 26, as the grandson of a natural-born British subject, although both he himself and his father were born in a foreign country, is not entitled to claim compensation for a loss he has sustained from a confiscation of his property by the French Government under a Treaty between Great Britain and France, giving compensation for such a loss to British subjects.(p) That an Englishman who has taken out letters of naturalization in France is not entitled to compensation as a British subject under such a Treaty.(2) That the foreign wife of a British subject is not entitled to compensation for the loss of her separate property, under a Treaty providing for such a compensation for British subjects, unless she has herself acquired a domicile in Great Britain at the time of her loss. (r) That a foreigner domiciled in Great Britain is, *under such a Treaty, entitled to claim compensation for his losses. (s) [*726] The same Judicial body has decided, with respect to Corporations, that a corporation of British subjects in a foreign country, existing for objects in opposition to British law, and under the control of a foreign government, is not entitled to claim any compensation from the government of the country in which they existed for the confiscation of their property under a Treaty giving the right to British subjects.(t) It has been also decided that the individual members of such a corporation are also equally incapacitated from making any claim, as British subjects, from the loss of their income arising from the funds of such a corporation.(u) That a corporation of Irishmen, existing in a foreign country, and under the control of a foreign government, must be considered as a foreign corporation, and is not therefore, entitled to claim compensation for the loss of its property, under a Treaty giving the right of doing so to British subjects. (x) That it makes no difference whether the purposes for which such a corporation existed were or were not contrary to the law of Ireland.(y) And generally the English Privy Council has decided, that a country re-conquered from an enemy reverts to the same state that it was in before its conquest. The British inhabitants of a part of the French dominions which was conquered by the Dutch, and afterwards re-conquered by the French, ought therefore, the Privy Council decided, to have had, after the re-conquest of that part, the same *protection that they were entitled to under a Treaty of Commerce of 1786, and they awarded [*727] compensation in respect of losses after the re-conquest, incurred by seques (p) Drummond's Case, 2 Knapp's Privy Council Rep., p. 295. Countess de Conway's Case, 2 Knapp's Privy Council Rep., p. 364. Daniel v. Commissioners for Claims in France, 2 Knapp's Privy Council Rep., p. 23. (u) Ibid. (x) Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep., p. 51. (y) Ibid. tration of their property in contravention of that Treaty by the French Government.(*) [*728] *CHAPTER VIII. DOCTRINE OF POSTLIMINIUM AS TO PRIVATE RIGHTS AND PROPERTY WHICH HAVE BEEN DURING THE WAR UNDER THE DOMINION OF THE ENEMY, AND NOT CONFISCATED BY THE STATE. DLXXIX. We have now inquired into the effect of Peace upon the Public Property and contracts of States; (II.) it remains to consider the effect of Peace, so far as the State is concerned, upon the Private Rights, Property, and Contracts (a) of the subjects of the contracting parties who have been Belligerents, and also partially and incidentally upon the subjects of Neutrals. The General principles which it is important to lay down are these:-First, that a distinction is to be observed between the question of the competency of the State to sacrifice for public domestic purposes the property of the Individual, together with the right of compensation thereby accruing to him, and the question with respect to the competency of the State to surrender property of Individuals to Foreign States. The former question is one of Public if not of Municipal Law, the latter is one of International Jurisprudence; or, as it is clearly stated by Grotius :(b) " externis qui cum Rege contrahunt sufficit factum Regis non tantum ob præsumtionem quam secum adfert dignitas personæ, verum etiam ob Gentium Jus, quod bona subditorum obligari ex facto regis patitur," it is only necessary, in applying the principle contained in this passage, *to bear in mind that Grotius must be considered [*729] to use the expression Rex as synonymous with the constitutional government, whatever it may be, of the state. Secondly. The losses of Private Persons, like the losses of the State, inflicted by the war, cannot, unless in the event of a special convention to that effect, be recovered after the peace.(b) Thirdly. Obligations under which either the State or Private Persons, members of it, lie to Private Persons members of another State, due before the war, are, generally speaking, not cancelled by the war, but sleep during its continuance and awaken at its close. (d) DLXXX. We have considered the doctrine of Postliminium as growing out of the silence of the Treaty which concludes the Peace in its application to States and Public Property. We have now to consider the same doctrine in its application to Private Persons, Rights, and Property. This consideration will relate to the Gumbe's Case, 2 Knapp's Privy Council Rep., p. 369. (a) Vide ante, p. 104. (c) Grot., 1. iii. c. xx. s. 15. (6) L. iii. c. xx. s. 10. (d) Ib., s. 16. 1. Personal Status. 2. Immovable Property (immobilia.) 3. Movable Property (mobilia.) 4. Obligations such as Contracts, Debts (jura incorporalia; Forderungsrechte.) To all these subdivisions of the subject the general principles mentioned at the beginning of this chapter are of course applicable and it may be added that it is a proposition equally affecting both kinds of property, that the property of one enemy found within the territory of another at the time of the declaration or breaking out of war, and which has not been confiscated pending the war,(e) may be claimed by its owner at the end of the war.(ƒ) DLXXXI. (1.) With respect to Personal Status, (g) *the doctrines of the Roman Law form a very small part of International [*730] Law. By the latter the right of Postliminium and the recovery of Personal Status is not always taken away from an individual unless by the municipal law of his own country, or by the express stipulation of the Treaty. The Roman Law might furnish some analogies for determining, when the captivity of a prisoner of war was at an end, whether if his freedom had been obtained by breach of his parole of honour, or whether, when he had escaped into a neutral territory, he ought or ought not to be delivered back to the enemy. But these are causes not relating to the subject now under consideration. And with respect to those Private Rights which are restored by Postliminium, it may be said, generally, that under this category are included all Rights appertaining to Person, or Property, or to Obligation. International Law rejects all distinctions of the Roman Law upon this point. There are, indeed, two ways by which this Postliminium of Rights, so to speak, may take effect. a. When the prisoner returns during war and re-enters upon the Rights taken from him during the period of his captivity. This is a subject which has been already discussed in the earlier pages of this volume. B. When the original owner claims, after the restoration of peace, Rights forcibly taken from him by the enemy during war. It is with this predicament that we are now concerned. (h) DLXXXII. As to the Personal Status, it unquestionably returns with all its incidents, unless, indeed, it should have been affected by traitorous dealings with the enemy during the war. But this, and also the question as to any claim to a return of the profits of any office from which a person may have been ejected during the war, are matters of public and constitutional, not, strictly speaking, of International Law. But it may be observed that, as to the relation of marriage, *of which the earlier Roman Law appears to have required a reintegratio, there [*731] |