Are We Entitled to Confiscate Enemy Private Property?

Abstract

If, as is commonly assumed, one of the principal functions of law is to insure the security of acquisitions,' one cannot fail to remark how seriously recent events have weakened that function. The provision of article 297 of the Treaty of Versailles, by which private property of ex-enemy nationals has been taken over by several of the Allied governments, sanctioned a policy of confiscation, a practice which, for the most practical of reasons-its short-sightedness-had been abandoned since 1793, and which few students of international law believed would ever be revived. But the readiness with which reversions to primitive customs acquire acceptance may well justify the conclusion that probably few of the hard-won victories of civilization establishing the supremacy of law over violence bear any assurance of permanence. Attention has previously been called to the law and policy of confiscation in its general development; the present comment, confined more particularly to American law and practice, is induced by a dictum of Judge Rogers of the Circuit Court of Appeals in Miller v. Kaliwerke Asciersleben Aktiengesel Ischaft (C. C. A. 2nd Cir. 1922) 283 Fed. 746, 757, to the effect that "as respects the enemy bona fide holder . . . the government is plainly entitled to confiscate his interest" in an American corporation.