The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-04-23

right extending over the fubieets of par,icu.
lsr power only with which we may chance &c
be at war, but over the fubieGts OF all foreig,
nations at all times whatfoever.
This is the right which by the common law
yers is technically denominated a f" forfeiture
F" Forfeitures If lands and goods for offences
Ga right founded on the offence of the alien II
preiummg to purchafe lands contrary 10 law
favs Backbone 81. 372. Bl. g. 274. :" are cal,ec
by the ciziii0nJ boaa conffcata, becaufe the,
belonged to the Fifcus or imperial treafury, OF
as our common lawyers term them, +" bona TO
rls acta." Indeed Lord Coke feems in one place
TO conGder cOnhication and forfeiture as fyno
nymous terms, ins. 227 and Backbone al
foin few Pallages appears to have ufed the
term conEIcation to fignify forfeiture into the
treaiury but preierving the ditinction which
this learned commentator has taken between
the two terms, as above tated, the one being 2
eiVH lay, and the other a common hazv term, &
discovering alto that he has expressly treated o,
the right now in queftion in chapter under the
head OF y" title by Forfeiture" 9. Bl. 267, is il
not fair TO conclude that the technical and ap-
propriate term defcriptve of this right is fortci-
tire and not conf/cafion? At leaft is not fbi,
the mott familiar and proper term to deiignate
the right in queaion And cannot we ALTO for.
tify this definition by a mott Respectable autho-
rity; by the contribution of this fate, which in
transferring this among other powers from the
King to the Commonwealth employs the terms
+" Eje6eaft, penalties and JforfcitureJ" art 90,
without making any mention of coafjeationy
The term forfeitures" was uied, becaufe the
article related to forfeitures by the ronimon lazv
only: but it omitted the term couffcat;su.
which is appropriated to the Geicrption of ei-
qvliasv, and i9ye bell forfeitures, becaufe for
FIXTURES of that clafs were not then within the
contemplation Of the convention.
Behdes this ordinary right of forfeiture, there
is an extraordinary one accruing to bellige ent
nations, by right of war, of eogfje0ting the pro-
perty or their enemies. This right does not a.
wait and attend on the contingent event of a
pmebGje by Or 4 ds/eeHf to an alien ; it affects
property then actually boldeuby the enemy ;nor
is it carried into efett by the ordinary ccurie of
the municipal laws: the property is Eije4 and
conhicatsd by an extraordinary act of the 60
vernment or the belligerent nation. 1t is feifed
not becauie 1t belongs to an alien, but to an C.
merry. To ibis right il is that the term co,sgfa-
tor is technically and properly applied.
herc then are two ienies, in which the term
eongjeafion may b. employed: The one ref
tricted to mere feizure By belligerent nation
in right Of war; the other an e..tcnfye fenie CO.
ve'ins not OILY the right which has iuH been
mentioned, but ALTO comprshending a mode of
acquiring property by the commonwealth under
permanent municipal regulation. In which
thoie acceptatioHs iS the term to BE- employed in
the 9th article OF the treaty Of peace ? becomes
therefore moe important quettion.
This article, it is to be recolleeted, is contain.
ed in treaty os peace; which, according to
Vattel b. !, page 81. {" naturally & of itielf re-
iates only to tie svar which il puts An end 10,
and therefore it is only in fuch relation that il
is to be underfsood." Such treaty therefore
does not naturally relate to a mere municipal
regulation. IN fac, a treaty of fiIch extenfive
| application could not at that time have been
formed by the American commfioners: be.
canie uhe government under which thew acted
had been very much circumfcrbed in its pow
ers by the article; OF confederation. 1t NAV be
Teen by referring to the documents attached To
Mir. Jeherfon's letter to Mr.. Hammond, No. :.
S, 3, 10, and IL, that the American commifli-
oaers hsd dhc.ai'ned all power in congrefs to
interfere in matters appertaining to the inter-
nal Poiity OF the ieverai ftates and even de-
ci2red that the power of congrefs did not au-
thorlie taem TO itipulate for reforation of the
conficated eitates of real Brit.h fubects, much
ie.sthoie OF refugees, becaufe had taken
place under the authority of the feveral ftaies.
The mott that they could or did perform was
modeitly to recommend fiich refitution to the
ieveral tates; and the Britfh commillioners ac
quetced in this reRriaed arrangement. Con-
sreis claimed and exercifed the power of inter-
dieting all future confications, j. e. jnre 6eli
confitcations, but they difclsimed any power of
reftorlng even the property which confifcations
OF this kind itfelf had thrown into the fate
| treafuries. Congrefs had the power of peace &,
war: they had right to make any treafy,
which ihould convert enemies into friends, and
| remove all the disabilities that were attached to
the former character: but congrefs had no
power to invade the ordinary rights Oft ftates,
< make citizens of Virginia out of thofe whom
the " internal polity" of her laws had thrown
into the clafS of aliens.
The term eOnGfaatiOn then when occurring in
treaty OF peace naturally means a confifcation
ime 6elH, and does not extend to the common
law right of Efcheat and forfeitures. Two cir
cumitances confpire to fortify this contribution.
| lit the eonfjeatio0J here prohibited are connect
ed IN the fame article and in the fame fentence
OF that article with tef4vioat on account of
the part taken in the sr lilly the hitory of
the revolution clearly proves that many (ixeb con-
tyedtion5 wera hdade on the part Of the fate 60
vernments. $See the references of Mr.. Ham
mond's letter to Mr.. ]. of 5th March 1892. To
q0baf elqjJ Of perioaJ, thsfe confifcations and
PROHIBITIONS related, it will BE- of conliderable
importance to determine.
| The 9th. article Of the treaty of peace, which
contains theie terms, upon the whole context
oft taken together, can only relate to thofe,
who being once American citizens, afterwards
became refugees and joined the enemy. It can
1t. q