may be stated very nearly as follows.[9]

That though, on principle, the property of the enemy is liable to seizure and confiscation, yet it is now an established international usage that such property found within the territory of the belligerent state, or debts due to its subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war.

This rule is often enforced by treaty, but unless thus enforced it cannot be considered as an inflexible, though established, rule. This rule is a guide which the Sovran of the belligerent state follows or abandons at will, and although it cannot be disregarded by him without obloquy, yet it may be disregarded. It is not an immutable rule, but depends on considerations which continually vary.[10]

[Sidenote: Rule with respect to Immoveable Property.]

The rule is different with respect to Immoveable Things, such as
Landed Estates. He who declares war does not confiscate the Immoveable
Estate possessed in his country by the enemy, but the Income may be
sequestrated, to prevent its being remitted to the enemy.[11]

[Sidenote: Public Funds.]

Public Funds, or in other words, debts due from the Sovran of the hostile state to Private Persons, are always held protected from confiscation, and there is only one instance in modern times where this rule has been broken. It is a matter of public faith; and even during war, no enquiry ought to be made whether any part of the public debt is due to the subjects of the enemy.[12]

[Sidenote: Rule of Reciprocity.]

All these rules are, however, subject to the Rule of Reciprocity. This is thus laid down by Sir William Scott, in the case of the Santa Cruz,

"that at the commencement of a war, it is the constant practice of this country to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. It is a principle sanctioned by that great foundation of the Law of England, Magna Charta itself, which prescribes, that at the commencement of a war the enemy's merchants shall be kept and treated as our own merchants are treated in their country."[13]

[Sidenote: Droits of Admiralty.]

[14]In England, at present, however, these liberal principles are modified by Rights of Admiralty, the foregoing rules being applied rather to property upon the land than within the territory; for although, when captures are made in ports, havens, or rivers, within the body of the country of the realm, the Admiralty is in reality excluded, yet Prize Courts have uniformly, without objection, tried all such captures in ports and havens within the realm; as in the case of ships not knowing hostilities, coming in by mistake, before the declaration of war or hostilities; all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made.[15]

[Sidenote: Hostile Embargo.]

This species of reprisal is termed a Hostile Embargo. It cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It is undoubtedly against the spirit of modern liberality, and has been but too justly reprobated as destroying that protection to property which the rule of faith and justice gives it, when brought into the country in the course of trade, and in the confidence of peace.

It is not, however, as Wheaton states, peculiar to England, but common to modern Europe, except that England does not, in practice, appear to be influenced by the corresponding conduct of the enemy in that respect.[16]

[Sidenote: Debts Due to and from an Enemy.]

But with relation to Debts Due to an Enemy, previous to hostilities,
English law follows a wiser principle.

On the outbreak of war between Denmark and this country in 1807, the Danish Government, as a measure of retaliation for the seizure of their ships in our ports, issued an ordinance sequestrating all debts due from Danish to British subjects, causing them to be paid into the Danish Royal Treasury.

The Court of King's Bench decided that this was not a legal defence to a suit in England for the debt, and that the ordinance was not conformable to the Law to Nations.[17] It was observed by the Court, that the right of confiscating debts (contended for on the authority of Vattel,)[18] was not recognised by Grotius,[19] and was impugned by Puffendorf and others; and that no instance had occurred of the exercise of the right, (except the ordinance in question,) for upwards of a century. This is undoubtedly the law in England, although it may be doubted if this rule still holds so strongly in the United States.

[Sidenote: Interruption of Intercourse; Trading with the Enemy unlawful.]

One of the most immediate consequences of the outbreak of hostilities is the complete interruption of Commercial Intercourse between the subjects of the countries at war, even to the extent of holding it unlawful, after war has begun, except under special licence of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, when war has broken out.

There cannot exist at the same time a war for arms and a peace for commerce; from the very nature of war all commercial intercourse ceases between enemies. This interdiction of intercourse is the result of the mere operation of war; for declarations of war generally enjoin on every subject the duty of attack on the subjects of the hostile state, of seizing their goods, and doing them every harm in their power.[20]

From the very nature of war itself, all commercial intercourse ceases between enemies. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war as to commerce. Hence, commerce is alternately permitted and forbidden in time of war, as princes think it most for the interest of their subjects. A commercial nation is anxious to trade, and accommodate the laws of war to the greater or lesser want that it may have for the goods of the other. Thus sometimes a mutual commerce is permitted generally; sometimes as to certain merchandizes only, while others are prohibited; and sometimes it is prohibited altogether. In this manner there is partly peace and partly war, between subjects of both countries.[21]

In the case of the Hoop,[22] Sir Wm. Scott says,

"By the law and constitution of Great Britain, the Sovereign alone has the power of declaring War and Peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, when he sees proper, that commercial intercourse, which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient; but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce only, and possibly on grounds of private advantage not very reconcilable with the general interests of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the