Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether the Enemy’s Actions and Credits May Properly Be Confiscated at the Outbreak of War
IF there are conventions between sovereigns permitting the withdrawal of goods within a stated time after the outbreak of hostilities, of which treaties I cited numerous examples in the second chapter, it follows that actions and credits may be withdrawn as well as goods. But if there are no such treaties, and if the goods and the actions are withdrawn, the question arises regarding the law in the case. And surely since the conditions of war are such that the enemies are proscribed and despoiled of every right, it is reasonable that whatever property of one enemy happens to be found in the country of the other changes its owner and is confiscated. Furthermore, it is a custom in almost all declarations of war to proclaim that the goods of the enemy, whether found among us or taken in war, shall be confiscated. Sometimes also there are special decrees concerning this matter either preceding or following the declaration of war. The Prince of Orange on August 25, 1572, inserted in the constitution which he then made for Holland: ‘that the goods of all those who acted publicly as his enemies should be immediately registered by the magistrates of the place where they were found, and their rents and profits should be taken for the benefit of the state.’ This applies to immovables, I think, for it is the custom to register these so that during the war the rents and profits from them may fall to the public treasury. If we followed the law of war to the full extent, we might even sell all immovables, bringing their price into the treasury, as is done with other goods; but throughout most of Europe real estate is only registered so that the profits from it might accrue to the Treasury during war, but after the war the real estate itself is restored to the former owners according to treaties. Again, the States-General on April 2, 1599, with reference to all kinds of enemy’s property wherever found, decreed as follows: ‘We declare as lawful prize all persons and goods found under the jurisdiction of the King of Spain, wheresoever these may be taken.’ There is also extant a letter of the Estates of Holland to the Court of Holland, dated November 25, 1672 ordering the seizure and confiscation of the goods of those who reside among the enemies; in answer to which the court decreed on the same day that from that date such goods could not be restored to their owners.
I am not here discussing whether this decree fully agrees with the conventions signed between the King of France and the States-General in 1662. Since, however, the word goods (bona) applies largely to inheritances, it is clear that an enemy cannot acquire an inheritance situated among us, whether it be due him by will or by succession. Accordingly, when in 1695 a man died intestate in Holland, whose nearest relatives and heirs were in France, the property was confiscated, as I remember.
Since the edicts that I have cited speak in general and all-inclusive terms, it would seem that they must be applied to all kinds of goods whether corporeal or incorporeal. And yet we find that there are doubts regarding incorporeal goods like actions and credits, that in fact the States-General have sometimes expressed doubts, and have even contradicted this principle. When the French King and the bishops of Cologne and of Münster in 1673 had confiscated even actions, and had ordered the exaction of what their subjects owed to the citizens of the United Provinces, the States-General by the edict of July 6, 1673, disapproved, decreeing that payment could be made only to the real creditor, and that they would consider null and void such exactions whether made forcibly or by consent. But in fact it appears that by common law actions may be also confiscated, and that indeed by the same reason as any corporeal goods. Actions and credits are surely no less in our dominion according to the law of nations than are other goods; why then should we not apply the law of war to the former as well as to the latter? And if no argument appears to show any real distinction between the two, reason alone supports the common law; nor are there wanting examples and authorities to support it. It is apparent from Polybius that Antiochus and the Romans agreed to restore actions as well as every other thing confiscated in time of war, and this gives proof that even actions had been confiscated on both sides. That the Kings of France and Spain also exercised this right against each other is indicated by Article 22 of the treaty they signed on September 17, 1678, for there it is agreed that confiscated credits should not be restored. The King of Denmark also, upon declaring war against the Swedes on March 9, 1676, issued a public edict demanding that the goods of Swedes on Danish territory and also the debts due to individual Swedes should be handed over to the Treasury within six weeks under penalty of double the value and further discretionary punishment against those who did not obey. The Danish King issued a similar edict against the English in 1667 as Aitzema relates.
That even the Dutch have not always been so averse to that doctrine is apparent from the edict of July 18,, from the edict of Philip II against the French dated March 27, 1556, and from the edict of the Estates of Holland dated January 29, 1591. There is also extant the edict which the Prince of Orange and the Court of Holland issued on December 7, 1577 over the assumed name of Philip II, King of Spain, in which they confiscated not only the goods of those who deserted to John of Austria, but indeed all the goods movable and immovable, and even actions and credits, of all their enemies. The States-General also, on June 4, 1584 declared the men of Bruges and of Vrye their enemies because they had gone over to the Spaniards, and ordered their goods, actions, and credits as well private as public confiscated. Likewise when those of Venio had gone over to the Spaniards, the Earl of Leicester declaring by the edict of July 9, 1586, that they were guilty of treason, ordered their goods, movable and immovable, their actions and credits confiscated. And lest some one assume that these decrees attacked the people of Bruges, Vrye, and Venio on the ground of treason rather than of general enmity, since they had taken the oath of fidelity to the confederation of Utrecht, I should like to observe that the penalties of the edict of June 4, 1584, are applied to all ‘who consider themselves to be our adversaries in whatever manner it may be’, precisely just as in the aforecited edict of December 7, 1577, traitors and enemies are classed together in the matter of confiscations.
