CONFISCATION. The act by which the estate, goods or chattels of a person
who has been guilty of some crime, or who is a public enemy, is declared to
be forfeited for the benefit of the public treasury. Domat, Droit Public,
liv. 1, tit. 6, s. 2, n. 1. When property is forfeited as a punishment for
the commission of crime, it is usually called a forfeiture. 1 Bl. Com. 299.
2. It is a general rule that the property of the subjects of an enemy
found in the country may be appropriated by the government, without notice,
unless there be a treaty to the contrary. 1 Gallis. R. 563; 8 Dall. R. 199;
N. Car. Cas. 79. It has been frequently provided by treaty that foreign
subjects should be permitted to remain and continue their business,
notwithstanding a rupture between the governments, so long as they conducted
themselves innocently and when there was no such treaty, such a liberal
permission has been announced in the very declaration of war. Vattel, liv.
3, c. 4, Sec. 63. Sir Michael Poster, (Discourses on High Treason, p. 185,
6, mentions several instances of such declarations by the king of Great
Britain; and he says that aliens were thereby enabled to acquire personal
chattels and to maintain actions for the recovery of their personal rights,
in as full a manner as alien friends. 1 Kent, Coin. 57.
3. In the United States, the broad principle has been assumed "that war
gives to the sovereign full right to take the persons and confiscate the
property of the enemy, wherever found. The mitigations of this rigid rule,
which the policy of modern times has introduced into practice, will more or
less affect the exercise of this right, but cannot impair the right itself."
8 Cranch, 122-3. Commercial nations have always considerable property in the
possession of their neighbors: and when war breaks out the question, what
shall be done with enemies property found in the country, is one rather of
policy than of law, and is properly addressed to the consideration of the
legislature, and not to courts of law. The strict right of confiscation
exists in congress; and without a legislative act authorizing the
confiscation of enemies' property, it cannot be condemned. 8 Cranch, 128,
129. See Chit. Law of Nations, c. 3; Marten's Law of Nat. lib. 8, c. 3, s.
9; Burlamaqui, Princ. of Pol. Law, part 4, c. 7; Vattel, liv. 3, c. 4, Sec.
63.
4. The claim of a right to confiscate debts, contracted by individuals
in time of peace, and which remain due to subjects of the enemy in time of
war, rests very much upon the same principles as that concerning the enemy's
tangible property, found in the country at the commencement of the war. But
it is the universal practice to forbear to seize and confiscate debts and
credits. 1 Kent, Com. 64, 5; vide 4 Cranch, R. 415 Charlt. 140; 2 Harr. &
John. 101, 112, 471 6 Cranch, R. 286; 7 Conn. R. 428: 2 Tayl. R. 115; 1 Day,
R. 4; Kirby, R. 228, 291 C. & N. 77, 492.
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