Front Page Titles (by Subject) no . XIX - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . XIX - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 5 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 5.
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The objects protected by the tenth article are classed under four heads: 1, Debts of individuals to individuals; 2, property of individuals in the public funds; 3, property of individuals in public banks; 4, property of individuals in private banks. These, if analyzed, resolve themselves, in principle, into two discriminations, viz.: private debts, and private property in public funds. The character of private property prevails throughout. No property of either government is protected from confiscation or sequestration by the other. This last circumstance merits attention, because it marks the true boundary.
The propriety of the stipulation will be examined under these several aspects: the right to confiscate or sequestrate private debts or private property in public funds, on the ground of reason and principle; the right as depending on the opinions of jurists and on usage; the policy and expediency of the practice; the analogy of the stipulation with stipulations in our other treaties, and in treaties between other nations.
First, as to the right on the ground of reason and principle.
The general proposition on which it is supported is this: “That every individual of a nation with whom we are at war, wheresoever he may be, is our enemy, and his property of every kind, in every place, liable to capture by right of war.”
The only exception admitted to this rule respects property within the jurisdiction of a neutral state; but the exception is referred to the right of the neutral nation, not to any privilege which the situation gives to the enemy proprietor.
Reason, if consulted, will suggest another exception. This regards all such property as the laws of a country permit foreigners to acquire within it or to bring into it. The right of holding or having property in a country always implies a duty on the part of its government to protect that property, and to secure to the owner the full enjoyment of it. Whenever, therefore, a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security. It must be understood to engage that the foreign proprietor, as to what he shall have acquired or deposited, shall enjoy the rights, privileges, and immunities of a native proprietor, without any other exceptions than those which the established laws may have previously declared. How can any thing else be understood? Every state, when it has entered into no contrary engagement, is free to permit or not to permit foreigners to acquire or bring property within its jurisdiction; but if it grant the right, what is there to make the tenure of the foreigner different from that of the native, if antecedent laws have not pronounced a difference? Property, as it exists in civilized society, if not a creature of, is, at least, regulated and defined by, the laws. They prescribe the manner in which it shall be used, alienated, or transmitted; the conditions on which it may be held, preserved, or forfeited. It is to them we are to look for its rights, limitations, and conditions. No condition of enjoyment, no cause of forfeiture, which they have not specified, can be presumed to exist. An extraordinary discretion to resume or take away the thing, without any personal fault of the proprietor, is inconsistent with the notion of property. This seems always to imply a contract between the society and the individual, that he shall retain and be protected in the possession and use of his property so long as he shall observe and perform the conditions which the laws have annexed to the tenure. It is neither natural nor equitable to consider him as subject to be deprived of it for a cause foreign to himself; still less for one which may depend on the volition or pleasure, even of the very government to whose protection it has been confided; for the proposition which affirms the right to confiscate or sequester does not distinguish between offensive or defensive war; between a war of ambition on the part of the power which exercises the right, or a war of self-preservation against the assaults of another.
The property of a foreigner placed in another country, by permission of its laws, may justly be regarded as a deposit, of which the society is the trustee. How can it be reconciled with the idea of a trust, to take the property from its owner, when he has personally given no cause for the deprivation?
Suppose two families in a state of nature, and that a member of one of them had, by permission of the head of the other, placed in his custody some article belonging to himself; and suppose a quarrel to ensue between the two heads of families, in which the member had not participated by his immediate counsel or consent—would not natural equity declare the seizure and confiscation of the deposited property to be an act of perfidious rapacity?
Again—suppose two neighboring nations, which had not intercourse with each other, and one of them opens its ports and territories for the purpose of commerce, to the citizens of the other, proclaiming free and safe ingress and egress—suppose afterward a war to break out between the two nations, and the one which had granted that permission to seize and convert to its own use the goods and credits of the merchants of the other, within its dominion. What sentence would natural reason, unwarped by particular dogmas, pronounce on such conduct? If we abstract ourselves from extraneous impressions, and consult a moral feeling, we shall not doubt that the sentence would inflict all the opprobrium and infamy of violated faith.
Nor can we distinguish either case, in principle, from that which constantly takes place between nations, that permit a commercial intercourse with each other, whether with or without national compact. They equally grant a right to bring into and carry out of their territories the property which is the subject of the intercourse, a right of free and secure ingress and egress; and in doing this they make their territories a sanctuary or asylum, which ought to be inviolable, and which the spirit of plunder only could have ever violated.