As bearing on this subject we should note the decree of the States-General dated October 2, 1590, and that of the Estates of Holland dated October 29, of the same year, both of which contain the following clause: ‘that those who come into these provinces from the enemy’s country, even though provided with proper passports, shall not be qualified to bring any personal or real action either as plaintiff or as defendant, but shall be dismissed from court in order that hostility against the enemies, and the confiscation of their goods, rights, and actions, may remain to the fullest extent.’ In accordance with these decrees not even personal actions can be brought, and the explanatory clause provides the reason for this, namely that actions as well as the goods of the enemy are confiscated by the law of war. Furthermore, when the King of France ordered the goods of Dutch subjects seized, the Estates of Holland on April 26, 1657, passed a similar decree regarding the goods of Frenchmen, prohibiting the making of any payment to them, and ordaining that if any one made such a payment, he must pay an equal amount into the Treasury, whence the loss could be made good to those who had suffered confiscation in France, and in addition half the amount of the debt by way of punishment. They also ordered the goods and credits of the French to be brought, under penalty, to officers appointed in each town for the purpose. It is apparent, therefore, that the Estates of Holland then thought it proper to confiscate credits, and in this I agree with them. Hence our courts have rightly held that if a subject pays to his government, which has confiscated enemy credits, the debts he owed the enemy, he is properly discharged.
However, these rules are suspended when wars are waged with such moderation that commerce is permitted from both sides: for there can be no commerce without contracts, nor contracts without actions, nor actions without courts, nor courts without persons who have proper standing before the courts. Would any one bring goods for sale to the enemy without hope of exacting the price? And is there any hope of exacting the price unless one can employ the courts against the enemy purchaser? Accordingly, even though an enemy may not have standing in court, as the aforesaid decrees of 1590 simply assume and as courts and jurists have held, yet exceptions are rightly made if the privileges of commerce are enjoyed on both sides; but if not, actions, though arising out of commerce, may justly be confiscated. But are we to make a distinction between cases arising out of commerce and other cases, so that we grant the enemy standing in court in the former while we refuse it in the latter? The aforesaid decree makes this distinction, and if this is correct the distinction must of course apply to the confiscations of actions as well. But if we once permit the enemy to bring actions, it is difficult to distinguish from what causes they arise, nor have I been able to observe that this distinction has ever been carried into practice.
Moreover, if we forbid the enemy recourse to our courts, we cannot properly bring legal action against an enemy who happens to remain within our territory. Accordingly, the decision of our supreme senate confirming the decisions of the lower court and of the Court of Holland was unjust in holding that an enemy who had come to this country with a passport could be arrested and brought to trial. For it is manifestly wrong to forbid an enemy recourse to our courts,. as is done by the above-mentioned decrees of October 2 and 29, 1590,. without granting him the attendant privileges. By the law of war one must grant to the enemy what one arrogates to oneself.
What I said about the legality of confiscating actions holds true only if the sovereign has exacted for the Treasury the money that his subjects owed the enemy. If he has exacted it, the debt is paid in full; but if he has not, the right of the former creditor revives when peace is made, since the occupation caused by war consists more in fact than in law. Consequently, credits that were not exacted seem, as it were, to lie dormant during the war, and to return at peace to their former owner by a land of postliminy. On this principle it has generally been agreed among nations that credits confiscated in war are lost and forever extinct if they have been called in by the sovereign, but if not, they revive and return to the real creditors. Such agreements are found in Article 5 of the treaty between Frederick III of Denmark and Charles II of England, July 31, 1667, Article 37 of the treaty of September 21, 1667, between the Kings of Spain and England, and Article 22 of the treaty of September 17, 1678, between the kings of France and Spain. This last treaty I cited above to prove (as indeed the other two treaties also prove) that actions as well as goods have been confiscated in time of war, and have also not infrequently been exacted.
But it must not be supposed that actions are the only things that are not ipso jure confiscated, for this is also true of goods that are in an enemy’s country and are perchance concealed. Hence the courts have rightly held that goods which we had in the enemy’s country before the war and which were hidden during the war, hence escaping confiscation, became, if finally recaptured, not the property of the recaptors but of the former owners.