There is no parity between the case of the persons and goods of enemies found in our own country and that of the persons and goods of enemies found elsewhere. In the former there is a reliance upon our hospitality and justice; there is an express or implied safe conduct; the individuals and their property are in the custody of our faith; they have no power to resist our will; they can lawfully make no defence against our violence; they are deemed to owe a temporary allegiance; and for endeavoring resistance would be punished as criminals, a character inconsistent with that of an enemy. To make them a prey is, therefore, to infringe every rule of generosity and equity; it is to add cowardice to treachery. In the latter case there is no confidence whatever reposed in us; no claim upon our hospitality, justice, or good faith; there is the simple character of enemy, with entire liberty to oppose force to force. The right of war consequently to attack and seize,—whether to obtain indemnification for any injury received—to disable our enemy from doing us further harm, to force him to reasonable terms of accommodation, or to repress an overbearing ambition, exists in full vigor, unrestrained and unqualified by any trust or duty on our part. In pursuing it, though we may inflict hardship, we do not commit injustice.
Moreover, the property of the foreigner within our country may be regarded as having paid a valuable consideration for its protection and exemption from forfeiture; that which is brought in, commonly enriches the revenue by a duty of entry. All that is within our territory, whether acquired there or brought there, is liable to contributions to the treasury, in common with other similar property. Does there not result an obligation to protect that which contributes to the expense of its protection? Will justice sanction, upon the breaking out of a war, the confiscation of a property, which, during peace, serves to augment the resources and nourish the prosperity of a state?
The principle of the proposition gives an equal right to subject the person as the property of the foreigner to the rigors of war. But what would be thought of a government which should seize all the subjects of its enemy found within its territory, and commit them to durance, as prisoners of war? Would not all agree that it had violated an asylum which ought to have been sacred? That it had trampled upon the laws of hospitality and civilization? That it had disgraced itself by an act of cruelty and barbarism?1 Why would it not be equally reprehensible to violate the asylum which had been given to the property of those foreigners?
Reason, left to its own lights, would answer all these questions in one way, and severely condemn the molestation, on account of a national contest, as well of the property as person of a foreigner found in our country, under the license and guaranty of the laws of previous amity.
The case of property in the public funds is still stronger than that of private debts. To all the sanctions which apply to the latter, it adds that of an express pledge of the public faith to the foreign holder of stock.
The constituting of a public debt or fund, transferable without limitation or distinction, amounts to a promise to all the world, that whoever, foreigner or citizen, may acquire a title to it, shall enjoy the benefit of what is stipulated. Every transferee becomes, by the act of transfer, the immediate proprietor of the promise. It inures directly to his use, and the foreign promisee no more than the native, can be deprived of that benefit, except in consequence of some act of his own, without the infraction of a positive engagement.
Public debt has been truly defined, “A property subsisting in the faith of government.” Its essence is promise. To confiscate or sequester it is emphatically to rescind the promise given, to revoke the faith plighted. It is impossible to separate the two ideas of a breach of faith, and the confiscation or sequestration of a property subsisting only in the faith of the government by which it is made.
When it is considered that the promise made to the foreigner is not made to him in the capacity of member of another society, but in that of citizen of the world, or of an individual in the state of nature, the infraction of it towards him, on account of the fault, real or pretended, of the society to which he belongs, is the more obviously destitute of color. There is no real affinity between the motive and the consequence. There is a confounding of relations. The obligation of a contract can only be avoided by the breach of a condition express or implied, which appears or can be presumed to have been within the contemplation of both parties, or by the personal fault or crime of him to whom it is to be performed. Can it be supposed that a citizen of one country would lend his money to the government of another, in the expectation that a war between the two countries, which, without or against their will, might break out the next day, could be deemed a sufficient cause of forfeiture?
The principle may be tested in another way. Suppose one government indebted to another in a certain sum of money, and suppose the creditor government to borrow of the citizen of the other an equal sum of money. When he came to demand payment, would justice, would good faith, permit the opposing to his claim, by way of set-off, the debt due from his government? Who would not revolt at such an attempt? Could not the individual creditor answer with conclusive force, that in a matter of contract he was not responsible for the society of which he was a member, and that the debts of the society were not a proper set-off against his private claim?
With what greater reason could his claim be refused on account of an injury, which was a cause of war, received from his sovereign, and which had created on the part of the sovereign a debt of reparation? It were certainly more natural and just to set off a debt due by contract to the citizen of a foreign country against a debt due by contract from the sovereign of that country, than to set it off against a vague claim of indemnification for an injury or an aggression of which we complain, and of which the reality or justice is seldom undisputed on the other side.
The true rule which results from what has been said, and which reason sanctions with regard to the right of capture, is this: “It may be exercised everywhere except within a neutral jurisdiction1or where the property is under the protection of our own laws”; and it may perhaps be added that it always supposes the possibility of rightful combat, of attack, and defence.
These exceptions involve no refinement; they depend on obvious considerations, and are agreeable to common sense and to nature; the spontaneous feelings of equity accord with them. It is, indeed, astonishing that a contrary rule should ever have been countenanced by the opinion of any jurist, or by the practice of any civilized nation.
We shall see in the next number how far either has been the case, and what influence it ought to have upon the question.
All that can rightfully be done is to oblige the foreigners, who are subjects of our enemy, to quit our country.
There are exceptions to this exception; but they depend on special circumstances, which admit the principal exception, and need not be particularized.